6-7 EDWARD VII., A. 1907 fullest persuasion of their reality, without introducing needless occasion of complaint and displeasure, and disrespect for their own sovereign. He seems, also, to provide better for the public peace and order, by leaving them in the habit of obedience to their accustomed laws than by undertaking the harsher task of compelling a new obedience to laws unheard of before. And if the old system happens to be more perfect than any thing which invention can hope to substitute on the sudden, the scale sinks quite down in its favor.

It should be remembered that the scheme of government and laws for Canada, was conceived by a wise court in a cool moment, untainted with private passion or public prejudice. The principles of humanity and the views of state combined to suggest that plan which might serve to build a flourishing colony upon. The plan was improved, from time to time, by the wisdom and experience of succeeding times, and not left to become obsolete and unfit for the progressive state of the province.

Although the foregoing observations should be thought just, as a general idea, yet circumstances may be supposed, under which it would admit some exceptions and qualifications. The conqueror succeeded to the sovereignty in a title at least as full and strong, as the conquered can set up to their private rights and ancient usages. Hence would follow every change in the form of government which the conqueror should think essentially necessary to establish his sovereign authority and assure the obedience of his subjects. This might possibly produce some alteration in the laws, especially those which relate to crimes against the state, religion, revenue and other articles of police, and in the form of magistracy. But it would also follow, that such a change should not be made without some such actual and cogent necessity, which real wisdom could not overlook or neglect ;-not that ideal necessity which ingenious speculation may always create by possible supposition, remote inference and forced argument-not the necessity of assi milating a conquered country in the article of laws and government to the metropolitan state, or to the older provinces which other accidents attached to the empire, for the sake of creating a harmony and uniformity in the several parts of the empire; unattainable, and, as I think, useless if it could be attained-not the necessity of stripping from a lawyer's argument all resort to the learned decisions of the Parliament of Paris, for fear of keeping up the historical idea of the origin of their laws:-not the necessity of gratifying the unprincipled and impracticable expectations of those few among your Majesty's subjects who may accidentally resort thither, and expect to find all the different laws of all the different places from which they come, nor according to my simple judgment, any species of necessity, which I have heard urged for abolishing the laws and government of Canada.

The foregoing thoughts are humbly submitted to your Majesty, as general and abstract propositions, liable to be much altered in the application, by what your Majesty may think fit to resolve upon the matters of policy and state which have appeared to me in some degree previous considerations to any plan for the administration of civil and criminal justice, and upon which I have not presumed to offer any opinion. All which is humbly submitted to your Majesty's royal wisdom.

PLAN OF A CODE OF LAWS FOR THE PROVINCE OF QUEBEC: REPORTED BY THE ADVOCATE-GENERAL, JAMES MARRIOTT, LONDON, MDCCLXXIV.

TO THE KING'S MOST EXCELLENT MAJESTY.

May it please your Majesty,

WHEREAS your Majesty was pleased, by your order in council of the 14th of June, 1771, to direct that several reports and papers relative to the laws and courts of judicature of Quebec, and the present defective mode of government in that province, should be referred to your Majesty's advocate, attorney, and solicitor-general to consider the same; to

1 The Report of Advocate General James Marriott, though not found among the State Papers, was published in 1774, under the title here given. The latter part of the report, pp. 129-246, is chiefly con

SESSIONAL PAPER No. 18

take to our assistance other persons, as we shall think fit, for the purpose of giving informations, and to prepare a general plan of civil and criminal law for the said province : and by a farther order, dated 31st July, 1772, reciting the former order, your Majesty was pleased to direct, that the advocate, attorney, and solicitor general should make a separate report thereupon to your Majesty in council, with all convenient speed. In most humble and dutiful obedience to your Majesty's commands, I have the honour to report, that I have perused and considered attentively the papers referred, and have obtained several very useful informations.

It is with the utmost diffidence I now venture to lay before your Majesty in council the result of the reflections which have arisen in my mind upon this subject: perplexed as it is, and so very extensive, both in its matter and in its consequences, to your Majesty, and your government, it would be full of danger to lay down any opinions (not only of what the law is, at large, but what the law ought to be; which is the great question referred) too positively, in relation to a country so remote from home, and to a people, their laws, and customs, with which your Majesty's subjects here are so little acquainted; I cannot, therefore, offer these thoughts otherwise than merely problematically, and as in deliberation, with submission to superior wisdom; and I shall readily accede to any better reasonings which may be set forth in any other report of the law servants of your Majesty, and in which we might unite.

It is observable, that the several reports hitherto made and referred to us, do not agree in opinion; but so far as they do not oppose each other in matter of fact, so far we may venture to try to frame some sort of opinion on the ground of those facts which are laid before us.

Notwithstanding that there ever has been, among men of reflection, a great variety of sentiments upon the subject of general legislation, and that such subjects require the life of a Plato or a Montesquieu to discuss, and the experience of ages to confirm them, it seems to be nearly certain, upon the ordinary experience of mankind (an observation very necessary and applicable to the progressive state of Canada) that wants make manners, and that manners make laws, interpret and controul them in every age and in every government: on the other hand, that laws, in a certain degree, can change the manners of a people, is not to be doubted; because their manners alter with the increase and circulation of property, on which the laws have a visible influence: that in a state of society, where the numbers are few, the wants simple, and the property free from the intricacies of commerce, the laws of that society also are few and simple. The government of a people in such a state represents the government of a private family. It is therefore impossible to form a general code of civil and criminal law for any people, without its being subject to change in the progress of civil society; nor can it be effective without its being adapted to the immediate wants of the people, and not inconsistent with the tone of their manners: but it is clearly the interest of the governing power, for its own preservation, to watch every change of circumstances, to follow expediencies as they arise, and to model its laws according to the position of the subject, and the views of that leading policy which is the wisdom of states, and the spirit of legislation.

Father Charlevoix,* in speaking of the administration of justice in Canada, in 1663, bewails the time when arbitrations were no longer decisive, dictated by good sense and the laws of nature; that it was a singular reflection, and humbling for mankind, that the precautions which a rise and great prince thought proper to take to banish fraud, and establish justice, by a new code for the colony, were the encrease of the one and the weakening of the other. The truth is, the colony was changed, and the laws followed. cerned with religious questions, which are only of incidental significance for the constitutional history of the Province, and is therefore omitted. The foot-notes designated by the signs *, t, +, &c., are contained in the report; those added by the editor are designated by numerals as usual. As may be gathered from the report, Marriott, had little sympathy with the policy which eventually dominated the Quebec Act and his examination before the House of Commons during the debate on that bill is an interesting bit of legal fence to avoid revealing his opinions of the measure. See Cavendish's Debates on the Quebec Bill", pp. 163-169 and 172-176. James (afterwards Sir James) Marriott was Advocate General from 1764 to 1778, when he was appointed Judge of the High Court of Admiralty, a position which he held till 1798.

*Lib. viii. p. 370, 371.

1 See note 1, p. 296.

6-7 EDWARD VII., A. 1907

In forming the preliminary propositions, in deliberation, to serve as a basis of a code of laws for the province of Canada, it must be taken for granted, as a first and clear position, that the great and sudden change of the political and relative circumstances of the country of Canada makes a farther change of its laws absolutely neces sary. It is not an ideal necessity which I mean, not the hope of attaining any perfection which may exist in speculation only, but it is a necessity in fact. The laws and people of Canada are already changed; nor can a previous question be supposed of the political expediency. After the representations of the board of trade in the strongest terms, the reports of the governor, chief justice, attorney-general' of the province, and correspondence with the secretary of state, annexed in the papers referred; and after your Majesty's order in council hath declared the necessity of a new system, by setting forth, that the present mode of government in the province is defective, and commanding your Majesty's law servants to prepare a general code of law for the same, and to call upon all persons we may think fit for information; such an ample reference precludes all brevity and reserve, and lays your Majesty's law servants, in my conception, under an indispensible obligation, however painful, to enter into every possible consideration upon a large scale, and to bring the whole subject in one prospect before your Majesty, that your Majesty, in your great wisdom, may weigh upon the most extensive informations the grounds of some probable system. This latitude is the more necessary, because, if hasty and ill digested regulations should be adopted, upon any mistaken notions of men and things, the evils already felt by your Majesty's government will increase beyond the power of a remedy.

The relative positon of the colony in its actual and possible views, being well considered, and all facts being well stated and established, the reasonings will easily follow.

To know what Canada wants, it is very proper to consider the relation in which it once stood to France, and the relation in which it now stands with respect to Great Britain. This colony was settled with views of policy and commerce, by a mission of Jesuits only, upon pretence of religion, and supported in opposition to the early claims of the British crown, as it was natural to a military government, upon military principles. On a view of the civil establishment of this colony in its infancy and progress, which appears from a perusal of the French commissions, nothing can be more simple, or formed with greater latitude than the general and indefinite powers granted to the French officers, to whom it was entrusted. The whole government, in its original state seems to have been left to the influence which military force** has over the bodies, and, which a system of religion, dazzling in its ceremonies, and operating forcibly on the imagination, has naturally over the minds of men *, whose employments and wants leave little time for reflection. The common law or custom of Paris, was to be their rule, by the edict of Lewis XIV. To this general system have been added a number of royal edicts, regulations of the superior council, ordinances of intendants, &c. which form the law peculiar to the province***; and although it appears upon the authority of Canadian lawyers, that many parts of the law of the custom of Paris have not at any time been executed in the colony; yet the state of the colony has been the only reason of it; and that no cases have yet arisen as objects of those parts of the law of the custom of Paris which have not been executed.

+Report of the attorney-general.

+ Vide Creation du conseil souverain de Quebec, 1663.

** Histoire philosophique et politique des etablissemens et du commerce des Européens dans les deux Indes, tom. vi. p. 142.

Tous les colons y devoient sans exception une obeissance aveugle à une autorité purement militaire.

* Ibid. p. 157. La necessité rendit soldats tous les Canadiens.

*** La coûtume de Paris modifiée par des combinaisons locales forma le code de ses loix. Ibid. 146. 1 See note 1, 258. For Report of Attorney General, see p. 258.

SESSIONAL PAPER No. 18

In the condition described, the colony of Canada at the peace of Versailles', was ceded to the crown of Great Britain, absolutely, with no restriction but such as regarded the preservation of private property, or had a view to certain modes of religious worship, or rituals, in case they were permitted by the laws of the country, which now became sovereign. One hundred thousand subjects in this ample manner (to use the words of the treaty) transferred from one sort of government to another, totally different in manners, languages, laws, and religion, must necessarily suffer a violent alteration.

It is very observable, that in the XLIId article of the capitulation for Montreal and Canada, the demand was, that the Canadians shall be governed according to the custom of Paris, and the laws and usages established for that country. This is neither granted nor refused, but reserved. The answer is, "they become your Majesty's subjects. The consequence is, their laws are liable to be changed. But until the system of laws of the ancient inhabitants should be repealed by the authority of the new sovereign power, their old system was understood by many to be in full force upon them. This is laid down, as a most certain maxim of the common law, by Mr. Yorke and Mr. De Grey, in their reports; by which I suppose they meant the law of nations. That doctrine is laid down as the common law by Lord Coke, in Calvin's case. But the common law of England has nothing to do with the question; it is a matter of the jus gentium, and it depends upon the silence and presumed indulgence of a new sovereign power, as well as upon any acts whereby the sovereign's pleasure is made publicly known. There is no occasion to cite passages of Grotius §, or Puffendorff, or any other German or Dutch writers, to shew their opinion of what is possible for the sovereign power to permit by not abrogating.

But much more difficulty occurred (and it was increased by the steps taken by the British government) upon the question, whether the laws, civil and criminal, of the ancient inhabitants, became binding upon the persons and properties of British subjects who came over to settle in Canada after the conquest? who have been thought to carry out with them, as it has been expressed by somebody, all the laws of England upon their backs; and who, in a more particular manner, claimed the benefit of your Majesty's proclamation, so far as it was understood to be binding, as declarative of the general laws of England, and of your Majesty's right in consequence, with the advice of your Majesty's privy-council, to make laws for any conquered country ceded to the crown, exercised by your Majesty in this instance, in the same analogy as in royal grants or charters, heretofore of any unsettled lands and territories belonging to the crown, acquired by occupancy of the subject; the conditions of which grants have been the result of the royal pleasure, having regard to the fundamental laws of England.

The fact appears to be, that a proclamation has been issued by your Majesty, with the advice of your privy-council, so long ago as the 7th of October 1763; setting forth, that in the interim, until a provincial assembly could be called, all persons inhabiting the said colony may confide in your Majesty's royal protection for the enjoyment of the benefit of the laws of the realm of England; and for that purpose your Majesty had given power to the governors of the said colony, to erect, with the advice of their councils, courts of judicature and public justice.

As the com nission* of the governor of Quebec", is almost in every article a direct copy of the commission of the governor of New York in 1754, and of the commissions of the governors of the rest of your Majesty's colonies, modelled doubtless upon those granted upon their first settlement; so it should seem as if this proclamation had been copied inadvertently, and in the hurry of office, from some former proclamation relative

Article IV. Sa M. tres chrétienne cede et transporte le tout au dit roi, et à la couronne de la Grand® Bretagne, et cela de la manière et dans la forme la plus ample, sans restriction.

§ Report of the attorney-general.

*Vide printed Collection, p. 93, 102, 239, 250.

1 See the Treaty of Paris, 1763, p. 73.

* See Articles of Capitulation of Montreal, p. 8.

3 See Report of Yorke and de Grey, p. 174.

+ See Proclamation of Oct. 7th, 1763, p. 119.

5 See Commission of Governor Murray, p. 126.

6-7 EDWARD VII., A. 1907

to Nova Scotia, or some other unsettled British colony, inviting persons to emigrate thither from the mother-country; and that the reflection never entered the thoughts of the drawers up of this proclamation, that Canada was a conquered province, full of inhabitants, and already in the possession of a legal establishment.' In consequence of this proclamation and commission, courts of judicature were set up, and the judges were directed to follow the laws and customs of England."

In a report made April 1766, by the then attorney and solicitor-general, Mr. Yorke and Mr. De Grey, it was laboured, that this proclamation was only meant to be introductive of select parts of the laws of England, and not of the whole body of laws; and that the criminal laws of England, and of personal wrongs, were almost the only laws that came under the description of the words enjoyment of the benefit of the laws of England; and that the laws of England relative to descent, alienation, settlement, and incumbrances of lands, and the distribution of personal property in cases of intestacy, and all the beneficial incidents to real estate, in possession or expectancy, were not compre hended under the proclamation.

The proclamation issued upon the 7th of October 1763. The commission of the governor was subsequent to the proclamation; the bill not being signed by the attorneygeneral for the commission by letters patent till 22d of October; and on the 14th November 1763, the privy-council made an order for interlineations of some necessary words. Indeed I am disposed to think, that the proclamation, singly considered, and of itself, without other acts of government which followed it, did not introduce absolutely the law of England, in the whole of its system, by general words; because it might possibly bear some sort of distinction, as taken above, between cases civil and criminal: and it might also bear the distinction of new, and the old subjects, who were the emigrants from home; the former, as governable by their own ancient usages; the latter, as bearing the privileges of Englishmen upon their backs. It might be said, the proclamation was meant for the new settlers, and for the new grantees, and related to the yet unoccupied lands of the province, and extended no farther.

But these distinctions were under a farther difficulty from other acts of government: the actual establishment of the courts of justice, of the king's bench, and common-pleas, with commissions and titles similar to those of the judges and courts of Westminster Hall, and with express instructions to follow the English laws and customs, did of necessity, and ipso facto, introduce all the modes of judicial proceeding according to the laws of England; although with this modification, so far as they could be put in practice under such circumstances; and did also strongly tend to introduce gradually the whole system of English laws, and did occasion a strong presumption in the minds of all men, that it was then actually introduced, or meant to be introduced as soon as possible.

The two ordinances of the 17th of September 1764, and of 6th of November 1764,* transmitted home to the king in council, and never disallowed, are very strong in favour of this idea, although the first contains some saving clauses, viz. that the judges in the court of common-pleas are to determine agreeably 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 can be established by the governor and council, agreeable to the laws of England. That tenures in respect to grants prior to the cession by treaty, and the rights of inheritance as practised before that period, shall remain the same till the 10th August 1765, unless altered by some declared and positive law, with a salvo of his majesty's rights. The consequence after the

+ Vide Inclosure, p. 166.

1 That this is a mistaken supposition with reference to the conditions which led up to the Procla mation of 1763, will be evident from a consideration of the " 'Papers Relating to the Establishment of Civil Government in the Territories ceded to Britain by the Treaty of 1763." See pp. 93–119.

2 Referring to the Ordinance of Sept. 17th, 1764; see p. 149.

3 See Report of Yorke and de Grey, p. 174.