ument submitted by the Board of Trade was too general and too unsupported by specific proofs of grievances to be approved without further information; especially as no explicit complaint had of late been received from the Colonial officials; and that therefore full reports and recommendations as to the alleged judicial defects should first be obtained from these officials, "it being unwise and dangerous to the Province to frame or reform laws in the dark." In accordance with these proceedings Shelbourne in the following December directed Carleton to institute a specific investigation, and an Under-Secretary was at the same time commissioned to go out and join in the same.' And having thus decently shelved the subject, the Home Government, busy with other matters, awaited with great equanimity the appearance of the reports.

But before the news of this step had been received by Carleton, he had with characteristic energy and decision made up his mind as to the solution of the matter, and December 24, 1767 had sent to Shelburne an abridgement of the civil laws of Canada in use at the conquest, with recommendation that for the present they should be continued almost entire, to be altered by future Ordinances as might seem fit. As a beginning or model he submitted for approval a draft of a proposed Ordinance, for "continuing and confirming the laws and customs that prevailed in the Province in the time of the French Judicature, concerning the tenure, inheritance, and alienation of land." The answer to this was the letter from Hillsborough of March 6, 1768, quoted from above, which states that the proposed Ordinance has been approved by the King, though it is to be held in reserve pending a general settlement, and which therefore shows conclusively that more than six years before the Quebec Act, the Home Government, uninfluenced,

3

1 For his instructions, see Can. Arch., Q 4, p. 331.

Can. Arch., Q. 5-1, pp. 316-343.

P. 387.

2

so far as we can discover, by anything except the representations made as to the state of the Province, had resolved to go at least as far as that Act went. But there were still the reports ordered to wait for, and meanwhile the stationary condition of affairs is shown in the Instructions of Carleton, August, 1768, which, though going into minute directions as to forms of legislation, make no reference to the all-important question as to how far that legislation should be based on English or on French codes.

The investigation ordered was entered upon vigorously by the provincial Government. It is significant to note the anticipation of that government as to the result, (even before the receipt of the letter of March 6th from Hillsborough), as shown by a Minute of Council of March 28, 1768, to the effect that a committee was appointed on that day to take from the old French laws such extracts "as may appear to them necessary to make a part of the future regulations of the Province." 3 The reports were transmitted in September, 1769, the main one embodying Carleton's views, and minor ones giving the dissenting opinions of the ChiefJustice and Attorney General. Though the original documents are not to be found, we have other means' of arriving pretty accurately at the contents. Carleton recommended that the whole body of the French civil law as it had existed before the Conquest should be restored, to be changed explicitly by fresh Ordinances as might seem necessary; consequently that no English civil law should be in force except such as might later be expressly introduced in this manner. Masères and Hey on the contrary thought that the Cana

1 Thought the more necessary probably in order to be able to make a good case for a measure which was likely to be vigorously opposed.

2 Possibly, however, only the old neglect.

Can. Arch., Q. 5-1, p. 435.

4 Evidence before Commons in the Quebec Act Debate; Correspondence of Carleton; writings of Masères. There is very strong reason for believing that the paper in the Lower Canada Jurist, Vol. I., attributed to Chief-Justice Hey, is his report on this occasion. His views are, however, very clearly stated by him in the evidence referred to above. See especially Cavendish, pp 156-7.

dians would be contented and the best interests of the Province secured, by the continuance or adoption of the English law and procedure as a general basis, and the special revival of the French law in regard to landed property and inheritance; the general aim being the gradual assimilation of the Province to the other English possessions in America.1

2

The home authorities did not allow themselves to be hurried. The next step, almost two years later, is an Orderin-Council of June 14, 1771, transmitting the Provincial reports and all other papers concerning Quebec to the crown lawyers, and ordering them to return separate and detailed reports as a basis for legislation. Meanwhile, however, as if to palliate the delay of the full settlement, there was issued (July 2d, 1771), a new instruction in regard to land grants, by which a very noteworthy step was taken toward the return to French law. The Proclamation of October, 1763, had conferred on the governor and Council "full power and authority" to grant lands, upon such terms. . as have been appointed and settled in other colonies," and in accordance with such special instructions as might thereafter be given. These special instructions were issued to Murray when appointed Governor in 1764, and directed the grants to be made in free and common soccage, according to English forms, to be held by an oath of fealty and a quit-rent of two shillings sterling per 100 acres; the grants to be in restricted quantities and on the usual conditions of cultivation, and a special caution being added against following the example of some of the other colonies in making excessive allotments to individuals unable to fully cultivate. Under these regulations the amount actually granted was very small, not exceeding 14,000 acres

1 Special attention is directed to these recommendations by Masères and Hey, which will be found in detail in their evidence in 1774 before the Commons. They represent, in my opinion, by far the better settlement.

Attorney-General Thurlow, Solicitor-General Wedderbourne, and Advocate-General

Marriott.

in all, according to the statements of Carleton and Masères;1 which is apparently accounted for by the fact that the terms were deemed severe and unprofitable, especially in comparison with those of the French grants.' The Minutes of Council show that the lands which had been awarded on much easier terms to discharged soldiers, had been but little availed of. The expense of the necessary registration was a considerable obstacle, and in the later years the government seems to have delayed completing grants from the anticipation of new instructions. Such a change had been urged by Carleton two years before, in a communication in which he had described the old French form of grant, and had strongly presented the advisability of reverting to it thereafter except at the eastern extremity of the province, where he considered it advisable that old subjects only should be encouraged to settle. His reasons for this advice are not very clearly given, and would seem to have been largely military (in the advantage of renewing in some way the obligation of military service as a condition of tenure), but we are safe in concluding that among them was a conviction that the English forms were not conducive to the settlement of the country. The action is on a line with the constant tendency shown by Carleton to revert wherever possible, to the French forms. Though the proposal was looked upon favorably by the home government, no effective action was taken thereon till July 2d, 1771, on which date the "additional instruction" spoken of above was issued, by which it was ordered that for the future lands should be granted "in fief or seigneurie, as hath been practiced heretofore, antecedent to the Conquest," according to the old French forms, but with the omission of the judi

1 The former in official correspondence April 15, 1767 (Can. Arch., Q. 4, p. 152); the latter in Quebec Commissions, p. 182.

See Cramahé to Hillsborough, Can. Arch., Q. 8, p. 142.

Ibid., Q. 4, p. 230; Q. 8, p. 116.

•Minutes of Council, April 18, 1770. Ibid., Q. 7, p. 129.

To Shelbourne, April 12, 1768. Can. Arch., Q. 5-2, p. 477.

Hillsborough to Carleton July 9, 1768. Can. Arch., Q. 5-2, p. 602.

cial powers thereto anciently belonging. The ground of the change is stated in the preamble to be representations that the former terms "have been found to be inconvenient and inadequate; and that it is more for our advantage and for the benefit of our subjects if the ancient mode of granting lands was to be adopted." This radical and deliberate change of policy bears very striking testimony to the genuineness of the decision as to the full restoration in the Province of French law and custom. In this light it was regarded in Quebec, Cramahé informing Hillsborough' that the French Canadians looked on the change "as a fresh proof of his Majesty's gracious intention to continue to them, so far as it can be done, their ancient usages and customs."2

But though such a decisive step had been taken, nothing further was attempted until the reception of the final reports from the Crown lawyers. These need not be considered in detail, their main provisions, following the rec

1 May 5, 1772. Can. Arch., Q. 8, p. 142.

2 He continues: "His old subjects are no less pleased with this method of granting lands, for upon the terms at first required, they could never have settled them to advantage." The effects of the change on land occupation were certainly immediate and striking. Before the end of 1771 we find before the Quebec Council petitions for land under the new forms amounting to an aggregate of 60,000 acres (Can. Arch., Q. 8, p. 116), and in little more than a year from the publication of the new instructions no less than 56 petitions had been received for immense tracts (averaging probably not less than 100 square miles in extent), most of which are expressly asked for en seigneurie and all of which are undoubtedly so meant. Most of the petitioners, it is to be noted, were of the English speaking element. Apart from the questions of the intrinsic merit and suitability of the English and French tenures it will be seen that two reasons must have existed for this preference of the English investors for the French form. The first was the fact that the aristocracy of the Province was founded on the feudal possession of the land; the second, that it must have been at this time very clear that, whatever should be the ultimate form of government, the French laws and customs were bound to prevail in regard to landed property. It will be seen on the other hand, that this great success of the first step in the return to French institutions must have largely tended to confirm the intentions of the Home Government in that regard. Though it is to be noted that the Quebec Act of 1774 seems to attempt to regain in this matter some of the ground lost in 1771; for while the instruction of the latter date make no provision whatever for the further use of the English form of grant or tenure, the IXth Art. of the Act is especially inserted for the legalization and protection of "free and common soccage." In connection with the later history of this matter of feudal tenures see Houston, Can. Const. Doc., p. 109, note 12.