GC

çaiscs, la Cour ordonne que la Demanderosso sera et d(jmeurera séparée de biens d'avec le dit Défendeur, son mary, pour en jouir à part et divis, ainsi fjue de ceux qui lui sont échus par succession par devant son mariage avec le dit Défend(3ur, et attendu la renonciation que la dite Demanderesse entend faire à la communauté, d'entre elle et son dit mari, condamne le Défendeur à lui payer et rembourser la somme de 800 livres ou schellings de cette Province échus à la dite Demanderesse de la succession de sa mère ; le condamne en outre à acquitter, garantir et indemniser la dite Demanderesse de toutes les sommes pour lesquelles elle s'est obligée solidairement avec lui ; les dépens compensés » (1).

Le 10 Juillet 1765 (2), Thomas Mills est nommé Receveur-Général pour percevoir les revenus de la Province.

Le 13 Novembre 1765 (3), une Ordonnance est rendue pour régler et établir le mesurage du bois de chauffage qu'on exporte] a en vente en cette province. La corde est de la longueur de huit pieds, haute de quatre pieds, mesure française. La longueur du bois entre les deux coupes est fixée à deux pieds et demi. La vente du bois de chauffage dans les villes se fait sur les marchés publics et non ailleurs, à peine d'amende et de confiscation.

Le 27 Novembre 1765 (4), une Ordonnance est rendue pour faciliter et régler la Fourniture du Bois de chauffage aux troupes de Sa Majesté en garnison dans cette Province ; et pour déclarer que tous pouvoirs, de quelque capitaine ou autre officier de milice que ce soit, établis en cette Province avant la conquête d'icelle

(1) Registre des sentences rendues par la Cour des Plaidoyers Communs de Montréal, commencée le 11 Fév. 1765, fol. 52, verso.

(2) Masôres. Sevcral Commissions, 153.

(8) Ordonnances, etc., p. 60.

(4) Id.j p. 64.

et continués ensuite jusqu'à l'épo^iue du Gouvernement civil britannique en icelle, ont été abolis et anéantis par l'établissement du dit Gouvernement.

Eu 1765 (1), Mgr. Briand envoie une requête à George IIl pour obtenir que les biens des Jésuites soient rendus à leur destination primitive, le soutien de l'éducation et l'entretien des mis.sions.

Le 24 Février 1766 (2), le Roi envoie de nouvelles instructions très-importantes au Gouverneur-Général Murray au sujet du choix des jurés et de l'admission des avocats :

({ Whereas it hath been represented to Us, that many evil conséquences may be justly apprehended to ensue to our Province of Québec from an ordinance for regulating and establishing the currency of that Province, published by you on.

the 14th of September 1764, as well as from a subséquent one explanatory thereof dated the 4th of October 1764, in framing which ordinances it does appear to Us, that the spirit and iutent of the British Laws (and in particular an act of the sixth year of Queen Anne for ascertaining the rates of foreign silver coins in the Plantations) hâve not been sufïiciently attended to. Il is therefore our will and pleasure, and you are hereby strictly enjoined and required, in case you see reason, from the particular cir- Gumstances of our Province of Québec, which makes it necessary to départ from the rates established by the above act of the sixth of Queen Anne, that you do l upon such sufficient grounds frame and compose an ordinance, as shall seem to you best adapted to the uses and interest of our said Province, and as neaiiy as convenience will admit of, correspondent to the said act, which ordinance so framed and composed, you are hereby di-

(1) L'abbé Ferland. Observationa, etc., p. 69.

(2) Registres officiels de l'Etat.

rected to transmit, before it be put in Barristers, Advocates, Attornies and Proc-

force, for our Royal allowance and appro tors, in ail or any of the Courts within

bation.» our said Province, under such regula-

— lions as shall be prescribed by the said

« We having taken into our Royal con- Courts respectively for persons in gène-

sideration the ordinance enacted and pu- rai under those descriptions ; And it is

blished by you on the 17th day of Sep^ our further will and pleasure, that the

tember 1764, for establising Courts of said ordinance so to be published by you,

Judicature in our Province of Québec shall continue in force, until our further

and it appearing to Us, that the welfare pleasure shall be Known thereupon ; And

and happiness of our loving subjects that so much of the ordinance of the 17th

there, which will ever be objects of our oJ^ September 1764 as shall not be thereby

care and attention do require, that the altered and changed, shall be declared to

said ordinance should be altered and ^^ temporary only. »

amended in several provisions ofit, which Le 27 Mars 1766 (1), une Ordonnance

tend to restrain our Canadian Subjects in est rendue pour faire réparer et racco-

those privilèges they are entitled to enjoy moder les grands chemins en cette pro-

in common with our natural born sub- vince.

jects. It is therefore our Royal will and Le 6 Avril 1766,1e Gouverneur nomme

pleasure and you are hereby directed and le Capitaine Schlosser Juge de Paix pour

required, forthwith upon the receipt of le District de Montréal,

this our Instruction, to enact and pu- Le 7 Avril 1766 (2), pendant que le Gé-

blish an ordinance, declaring that ail néral Murray était Gouverneur-en-Chef,

our subjects in our said Province of Que- le Roi nomme Guy Carie ton (plus tard

bec without distinction are intitled to be Lord Dorchester) lieutenant-gouverneur

empanelled, and to sit and act as jurors, de la Province. [1 ne doit en exercer les

in ail causes civil and criminal cognizable fonctions que dans le cas de décès ou

by any of the Courts of Judicature wi- d'absence du Gouverneur-en-Chef.

thin our said Province ; and also decla- Le nouvel ordre établi par le Gouver-

ring, that for the more equal and impar- neur et son Conseil attira des plaintes

tial distribution of Justice in civil causes générales. Le mémoire qui les contenait

or actions between British born subjects ayant été référé aux officiers en loi de la

and British born subjects, the juries in Couronne MM. Yorke et de Grey. Ces

such causes or actions are to be composed derniers firent, le 14 Avril 1766 (3), le

of British born subjects only ; That in rapport suivant, recommandable par son

ail causes or actions between Canadians importance et son impartialité :

and Canadians the juries are to be com- „ jo the Right Honourable the Lords of

posed of Canadians only; And in ail the Committee for Plantation Aff air s.

causes or actions between British born ^, ^ Lords -In humble obédience to

subjects and Canadians the juries are to , ^^.^^^ ^^ ^^^ nineteenth of Nobe composed of an equal number of each,

if required by either of the parties in ,, ^ ^ ^ ^

^ ^ ^ (1) Ordonnances, etc., p. 69.

any of the above mentioned instances : „, „ . . ^ , ^ .,,. . . ^ .^ ^ o..

, \ . . r ^ 1, -,, (2) Registre de la Cour militaire de Québec du 28

And it is our further will and pleasure nov. i76i au 4 Août n&i.

that it be also declared by the said ordi- (S) Masères. severai commis^m, n.

nance, that our Canadian Subjects shall smitu. mstaryo/ Canada, 11,2:1.

, .,.,,,, j . .. Gameau, m, 321.

be permitted and allowed to practlCe, as DeMontlgny. Histoire du J>roU canadien, m.

v(Mnl)(!r lasl,, whoroiii it is rccilcd, tli.'it His M;ij<^sLy havin*,^ ])lhmi [)h;<is(i(l lo rnfcr to your Lordsliips, sovcira! Meiuurlals aiid Pétitions IVoin his Siibjocts in Caiiad^i, as well British as Froncli, complaiiiiiig of sov(;ral of tlio ordiuancos aiidproco(jdiiigs of tliu Govcrnor and Conncil of Quehoc, and of tho présent establishment of Conrts of Judicature and other civil constitutions, your Lordships liad on tliat day, taken the said papers into your considération, together with a report made thereupon by the Lords Commissioners for Trade and Plantations, dated the second day of September last, and finding, that the said Lords Commissioners had proposed another system of Judicature to be substituted in lieu of that whicli is nowsubsisting,you thought it proper to order, that the said Memorials, Pétitions and Report, (vvhich were thereunto annexed,) should be referred to us, to consider and report our opinion and observations thereon, together with such altérations to be made in. what is proposed in the said Report of the Lords Commissioners for Trade and Plantations, and such. other régulations and propositions as we should think fit to suggest, for the f orming of a proper plan of Civil Government for the said Province of Québec ; and to that end, we were directed to take into our considération such parts of the annexed Report of Governor Murray upon the state of the said Province, as relate to the Civil Government thereof, whilst the same was annexed to the Crown of France ; and we were also required to send for Lewis Cramahé, Esq., Secretary to Governor Murray, and Fow- 1er Walker, Esq., Agent for the said Province of Québec, who were ordered to attend us from time to time, to give ns such further lights and information, as might be requisite for the purpose before mentioned. « We hâve perused the several papers

referred to ns, together with the said two Reports, and hâve also beeii attended by tli(; g(;ntl(imen named in your order, and npon the whole niattorbog leave liumbly to submit to your Lordships, such rellections as hâve occurred to us, in the course of that imperfect considération, which we hâve been able, at this busy season of the year, togive to the great subject of the Civil Governmeiit of Quebec, and the propositions made by the Lords Commissioners of Trade and Plantations.

« My Lords, it is évident that two very principal sources of the disorders of the province hâve been :

« 1. First the attempt to carry on the administration of Justice, without the aid of the natives, not merely in new forms, but total ly in an unknown tongue, by which means the parties understood nothing of what was pleaded or determined, having neither Canadian Advocates and Solicitors to conduct their causes, nor Canadian Jurors to give verdicts, even in causes between Canadians only, nor Judges conversant in the French language to déclare the law, and to pronounce judgment. This must cause thereal mischiefs of ignorance, oppression, and corruption, or else, what is almost equal in government to the mischiefs themselves, the suspicion and imputation of them.

({ 2. The second and a great source of the disorder was, the alarm taken at the construction put upon His Majesty's Proclamation of October, one thousand seven hundred and sixty-three, as if it were his Royal intention by his Judges and OfEicers in that country, at once to abolish ail the usages and customs of Canada, with the rough hand of a conqueror, rather tlian in true spirit of a lawful Sovereign ; and not so much to extend the protection and benefit of his English laws to his new subjects, by securing their lives, liberties, and pro-

perties with more certaintyth an in former rior Court of ordinary Jurisdiction, unitimes, as to impose new, nnnecessary, ting ail the proper powers in criminal and andarbitraryrules (especially in thetitles civil cases and malters of Revenue. In to land, and in the modes of descent, this Court, it is recommended, that a aliénation, and settlement ) which might Chief Justice should préside, assisted by tend to confound and subvert rights, three puisnô Judges. Thèse are requiréd instead of supporting them. to be conversant in the French Language, « 1. To the firsL of thèse evils, the order and that one of them particularly should made by yjDur Lordships on the fifteenth be knowing in the French Usages, of November last, founded on the Report « This proposition appears to us well of the Lords Commissioners of Trade and conceived. And we submit to your Lord- Plantations, requiring the Governor or ships, whether it may not be advisable, Commander in Chief of the Province ( by that they should be instructed to confer an additional instruction) to publish an sometimes with the Canadian Lawyers, Ordinance for admitting Canadian Jurors most respected for learning, integrity, in the several cases therein expressed ; and conduct, who may prove of the and for permitting Canadian Advocates, greatest assistance to English Judges. Attorneys and Proctors, under régula- Compétent salaries, for the encouragetions, provides an adéquate remedy. ment of worthy and able men, seem « 2. To the second evil, the Lords Com- absolutely necessary in this establishmissioners of Trade and Plantations, by ment, with a due distinction between the their Report, hâve applied themselves chief Justice and his brethren. The new with great care, ability, and judgment to Jodge of Vice Admiralty for America, suggest remédies, by pointing out the bas appointments of eight hundred defects in the late ordinance of September, pounds per annum. one thousand seven hundred and sixty- « 3. The third article relates to terms four, and reforming the Constitution of for the sitting of the Superior Court at Justice. We concur with their Lordships Québec, either according to the terms in the objections made to that Ordinance, appointed at Westminster, or as may be and upon the several articles of the plan more convenient. This matter must be laid down in that Report, the foUowing accommodated to the seasons, climate, observations occur to us, both for the and convenience of the people in their confirmation and improvement of them. tillage and other gênerai employments. « 1. The first article proposes a Court Therefore it seems proper to be left to of Chancery, consisting of the Governor the future judgment of the Governor, and Council, who shall also be a Court Chief Justice, and principal Servants of of Appeals, from whom an appeal will lie the Crown, entrusted with the governto the King in Council. By this article, ment of the Province, and ought to be the Lords of Trade very rightly mean to fixed by ordinance. invest the Governor and Council with « 4. The fourth article proposes four two différent jurisdictions; the one, as a Sessions of Assize, Oyer and Terminer Court of Equity, to give relief, originally, and Gaol Delivery at Québec, with like in that capacity ; the other, as a Court of spécial Commissions once or oftener in Error, to review in the second instance, the year, at Trois Rivières and Montréal, the judgments of the Court of Common We submit to your Lordships, tha* it Law, mentioned in the next article. may be unnecessary to lay down any u 2. The second article proposes a supe- particular rules for holding four Sessions,

612 LE DROrr CIVIL CANADIEN. [17CC-17CG

in the m.'innor moiitionod at Qiieh«jc; for <Mrli District; and if this mothod be

becauso ail cJvil and criniinal causes, taken, thoShcriffmay be raade anannual

arising in that district, may be tried at olUcer, because Queb<;c can afTord a

bar in t(3rm tinio, or (as the légal ex- siifUcient nuniber of proper |>*jrsons to

pression is) in bank, by order of the supply the rotation ; and Montréal ( it is

Judges, or under the gênerai powers of agreed ) can do the like. the Suprême Court. As to the Circuit « 6. The sixth article proposes to give

Courts to be held once or perhaps twice the Justices of Peace, in the three several

in the year (which seems better) at Trois districts, attheir gênerai QtiarterS^issions,

Rivières and Montréal, we think that it power to détermine final ly ail causes not

may be proper to require, that the Judges exceeding the value of ten pounds, ( the

shall continue in each of those places, at title to lands not being in question ), with

the least, for a certain number of days, a Jury v^here it exceeds five pounds ; and

to give time and opportunity for the w^ithout one. w^here it falls under that

resort of parties, and the convenient sum. It givesalso to two Justices in Petty

dispatch of business, in like manner as Sessions, similar authority, in similar

was done by Henry the Eighth, in esta- cases, v^here the value of the matter in

blishing the Courts of Great Sessions dispute is not more than forty shillings.

for Wales, and by Parliament in His late The latter authority appears to us well

Majesty's reign, when the Circuit Courts proposed ; but we submit, whether it may

were settled for Scotland. not be better to reserve the jurisdiction in

t( 5. The fifth article recommends the matters exceeding that value as far as ten

distribution of the Province into three pounds to be determined in Québec, by

Counties or Districts, of which Québec, proceeding in nature of the Civil Bill in

Montréal, and Three Hivers shall be the Ireland, before the Judges of the Superior

three Capital Towns, and that an annual Court, or by proceeding in nature of the

Sheriff shall be named, for each. We are Summary Bench Actions at Barbadoes ;

humbly of opinion that this distribution and in like manner, in the Circuit Courts

of the Province is more natural and at Trois-Rivières and Montréal twice in

convenient than the plan lately followed the year. The value of ten pounds is con-

by the Governor and Council, and it siderable in such a Colony ; and the

will be more agréable to the people, as it réputation of the Justices of the Peace, is

is conformable to their ancient division as yet, scarce enough established for such

of the Country. But, considering the a jurisdiction. Under this article we beg

difTicully of procuring English and Pro- leave to suggest, that in the Commission

testant SherilFs, especially at Trois Ri- of the Peace for each district, it may be

vières, (where at présent only two per- useful and popular, and endear His Ma-

sons, who are half-pay officers, réside, jesty's government to his new subjects,

thus qualified, ) it may deserve considéra- if one or two Canadians should be appoin-

tion, whether such Sheriff should not ted Justices, with the others who are

serve longer than one year, tillsuch time British, particularly if Protestants can be

as the graduai increase of the inhabitants found fit for that office, may facilitate an annual rotation ; or whe- « 7. The seventh and last menti oned in

ther the annual Sheriff of Québec may the Report of the Lords for Trade, on

not also serve that office for Trois Riviè- which we shall observe, is that article,

res. This will oblige him to appoint two whereinthey propose, that in ail cases

Deputies or Under-Sheriffs, that is, one where rights or claims are founded on

ll^'

events priortothe conquestof Canada, the Justice are every where the same. The

several Courts shall be governed in their modes of proceeding and trial, and

proceedings by the French usages and perhaps, in some degree also, the strict

customs, which hâve heretofore prevailed rules of évidence, may vary ; but the

in respect to such property. Judges in the Province of Quehec, cannot

«This proposition is undoubtedly right materialiy err, either against the laws of

as far as it goes, in respect of cases which England, or the ancient customs of

happened antécédent to the conquest ; but Canada, if in those cases they look to

we beg leave to take occasion from hence, those substantial maxims.

to enlarge a little on this subject of the « 2. Secondly, in ail suits or actions

rule of judgment to be observed in the relating to Titles of Land, the descent,

Courts of Québec, as it is of the greatest aliénation, settlements, and incumbrances

moment to the honor and justice of the of real property, we are humbly of opi-

Crown, and to the peace and prosperity nion, that it would be oppressive to

of the Province. disturb, without much and wise delibera-

«There is nota maximof the Common tion, and the aid of laws hereafter to be Law more certain, than that a conquered enacted to the Province, the local people retain their ancient customs till customs and usages now prevailing there. the conqueror shall déclare new laws. To To introduce, at one stroke, the English change at once the laws and manners of law of real estâtes, with English modes a settled country must be attended with of conveyancing, rules of descent, and hardship and violence; and therefore construction of deeds, must occasion wise conquerors, having provided for the infinité confusion and injustice. British securityof their dominion, proceedgently, subjects, who purchase lands there, may, and indulge their conquered subjects in and ought to conform to the fixed local ail local customs, which are in their own rules of property in Canada, as they do nature indiffèrent, and which hâve been in particular parts of the realm, or in the received as rules of propriety, or hâve other dominions of the Crown. The obtained the force of laws. It is the more English Judges sent from hence, may material, that this policy be pursued in soon instruct themselves, by the assis- Canada, because itis a great and ancient tance of Canadian Lawyers and intelli- Colony, long settled, and much cultivated gent persons, in such rules, and may by French subjects, who now inhabit it judge by the customs of Canada, as your to the number of eighty or one hundred Lordships do in causes from Jersey, by thousand. Therefore we are humbly of the custom of Normandy. It seems reaopinion, that the Judges to be employed sonable also, that the rules for tke disby His Majesty in this Province, will tribution of personal property in cases of answer ail the ends of their trust, both Intestacy, and the modes of assigning as to the King and the People, if their and coaveying it, should be adhered to conduct in Judicature be modelled by for the présent, the following gênerai rules : « 3. Thirdly, in ail suits entertained

«1. First, in ail Personal actions groun- before the Governor and Council, as a

ded upon debts, promises, contracts, and Court of Chancery or Equity, it is obvions

agreements, whether of a mercantile or that the gênerai rulesof Law and Justice

other nature, aud upon wrongs proper to must be the same as in the other Courts,

8 compensated in damages, to reflect, according to the subject-matter of the

that the substantial maxims of Law and suit, with this différence only, that the

or»

\.K imovv cfvrr. canadien.