"true intent and meaning. It is necessary and fit that the conquered country should have some laws, and, therefore, until the laws of the country thus acquired are changed by "the Sovereign, they still continue in force." (1) It becomes necessary then to inquire whether the royal prerogative in this respect, was restrained by any articles of surrender or cession as to Canada. In referring to the capitulation signed at Montreal, the 8th September, 1760, we find, as article 41, proposed by the French commander, the Marquis de Vaudreuil, The French Canadians and Acadians of what state and condition soever, who shall remain in the colony, shall not be "forced to take arms against His Most Christian Majesty, or his allies, directly or indirectly, on any occasion whatsoever; the British Government shall only require of them an exact neutrality." The answer to which by general Amherst is, "They become subjects of the King," The 42nd article is directly to the point; it was asked by the French: “The "French and Canadians shall continue to be governed according to the Custom of Paris, and the laws and usages established for this country; they shall not be subject to any "other imposts than those which were established under the "French dominion." The answer is: "Answered by the preceding articles, and particularly by the last." The royal prerogative is thus clearly reserved in its plenitude, to the King of Great Britain. By the 5th article of the definitive treaty of peace, between the kings of Great Britain and France, dated at Paris, the 10th February, 1763, Canada was ceded to Great Britain "in the most ample manner and form, without res"triction." The sole covenant, on the part of Great Britain, is: "His Britannic Majesty, on his side, agrees to grant the "liberty of the Catholic religion to the inhabitants of Canada, " he will consequently give the most effectual orders that his "new Roman Catholic subjects may profess the worship of "their religion, according to the rites of the Romish Church," but, even this is limited expressly by the words immediately following "as far as the laws of Great Britain permit." Upon the conquest of the country, general Murray established military tribunals, which dispensed justice both in civil and criminal matters, according to their own rule of natural equity and right, and the whole system of courts and administration of justice, as practised under the French Government, ceased for ever. On the 7th October, 1763, by proclamation given, at the court, at St. James, the King published and declared that he had granted his letters patent under the Great Seal of Great Britain, for the erection of four distinct and separate govern (1) Chitty, on Prerogative, 29. (6 ments, out of the acquisitions secured to him in America by the Treaty of Paris. The first of which was "The Government " of Quebec," comprising all Canada. This proclamation countains the following important declaration: "Whereas it will "greatly contribute to the speedy settling our said new governments, that our loving subjects should be informed of our paternal care for the security of the liberty and properties of those who are, and shall become inhabitants thereof; we "have, in the letters patent under our seal of Great Britain, by which the said governments are constituted, given express power and direction to our governors of our said colonies "respectively, that so soon as the state and circumstances of "the colonies will admit thereof, thay shall, with the advice and consent of the members of our Council, summon and call general assemblies within the said governments respectively, in such manner and form as is used and directed in those "colonies and Province of America, which are under our immediate government; and we have also given power to the said governors, with the consent of our said councils, and the representatives of the people, so to be summoned as aforesaid, to make constitute and ordain laws, and statutes and ordinances for the public peace, welfare and good govern"ment of our said colonies, and of the people and inha"bitants thereof, as near as may be agreeable to the laws of England, and under such regulations and restrictions as are "used in other colonies; and in the mean time, and until "such assemblies can be called as aforesaid, all persons inha'biting in, or resorting to our said colonies may confide in Our Royal Protection for the enjoyment of the benefit of the laws of our Realm of England; for which purpose, we have "given power under our Great Seal to the Governors of our said colonies respectively, to erect and constitute, with the advice of our said councils respectively, courts of judicature and public justice within our said colonies, for the hearing "and determining all causes, as well criminal as civil, according to law and equity, and, as near as may be, agreeable "to the laws of England, with liberty to all persons, who may "think themselves aggrieved by the sentence of such courts, in all civil causes, to appeal, under the usual limitations and "restrictions, to us, in our Privy Council." 66 66 46 Under this proclamation and the King's commission and instructions, civil government, in lieu of the military tribunals, was established in the Province of Quebec, on the 10th of August, 1764, The legislative power was wielded by the governor and council, and on the 20th September, 1764, an ordinance was passed by their authority to which it is proper to advert at length, as the very existence of this act of legis lation, as well as of many others, by the same authority, is hardly known at this time, no collection of them having ever been made by authority, and the old printed copies being very rare. The ordinance commences as follows: Whereas upon the conquest of this country, Her Majesty's Commander in "Chief of the forces, in America, did order and direct justice "to be administered to the inhabitants thereof, by courts "established for that purpose in the several governments into "which this Province was at the time divided, of which His Majesty, through one of his Secretaries of State, was pleased "to signify His Royal approbation, and to command the same "to subsist and continue until civil government could with propriety be settled therein. In order to satisfy any doubts which might arise with regard to the decisions of the said courts, and as far as may be to prevent all vexatious law, suits, which might, at present or hereafter, arise therefrom "His Excellency the Governor (General Murray), by and with "the advice, consent and assistance of His Majesty's Council, "and in 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 order and declare that, from the "8th day of September, in the year 1760, the date of the capitulation of Montreal, until the 10th day of August last, from which time civil government took place throughout this "province, all orders, judgments or decrees of the Military Council of Quebec, and of all other courts of justice in the " said Government, or in those of Montreal and Three-Rivers, "do stand approved, ratified and confirmed, and shall have "their full force and effect, except in such cases where the "value in dispute exceded the sum of £300 sterling, when either party may appeal to Her Majesty's governor and "council of the province, provided such appeal be lodged with "the clerk or deputy clerk of His Majesty's Council of Quebec, "within two months after the publication hereof." "And it is hereby further ordained and declared, that the judges, justices of the Peace and other magistrates, or civil officers of this province, whom it doth or may concern, upon application of the several parties, shall put in execution all "such orders, judgments or decrees of the said courts, the same being properly attested as not having been already executed." The judges, &c., mentioned here, are those who were appointed under another or prior ordinance, of the 17th September, 1764," For regulating and establishing the courts of "judicature, justices of the Peace, Quarter Sessions, Bailiffs and other matters relative to the distribution of justice in the province." This ordinance commences "Whereas it is highly expedient and necessary, for the well governing of Her 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 powers and authority "to him given by His Majesty's letters patent, &c.," ordained and enacted "That the Superior Court of Judicature, or Court "of Queen's Bench, be established in this province, to sit and "hold terms in the Town of Quebec, twice in every year, viz, one to begin on the 21st day of January, called Hilary Term, and the other on the 21st day of June, called Trinity Term. 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, when the matter in contest is above the value of £300 sterling, and from the and coungovernor cil an appeal lies to the King and council when the matter "in contest is of the value of £500, sterling, or upwards.. "In all trials in this court, all His Majesty's subjects in this colony 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 Three-Rivers, for the more easy and convenient distribution of justice to His Majesty's subjects in those distant parts of the province." 66 66 46 "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 questions of property above the value of ten pounds, with liberty of appeal either to the Superior Court, or Court King's Bench, when the matter in contest is of the "value of £20 and upwards. All trials in this court to be by juries, if demanded by either party, and this court to sit and hold two terms in every year, &c. The judges in this court are "to determine agreeable to equity, having regard nevertheless to the laws of England, as far as circumstances, and the 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. The French laws and customs to be allowed and admitted in all causes, in this court, between the natives of "this province, where the cause of action arose before the first 66 day of October, 1764. The first process of the court to be an attachment against the body. An execution to go against the "body, lands or goods of the Defendant. Canadian Advocates, "Proctors, &c., may practise in this court." All civil causes below the jurisdiction of the Common Pleas were made triable by justices of the Peace. An officer called the Provost-Marshal was appointed to act as sheriff in the execution of process, and until the arrival from England of a person to fill this office, provision was made by the appointment of bailiffs. The commission appointing William Gregory, the first Chief Justice of the province, is dated the 24th August, 1764, and it directs him to inquire by the oaths of honest and lawful men of the province aforesaid, and by other lawful ways, "methods and means by which you can or may the better, know, as well within their liberties as without, of all civil pleas, actions and suits, as well real and personal, as mixed, "between us and any of our subjects, or between party and party by whomsoever had, brought, sued or commenced, and "of all other articles and circumstances, the premises or any "of them in any wise, and the said pleas, actions and suits, and every of them to hear and determine, and the same do and fulfil in form aforesaid, doing therein that which to "justice doth belong and appertain, according to the law and "custom of that part of our Kingdom of Great Britain called England, and the laws, ordinances, rules and regulations of our said Province of Quebec, hereafter in that behalf "to be ordained and made." The commission appointing William Hey, the second Chief Justice, is dated the 25th September 1766, and is in the same terms. An Ordinance "for registering grants, conveyances, and other instruments in writing, of or concerning any lands, tenements or hereditaments within this province" passed the 6th November, 1764, recites the instructions of His Most Sacred Majesty to the governor bearing date at St. James the 7th December, 1763, in relation to the registration of grants and deeds, and enacts, among other things, "that the "due execution of every deed or conveyance, of what nature soever, which shall hereafter be made of or concerning any "lands, tenements or hereditaments, within this province, "shall be proved before the said registrar or deputy registrar, or other person qualified for that purpose, either by personal acknowledgment of the grantor, vendor or mortgagor in such deed or conveyance respectively named, or by the oath of one or more of the subscribing witnesses to "the same, which acknowledgment, or proof of the due execu |