p. 1099 C
SECOND DRAUGHT OF THE QUEBEC BILL.¹
An Act to remove the Doubts which have arisen relative to the Laws and Government of the Province of Quebec since His Majesty's Royal Proclamation of the Seventh day of October 1763.
Whereas by the Conquest of Canada and the Cession thereof by the Definitive Treaty of Peace concluded at Paris on the Tenth day of February 1763, His Majesty became Intitled to the Sovereignty thereof, as a Dominion belonging to the Crown of Great Britain, and might alter the Laws and Constitution of the said Province in such manner as He should think most agreeable to natural Justice and sound Policy. And Whereas many other Countries and Territories, the greatest part whereof lay waste and uncultivated, were likewise ceded by the said Treaty to His Majesty:—And Whereas His said
¹ Canadian Archives, Dartmouth Papers, M 385, p. 300. This is the first draught of the Quebec Bill in which the wording of the Quebec Act as it finally passed begins to appear. That it was drawn by Wedderburn under instructions from Dartmouth, will appear from the following letter from Wedderburn to Dartmouth, dated March 2nd, 1774. "My Dear Lord, I have attempted to express the alterations you were pleased to tell me were desired. to be made in the Bill for Quebeck, But I am very doubtful whether I have succeeded in the Attempt. For I must confess my objections to the alterations and to some parts of the Bill, are much strengthened by the Consideration I have lately given to the subject.
"It seems very strange to have a Criminal Code in which for Treason the Law of England is followed; for other capital offences the Law of France (which avoids all definition) is to define the Crime, and the Law of England to prescribe the punishment and the mode of Trial; In offences not capital, the Crime, its Trial and punishment are all referred to the Law of France which lets in all their arbitrary punishments of cutting out Tongues, slitting noses &ce. I have had much conversation with Mr. Hey who says that the Idea of reviving any part of the French Criminal Law besides the difficulty of uniting It to the Law of England would be as little agreeable to the Canadians as it would to the English Inhabitants. That the former are in general very sensible of the advantages they derive from our Criminal Justice and make very good jurymen. He thinks there would be no objection to adopting the whole criminal Law of England because none has hitherto been discovered, but It would be still better to subject It to the revision of the Council to be established who might by degrees reject all the parts that are unfit for the constitution of Canada. I have with His assistance prepared a clause upon this Idea which is submitted to your Lordship." M 384, p. 251. (The remaining paragraphs of the letter are given as notes on the clauses of the draught to which they refer.)
If we compare this draught of the Quebec Bill with the various Reports of the Board of Trade, the Atty. Gen. of Quebec and the Sol., Atty., and the Advt. Gen. of England, we find that, as declared by Knox, the Under Secretary of State for the Colonies, and a stout advocate of the Ministerial policy towards America, "thus it fell out, that after all the pains which had been taken to procure the best and ablest advice, the Ministers were in a great measure left to act upon their own judgment." See Knox's "The Justice and Policy of the late Act" &c., 1774, p. 9. This will partly account for the great changes in the measure between this draught and the form in which it was passed. [Const. Docs., p. 536.]
Majesty by His Royal Proclamation, bearing date the seventh day of October, in the third year of His Reign, Reciting that great part of the said acquisitions had been cast into four distinct and separate Governments, called Quebec, West Florida, East Florida, and Grenada. And that other parts had been annexed to the Governments of Newfoundland, Nova Scotia and Georgia, And further Reciting that it would greatly contribute to the speedy settling of the said new Governments that His Majesty's loving Subjects should be Informed of His Paternal Care for the Security of the Liberty and Property of those, who were and should become Inhabitants thereof, His Majesty thought fit to Publish and Declare, that He had in the Letters Patent under His Majesty's Great Seal of Great Britain, by which the said Governments were constituted, given express Power and direction to his said Governors of the said Colonies respectively that so soon as the state and circumstance of the said Colonies would admit thereof, They should, with the advice and consent of the Members of His Majesty's Council, Summon and call General Assemblies within the said Governments respectively in such manner and form as was used and directed in those Colonies and Provinces in America, which were under His Majesty's immediate Government; with Power to make constitute and ordain Laws, Statutes and Ordinances for the Public peace, Welfare and good Government of His Majesty's said Colonies and of the People and Inhabitants thereof; as near as might be, agreable to the Laws of England and under such regulations and restrictions, as were used in other Colonies, and that in the mean time and until such Assemblies could be called as aforesaid, all Persons Inhabiting in or resorting to His Majesty's said Colonies, might confide in his Royal Protection for enjoying the benefit of the Laws of His Majesty's Realm of England. And that for such Purpose, His Majesty had given power under His Great Seal, to the Governors of his said Colonies respectively, to Create and Constitute (with the advice of His Majesty's said Councils respectively) Courts of Judicature and Publick Justice, within His Majesty's said Colonies, for the Hearing and determining all Causes, as well Criminal as Civil, according to Law and Equity; and, as near as might be agreable to the Laws of England; with Liberty to all Persons, who might think themselves aggrieved by the Sentence of such Courts, in all Civil Cases, to appeal under the usual Limitations and restrictions to His Majesty in His Privy Council.
And Whereas such commissions were accordingly passed under the Great Seal of Great Britain to the respective Governors of the said Provinces and amongst the rest to the Governor of Quebec, requiring among other things,
that each member of the Assemblies so to be called, should take the Oaths commonly called the Oaths of Allegiance Supremacy and Abjuration; and to make and subscribe the Declaration against Transubstantiation, mention'd in an Act of Parliament made in the Twenty fifth Year of the Reign of King Charles the Second Intitled "An Act, for preventing Dangers which may happen by Popish Recusants."
And whereas by an Ordinance made and Published by the Governor and Council of Quebec, bearing date the seventeenth day of September in the
Year of Our Lord One thousand seven Hundred and sixty four, several Courts of Criminal and Civil Jurisdiction were created, with Power to proceed according to the Laws of England, and agreably to Equity, having regard nevertheless to the Laws of England as far as the Circumstances and then present situation of things would admit.
And whereas several Commissions were, in pursuance thereof given and granted under the Great Seal of the said Province of Quebec to Chief Justices and other Judges and Justices, to hold the said Courts and exercise authority by virtue of the same.
And whereas great Doubts have arisen whether the whole Law of Canada was subverted and the Law of England introduced by the said Proclamation to take place as the Constitution of that Country till an Assembly should be called And also whether the Legislative Ordinances issued by the Governor and Council under the Kings Authority since the Proclamation were valid or void and by reason of such Doubts great confusion and uncertainty path arisen and distracted the Minds of the People of the said Province.
And Whereas the Plan of Civil Government proposed by such Construction of the Proclamation and which bath been attempted to be carried into Execution in manner above mentioned is inapplicable to the Condition and Circumstances of the Province of Quebec which did contain at the Conquest thereof above One Hundred Thousand Inhabitants professing the Roman Catholick Religion and enjoying an established form of Constitution and a System of Civil and Criminal Law by which their Persons and Property had been for ages protected governed and ordered.
May it therefore please your most excellent Majesty, That it may be Enacted; And it is hereby Enacted by His Most Excellent Majesty, by and with the advice and Consent of the Lords Spiritual and Temporal and Commons in Parliament assembled, and by the Authority of the Same, x. a ¹ That the said Proclamation so far as the same relates to the Civil Government & Administration of Justice of and in the said Province of Quebec and the Commissions have been granted to the Governors of the said Province of Quebec for the time being, and the said Ordinance ³ ² made by the said
¹ These marks have no reference connected with them either in the margin or at the foot of the draught; but they evidently refer to an additional clause or clauses to be introduced by which the limits of the Province would be greatly extended. The proposal for an extension of the limits, which was largely adopted in the third draught of the bill, is given in the paper which follows this draught.
² This figure, which is in the original, seems to have no special significance, as the changes here introduced are but slight; it probably refers to some remark on the ordinance.
³ Wedderburn, in his letter to Dartmouth, cited in note 1, p. 536, comments on this as follows:— "Mr. Hey mentioned to me two objections to the former part of the Bill which I think are material. The Proclamation, Commissions &ce are annuled and by the next Clause It is declared that 'His Majesty's subjects in Canada shall enjoy their Laws and Customs as beneficially as if the Proclamation had not been made and as is consistent with their Allegiance and Subjection to the Crown and Parlia-
Governor and Council of Quebec bearing date the Seventeenth day of September in the year of our Lord one Thousand, seven Hundred and sixty four; and all other Ordinances relative to the Civil Government and Administration of Justice in the said Province and all Commissions to Judges and other officers, in pursuance thereof, be, and the same are hereby Revoked, Annulled and made void from and after the day of next.
And be it further Enacted by the Authority aforesaid, That His Majesty's Subjects of and in the said Province of Quebec, as the same is described in, and by the said Proclamation and Commissions And also of all the Territories part of the Province of Canada at the time of the Conquest thereof which His Majesty, His Heirs or Successors may think proper to annex to the said Government of Quebec may have hold and enjoy their Property, Laws, Customs, and Usages, in as large, ample and beneficial manner, as if the said Proclamation, Commissions Ordinances and other Acts & Instruments had not been made, and as may consist with their allegiance to His Majesty and subjection to the Crown and Parliament of Great Britain³ (see previous page).
And Whereas the Abolition of the use of the torture and of those severe punishments to which the Inhabitants of Canada were formerly exposed and the Introduction of a more mild and certain Law in criminal cases would be highly beneficial to them and they are truly sensible of the same, Be it therefore Enacted by the Authority aforesaid that no Crimes or Offences shall be High Treason or Misprision of Treason in the Province of Quebec and the dependencys thereof, But such as are high Treason or Misprision of High Treason by the Laws and Statutes now in force in Great Britain; and that the said Laws and Statutes shall be used and observed in Cases of High Treason and Misprision of High Treason in all respects whatsoever. And be it further Enacted That in regard to all other offences for which by the Laws in force in Canada and on the said 13th September 1759 the Offender was liable to suffer the pains of Death the party accused shall be tried and acquitted or condemned and punished, according to the Laws of England. Provided always that where by the Laws of England the benefit of Clergy is allowed upon any Conviction the Offender in such case shall only be fined and Imprisoned or bound to his good Behaviour, And Provided also That no Judgement shall after the Verdict given, be arrested upon any objection of Informality in the Indictment or Discontinuance in the Record.
ment of Great Britain.' These words he thinks will much perplex the Canadian. Is his Religion lawful or tolerated, or unlawful. Are the rights of Succession, of Marriage, of Contract, that have accrued since 1764 and been enjoyed according to the Law of England rescinded, for the act is in some measure declaritory as to the sense of the Proclamation. What is to be the condition of the English Canadian? Is he or is he not included in the description of His Majesty's Subjects of and in Canada? He thinks it would be much better to express clearly what rights shall be restored to the Canadian and that He would be better satisfied with a less extensive and a more certain Provision for him." M 384, p. 253. Can. Arch.
¹ This refers to the new clause drawn by Wedderburn and Hey, as indicated in note 1, p. 536, which was substituted for this section in the third draught, and which provided for the complete retention of the criminal law of England. See third draught.
And whereas it may be necessary to ordain many Regulations for the future Welfare and good Government of the Province of Quebec, the occasions of which cannot now be foreseen nor without much Delay and Inconvenience provided for, without entrusting that Authority for a certain time and under proper Restrictions to Persons Resident there.
And Whereas it is at present inexpedient to call an Assembly Be it therefore Enacted by the Authority aforesaid That it shall and may be lawful for His Majesty His Heirs and Successors by his or their Letters Patent¹ under the Great Seal of Great Britain to constitute and appoint a Council for the affairs of the Province of Quebeck and its dependencys to consist of such Persons resident there not exceeding ( ) nor less than ( ) as His Majesty His Heirs and Successors shall be pleased to appoint and of such other Persons resident there as upon the death removal, or absence, of any of the Members thereof, shall be nominated by His Heirs or Successors under His or their Sign Manual to supply the vacancy; Which Council so appointed and nominated or the major part thereof shall have full Power and Authority to make Ordinances for the Peace, Welfare and good Government of the said Province in all cases whatsoever, with the consent of His Majesty's Governor or Commander in Chief or in his Absence of the Lieutenant Governor for the time being.
Provided always That every Ordinance so to be made shall within ( ) months be transmitted by the Governor Commander in Chief or in his absence by the Lieutenant Governor and laid before His Majesty for his royal approbation and if His Majesty shall think fit to disallow thereof The same shall cease and be void from the Time that His Majesty's Order in Council thereupon shall be promulgated at Quebec And Provided also That no Ordinance touching Religion or by which any Punishment may be Inflicted greater than fine or imprisonment for Three Months, or by which any Duty, Tax, or Rate may be Levied shall be of any force or effect until the same shall have received His Majesty's Approbation And Provided also That no Ordinance shall be passed at any Meeting of the Council except between the day of and the day of unless upon some urgent occasion, in which Case every Member thereof resident at Quebeck or within Miles thereof shall be personally summoned by the Governor or in His absence by the Lieutenant Governor to attend the same.
¹ Concerning this section, Wedderburn, in his letter to Dartmouth, cited in note 1, to Second Draught of the Quebec Bill, says:—"The empowering His Majestyto create the Legislative Council by Letters Patent instead of appointing It directly by the Act of Parliament seems to me an immaterial Alteration, supposing that it is necessary (as I conceive it is) to describe in the Act the Powers and Authority of that Council. In either way the Nomination of the Members must be vested in the King and no greater Power in effect is acquired by the first mode than by the latter tho' in appearance the Power of erecting a Legislative Council seems to import more than the power of naming the Members and will from the appearance excite more opposition.
"The latter Clause I take to be unnecessary as I do not see how the Act restrains the King from appointing Judges and erecting Courts of Justice, I have therefore drawn It as a saving and not as an enacting Clause." M 384, p. 252. Can. Arch.