after their passing, or sooner, if opportunity offers, to Us by One of our Principal Secretaries of State, and Duplicates thereof to Our Commissioners for Trade and Plantations, for their Information; that they be abstracted in the Margents, and accompanied with very full and particular Observations upon each of them, that is to say, whether the same is introductive to a new Law, or does repeal a Law then before in being; and you are also to transmit in the fullest manner the Reasons and Occasions for enacting such Ordinances, together with fair Copies of the Journals of the proceedings of the Council, which. you are to require from the Clerk of the said Council.
11. In the Consideration of what may be necessary to be provided for by Law within Our said Province, as created and established by the aforesaid Act, intituled, "an Act for making more effectual Provision for the Government of the Province of Quebec in North America," a Great Variety of important Objects hold themselves forth to the Attention of the Legislative Council.
12. The Establishment of Courts, and a proper Mode of administering Civil and Criminal Justice throughout the whole Extent of Our Province, according to the Principles declared in the said Act "for making more effectual Provision for the Government thereof," demand the greatest Care and Circumspection; for, as on the one hand it is Our Gracious purpose conformable to the Spirit and Intention of the said Act of Parliament, that Our Canadian Subjects should have the benefit and use of their own Laws, Usages, and Customs in all Controversies, respecting Titles of Land, and the Tenure, descent, Alienation, Incumbrances, and Settlement of Real Estates, and the distribution of the personal property of Persons dying intestate; so on the other hand, it will be the duty of the Legislative Council to consider well in framing such Ordinances, as may be necessary for the Establishment of Courts of Justice, and for the better Administration of Justice, whether the Laws of England may not be, if not altogether, at least in part the Rule for the decision in all Cases of personal Actions grounded upon Debts, Promises, Contracts, and Agreements, whether of a Mercantile or other Nature; and also of Wrongs proper to be compensated in damages; and more especially where Our natural-born Subjects of Great Britain, Ireland, or Our other Plantations residing at Quebec, or who may resort thither, or have Credits, or Property within the same, may happen to be either Plaintiff or defendant in any civil Suit of such a nature.¹
[¹ This and the following article with reference to the writ of Habeas Corpus, form the first step in that piecemeal process of impairing the complete restoration of the French Canadian civil law granted by the Quebec Act, particularly the 8th clause of it. As may be seen from several subsequent documents, this was the basis of continued conflict in the Council and in the Courts until 1791, when the controversy took another turn. In a document in the Dartmouth papers, endorsed "Extract from the Instructions to the Governor of Quebec, so far as relates to the Establishment of Courts of Law," this clause appears in the following form:—"The Legislative Council are to frame the Ordinances for the Establishment of Courts of Justice, and for the administration of Justice, so as that the Laws of England, if not altogether, may be as nearly as possible the Rule of Decision in all personal Actions, grounded upon Debts, Contracts, &c., and especially where the natural-born subjects are concerned." M 385, p. 485.]
13. Security to personal Liberty is a fundamental Principle of Justice in all free Governments, and the making due provision for that purpose is an object the Legislature of Quebec ought never to lose Sight of; nor can they follow a better Example than that, which the Common Law of this Kingdom hath set in the Provision made for a Writ of Habeas Corpus,¹ which is the Right of every British subject in this Kingdom.
14. With Regard to the Nature and number of the Courts of Justice, which it may be proper to establish, either for the whole Province at large, or separately for its dependencies, and the times and places for holding the said Courts, no certain Rule can be laid down in a Case, in which the Judgment must in many Respects at least be altogether guided by Circumstances of local Convenience and Consideration.
15. In General it may be proper, that there should be a Superior or Supreme Court of criminal Justice and Jurisdiction for the Cognizance of all Pleas of the Crown, and for the Trial of all manner of Offences whatsoever, to be held before the Chief Justice for the time being at such times and places, as shall be most convenient for the due and speedy Administration of Justice, and the preventing long imprisonments; the said Court to be called and known by the name of the Court of King's Bench; That for the more orderly establishment and Regulation of Courts of Civil Jurisdiction, the Province of Quebec, as limited and bounded by the aforesaid Act of Parliament "for making more effectual Provision for the Government of the Province of Quebec in North America," be divided into two Districts by the names of Quebec and Montreal, each district to be limited and bounded in such manner, as shall be thought best adapted to the Object of the Jurisdiction to be established therein; That there be established in each of the said Districts a Court of Common pleas to be held at such times and places, as shall be judged most convenient, and to have full power, Jurisdiction and Authority to hear and determine all Civil Suits and Actions cognizable by the Court of Common Pleas in Westminster Hall, according to the Rules prescribed by the said Act of Parliament "for making more effectual Provision for the Government of the Province of Quebec in North America," and according to such Laws and Ordinances, as shall from time to time be enacted by the Legislature of the said Province in manner therein directed; That there be three Judges in each of the said Courts of Common Pleas, that is to say, two of Our natural-born Subjects of Great Britain, Ireland, or Our other Plantations, and one Canadian; and also one Sheriff appointed for each district; That besides the foregoing Courts of Criminal and Civil Jurisdiction for the Province at large, there be also an Inferior Court of Criminal and Civil Jurisdiction in each of the Districts of the Illinois, St Vincenne, Detroit, Missilimakinac, and Gaspée, by the Names
[¹ Yet when this was most vigorously contended for at the passing of the Quebec Act it was absolutely denied by the Government. In the document referred to in the previous note, this article reads as follows,—"Security to personal Liberty to be provided for: And the Writ of Habeas Corpus, as a part of the criminal Law, to be adopted in its full Extent." M 385, p. 485.]
of the Court of King's Bench for such district. to be held at such times, as shall be thought most convenient, with Authority to hear and determine in all Matters of Criminal Nature according to the Laws of England, and the Laws of the Province hereafter to be made and passed; and in all Civil matters according to the Rules prescribed by the aforesaid Act of Parliament "for making more effectual Provision for the Government of Quebec in North America;" That each of the said Courts shall consist of one judge, being a natural-born Subject of Great Britain, Ireland, or Our other Plantations, and of one other Person, being a Canadian, by the name of Assistant or Assessor, to give advice to the Judge in any Matter, when it may be necessary; but to have no Authority or Power to attest or issue any Process, or to give any Vote in any order, Judgement, or decree; That the said Judges, so to be appointed, as aforesaid, for each District, shall have the same power and Authority in Criminal Cases, as is vested in the Chief Justice of Our said Province; and also the same Power and Authority in Civil Cases, as any other Judge of Common Pleas within Our said Province, excepting only that, in Cases of Treason, Murder, or other Capital Felonies, the said Judges shall have no other Authority, than that of Arrest and Commitment to the Goals of Quebec, or of Montreal, where alone Offenders in such Cases shall be tried before Our Chief Justice; That a Sheriff be appointed in each of the said Districts for the Execution of Civil and Criminal Process; That the Governor and Council (of which, in the absence of the Governor and Lieutenant Governor, the Chief Justice is to be President,) shall be a Court of civil Jurisdiction for the hearing and determining all Appeals from the Judgement of the other Courts, where the matter in dispute is above the value of Ten Pounds; That any Five of the said Council, with the Governor, Lieutt Governor, or Chief Justice, shall constitute a Court for that purpose; and that their Judgement shall be final in all Cases not exceeding the value of £500 sterling, in which Cases an Appeal from their Judgement is to be admitted to Us in Our Privy Council. It is however Our Will and Pleasure, that no Appeal be allowed, unless security be first duly given by the Appellant, that he will effectually prosecute the same, and answer the Condemnation, as also pay such Costs and Damages, as shall be awarded by Us, in case the Sentence be affirmed; Provided nevertheless, where the matter in question relates to the taking or demanding any Duty payable to Us, or to any Fee of Office, or annual Rents, or other such like matter or thing, where the Rights in future may be bound, in all such Cases appeal to Us, in Our Privy Council is to be admitted, tho' the immediate sum or value appealed for be of less value.—And it is Our further Will and Pleasure, that in all Cases, where Appeals are admitted unto Us in Our Privy Council, execution be suspended until the final determination of such Appeal, unless good and sufficient security be given by the Appellee to make ample restitution of all, that the Appellant shall have lost by means of such decree or judgement, in case, upon the determination of such Appeal, such decree or judgement should be reversed, and restitution awarded to the Appellant. Appeals unto Us in Our Privy Council are also to be
admitted in all cases of Fines imposed for misdemeanors; Provided the fines, so imposed, amounted to, or exceed the sum of £100 sterling, the Appellant first giving good Security, that he will effectually prosecute the same and answer the Condemnation, if the sentence, by which such Fine was imposed in Quebec, be affirmed.
16. It is Our Will and Pleasure, that all Commissions to be granted by you to any person or persons to be Judges or justices of the peace, or other necessary Officers, be granted during pleasure only.
17. You shall not displace any of the Judges, Justices of the peace or other Officers or Ministers without good and sufficient cause, which you shall signify in the fullest and most distinct manner to Us by one of Our principal Secretaries of State, and to Our Commissioners for Trade and Plantations, for their information.
18. And whereas frequent complaints have heretofore been made of great delays and undue proceedings in the Courts of Justice in several of Our Plantations, whereby many of Our good Subjects have very much suffered; and it being of the greatest importance to Our Service, and to the welfare of Our Plantations, that Justice be every where speedily and duly administered; and that all disorders, delays, and other undue Practises in the administration thereof be effectually prevented; We do particularly require you to take especial Care, that in all Courts, where you are or shall be authorized to preside, justice be impartially administered; and that in all other Courts established, or to be established within Our said Province, all Judges, and other Persons therein concerned do likewise perform their several Duties without any delay or partiality.
19. You are to take care, that all Writs be issued in Our Name throughout the Province under your Government.
20. The establishment of proper regulations in matters of ecclesiastical concern is an Object of very great importance, and it will be your indispensable duty to lose no time in making such arrangements in regard thereto, as may give full satisfaction to Our new Subjects in every point, in which they have a right to any indulgence on that head; alway remembering, that it is a toleration of the free exercise of the religion of the Church of Rome only, to which they are entitled, but not to the powers and privileges of it, as an established Church, for that is a preference, which belongs only to the Protestant Church of England.
21. Upon these principles therefore, and to the end, that Our just Supremacy in all matters ecclesiastical, as well as civil, may have its due scope and influence, it is Our Will and Pleasure,——
First, that all Appeals to, or correspondence with any foreign ecclesiastical jurisdiction, of what nature or kind so ever, be absolutely forbidden under very severe Penalties.
Secondly, That no Episcopal or Vicarial Powers be exercised within Our said Province by any Person professing the Religion of the Church of Rome, but such only, as are essentially and indispensably necessary to the free exercise of the Romish Religion; and in those cases not without a Licence and Permission from you under the Seal of Our said Province, for, and during Our Will and Pleasure, and under such other limitations & restrictions, as may correspond with the spirit and provision of the Act of Parliament, "for making more effectual provision for the Government of the Province of Quebec;" And no person whatever is to have holy Orders conferred upon him, or to have the Cure of Souls without a License for that purpose first had or obtained from you.
Thirdly, That no person professing the Religion of the Church of Rome be allowed to fill any ecclesiastical Benefice, or to have and enjoy any of the Rights or Profits belonging thereto, that is not a Canadian by birth, (such only excepted, as are now in possession of any such Benefice,) and that is not appointed thereto by Us, or by, or under Our Authority, and that all Right, or claim of right in any other Person whatever to nominate, present, or appoint to any vacant Benefice, other than such as may lay claim to the patronage of Benefices, as a Civil Right, be absolutely abolished. No Person to hold more than one Benefice, or at least not more than can reasonably be served by one and the same Incumbent.
Fourthly, That no person whatever, professing the Religion of the Church of Rome, be appointed Incumbent of any Parish, in which the Majority of the Inhabitants shall solicit the appointment of a Protestant Minister; in such case the Incumbent shall be a Protestant, and entitled to all Tythes payable within such Parish; But nevertheless the Roman Catholicks may have the use of the Church for the free exercise of their Religion at such time, as may not interfere with the Religious Worship of the Protestants: And in like manner the Protestant Inhabitants in every Parish, where the Majority of Parishioners are Roman Catholicks, shall notwithstanding have the use of the Church for the exercise of their Religion at such times, as may not interfere with the Religious Worship of the Roman Catholicks.
Fifthly, That no Incumbent professing the Religion of the Church of Rome, appointed to any Parish, shall be entitled to receive any Tythes for Lands, or Possessions occupied by a Protestant; but such Tythes shall be received by such Persons, as you shall appoint, and shall be reserved in the hands of Our Receiver General, as aforesaid, for the support of a Protestant Clergy in Our said Province to be actually resident within the same, and not otherwise, according to such directions as you shall receive from Us in that behalf. And in like manner all growing Rents and Profits of a vacant Benefice shall, during such vacancy, be reserved for, and applied to the like uses.
Sixthly, That all Persons professing the Religion of the Church of Rome, which are already possessed of, or may hereafter be appointed to any