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NU M B E R II.
The OPINION of the Attorney General of the

Province of Quebec concerning the Report made by
his Excellency Brigadier-General CARLETON, the
Governour in Chief of the faid Province, to his Majesty
in Council,

CONCERNING
The State of the Laws and the Administration of Justice in

the said Province ;

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The Reafons of his Diffent from some of the Matters

contained in the said Report. You

OUR Majesty's attorney general of this province approves that

part of the foregoing report which gives an account of the constitution of the government of this province during it's subjection

to the French king, and believes the said account to be true in most Objeltions to particulars; but he cannot affent to that part of the said report

which suggests to your Majesty the expediency of reviving the whole body of whole of the French laws in civil matters, for the following selating to civil reasons.

the proposal of reviving the

the French law's

natters.

Inconsistency of such a measure

with respect to - the province of Quebec.

In the first place, he thinks it will be a deviation from that plan: with his Ma- of conduct which your Majesty has hitherto thought fit to pursue plan of conduct with respect to this province ever since the conquest of it by your

Majesty's arms in 1760, which he conceives to have been, to endeavonr to introduce the English laws and the English manner of government into it, and thereby to assimilate and affociate this

province to your Majesty's other colonies in North America, and not to keep it distinct and separate from them in religion, laws, and manners, to all future generations. He conceives that if this latter system had been that which your Majesty had adopted, your Majesty would have given orders to your general, Sir Jeffery Amherst, to whom this province was surrendered, to keep up, from the first

moment

moment of the conquest, all the courts of justice that were at that time in being in the colony, and even the several officers that composed them, upon the same footing on which they then subfilted. But as your Majesty's said general did immediately suppress all the former jurisdictions, and erect military councils in their stead, and in the articles of capitulation refused to promise the inhabitants of this province the continuance of the custom of Paris, and the other ancient laws and usages by which they had been governed, though requested in that behalf by the French general ;—and as your Majesty did afterwards, in the fourth article of the definitive treaty of peace in 1763, engage to indulge your new Canadian subjects even in the delicate and important article of the free exercise of their religion, only fo far as the laws of England will permit ;-and as your Majesty, by your royal proclamation of the 7th of November 1763, did en-" courage your British and other ancient subjects to go and settle in this and the other new-erected governments, and did promise them, as an excitement thereunto, the immediate enjoyment of the benefit of the laws of England ;-and as your Majesty did afterwards, by your commission of vice admiral of this province granted to General Murray, expressly introduce all the laws of the English courts of admiralty into this province; and by your commiflion to the same gentleman to be captain general and governour in chief of this province, did direct him to summon an assembly of the freeholders and planters in this province, and in conjunction with them to make laws and ordinances not repugnant to the laws of England, by which it seems to be pre-supposed that the laws' of England were already introduced there; and did in other parts of the said commission allude to divers of the luws of England as being already in force here, as particularly the laws relating to the oaths of abjuration and fupremacy, and the declaration against transubstantiation-From these several exertions of your Majesty's royal authority in favour of the laws of England, your Majesty's attorney general of this province humbly collects it to have been your Majesty's gracious intention to assimilate this province in religion, laws, and government to the other dominions belonging to your Majesty's crown in North America ; he therefore conceives that the immediate revival of all the French laws relating to civil suits in this province, in the manner suggested in the foregoing report, will have at least the appearance of a deviation from the plan of conduct which your Majesty has hitherto adopted, and of a step towards a preference of

the

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the contrary system of keeping this province distinct from, and unconnected with, all your Majesty's other colonies in North America: and this appearance he humbly conceives to be itself a considerable inconvenience, and very fit to be avoided, unless very strong reasons of justice or policy made such a measure necessary, which he does not conceive to be the case ; for, on the contrary, he apprehends

that the said total revival of the custom of Paris, and all the other such a measure. French laws relating to civil suits, will be attended with the

following additional inconveniencies.

Other inconveniencieswould follow from

First inconvepicnce.

In the first place, it will make it difficult for any

of

your Majesty's English subjects to administer justice in this province, as it will require much labour and study, and a more than ordinary acquaintance with the French language to attain a thorough knowledge of those laws.

Second inconvenicnce.

In the next place, it will keep up in the minds of your Majesty's new Canadian subjects the remembrance of their former government, which will probably be accompanied with a desire to return to it. When they hear the custom of Paris, and the parliament of Paris, and its wise decisions, continually appealed to as the measure of justice in this country, they will be inclined to think that government to be best, under which those wise laws could most ably be administered, which is that of the French king; which, together with the continuance of their attachment to the Popish religion, will keep them ever in a state of disaffection to your Majesty's government, and in a disposition to shake it off on the first opportunity that shall happen to be afforded them by any attempt of the French king to recover this country by force of arms.

Third inconvenience.

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And in the third place, it will discourage your Majesty's British subjects from coming to settle here when they see the country governed by a set of laws, of which they have no knowledge, and against which they entertain (though perhaps unjustly) strong prejudices.

Your Majesty's attorney general of this province is further of opinion, that the body of your Majesty's new Canadian subjects are by no means either so distressed or so discontented by the introduction

of

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jects of the

the Canadians,

diction to hold

vince.

of the English laws into this province as they are represented in the foregoing report: at least he has seen no proofs of cither such great The expenfiredistreis or high discontent. What he has principally observed to be rines of the the subject of their complaints has been, either the expence or the Englit law prior dilatoriness of our la 'v-procceuings; which he therefore conceives principal substand in need of reformation : and he is of opinion, that to establish

complaints of three courts of general jurisdiction in all matters criminal as well as civil in the province, to fit every week in the year (with a very few To erect three exceptions) in the towns of Quebec, Three Rivers, and Montreal, general jurira would be the most adequate remedy for these complaints.

their fittings

weekly. And as to the substance of the laws which are to be henceforwards. admitted in this province, he conceives that the best way of all to settle these would be to make a code of them, that should contain To make a code: all the laws of every kind, criminal as well as civil, that were use of the prointended to be of force here, to the exclusion of all other laws, both French and English, that were not inserted in the said code; by which means all pretence would be taken away both from the French : and British inhabitants of this province for complaining that they are governed by unknown laws. This he conceives to be a work of difficulty indeed, but by no means impracticable; and he apprehends that it would be a work of very great utility to the province, even. though it should be very imperfectly executed, and many important articles should happen to be omitted in it; provided only that those : things that were inserted in it were useful and reasonable, and set forth in a clear and proper manner : because he apprehends that: the rules so in ferted would be sufficient to govern at least all the common cases that would happen in the ordinary course of human affairs, such as defcents in the right line, the right of representation in grand-children whose parents are dead, the dower of widows, the rents and services due to seigniors, the obligations and duties due from them to their tenants, the feignior's right to the common mutation-fines, his right of pre-emption of his tenant's land when the tenant is disposed to sell it, the rules of evidence in courts of justice, the folemnities necessary to be observed to give validity to a deed or will, and the like obvious and important matters ; which would be sufficient to prevent the province from falling into confusion. And as to the nicer cases which might be omitted in such a code, they might afterwards be supplied by particular ordinances passed from time to time for that purpose.

But

But if this measure of making such a code of laws should not be thought adviseable, your Majesty's attorney general of this province is humbly of opinion that it would be most expedient to let the

English law continue to subsist in this province as the general law Ta revive the of the province, and to pass an ordinance to revive those of the relating to land- former French laws which relate to the tenure, inheritance, dower, ed property and

alienation, and incumbrance of landed property, and to the distribuof the cellects of tion of the effects of persons who die intestate. His reasons for

thinking that the French laws upon these heads ought to be revived,
are as follows.

the distribution

inkítates.

These heads of law are three in number: First, those relating to the tenures of lands in this province, or the mutual obligations subsisting between landlords and tenants with respect to them. Secondly, the laws relating to the power and manner of aliening, mortgaging, and otherwise incumbring landed property.

And Thirdly, the laws relating to dower, inheritance, and the distribution of the effects of persons who die intestate. And these several heads of law ought, as he humbly apprehends, to be revived in this province upon separate and distinct grounds.

Laws of tenure. The laws of tenure, he conceives, ought to be considered as

having been already granted by your Majesty to your new Canadian
subjects by that article in the capitulation of 1760, by which your
Majesty's general granted them the enjoyment of all their estates,
both noble and ignoble, and by the permission given them by your
Majesty in the definitive treaty of peace in 1763, to continue in
the possession of them; these laws being essentially necessary to such
possession and enjoyment. Such are the laws relating to the quit-
rents due by the freeholders, who hold by rent-service, to the
seigniors, the mutation-fines, the right of pre-emption, and the
rights of escheat in certain cases; all which constitute the principal
part of the property of the seigniors.

Laws relating (to the manner

But the laws relating to the power and manner of aliening,
of aliening and mortgaging, and otherwise incumbring, landed property, are not,
incumbring
landed property.

as he apprehends, absolutely necessary to the enjoyment of the
lands themselves, and therefore ought not to be reckoned quite
so sacred and unchangeable as the laws of tenure themselves.
Yet he conceives them to be very nearly connected with those

laws,

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