might be com all his eftate and ground to fufpect that the defendant had fecreted or concealed fome The defendant of his effects, he might require him to deliver in to the court upon pelled to deliver oath an exact schedule of all his eftate and effects of every kind, in a schedule of and of the places where they were to be found; and, if he refufed effects upon fo to do, might commit him to prifon till he complied. And if he omitted to fet down in this schedule any part of his effects to the amount of twenty pounds Sterling, he should be liable to the penalties of perjury oath. should have formance of a covenant. Further, where a man had bound himself to another to do a The court particular thing, and it was just and reasonable that he fhould per-power to decree, form fuch his covenant, nothing having fince intervened that specific perrendered fuch performance either impracticable or unreasonably burthenfome and difficult, the judge should have a power to award that the party should make a specific performance of fuch covenant, and might compel him to do fo, in case he refused to do it, by imprisoning him till he complied. Alfo the judge should have a power to award reafonable costs to Cofts. either party according to his difcretion. in each of It would be neceffary to have in each of these three courts a A king's attor king's attorney to profecute for the king in all criminal cafes, and the three courts. in all fuits concerning the king's revenue, and in all other fuits in which the king's intereft is concerned. If his Majefty fhould not think proper to appoint an officer in each court exprefsly for this purpose, the power of carrying on these feveral profecutions on the behalf of the crown might be vested in the clerk, or register, of the court; just as in the court of King's Bench in England the clerk of the crown (whofe principal duty is to regifter, or enter, the pleas of the crown amongst the records of the court) is likewise the king's attorney in that court, and profecutes in his Majefty's behalf. But it would be more convenient, and more suitable to the honour of the crown and the dignity of the court, to have a feparate officer for that purpose, to be called the king's attorney for that fhire or district, as there was in the time of the French government. From these courts there fhould lie two appeals: an appeal to the Appeals from governour and council of the province, and another from thence to the thefe courts to the governour I king and council, and from thence to the King in king in his privy council. council. The nature of thefe appeals. privy council. One great ufe of the appeal to the governour and council would be to preferve an uniformity in the law throughout the whole province, which otherwife might gradually become different in the three different fhires, or diftricts, of it, by the difference of the decifions that might be given in these three different courts of juftice, if they were not fubject to be revised by some common fuperiour court that might correct the errors that should be found in them. And for the fame reafon, the decifions of thefe courts fhould not be deemed to form precedents of fufficient authority to determine any fubfequent difputes; but this authority fhould be afcribed only to thofe cafes which had been decided by the governour and council of the province upon the appeals brought before them from these hire-courts, or by the King himself in his privy council. And to the end that the governour and council of the province might not be deftitute of the advice of persons skilled in the laws to affift them in the determination of the appeals that should be brought before them, it might be expedient to make the three judges of these courts, and perhaps alfo the three king's attornies in them, members of his Majefty's council of the province; by which means all the best law-abilities in the province would be employed in making these important decifions that were to carry with them the force of law. And with this view it might be proper to require the judges and the king's attornies of the courts of Three Rivers and Montreal to attend the governour of Quebec for one month about Christmas-time, in order to affift at the decifion of these appeals, which should therefore be reserved to this feafon of the year. Thefe appeals fhould be only, as they now are, of the nature of writs of error in England, to correct the errors in law committed in the courts of thefe fhires or districts, and not to re-confider the facts in the caufe, unless they had been fettled by the judge alone without the affistance of a jury. When the facts were fettled in that manner, the parties might, if they thought fit, caufe the evidence itfelf to be taken down in writing by the clerk of the court and figned by the witneffes, that it might make a part of the record, as it does upon a trial by a general court martial in England: and, upon the removal of this record before the governour and council, they 4 might might re-confider the whole matter, the facts as well as the law, and give fuch judgment upon it as they thought juft; but they should not admit any new evidence relating to it. Where the caufe had been tried by a jury, the lofing party might, if he thought proper, and the judge, before whom it was tried, thought it reasonable, have it tried over again by a fecond jury, confifting of A fecond trial twice as many jurymen as the first jury; and the verdict of this fecond jury fhould be final with respect to the matters of fact determined by it. by a double jury. When Gafpey fhall be fettled, a fourth judge might be fent Gafpey. thither, whofe jurisdiction should extend over a district lying round about it, to be taken out of the district of Quebec, which is now immoderately large. Such an establishment would be of great convenience to the inhabitants of that part of the province. Thefe are the outlines of a plan for the administration of justice, which, I conceive, would be well fuited to the circumftances of this province, and would remove many of the inconveniencies of which the Canadians now complain, and give them very great fatisfaction. FRANCIS MASERE S, N. B. This plan of a method of administering justice in the province of Quebec was delivered in to Lord Hillsborough about the month of April 1770. Preamble. NUMBER IV. N the fpring of the year 1767, his excellency Guy Carleton, Efquire, at that time lieutenant-governour, now governour in chief, of the province of Quebec, being juftly apprehenfive of the ill confequences that might arife from a rigorous conftruction of the feveral inftruments of government by which it was supposed that the laws of England had been introduced into that province, and more especially of the ordinance of the 17th of September 1764, by which the chief justice of the province was directed to determine all matters criminal and civil that were brought before him, áccording to the laws of England and the ordinances of the province, directed Francis Maferes, Efquire, the attorney general, to prepare a draught of an ordinance for reviving or continuing the several ancient laws of the province that had fubfifted there immediately before the conqueft of it in the year 1759, with respect to the landed property of the province that was holden under grants made by the French king; who accordingly prepared the following draught of such an ordinance, which his excellency, on account of it's great extent and importance, did not think it expedient to bring into the council in order to be paffed without his Majesty's previous consent and approbation, and therefore he immediately tranfmitted it to the Earl of Shelburne, at that time one of his Majesty's principal fecretaries of state. This draught of an ordinance was as follows. A DRAUGHT of an ORDINANCE for continuing and confirming the Laws and Customs relating to the Tenure, Inheritance, and Alienation of Lands, that were in Force in this Province in the Time of the French Government. WHEREAS certain doubts have arifen and may arise, from the extenfive words used in the great ordinance of this province, dated the seventeenth of September in the year of our Lord one thousand seven hundred and fixty-four, intitled, An Ordinance for regulating and establishing the Courts of Judicature, Justices of the Peace, Quarter Seffions, Bailiffs, and other Matters relative to the Distribution of Justice in this Province, by which the courts of juftice eftablished thereby the ordinance. thereby in this province are directed to proceed in their decifions according to the laws of England and the ordinances of this province; that in confequence thereof the rules of inheritance of lands in this province, and the terms and conditions of the tenures thereof, and the rights, privileges, and emoluments thence arifing, either to the King or to divers of his Majefty's subjects that were owners of land in the faid province, were in whole or in part abolished, and the laws and customs of England relating to the faid points at once introduced in their ftead; which great and sudden alteration of the laws concerning these important fubjects would not only be in no wife useful to the faid province, but, by unfettling men's ancient and accustomed rights and natural expectations founded thereon, would be attended with innumerable hardships and inconveniencies to the inhabitants thereof, and produce a general confufion: In order therefore to prevent these evils, and to quiet the minds of the inhabitants with refpect to them, It is ordained and declared by his Enacting part of excellency the lieutenant-governour of this province, by and with the advice and confent of the council of the fame, that all the laws and customs that prevailed in this province in the time of the French government in the month of Auguft in the year of our Lord one thousand seven hundred and fifty-nine, relating to the tenures of lands held either of the King, or of other lords, and to the terms and conditions of fuch tenures; and to the rights, privileges, and pre-eminences annexed, or belonging, to any of the faid tenures; and to the inheritance and fucceffion to the fame; and to the forfeiture, confifcation, re-annexation or re-uniting to the demefne of the lord, efcheat, reverfion, or other devolution of the fame whatfoever, either to the King or any other lord; and to the power of devifing, or bequeathing, any lands by laft will and teftament; and to the power of alienating the fame by the proprietors in their life-time; and to the manner of making fuch alienation; and to the power and manner of limiting, mortgaging, hypothecating, charging, and incumbring, any lands in the faid province; fhall continue in force and vigour until they are changed in fome of these particulars by fpecial ordinances exprefsly mentioning fuch changes, and fetting forth in a full and diftinct manner the laws introduced in the ftead of thofe which fhall be fo changed or abolished. And further, the faid French laws and cuftoms hereby continued and confirmed fhall be deemed and taken to have continued without interruption from the time of the conqueft of this country by the British |