It was at this date that Carleton removed Mabane and Irving from their position in the council. The fact has been mentioned as if the step had been taken in disapproval of Murray's appointments. It was dictated by the governor's condemnation of their conduct in the Walker affair. On the refusal of the chief justice to accept bail* a public meeting was organized in Quebec, on a Sunday evening, to protest against this assumed injustice. People as they came from church were asked to accompany the friends of the prisoners in a large body to the governor and petition him to grant bail, thus enforcing their request by numbers. Carleton looked upon these tumultuous proceedings as an attempt to interrupt the free course of justice; and, as Irving and Mabane had taken a prominent part on the occasion, he removed them. from the council as having been zealously active in promoting these disorders.† In bringing the matter to the notice of the members at the meeting of the 1st of December, he stated that he had been sorry to take the step, and that he would lay his reasons for so acting before his majesty.

+

One public document of this period, the report of the attorney and solicitor-general, Yorke and de Grey, of the 14th of April, 1766, calls for special mention. I cannot myself recognize the extreme importance which has been assigned to it. In one respect it exacts respect, from its recommendation of the establishment of a system of law which, with full justice to the new subjects, would retain control over the country so

+ Carleton to Shelburne, 29th November, 1766. "Six gentlemen were arrested at Montreal and brought here to offer Bail, also that the chief justice declared their case not bailable. After this much Pains were taken to assemble a great Crowd of People at this End. Many gentlemen were called to assemble at the House, where the prisoners were lodged, on Sunday last about the Time of coming from Divine Service, first to the chief justice and afterwards to me, and demand that I would accept Bail or that I would interpose my authority. Some gentlemen went amongst them and explained my opinion of such tumultuous proceedings, which prevented their coming in the manner proposed." Can. Arch., Q., 4, p. 40.

The Report is given in extenso in Smith's history of Canada, vol. II., pp. 27-28. It is not included in the colonial papers of the record office.

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lately ceded by France. This two-fold duty on the part of Great Britain was not generally considered in the claims advanced in the petitions sent home. Presenting the most opposite opinions, they agreed in failing to recognize the obligations entailed upon the central authority. The petitions prior to this date are not found in their place in the public documents; those given by Masères are of a later period. We may learn, however, something of their contents, from the report, which acknowledges the reference of "several Memorials and Petitions from his [the king's] subjects in Canada as well British as French, complaining of several of the ordinances and proceedings of the governor and council of Quebec." They further relate that they had conferred with Lewis Cramahé, the secretary of governor Murray, and Mr. Fowler Walker, agent of the province of Quebec. The latter was a chancery barrister, and whatever the title he assumed, he can only be regarded as the representative of the small minority of English speaking people, whose political opinions were represented in the presentment of the grand jury.

The report pointed out, that the causes of the disorders were attributable to two influences. The attempt to administer justice independently of the mass of the French Canadian population, under new forms, and in the English language which was unknown to them; there being no Canadian advocates to plead, and no jurors of their countrymen to decide their cases. Such a course either caused oppression, or what was equally bad, the suspicion and imputation of it. The second cause of discontent was that the royal proclamation of 1763, suggested that it was the intention to abolish all usages and customs of Canada, "with the rough hand of a conqueror rather than in a true spirit of a lawful sovereign."* One of the defects had been remedied by the instructions

The report proceeds to say "not so much to extend the protection and benefit of his English laws to his new subjects, by securing their lives, liberties, and properties, with more certainty than in former times, as to impose new, unnecessary and arbitrary rules (especially in the titles to land and in the modes of descent, alienation, and settlement), which might tend to confound and subvert rights instead of supporting them."

sent by the lords of the council on the 15th of November, 1765, for the publication of an ordinance for the admission to the law-courts of French Canadian jurors, similarly extending permission for advocates, attorneys and proctors to plead in French. The report coincided in the views of the lords of trade for the establishment of a court of chancery, consisting of the governor and council, to act as a court of appeal, both in equity and court of error. A superior court was recommended for jurisdiction in civil and criminal cases, and matters affecting the revenue, to be presided over by a chief-justice and three puisne judges conversant with French, one of whom should be acquainted with French law. The suggestion was made that they should be instructed to confer with French Canadian advocates respected for learning, integrity and character: the judges to be well paid to secure the services of competent men. The province to be divided into three districts, Quebec, Three Rivers and Montreal, with sessions held at periods as might be deemed expedient, a sheriff being permanently appointed to each district. Some remarks were appended as to the limitation of the jurisdiction of the courts. When any dispute arose relative to events previous to the conquest, French law only should be considered.* The

The report considered at some length the policy of accepting certain parts of the French law, and on the procedure which might be wisely followed in practice. It continues, "There is not a maxim of the Common Law more certain than that a conquered people retain their ancient customs till the conqueror shall declare new laws. To change at once the laws and manners of a settled country must be attended with hardship and violence; and therefore wise conquerors, having provided for the security of their dominion, proceed gently, and indulge their conquered subjects in all local customs which are in their own nature indifferent, and which have been received as rules of property, or have obtained the force of laws. It is the more material that this policy be pursued in Canada, because it is a great and ancient Colony, long settled, and much cultivated by French subjects, who now inhabit it to the number of eighty or one hundred thousand. Therefore we are humbly of opinion, that the Judges to be employed by His Majesty in this Province will answer all the ends of their trust both as to the King and the People if their conduct in judicature be modelled by the following general rules:

1. First, in all personal actions grounded upon debts, promises, contracts and agreements, whether of a mercantile or other nature, and upon wrongs proper to

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adoption of English criminal law was recommended. At that date, this change obtained universal acceptance and approval, and to this hour there has never been in any quarter the slightest indication of a desire to revert to French criminal practice.

The report concluded by suggesting that the chief-justice and the other judges, with the attorney-general of Quebec, should be appointed to prepare a plan by which the jurisdiction of the several courts should be carried on.

When on Carleton's arrival the administration of the law was considered, the chief-justice, Hey, and Masères, the attorney-general, both advocated that frequent sessions of the supreme court of king's bench should be held. The enactment would have been popular with the French Canadians, who desired more expeditious justice than they were then obtaining. During the French period the court sat once a week, and there was little delay in the adjudicature of cases. The proposition met with the approval of Carleton, who directed Masères to prepare an ordinance establishing twelve sessions of the supreme court; ten to be held at Quebec and be compensated in damages, to reflect that the substantial maxims of Law and Justice are everywhere the same. The modes of proceeding and trial, and perhaps in some degree also the strict rules of evidence may vary, but the judges in the Province of Quebec cannot materially err either against the laws of England or the ancient customs of Canada, if in those cases they look to those substantial maxims.

2. Secondly, in all suits or actions relating to Titles of Land, the descent, alienation, settlements and incumbrances of real property, we are humbly of opinion that it would be oppressive, to disturb without much and wise deliberation, and the aid of laws hereafter to be enacted in the Province, the local customs and usages now prevailing there. To introduce at one stroke the English law of real estate, with English modes of conveyancing, rules of descent and construction of deeds must occasion infinite confusion and injustice. British subjects who purchase lands there may and ought to conform to the fixed local rules of property in Canada, as they do in particular parts of the realm, or in the other dominions of the Crown. The English Judges sent from hence may soon instruct themselves by the assistance of Canadian Lawyers and intelligent persons in such rules, and may judge by the customs of Canada, as your Lordships do in causes from Jersey by the custom of Normandy. It seems reasonable also that the rules for the distribution of personal property in cases of Intestacy, and the modes of assigning and conveying should be adhered to for the present." Report of Yorke and de Grey, 14th of April, 1766, p. 35-36.

two at Montreal. The ordinance was never published, much to the general disappointment.*

It was of importance that the supreme court should keep pace with the court of common pleas, from which lay the right of appeal, and of which, subsequently, sessions were held weekly by the ordinance of March, 1770. There was dissatisfaction on all sides with the administration of the law. The English speaking part of the population, to be found only in Montreal and Quebec, made up for their paucity of number by energy and self-assertion. They knew nothing of French, and their ignorance of the law in common with the language, led them to look upon it with dislike. The opinions so strongly expressed in the presentment of the grand jury remained unchanged; and although their number was small and they were undistinguished by any particular attainments, their desire was to retain within their control the government of the country, to the entire exclusion of the native Canadians.

The humbler portion of the French Canadian population felt no particular interest on the point. Masères' view was that they had no special desire to retain the old laws, and that they would have quietly accepted any decision of their rulers. The impulse came from the seigneurs and those of higher position. They were the possessors of seigneurial privileges under French law; and the personal importance attached to the social position they conferred, joined to the natural desire to be admitted to a share in the government of the country, awoke a feeling of opposition towards all change, the end of which they could not foresee. Their claim, therefore, was that the old civil law and custom of the country should be adhered to. They even looked upon the English criminal law unfavourably. They conceived that it placed in too great prominence the habitant, admitting him upon the jury as the equal of men of higher rank. On that point they failed entirely to influence the general population, who were soon made to understand the merciful character of the English criminal law, and willingly accepted its introduction. It was

Masères: Several commissions, p. 67.