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ground to suspect that the defendant had secreted or concealed fome The defendanc of his effects, he might require him to deliver in to the court upon pelled to deliver oath an exact schedule of all his estate and effects of every kind, in a {chedule of and of the places where they were to be found ; and, if he refused effects upon so to do, might commit him to prison till he complied. And if he omitted to set down in this schedule any part of his effects to the amount of twenty pounds Sterling, he should be liable to the penalties of perjury

oath.

a

covenant.

Further, where a man had bound himself to another to do a The court particular thing, and it was just and reasonable that he should per- pow.r to decrec. form fuch his covenant, nothing having since intervened that specific per rendered such performance either impracticable or unreasonably burthensome and difficult, the judge Thould have a power to award that the party should make a specific performance of such covenant, and might compel him to do so, in case he refused to do it, by imprisoning him till he complied.

Also the judge should have a power to award reafonable costs to Colts. either party according to his discretion.

It would be necessary to have in each of these three courts a A king's attore king's attorney to prosecute for the king in all criminal cases, and the three courtes in all suits concerning the king's revenue, and in all other suits in which the king's interest is concerned. If his Majesty should not think proper to appoint an officer in each court expressly for this purpose, the power of carrying on these several prosecutions on the behalf of the crown might be vested in the clerk, or register, of the court; just as in the court of King's Bench in England the clerk of the crown (whose principal duty is to register, or enter, the pleas of the crown amongst the records of the court) is likewise the king's attorney in that court, and prosecutes in his Majesty's behalf. But it would be more convenient, and more suitable to the honour of the crown and the dignity of the court, to have a separate officer for that purpose, to be called the king's attorney for that thire or district, as there was in the time of the French government.

From these courts there should lie two appeals : an appeal to the Appeals from governour and council of the province, and another from thence to the these courts to

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king and council

, and

council.

ko mekane in king in his privy council. One great use of the appeal to the

governour and council. would be to preserve an uniformity in the
law throughout the whole province, which otherwise might
gradually become different in the three different shires, or districts,
of it, by the difference of the decisions that might be given in
these three different courts of justice, if they were not subject to be
revised by some common superiour court that might correct the
errors that should be found in them.

And for the same reason, the decisions of these courts should not be deemed to form precedents of sufficient authority to determine any subsequent disputes; but this authority should be ascribed only to those cases which had been decided by the governour and council of the province upon the appeals brought before them from these Thire-courts, or by the King himself in his privy council.

And to the end that the governour and council of the province might not be destitute of the advice of persons skilled in the laws to assist them in the determination of the appeals that should be brought before them, it might be expedient to make the three judges of these courts, and perhaps also the three king's attornies in them, members of his Majesty's council of the province; by which means all the best law-abilities in the province would be employed in making these important decisions that were to carry with them the force of law. And with this view it might be proper to require the judges and the king's attornies of the courts of Three Rivers and Montreal to attend the governour of Quebec for one month about Christmas-time, in order to assist at the decision of these appeals, which should therefore be reserved to this season of the year.

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The nature of these appeals.

These appeals should be only, as they now are, of the nature of writs of error in England, to correct the errors in law committed in the courts of these shires or districts, and not to re-consider the facts in the cause, unless they had been settled by the judge alone without the affistance of a jury. When the facts were settled in that manner, the parties might, if they thought fit, cause the evidence itself to be taken down in writing by the clerk of the court and signed by the witnesses, that it might make a part of the record, as it does upon a trial by a general court martial in England : and, upon the removal of this record before the governour and council, they

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might

might re-consider the whole matter, the facts, as well as the law, and give such judgment upon it as they thought just; but they should not admit any new evidence relating to it. Where the cause had been tried by a jury, the losing party might, if he thought proper, and the judge,' before whom it was tried, thought it reasonable, have it tried over again by a second jury, consisting of a second trial twice as many jurymen as the first jury; and the verdict of this by a double jury. fecond jury should be final with respect to the matters of fact determined by it.

When Gaspey shall be settled, a fourth judge might be sent Galpey. thither, whose jurisdiction should extend over a district lying round about it, to be taken out of the district of Quebec, which is now immoderately large. Such an establishment would be of great convenience to the inhabitants of that part of the province.

These are the outlines of a plan for the administration of justice; which, I conceive, would be well suited to the circumstances of this province, and would remove many of the inconveniencies of which the Canadians now complain, and give them very great satisfaction.

FRANCIS MASERES,

Attorney General.

N. B. This plan of a method of administering justice in the

province of Quebec was delivered in to Lord Hillsborough
about the month of April 1770.

F. MASERE S.

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N the spring of the year 1767, his excellency Guy Carleton,

Esquire, at that time lieutenant-governour, now governour in chief, of the province of Quebec, being justly apprehensive of the ill consequences that might arise from a rigorous construction of the several instruments of government by which it was supposed that the laws of England had been introduced into that province, and inore especially of the ordinance of the 17th of September 1764, by which the chief justice of the province was directed to determine all matters. criminal and civil that were brought before him, according to the laws of England and the ordinances of the province, directed Francis Maseres, Esquire, the attorney general, to prepare a draught of an ordinance for reviving or continuing the several ancient laws of the province that had sublifted there immediately before the conquest of it in the year 1759, with respect to the landed property of the province that was holden under grants made by the French king; who accordingly prepared the following draught of such an ordinance, which his excellency, on account of it's great extent and importance, did not think it expedient to bring into the council in order to be passed without his Majesty's previous consent and approbation, and therefore he immediately transmitted it to the Earl of Shelburne, at that time one of his Majesty's principal secretaries of state. This draught of an ordinance was as follows.

A DRAUGHT of an ORDINANCE for continuing and

confirming the Laws and Customs relating to the Tenure, Inheritance, and Alienation of Lands, that were in Force in this Province in the Time of the French Government.

Dreamble.

WHEREAS certain doubts have arisen and may arise, from the extensive words used in the great ordinance of this province, dated the seventeenth of September in the year of our Lord one thousand seven hundred and fixty-four, intitled, An Ordinance for regulating and establishing the Courts of Judicature, Justices of the Peace; Quarter Sesions, Bailiffs, and other Matters relative to the Distribution of Justice in this Province, by which the courts of justice established

thereby

thereby in this province are directed to proceed in their decisions according to the laws of England and the ordinances of this province; that in consequence thereof the rules of inheritance of lands in this province, and the terms and conditions of the tenures thereof, and the rights, privileges, and emoluments thence arising, either to the King or to divers of his Majesty's subjects that were owners of land in the said province, were in whole or in part abolished, and the laws and customs of England relating to the said points at once introduced in their stead; which great and sudden alteration of the laws concerning these important subjects would not only be in no wise useful to the said province, but, by unsettling men's ancient and accustomed rights and natural expectations founded thereon, would be attended with innumerable hardships and inconveniencies to the inhabitants thereof, and produce a general confusion : In order therefore to prevent these evils, and to quiet the minds of the inhabitants with respect to them, It is ordained and declared by his Enacting part of

the ordinance excellency the lieutenant-governour of this province, by and with the advice and consent of the council of the same, that all the laws and customs that prevailed in this province in the time of the French government in the month of August in the year of our Lord one thousand seven hundred and fifty-nine, relating to the tenures of lands held either of the King, or of other lords, and to the terms and conditions of such tenures; and to the rights, privileges, and pre-eminences annexed, or belonging, to any of the said tenures ; and to the inheritance and succession to the same; and to the forfeiture, confiscation, re-annexation or re-uniting to the demesne of the lord, escheat, reversion, or other devolution of the fame whatsoever, either to the King or any other lord; and to the devising, or bequeathing, any lands by last will and testament; and to the power of alienating the same by the proprietors in their life-time; and to the manner of making such alienation; and to the power and manner of limiting, mortgaging, hypothecating, charging, and incumbring, any lands in the said province ; thall continue in force and vigour until they are changed in some of these particulars by special ordinances expressly mentioning such changes, and setting forth in a full and distinct manner the laws introduced in the stead of those which shall be so changed or abolished. And further, the said French laws and customs hereby continued and confirmed thall be deemed and taken to have continued without interruption from the time of the conquest of this country by the

British

power of

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