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A

DRA

U

G H T

OF

An Intended Report of the Honourable the Governor in

Chief and the Council of the Province of Quebec to the King's moft Excellent Majesty in his Privy Council;

CONCE R N I N G

The State of the Laws and the Administration of Justice in

that Province.

May it please. your Majesty,

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N humble obedience to your Majesty's order in council, of the

28th day of August 1767, wherein your Majesty is pleased to order that we should report to your Majesty,

First. Whether any, and what, defects are now subsisting in the

present state of Judicature in this your Majesty's province of Quebec:

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And Secondly. Whether the Canadians are, or think themselves,

aggrieved according to the present administration of justice :
wherein, and in what respects; together with our opinions of
any alterations or amendments that we can propose for the
general benefit of the said province; and that such alterations
and amendments, for the clearer apprehension thereof, be
transmitted to your Majesty in the form of ordinances, but not
passed as such ; and that such report be returned, figned by
your Majesty's governor, or his locum tenens, the chief justice,
and attorney general of the said province; but that, if they
should not concur, the person or persons differing in opinion
should be required to report the difference of his opinions,
together with his reasons for such difference of opinion, fully
and at large :
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We

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We lay before your Majesty the following view of the laws and customs which at present prevail in this province, and of the rules of decision observed by your Majesty's courts of judicature in the administration of justice, together with such observations on these heads as the experience we have had in our respective offices since we have had the honour to serve your Majesty in this province has enabled us to make.

The laws of

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In the first place, we beg leave to observe to your Majesty, that Ferglin dhe me the laws of England are generally fupposed to be in force in this libe in force in province. All criminal proceedings have been carried on according this province.

to these laws: and in civil matters no other laws are cited, or appealed to, or allowed to be of any weight in the courts of justice; though in one or two causes certain customs that prevailed here in the time of the French government have been admitted as the grounds of the decisions, because the causes of action in those litigations had arisen either in the time of the French government, or during your Majesty's government of this province by your military commanders, during which period the ancient laws and usages of the country were supposed to be in force. But since the

establishment of civil government your Majesty's chief justice of The commission the province has acted by virtue of a commiffion that commands justice refers to him

to decide all matters that come before him according to the laws and customs of that part of your Majesty's kingdom of Great Britain called England, and the laws, ordinances, rules, and regulations of your Majesty's province of Quebec bereafter in that bebalf to be ordained and made : so that he is not at liberty to allow of any other laws or customs but those of England, unless they are expressly introduced or revived by some of the ordinances

of the province made since the establishment of the civil governSo does the or- ment. And further, besides this commission, there is an express 17th of Septem- ordinance of the province which obliges both your Majesty's chief

justice and the other judges of the province to follow the same rule of judgment. This is the ordinance of the 17th of September 1764, passed by the governor and council of the province upon the introduction of the civil government, to erect and constitute the

courts of justice by which the said civil government was to be carried Parport of this on. This ordinance erects, in the first place, one superior court of

judicature, called the King's Bench, in which it directs that your Majesty's chief justice of the province thall preside, with power and authority to bear and determine all criminal and civil causes,

agreeable

dinance of the

ber 1764.

ordinance.

agreeable to the laws of England and to the ordinances of this province: and, in the second place, an inferior court of judicature, called the Court of Common Pleas, with power and authority to determine all property above the value of ten pounds, with a liberty to either party to appeal to the superior court, or court of King's Bench, where the matter in contest is of the value of twenty pounds, or upwards ; and directs that the judges in this court shall determine the matters before them agreeable to equity, having regard nevertheless to the laws of England as far as the circumstances and htuation of things will permit, until such time as proper ordinances for the information of the people can be established by the governour and council, agreeable to the laws of England; and it farther directs, that the French laws and customs Mall be allowed and admitted in all causes in this court between the natives of this province, where the cause of action arose before the ift day of October 1764. It then, in the third place, gives powers to justices of the peace to determine matters of property of small value in a fummary way, either singly, if the matter in dispute does not exceed the value of five pounds, or in conjunction with each other in weekly and quarterly sessions, where the matter in contest is of a greater value. The words of this ordinance, by which these things are ordained, are of the tenor following:

“ Whereas it is highly expedient and necessary for the well The words of “ governing of his Majesty's good subjects of the province of

Quebec, and for the speedy and impartial distribution of justice among the same, that proper courts of judicature, with proper

powers and authorities, and under proper regulations, should be “ established and appointed; his excellency the governor, by and “ with the advice, consent, and assistance of his Majesty's council, " and by virtue of the power and authority to him given by his

Majesty's letters patent under the great seal of Great Britain, hath

thought fit to ordain and declare, and his faid excellency, by and “ with the advice, consent, and assistance aforesaid, doth hereby " ordain and declare ;

.

“ That a superior court of judicature, or court of King's Bench, “ be established in this province to fit and hold terms in the town " of Quebec twice in every year, viz. one to begin on the 21st

day of January, call d Hilary term, the other on the 21st day of * June, called Trinity term. A 2

" In

« In this court his Majesty's chief justice presides, with power « and authority to hear and determine all criminal and civil causes,

agreeable to the laws of England and to the ordinances of this province; and from this court an appeal lies to the governor and « council, where the matter in contest is above the value of three “ hundred pounds Sterling; and from the governor and council an

appeal lies to the King and council, where the matter in contest “ is of the value of five hundred pounds Sterling, or upwards.

“ In all trials in this court all his Majesty's subjects in this colony are to be admitted on juries without distinction.

“ And his Majesty's chief justice once in every year to hold a “ court of assize and general gaol delivery, soon after Hilary term, “ at the towns of Montreal and Trois-Rivieres, for the more easy " and convenient distribution of justice to his Majesty's subjects in " those distant parts of the province.

" And whereas an inferior court of judicature, or court of “ Common Pleas, is also thought necessary and convenient, it is “ further ordained and declared, by the authority aforesaid, that an “ inferior court of judicature, or court of Common Pleas, is

hereby established, with power and authority to determine all “ property above the value of ten pounds, with a liberty of appeal “ to either party to the superior court, or court of King's Bench, « where the matter in contest is of the value of twenty pounds, " and upwards.

All trials in this court to be by juries, if demanded by either

party; and this court to fit and hold two terms in every year at " the town of Quebec, at the same time with the superior court, “ or court of King's Bench. Where the matter in contest in this “ court is above the value of three hundred pounds Sterling, either “ party may (if they shall think proper) appeal to the governor and « council immediately, and from the governor and council an

appeal lies to the King and council, where the matter in contest " is above the value of five hundred pounds Sterling, or upwards.

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“ The judges in this court are to determine agreeable to equity, “ having regard nevertheless to the laws of England, as far as the “ circumstances and present situation of things will admit, until " such time as proper ordinances for the information of the people

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