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Volume V
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[23 July, 1788.]
Mr. Shoolbred

Report of the Attorney & Solicitor General.


p. 2239C



No. 949.

EXTRACT FROM MINUTES OF THE EXECUTIVE COUNCIL OF QUEBEC,

Re PATENT OF LANDS TO JOHN SHOOLBRED.



Q. 38, p. 47.

Wednesday 23 July 1788.

Present:
His Excellency The Right Honourable Lord Dorchester
The Honble William Smith Esqr. Chief Justice
Hugh FinlayHenry Caldwell
Thomas DunnWilliam Grant
Edwd. HarrisonP. R. De St. Ours
John CollinsFrancis Baby
Adam MabaneCharles De Lanaudiere
J. G. C. DeLeryLe Cte. Dupré, Esquires

His Lordship and the Board resumed the consideration of the Report of the Deputy Surveyor General The Attorney General, The Solicitor General and the Clerk of the Kings Terrars and the Papers accompanying the same, and the Draft offered by the Chief Justice of the Patent off to Mr. John Shoolbred, as mentioned in the minutes of yesterday—Ordered by His Lordship with the advice of the Council that these papers be entered on the minutes for the clearer manifestation of the nature of the French Grants antecedent to the conquest, and that a Patent pass the seal to Mr. Shoolbred according to the form proposed by the Chief Justice.
The Council at the same time beg leave most humbly to suggest as the ground of the present resolution that the thirty ninth article of His Majesty's Instructions requiring Grants in Fief and Seigniory in the manner practised, prior to the Conquest, appeared to leave them without Deliberation or choice for a Selection of the charges, Reservations and conditions introduced in the French Government, and that it will therefore as they conceive, be necessary to adopt them all in every future Grant, until His Majesty's further pleasure shall be further known.

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“Quebec 12th July 1788—
My Lord,
“ In obedience to Your Lordship's order in Council on the thirteenth, day of June last, We have with the Assistance of the Clerk of the Terrars inspected that part of the public Records called Régistres des Concessions.
“ And we find that from the Year 1672 to the year 1755 the Grants have differed in their conditions and reservations in the manner stated at large in the papers Marked A, which, with an abstract thereof marked B, We beg leave to submit to Your Lordship, presenting at one view the general conditions under which the several Governors and Intendants granted the Kings Lands within those periods with the particular exceptions made from those general rules, which appear to have varied with the appointment of the Different Governors & Intendants, increasing the conditions upon the Grantees, and the reservations to the King as the Colony grew in importance and consideration.
“ We have prepared and have the Honour to present to Your Lordship such an amended Draft of the Patent to Mr. John Shoolbred as we conceive His Majesty's Order in His favour and the Royal Instructions to require ; and we beg leave to submit to Your Lordship in what respect a Draft made conformable to the Report of the Committee of the whole Council, laid before us, would differ from His Majesty's Instructions Art. 39, directing ' that all Lands be granted in Fief or Seigniory, in like manner as was practised antecedent to the Conquest of the Province, omitting however, in any Grant that shall be passed of such Lands, the Reservations of any Judicial powers or privileges whatever.' And in the same article directing ` That all Grants in Fief or Seigniory so to be passed shall be made subject to the Royal Ratification or disallowance, and a due Registry thereof within a limited time, in like manner as was practised in regard to Grants & Concessions held in Fief or Seigniory under the French Government.

First—Grants of Land (after Canada was taken into the Government of the French King) were made in the name of the Governor General and Intendant, tho' there appear some exceptions to this Rule, by Grants being made by either of them Separately : They were all made subject to the King's Ratification, within the limited period of one Year ; and yet there are instances of Ratification being made by the French King some years after the date of the Grants in Canada.
The present Draft is prepared in the King's Name, and no condition is inserted for His Majesty's Ratification of the Grant ; under the idea that His Majesty's Royal order renders such condition unnecessary.

Second—The Report laid before us proposes that there be inserted in the Patent an express Reservation of all Judicial powers or privileges whatever.
It is our Duty to submit to Your Lordship's consideration our opinion that the Grant should stand as originally reported in that Respect (being conformable to His Majesty's Instructions) omitting that reservation.
It was a general rule observed by the Governors and Intendants to oblige

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the Grantees of Lands to a Settlement thereon in one Year, who were to impose the like condition on their Tenants or Censitaires.
There will appear by the papers A and B, exceptions to this Rule, but there will likewise appear, that a limited period for Settlement was always expressed in the Grant.
The Honourable Committee have reported that the terms expressive of a limitation of the time for commencing a Settlement upon the premises should be left out of the Grant ; but we take the Liberty humbly to observe to Your Lordship and the Honourable Board of Council, that inasmuch as His Majesty has been graciously pleased to signify His royal will and pleasure in His Instructions to Your Lordship Art. 39 “ that Grants in Fief or Seigniory should be made in like manner as was practised antecedent to the Conquest. And as a limited period for Settlement and Improvement was during the French Government always express'd in the Grant ; it may not be improper to insert a like condition in this Grant, which is submitted in the present Draft.

Fourth—A Condition is inserted in the Draft page three, the last line to the fourth line of fourth page adopted by the Honourable Committee, founded in great part on the 37th Article of His Majesty's Instructions to Your Lordship, “ permitting all Fishermen to cut down and use all such wood and Timber growing on the premises ” (intended to be granted) “ as shall be necessary for their Fishing Establishments,” but we have omitted that part of the Resolve of the Honourable Committee which refers to the Act or ordinance passed in the last Session of the Legislative Council for regulating the Fisheries, &c. as being in our opinion unnecessary.
We perceive that from the local Situation of the premises intended to be granted, on account of the proximity of the Mountains to the Shore, His Majesty's Royal Pleasure for reservation of a Sufficient Quantity of woodland adjoining thereto, necessary for the purposes of carrying on the Fishery, cannot be ascertained and limited without impeding the Execution of His Majesty's gracious Intentions in favour of the Grantee ; By Your Lordship's adopting the Resolve of the Honourable Committee, The Grantee will embrace every benefit from the Grant, that the Nature and Situation of the Premises will admit of ; and at the same time His Majesty's Subjects, resorting thither for the purpose of carrying on the Fishery, will Freely enjoy the advantages graciously intended by His Majesty in respect thereof.

Fifth—His Majesty's Instructions Article 39 after directing that all Grants in Fief or Seigniory should be made subject to the Royal Ratification or Disallowance, require that a due Registry thereof be made within a limited time, in like manner as was practised in regard to Grants and Concessions held in Fief or Seigniory the French Government.
We learn that all original Grants made by the Governor and Intendant were registered in the Registres D'Intendance, before they were delivered to the Grantees ; and that the French Kings Ratifications of those Grants were

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registered by order of the Superior Council in their Registers des Insinuations to whom they were presented, for that purpose.
When the present Grant shall have been engrossed by the proper Officer, and passed by Your Lordship under the Great Seal of the province, that Officer may be commanded by Your Lordship to transmit it to the Clerk of the Inrollments to be registered and afterwards delivered to the Grantee.
The full examination of all the Registers, necessary to lay before Your Lordship an exact State of the several conditions upon which Lands were granted prior to the French King's taking the Colony and Government of Canada from the Company, would require considerable time, and which we shall proceed to do with all Diligence as Your Lordship may direct, but we humbly conceive the Extracts herewith submitted will be sufficient to enable Your Lordship to form a Resolution upon the object of our Reference.
All which is humbly submitted by

Your Lordship's Most obedient
and most humble Servants

(signed)
J MONK, Attorney General
J. WILLIAMS Solicitor General.

His Excellency
The Right Honle Lord Dorchester.

[1927lab]


 

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