p. 1095 C
SECOND PERIOD: FROM QUEBEC ACT, 1774, TO NEWFOUNDLAND JUDICATURE ACT, 1809.
MEMORANDUM ON GOVERNMENT OF QUEBEC.¹
A MEMORANDUM of things necessary for establishing Laws & Government in the Province of Quebec, either by Act of Parliament, Order of the King in Council or by the proposed Council at Quebec.²
First, To get rid of the Proclamation of 1763 with the Commissions & Ordinances depending thereon and to restore the old Law and Constitution.
¹ The following memoranda, suggestions, and draughts of bills relating to the Quebec Act, have been found among the papers of Lord Dartmouth, under whom, as Colonial Secretary, the Quebec Bill took shape, and by whom it was finally introduced in the House of Lords on May 2nd, 1774. Most of these are without date, address, or signature, to indicate when, for whom, or by whom they were prepared, nor are they arranged in chronological order. However, by internal evidence, by comparisons between them, and with other documents, and with the aid of a few notes which passed between the parties chiefly concerned in framing the measure, it has been possible to identify most of them and trace the normal order of their development. [Const. Does. (1759-1791), 2nd edition, p. 533.]
² Canadian Archives, M 385, p. 326. This memorandum would appear to have been the outcome of one or more of the conferences of an inner circle of the Ministry, with special advisers such as Carleton, in dealing with American policy. The features suggested are not in accordance with any one of the Reports on the subject which had been made to the Government. Notwithstanding the numerous declarations, during the previous seven years, that the system of law and government in Quebec was on the point of being settled, the members of the Government chiefly responsible for the policy of the Quebec Act had not apparently given the matter very full consideration before the latter part of 1773, as may be gathered from the following statements. On Aug. 4th 1773 the Lord Chancellor sent the following note to Dartmouth, "The Chancellor's Complimets to Ld Dartmouth, takes the liberty to send him some Papers relative to Canada, which together with the Reports of the Kings Advocate, the Attorney Genl & the Sollicitor Genl will, he believes, enable his Lordship to form a plan of Government for that Province, fit to be laid before Parliament; & the Chancellor is happy in having received assurance from his Lordship that He means to undertake it." M 384, p.178. On Aug. 26th, Maseres writing to Dartmouth, says: "Mr. Maseres begs leave to acquaint his Lordship that on Tuesday se'ennight (which he apprehends to be since his Lordship left town,) he had the honour of waiting on Lord North by appointment at Bushey Park, to confer with him on the affairs of Quebec; and that Lord North seemed fully determined to do something towards the settlement of that Province
2dly To accommodate the Duties & Taxes paid at the time of the Conquest to the change of Dominion.
3dly To constitute a Governor and Council at Quebec with Power to make Laws and Ordinances under such restrictions as shall be thought necessary.
4thly To erect proper Courts of Judicature. The nearer such Courts are to the Old ones in Form, the more agreeable they will be to the Inhabitants and more likely to have their Effect.
5. To make an Alteration in the mode of trying Capital Offences by allowing the Party the Benefit of being tried by Juries according to the Law of England so as no' Judgement shall, after the Verdict given, be arrested upon any Objection of Informality.
6thly To abolish the use of the Torture & the Punishment of breaking upon the Wheel.
7thly To allow the Inhabitants the Privilege of the Common Law Writ of Habeas Corpus.
8thly To provide, that all Incumbents be nominated by the Governor in Writing under his Hand and Seal, unless the Right of Patronage be in any private Person And that all Incumbents be irremoveable except for Misdemeanor to be tried by the Governor and Council.
9th To give all Ecclesiastical Jurisdiction in regard to Marriages, the Probate of Wills, granting Letters of Administration and other Civil Rights, except only in the Case of Tythes to the Courts of Law, and all Questions concerning Tythes to be determined by the Governor & Council.
10th Every Protestant Parishioner to pay his Tythes to the King's Officer towards providing a Maintenance for the Protestant Clergy.
in the next session of parliament, and particularly with respect to the establishment of a revenue and a legislature. His Lordship was clearly of opinion that this ought to be by a legislative council, and not an assembly; and he liked very well the proposal (contained in Mr. Maseres's draught of an act of parliament for establishing such a council,) that they should not be invested with the power of taxation, but only that of legislation, and that the necessary taxes should be laid by the Parliament of Great Britain.
"Lord Mansfield has also very lately declared an intention of reading over all the papers relating to the province of Quebec, and using his endeavours towards procuring a Settlement of it. And, about two months ago, Lord Chancellor made a similar declaration. And the leisure of this season of retirement seems to be favourable to this good design of their Lordships to give this subject a thorough consideration. If therefore, Lord Dartmouth should bring on the determination of this business in the privy council in the course of this vacation, it seems likely that he would meet with a great concurrence and support from his Majesty's other servants and counsellors, and that the whole settlement of that province might be prepared and digested in the manner necessary for the consideration of parliament by the beginning of next Session." M 384, p. 194. [Const. Docs. (1759-1791), 2nd edition, p. 533.]