so far as restricted by the treaty of cession, and that, in the absence of interference by the Crown, the laws existing at the time of cession would continue in force, we have now to consider what laws were allowed to exist, what were imposed by the Crown, what the Crown could not interfere with or impose by reason of the treaty, and how it comes that the Crown has lost its rights, and we enjoy the right to legislate for ourselves, subject only to the power of the Crown to withhold its assent to a proposed measure becoming law, and of the British Parliament to impose laws on us, except so far as restrained in regard to taxation by Stat. 18 Geo. III., c. 12, Con. Stat. Can. p. xiv.

Prior to the capture of Quebec by General Wolfe, in 1759, the late Province of Canada belonged to the French. On capitulation of the town, it was provided in the Articles that the inhabitants should be maintained in possession of their goods, houses, privileges, and in the exercise of their religion

Montreal subsequently surrendered to the British, and by the terms of the capitulation, the inhabitants were guaranteed the free exercise of their religion, but the guarantee did not extend to their laws, usages, or customs.

Paris.

In 1763, by the Treaty of Paris (a), the French possessions Treaty of were ceded by that government to the King of Great Britain, "in the most ample manner and form, without restriction;" the King of Great Britain agreeing, however, "to grant the liberty of the Catholic religion to the inhabitants of Canada," and to give orders "that his new Roman Catholic subjects may profess the worship of their religion, according to the rites of the Romish Church, as far as the laws of Great Britain permit." Afterwards, in the same year, the King, in the exercise of his prerogative right, issued a Proclama- Proclamation introducing tion introducing the law of England, civil and criminal, in English Law.

(a) See "Chalmers' Treaties," vol I. p. 467.

general terms (a), into the ceded territory, then formed into the Province of Quebec; but by some inadvertence, the territory was so described as to exclude the greater part, in regard to which no provision was made for its civil government. The Proclamation declared that powers had been given by Letters Patent to the Governors of the newly acquired territories (which had been erected into four distinct Governments-of Quebec, East and West, Florida and Granada) with the advice and consent of the Members of Council to call General Assemblies, and with such consent and that of the representatives of the people to make laws, etc., and in the meantime all persons might confide in the King's protection for the enjoyment of the benefit of the Laws of England, for which purpose, it was declared, power had been given to the Governors with the advice of the Councils to constitute Courts for hearing and determining causes, civil and criminal, according to Law and Equity, and as near as might be "agreeable to the laws of England," with right of appeal in civil cases to the Privy Council.

Under this Proclamation and the King's Commission and instructions to the Governor, civil government in lieu of the then existing military tribunals was established in the Province of Quebec. The legislative power was exercised by the Governor and Council, and in September, 1764, a Provincial Ordinance was passed, establishing a Superior Court of Queen's Bench, with power to hear and determine all civil and criminal cases "agreeable to the laws of England," and the Ordinances of the Province.

The French Canadian populace were dissatisfied with the introduction of the British law; in 1766, the Attorney and Solicitor-General, to whom the Imperial Government had referred, reported in favour of re-establishing the French

(a) See ante p. 22.-It was said in the Canadian cases there referred to, that the Proclamation only amounted to a promise or intention to introduce the British Laws.

Geo, III. c. 83.

law in civil matters; in 1772 and 1773, the Advocate-General, the Solicitor-General (afterwards Lord Chancellor Loughborough), and the Attorney-General (afterwards Lord Chancellor Thurlow), to whom the question had again been referred, reported to the same effect; England became involved in difficulties with the other North American Colonies; and in 1774, the British Statute 14 Geo. III., c. 83 Con. Imp. Stat. 14 Stat. Can., p. ix. was passed, which after reciting the defect in the proclamation of 1763, enlarged the limits assigned by it to the Province of Quebec, and defined those limits (a), which included, apparently, with other territory, the whole of what was formerly Upper Canada. By the same Act, after reciting therein that the provisions made by the Proclamation for the Civil Government had, on experience, been found to be inapplicable to the state and circumstances of the Province, the inhabitants whereof, it was further recited, amounted at the conquest to 65,000, professing the religion of the Church of Rome, and enjoying an established form of constitution and system of laws, by which their persons and property had been protected and governed for a long series of years, it was provided that the Proclamation should be revoked, that in all matters relating to civil rights and the enjoyment of property, and customs and usages, resort should be had to the laws of Canada (meaning the French laws in force before the Proclamation), until varied by such Ordinances as might from French Law, time to time be passed by the Governor and Legislative Council, to be appointed as set forth in the Act, and the Roman Catholic inhabitants were guaranteed in the free exercise of their religion. It was, however, provided that the Act should not extend to lands granted or to be granted by the Crown in free and common socage; and that the owner of lands, goods or credits might devise or bequeath

(a) These limits have been abridged and defined by various Treaties with the United States.

Reintroduced

nal.

the same, notwithstanding any law or custom prevalent in

Except crimi- the Province to the contrary; and the criminal law of England was retained as introduced by the Proclamation of 1763. The Act took effect on 1st May, 1775.

French civil law in force

till 1792.

Upper Canada formed into a

vince and

stitution.

Thus it was that, with the exceptions above named, the old French law was again in force. As applied to lands, it partook in its nature, in some respects, more of the feudal system than did the then existing British law, and perhaps, until recent changes, there were few parts of the world where some of the relics of the feudal system were preserved so intact as in Lower Canada.

The French law, with the above exceptions to it, continued in force until the Provincial Act 32 Geo. III., c. 1, 1792, modified, however, from time time, by Ordinances under 14 Geo. III., c. 83, of the Governor and Council, who, until the granting of a constitution under the Imperial Act of 31 Geo. III., c. 31, had the legislative control of the Province. The most important changes under those Ordinances, were the introduction of the writ of Habeas Corpus, in 1784, by Ordinance of 24 Geo. III., c. 5, and of trial by jury, in 1785, by Ordinance of 25 Geo. III., c. 2.

By Imperial Act 31 Geo. III., c. 31, 1791, Con. Stats. Can., separate Pro- 15. the powers given by 14 Geo. III., c. 83, to the Governor granted a con- and Council, to legislate, were repealed, and the former Province of Quebec was divided into the two Provinces of Upper and Lower Canada, a separate constitution and representative form of government granted to each, and the power of legislation vested in the Legislative Council and Legislative Assembly of each Province, to be appointed as set forth in the Act, the assent of the Crown, which might be expressed through the Governor, being always required to any measure becoming law. It was also provided that all lands to be Lands to be granted in Upper Canada should be in free and common socage, and that if the grantees desired it, grants should be on the same tenure in Lower Canada. This Act, however,

granted in free and common

socage.

still left the former French Canadian law and Ordinances of the Governor and Council in force in Upper Canada. Under the first Act of the Parliament of Upper Canada, First Act of Upper Canada 32 Geo. III., reciting that Upper Canada had been princi- introduces English law, pally settled by British subjects unaccustomed to the law of 1792. Canada (meaning the French law), the provision made by the Act 14 Geo. III. c. 83, that in matters of controversy as regarded property and civil rights resort should be had to the laws of Canada, was repealed, and it was declared that in such matters "resort should be had to the laws of England as the rule for decision of the same;" and the same with regard to evidence, legal proof and investigation of matters of fact. The English poor and bankrupt laws were expressly excepted. The Ordinances theretofore made by the Governor and Council were to remain in force however, except so far as necessarily repealed by the above provisions, as also ecclesiastical rights, forms of proceedings, and jurisdiction of the courts (a). The English Statutes of jeofails, of limitations, and for the amendment of the law, and the equitable jurisdiction and powers of the Court of Chancery in England not being introduced till subsequently, as hereafter explained.

By the second Act of the same Parliament, all issues in Trial by Jury. fact were to be determined by the unanimous verdict of twelve jurors, conformably to the law of England. This Act was necessitated by the fact that although the Ordinance above named, of 1785, did introduce trial by jury, still the verdict was not required to be unanimous, a majority of nine governed, and the Ordinance provided that on trial of an issue between a Canadian (i. e. French) subject and British subject, half the jurors should be Canadian and half British; between Canadians, all Canadian jurors; between British, all British jurors.

(a) See the effect of this Act of 32 Geo. III. c. 1, fully expressed in the Con. S. U. C. 9, post p. 37.