- The Empire Club of Canada Addresses (Toronto, Canada), 17 Mar 1927, p. 57-85
- Riddell, The Honourable William Renwick, Speaker
- Media Type
- Item Type
- An account of the Privy Council, especially in relation to appeals from "the British Dominions beyond the Seas," with reference to some Canadian cases of interest or importance. An historical account of the Privy Council, and the theory and basis of its appellate jurisdiction, in detail. First, remembering that in all but one of the Provinces of Canada, the foundation of all the law is the Common Law of England, and in all the Provinces, the Constitutional Law is based upon that of England. From King's Council to Privy Council, covering several hundred years of history. Some highlights of this account follow. Appeals to the Sovereign from all the Colonies prior to Confederation in 1867. The system of Committees which gradually developed. The system in operation when Canada became British in 1759-60. The importance of distinguishing between the Privy Council and the Judicial Committee of the Privy Council. Reference to, and lengthy quotation from, the speaker's address given in 1909, with an account of the jurisdiction and practice of the Judicial Committee. Instances of cases which come before the Judicial Committee. Detailed accounts of several cases from Canada going back to 1761. Recent events. The long line of cases in which the respective powers of Dominion and Provinces were determined, and are still being determined, with the specifics of one case of dispute concerning territory between Dominion and Province. The speaker's view of the advisability of retaining the Appeal to the Judicial Committee. Notes follow this address.
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- 17 Mar 1927
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APPEALS TO THE PRIVY COUNCIL
AN ADDRESS BY THE HONOURABLE WILLIAM RENWICK RIDDELL, LL.D., D.C.L., F.R.S.C., etc.
JUSTICE of APPEAL, ONTARIO.
(Links of Empire Series)
17th March, 1927.
The President introduced the learned lecturer who said: -I have been asked to give the Empire Club some account of the Privy Council, especially in relation to appeals from "the British Dominions beyond the Seas"-with a reference to some Canadian cases of interest or importance.
So much has recently been printed by certain sections of our Press, that it may be well to say something historically of the Privy Council and the theory and basis of its appellate jurisdiction.
It is to be remembered that in all but one (1)* of the Provinces of Canada, the foundation of all the law is the Common Law of England-and in all the Provinces, the Constitutional Law is based upon that of England
From time immemorial in England it was the duty) of the King to see to it that his subjects suffered no injustice from his judges, or others. Whatever may have been the primeval practice, when history begins it was already impossible for the King to perform this duty and make the investigations necessary in personhe could not sit in the gates and judge his people.
He selected such of his subjects as he chose, and so formed his Council. With this Council he generally sat and, in form at least, considered with them affairs of State including appeals made to him of injustice done by Courts or other agency. He might, indeed, proceed on his own views of the merits and requirements of the case and sometimes did so.
* For notes to the teat of this address see pp. 81-85.
This, the original King's Council, has often been called the Privy Council; but recent investigations seem to show that the appellation "Privy Council" is not proper until well within Tudor times. (2)
This Council had a varied history: We find it sometimes almost all-powerful, in the time of the last Lancastrian King it almost suffered shipwreck:-" owing to the incapacity of Henry VI. . . Suffolk used his influence over the weak mind of the King much in the same way as Northumberland did a century later . . . . in 1550 when Edward VI was twelve years old."
However, it is reasonably certain that both Edward IV and Richard III had fairly efficient Councils.
It must not be supposed that this Council-the Magnum Consilium, Consilium Regium--had no other than judicial or quasi-judicial duties. It was a part of the King's Household and was to advise the King on all matters administrative, legislative, judicial, national and international.
In matters judicial, as a rule, the judges, or some of them, were consulted as also were the King's Attorney and Serjeants at Law: they, however, acted or advised only and did not decide.
When the king was at Westminster, the Council sat at the White Hall, south-west of Westminster Hall, or the Starred Chamber, the Camera Stellata, in the Palace of Westminster. (3)
In the Council the King had his Court-Rex habet curiam suam in consilio suo--and from its sitting in the Starred Chamber it was not infrequently called the Court of Star Chamber or simply the Star Chamber.
The first Tudor King, Henry VII, made a very important change: he had an Act passed, the Act (1486) 3 Henry VII, Cap. 1, which in the copy from the Rolls of Parliament printed in the Statutes of the Realm is intituled "Pro Camera Stellata." (4)
This is "An Acte geving the Court of Star Chamber authority to punnysshe dyvers mysdemeanors "-it gave authority to " the Chanceller and Tresorer of England... and Kepyr of the Kynges Pryvye Seall or too of them, calling to hym a Bisshopp and a temporall Lord of the Kynges Most Honorable Councell and the too chyeff justices of the Kynges Benche and, Comyn Place . . . or other too Chyeff justices in their absence. . ", to call before them by Writ or Privy Seal anyone charged by Bill or Information of "eny mysbehavyng " in the way of " unlawful mayntenannces, gevying of lyveres . . . . embraciaries . . . ontrue demeanynges of Shrevys in makyng of panelles and other ontrewe retournes . . . takyng of money by jurreys
. . great riots and unlawful assemblez . . " The "misdoers" could be punished by this Court "after their demerites after the forme and effecte of Statutes . . . in like maner and forme as . . . if they were thereof convycte after the due ordre of the lawe . . "
The " mysbehavyng afore rehersed ", in which the Court of Star Chamber was thus given jurisdiction, shows wherein consisted much of jurisdiction previously exercised by the King's Council interference with and intimation of the regular Courts of justice by noblemen in favor of their retainers, actual or pretended, partial conduct of Sheriffs, bribery of juries, riots in or near Courts, etc., whereby "the Polyce and good rule of the ream is almost subdued, and for the nowne punyshement of this inconvenience and by occasion of the premyssis nothyng or litell may be found by enquerry, wherby the Lawes of the land in execution may take litell effecte to' the encies of murdres, roberies, perjuries and unsuerties of all men lyvyng and losses of their landes and goodes."
That there was frequent interference with the Courts of justice by " great men" and that often the best assurance for the safety of life, limb and property was to b: found in some powerful nobleman's protection evidenced by " lyveres, signs and tokyns, " is all too certain: the regularising of a body with jurisdiction to deal with abuses of such kind,-forming a Court with Writs and other regular process-was undoubtedly a sane and laudable measure. And had this Court of Star Chamber kept to its original functions, it would have earned respect, and the infamous connotation now attached to the name would not have arisen.
It was useful; as is shown by extant records, it functioned as a settled Court of justice and did good work in its proper field. (5) Indeed, Hallam long ago said of it: " It might in a certain sense be called a Committee of that body" (i.e. of the Privy Council), consequently it may with little impropriety be considered the original "judicial Committee of the Privy Council." (6)
While the Court of Star Chamber sat at fairly short intervals when occasion required, the King's Council was not wholly effete; it continued to sit from time to time independently of the Court of the Star Chamber. Apparently it was in the reign of Henry VIII that the Great Council, the Magnum Consilium, ceased to be summoned : an inner ring grew up in the Great Council in that reign which is properly called the " Privy Council" -a name which still continues-this was properly an executive and administrative body.
In the reign of Edward VI in 1550 the authority of this Privy Council was by the influence and machinations of the Duke of Northumberland much impaired: but it regained and increased its power and importance in the succeeding reigns.
In the times of the first Stuart Kings, James I and Charles I, the executive Privy Council and the judicial Star Chamber were practically identical-their excesses are historical. At length the people of England could stand the tyranny no longer; and in 1640 was passed the famous Act, 16 Car. I, cap. 10, entituled : An Act for the Regulating of the Privy Council and for taking away the Court commonly called the Star Chamber."
This Act by section 3, directed that the Court commonly called the Star Chamber should from and after August 1, 1641, be abolished and its power and authority absolutely revoked and made void. So that the Star Chamber, what may be called the original of the " Judicial Committee of the Privy Council" erected in 1487 by Statute of 3 Hen. VII, cap. 1, came to an end. Section 5 of the Act of 1640 provided that "neither his Majesty nor his Privy Council have or ought to have any jurisdiction, power or authority . . . to examine or draw into question, determine or dispose of the Lands, Tenements, Hereditaments, Goods or Chattels of any of the Subjects of this Kingdom, but that the same ought to be tried and determined in the ordinary Courts of justice and by the ordinary Course of Law. " Section 3 having abolished the only Court of Privy Councillors, there has been no Court in the Privy Council since either of the Privy Council or of any of the Committees
There are no longer Writs of Subpoena, no Privy Seals calling anyone before it. The members of the judicial Committee do not, today, sit as Judges nor are they robed as judges-they call themselves a Board; they sit as Committeemen to advise, not as judges to decide, and are garbed as ordinary gentlemen. But the prohibition in section 5 is against meddling with the property of "Subjects of this Kingdom" (7) and does not extend to the subjects of his Majesty, not of that Kingdom-the right to take grievances to the foot of the throne was taken away from Englishmen in the Kingdom of England but continued for all subjects outside the Kingdom, e.g., the Channel Islands. The Channel Island sent the first appeals in the 17th Century: but early in the 18th Century, appeals began to come in to the King in considerable numbers from the Colonial Courts of the American Colonies, and these kept up until the eve of the Revolution.
Before Confederation, there were appeals to the Sovemign from all the Colonies which were united in the Dominion of Canada in 1867: and when the compact was made for these Colonies by their representatives, which was put in legal and binding form by The British North America, Act of 1867, it was decided sub silentio to leave to Canadians that right intact. If and when Canadians decide through their Parliament that the right should be taken away, it requires but a representation of that kind to effect the abolition without delay, trouble or expense. For reasons which seemed to them good, the Canadians who framed the written Constitution of Canada considered it proper that the new Dominion could not change its Constitution by its own legislation; but a request for a change has always been immediately acceded to without question or debate. (8) I shall return to this subject later.
All applications by way of appeal are technically to the King-"at the Foot of the Throne"-but for centuries the Sovereign has not personally interfered; the applications in the form of Petitions go to the Privy Council.
Originally dealt with by the whole Council, a system of Committees gradually developed. At first these Committees, often with sub-Committees, were temporary and pro hac vice: but in 1660, a quasi-permanent Committee was formed to deal with the American Colonies: it was to sit twice a week " to receive, heare, examine, and deliberate upon any Petitions, propositions, memorialls or other Addresses which shalbee presented or brought in by any person or persons concerninge the Plantations, as well in the Continent of America: And from tyme to tyme make their Report to this Board of their proceedings. " This was in effect a Standing Committee: "it assumed entire control of Trade and Plantation affairs in 1675, a control which it exercised until 1696 " (9) This Committee was officially known as " The Right Honourable the Lords of the Committee for Trade and Plantations."
After the Revolution of 1688, the appeals increasing, it was in 1691 ordered "That all appeals be heard as formerly by the Committee who are to report the matters so heard by them and with their opinion thereon to the King in Council. "
It is not necessary here to give a full account of changes made in detail: When Canada became British de facto in 1759-60, the system was in full operation. A Petition complaining of a Colonial Court was drawn up addressed to the King: this was read, or at least presented to, the Privy Council, and by the Privy Council referred to a Standing Committee generally called "The Committee for Trade and Plantations" or, shortly, "The Board of Trade." This Committee, if a question of law was involved, generally called for the advice of the Law Officers of the Crown, i.e., the Attorney-General and Solicitor-General in the Common Law, and the Advocate-General in the Civil and Admiralty Law. If necessary the parties were heard: the Committee decided the question and reported to the Privy Council, whereupon an Order in Council was made.
The constitution of the Committee to pass upon appeals-the "Judicial Committee of the Privy Council" -was fixed by Statute in 1833, 3, 4 William IV, Cap. 41: before that Statute Members of the Committee were all inhabitants of the British Isles; but it was provided by the Act that two ex-Judges from India or beyond the Seas might be added: in 1876, by the Act 39, 40 Vict., Cap 59, s. 14(Imp.) a Provision was made for four Lords of Appeal in Ordinary who, if Privy Councillors, became members of the judicial Committee, while in 1895 by the Act, 58, 59 Vict., Cap. 44 (Imp.) it was provided that any judge or ex-Judge of the Supreme Court of Canada or any Superior Court in any Province of Canada, of the Provinces of Australia, Tasmania, New Zealand, Cape of Good Hope or Natal who should be a Privy Councillor should also be a member of the judicial Committee.
In 1908 by the Act, 8 Edw. VII, Cap. 51, this provision was extended to judges and ex-Judges of any High Court in India, the Transvaal and Orange River Colony -and in 1913 by the Act, 3, 4 Geo. V., Cap. 21, two further Lords of Appeal were added-and it was provided that the maximum number of judges or ex-Judges from Canada, etc., was to be seven instead of five as fixed by the Act in 1895.
We must always distinguish between the Privy Council and the Judicial Committee of the Privy Council. The Privy Council is composed of some four hundred persons, members of the existing and past British Governments, the Archbishops, the Bishop of London, many Peers, some Dominion Statesmen and Judges, and many persons who have been given the rank in appreciation of political, literary or scientific merit or services. They have all the title "Right Honourable." The Privy Council as a whole is rarely called; the former functions of the Privy Council are practically all performed by the Cabinet. We have a faienant Privy Council in Canada of much the same kind. The Judicial Committee, however, so far as Canada is concerned, consists of the Presidents of the Council, present and past; the Lords Chancellors, present and past; all the judges; six Lords of Appeal, and not more than seven judges or ex-Judges from India or the Dominions. Four Canadians, Members of the Privy Council, have the proper qualifications and two have sat in the judicial Committee.
In an Address I made in 1909, I gave the following account of the jurisdiction and practice of this Committee:
" At the present time this judicial Committee hears appeals in English cases only in Ecclesiastical matters. Upon every appeal of this character, at least three Bishops must sit as Assessors, under the provisions of a rule made in 1876. The ultimate appeal in other matters goes to the House of Lords. In Scottish and Irish matters the Committee does not exercise any appellate jurisdiction whatever. But from Courts all over the world, wherever the map is marked with red, come appeals. In Europe, from the Channel Islands, the Isle of Man, Gibralter and Malta as well as from Cyprus; in Africa from the Cape of Good Hope, Natal, the Transvaal, the former Free States, the Gold Coast, Sierra Leone, Zululand, Rhodesia, St. Helena, Lagos, Basutoland, Bechuanaland, the Falkland Islands, Mauritius, Gambia, Griqualand and other "lands" more or less unknown: in Asia from Bombay, Calcutta, Madras, the N.W. Territory, Aden, Assam, Beluchistan, Burmah, Upper and Lower Oudh, Punjaub, Ceylon, Mauritius, Hong Kong, Borneo, Labuan; in Australasia, Australia, New Guinea, Fiji, New Zealand, Norfolk and Pitcairn Islands and in America from Canada and her Provinces-Ontario, Quebec, Nova Scotia, New Brunswick, Prince Edward Island, Manitoba, Saskatchewan, Alberta, British Columbia, and from Newfoundland, Bermuda, the Bahamas, Jamaica, British Honduras and from Guiana in South America and many ' another British Island lying in the Caribbean Sea. "The laws of a score of self governing communities n must be interpreted, the English Common Law of the English-speaking colonies modified by local Statutes; in Quebec the Coutume de Paris with similar modification; the many varying and various laws of the many East Indian peoples, the Roman Dutch law of the South of Africa, the still more complex law of Malta-all these and more come before that Assembly of Jurists. "I have said more than once that this body is not a Court, it is a Committee appointed to consider certain legal questions and report thereon to His Majesty's Privy Council. There is no instance in which all those who are qualified actually sit ; I have never seen more than seven-nor less than four; three exclusive of the Lord President constitute a quorum. These Privy Councillors are clothed as ordinary English gentlemen without official garb of any kind, although Counsel appearing before them must wear the black gown, silk or stuff, according-as he is or is not a King's Counsel, bands of white lawn and wig of horse hair. In Ontario, we wear all these except the wig, but I found that one becomes accustomed to the wig very quickly and very easily. I presume it strikes the Englishman with the same sense of incongruity when he enters our Courts and sees judges and Counsel with gown and white bands but without wig as it does an Ontarian when he sees certain American judges sitting in Court with a gown but also with a black necktie. "Being a Committee and not a Court, the decision is a report, no dissent is expressed-one of the Committee gives the opinion of the Committee-and no one knows in any case how the members of the Committee were divided or if they were divided. While the House of Lords is bound by its own judgments, such is not the case with the judicial Committee-the Committee may and sometimes does decline to follow the law as laid down in previous cases. Their Lordships consider themselves at liberty and, indeed, bound to examine the reasons upon which a previous decision was arrived at, and if they find themselves forced to dissent from those reasons, to decide upon their own view of the law. "The Committee sits in an old building on the north side of Downing Street, Westminster, not far from the Abbey and the Parliament Buildings. The Board is on the floor toward the middle of the room; the Counsel upon a raised platform to the east side, communicating with the robing rooms, etc. The platform is accommodated with a small reading desk upon which Counsel addressing the Board may rest his books and papers all the proceedings in the Courts below are in printed form as also the points relied upon by each side. Whenever a case cited is not thoroughly well-known the report is brought at once from the book cases lining the walls of the room; and each point as a rule is thoroughly threshed out at the time by Court and Counsel, so that even if judgment should be reserved, Counsel generally know pretty well what the result will be. "In addition to appeals heard, there are a great many petitions for leave to appeal. These are generally disposed of on the spot I have seen four in one short forenoon. " And what kind of cases come before them ? I take up a June number of the Law Reports, Appeal Cases, and find the following: an appeal from New South Wales upon the construction of a Will; from the Supreme Court of Nova Scotia as to the interpretation of a contract involving millions; from the Supreme Court of Hong-Kong, China, as to whether certain alleged perjurers could be committed to prison without certain formalities; from the Straits Settlements as to the effect of an Ordinance forbidding the importation of chandu ; from the Supreme Court of Canada as to whether the Grand Trunk Railway must carry passengers third-class between Toronto and Montreal for one penny a mile as provided by the Statute of 1852; from the Court of King's Bench, Quebec, as to the right of a corporation owning certain patents to enforce the provision in a lease of machines built on the patents, that no other machines should be used by the lessee; from the High Court of Australia in respect of the construction of a Customs' Act; from the Cape of Good Hope on the construction of a Will; from the High Court of Australia as to the rights of a civil servant to compensation on retirement; from the Supreme Court of Canada as to the admissibility of a railway map upon a trial and the effect of its admission; from the Straits Settlements (the Settlement of Penang) upon a bill of lading; from the Supreme Court of Ceylon as to the illegitimacy of children procreated in adultery (this depends upon the Roman-Dutch law, the common law of Ceylon.) "I have not said anything about the cases from India, as these appear in another series and not in the Appeal Cases. It may, however, be of interest to mention some of these cases reported in 1906, (the report I have at hand). "Appeal from the judicial Commissioner of Oudh as to the power of a Hindo widow to execute deed to her son-in-law under the custom amongst certain Chattris; from the High Court at Allahabad as to the effect of words "malik wa khud ikhtiyar" in a deed of gift; from the High Court of Bengal as to whether a plaint must be stamped; from the judicial Commissioner of the Central Province as to the construction of a foreclosure decree; from the Chief Court of Lower Burma as to Buddhist marriage and the status of "monkey wife"; from the High Court of Bengal whether the English law as to champerty and maintenance is part of the law of India; and again as to the Mahomedan law of gift under apprehension of death (our donatio mortis causa,) and again as to gifts to daughters and their sons; from the Chief Court of the Punjaub in respect of a partition of the property of a Hindu joint family; from the Supreme' Court of Mauritius as to certain wakf properties in Port Louis bought for the Mahomedan congregation of the Soonee School, being composed of Indian immigrants from Cutch, Hallal and Surat, he Hallaye and Soortee classes quarreling with the Cutchees; from Lucknow as to family records proving pedigree, and the rights of a sister's son; from the High Court at Madras as to the rights of the Nadar or Shanar caste to worship in the temple of Shiva at Kamudi; from the High Court at Bengal again as to jhum rights, i.e., rights in and in wild and jungly tracts on the frontier which were never brought under settlement by the Revenue authorities but were left waste to be occupied by `squatters'; from the Chief Court of the Punjuab in a suit by Hindu minors to set aside their father's deed of sale on the ground that the lands were ancestral. "With all these varied forms of action, all the different systems of law to be considered-Common Law, civil law, Mahomedan law, Roman-Dutch law, and all the bewildering customs of India, there is no delay in giving judgment. The case is a rare one in which the appellant does not know his fate within a few weeks at the outside. A case may start in Toronto to-day and be finally decided by the Privy Council in a year or eighteen months from now. No delay is tolerated-cases do not dally along year after year by arrangement of Counselan appeal is decided promptly. The great eminence of their Lordships-their unquestioned ability and impartiality-make their decisions worthy of all respect; and they are respected."
It is now time to turn to cases from Canada: and I give a few very early and one more modern When in September, 1759, after Wolfe's victory, Quebec was surrendered, the surrender carried only the City and a nondefined territory in its immediate vicinity-de Ramazey, the French Commander, was only "Commandant Les Haute, et Basse Ville de Quebec." De Vaudreuil in Montreal was "Gouverneur et Lieutenant General pour Le Roy en Canada"; and when he surrendered Montreal in September, 1760, all Canada went with it. (11)
But until the Treaty of Paris, 1763, (12) the country was held by the sword only and the rule was Military: it was not until 1764 that the Civil Courts came into existence-the interval from the conquest is generally called La Regime Militaire or Le Regne Militaire.
But 'even before the creation of the Civil Courts, the people of Canada were subjects of the King, while British subjects who came to Canada did not lose their status, and both classes were entitled to his protection.
The first case, after the conquest of Canada, of an appeal to the Privy Council arising out of transactions in Quebec was not an appeal from a Quebec Court, but from a Court in Nova Scotia which was de jure as well as de facto, British territory.
Curiously enough, it savoured of what we now call " bootlegging. "
A snow (13) called the Two Brothers, built in the American Plantations, was owned by James and John Le Roy of Guernsey and commanded by Nicholas Le Mesurier of the same island. James Le Roy and James Major (also of Guernsey) loaded the snow in May, 1761, at Guernsey with Wine, Brandy, Cider and Stockings with other things for Quebec. Sailing from Guernsey, May 17, she arrived at "The Isle of Beck" (14) in the St. Lawrence, July 19; and was prevented from going higher by contrary winds. Major who acted as Supercargo, landed and went to Quebec to see General James Murray, the Governor of Quebec. On Major's request, Murray, July 29, gave written permission to land the cargo (the Brandy excepted) and carry it to Quebec. August 1, Major began to unload the snow, when Captain Burnett of H.M.S. Rochester seized the snow and cargo, notwithstanding Murray's permission. He took his prize to Halifax, Nova Scotia, out of Murray's jurisdiction and libelled snow and cargo in the Vice-Admiralty there. Notwithstanding the contentions of law and fact of Captain Le Mesurier and Major, the Judge in Admiralty at Halifax, September 23, 1761, decreed the ship forfeited and ordered a public sale. Snow and cargo were sold, the net proceeds being £3178:12:7Y4, Nova Scotia Currency (15) (say $12,714.50). Major for himself and James LeRoy and Le Mesuirier for the owners of the Ship, filed a Petition to the King in Council, June 2, 1762: this was referred to a judicial Committee who reported, March 12, 1763, and March 16, 1763, the sentence was reversed and ship and cargo ordered to be restored.
The ultimate cause of this seizure was the same as the ultimate cause of the American Revolution itself. The former Empire of England (the Old British Empire) was built upon the model of the Roman Empire-the Colonies and Provinces were not considered to exist for the sake of the Colonists or Provincials but for the sake of the Mother Country-a theory wholly vanished in the New British Empire which rose on the ruins of the Old which was irretrievably destroyed by the American Revolution leaving no one to mourn but the reactionary and the laudator temporis acti.
England was not alone in this view-the other European Powers acted on the same principle and kept the trade of their overseas possessions for themselves.
The first Statute of importance in this connection is that passed by the Commonwealth, October 9, 1651, the famous Act of Navigation. This was chiefly aimed at Holland and was an Act really intended to improve the condition of English Shipping as it was said that out of forty ships engaged in the West-India trade, thirtyeight were Dutch. (16). It forbade the importation of any goods or commodities, the growth, production, or manufacture of Asia, Africa or America into England, Ireland or any English Plantation, etc., except in ships of England or her Plantations-a special provision being made for goods, the growth, etc., of Europe. Of course, this Act lost the force of law on the return of the Monarchy. But very shortly after the Restoration, in 1660, the matter was taken up and in that year was passed what is usually called "The Act of Navigation" to distinguish it from other Acts with the same object and policy: it is (1660) 12 Car. 2, Cap. 18; and its full name is, An Act for the Encouraging and Increasing of Shipping and Navigation. The provisions and much of the language of this Act are the same as those of the Act of 1651. This was supplemented three years afterwards by (1663) 15 Car. 2, Cap. 7, An Act for the Encouragement of Trade. This Act says bluntly, sec. 5.
" V. And in regard his Majesty's Plantations beyond the Seas are inhabited and peopled by his subjects of this his Kingdom of England; for the maintaining a greater Correspondence and Kindness between them, and keeping them in a firmer Dependence upon it, and rendring them yet more beneficial and advantageous unto it in the further Imployment and Increase of English Shipping and Seamen, Vent of English Woollen and other Manufactures and Commodities, rendering the Navigation to and from the same more safe and cheap, and making this Kingdom a Staple, not only of the Commodities of those Plantations, but also of the Commodities of other Countries and Places, for the supplying of them; and it being the Usage of other nations to keep their Plantations Trade to themselves. "
This Act by sec. 6 enacted that "no Commodity of the Growth, Production or Manufacture of Europe shall be imported in any Land, Island, Plantation, Colony, Territory or Place to His Majesty belonging . . . in Asia, Africa or America . . but what shall be laden and shipped . . . in English built Shipping . . . under Penalty of the Loss of all such Commodities . . . and . . . of the Ship . . . in which they are imported. "
Immediately after passing The Act of Navigation the Lord Admiral was ordered to give it in charge to all the Commanders of the King's Ships specially to attend to the execution of this Act. As occasions called for it, similar orders were given to the rest of the King's Officers. (17)
The Act of 1696, 7, 8, Will. i. e. and Mar., Cap. 22, by sec. 2, forbade the importation of any goods into His Majesty's Colonies or Plantations unless the "built" was of England or Ireland or the Colonies or Plantations but in the latter case the Ship must be wholly owned by "the People thereof or any of them."
It was under these Acts that the seizure was made (18) -it was claimed that the goods were "of the growth production or manufacture of Europe" and that was admitted: it was not Plantation owned and that was admitted-then it was said that the law had been broken by the importation of these goods into a place at which such importation was prohibited.
The argument of the appellants in the Committee was " that the above Acts do not prohibit the importation of the growth, production or manufacture of Europe, in Ships properly Navagated into any of His Majesty's Dominions subdued by Conquest-for that during the present War Canada is not within the meaning of the Statutes, His Majesty not being restrained to rule it by any particular Laws, but according to his pleasure, and that the Government of Canada had, from its conquest, been under the terms of Capitulation by such Proclamations, Military Rules, Orders, and Regulations as His Majesty's Governor there had thought proper for the Service of His Majesty. That the General not only permitted the Importation of the Snow's Cargo (Brandys excepted) but the Sale thereof, and that if it had been His Majestys Pleasure that the Acts of Trade should extend to this new Conquest, the General would have been sworn to the observation thereof."
It was claimed, that there was no breaking of bulk, no importation, until the permission of the Governor had been obtained.
What is meant by "Colony" or "plantation" in the legislation had, before the Treaty of Utrecht, 1713, been discussed in the case of Newfoundland: the Solicitor General, Sir John Hawles, (1695-1792), said that he would have thought Newfoundland was neither a Colony nor a Plantation of the King but for certain Statutes of the times of Charles II which expressly reckoned it among His Majesty's Plantations. (19)
Even taking the words " Territory or Place" as ejusdem generis with "Plantation, Colony", the judge of the Vice Admiralty Court at Halifax cannot be blamed for finding that Quebec was a forbidden place for importing such goods in such a vessel.
The Privy Council, however, reversed the decisionCanada was not within the meaning of the words employed in the legislation, and did not become so until the formal Cession by the Treaty of Paris, 1763. (20).
The first appeal from a Quebec Court to the King-in-Council was brought in 1763 by William Johnstone, Captain-Lieutenant in H.M. Royal Regiment of Artillery, then in Quebec. Johnstone had bought certain Bills of Exchange from Sieur Houdin of Quebec; they were dishonored, and Johnstone sued Houdin, recovering in the Court of first instance; but on appeal to the Military Court at Quebec, that Court, August 22, 1762, reversed the trial Court : Johnstone then appealed to the King-in-Council.
Thoroughly to understand this case it will be necessary to explain the system of Courts. It is, of course, perfectly clear law that on the conquest of territory it becomes, ipso facto, under the sole governance of the King, and so continues until Parliament passes legislation relating to it-the King being part of the Parliament. (21.) Consequently, it rests with the King, or in practice, with his General or other representative, to erect such tribunals as seem to him proper. Accordingly, shortly after the surrender of Quebec, Murray, the British Commander, erected Courts of justice for the maintenance of good order in the part of Canada under his control. After the Capitulation of Montreal in 1760, which carried with it the remainder of Canada, Amherst, the Commander-in-Chief, charged the Governors, whom he had placed over Montreal and Three Rivers, to authorize the Officers commanding the Militia in each parish or district to hear all complaints and settle them if he could, with all due justice and equity ; if he could not, then he was to send the parties to the .Officer Commanding the Troops in his District. Murray in his part of the conquered country, October 31st, 1760, erected a Court of his own. Until the establishment of
74 EMPIRE CLUB OF CANADA
Civil Government, effective in 1764, there were Courts of first instance, presided over by local Militia Officers, generally French-Canadian, with an appeal to a Military Court of British officers. Naturally, there was an appeal from this Court to His Majesty, Canada not being in the Kingdom of England.
When the time came for the institution of Civil Courts -for, of course, all these Courts were Military CourtsMurray by an Ordinance of September 17, 1764 (22), created a Court of King's Bench with full civil and criminal jurisdiction with an appeal to the Governor and Council in cases above £300, and to the King and Council in cases of the value of £500 sterling or upwards.
An Inferior Court was also erected by this Ordinance with similar appeals in cases where the said sums were in dispute.
And from the Courts of Quebec an appeal has always lain to the King-in-Council in proper cases. It is true that in the troublous times before the Canada or Constitutional Act of 1791, there was a movement looking to a different appellate tribunal. In a numerously signed Petition to the King from Quebec, 1783-4, one of the requests was "That Appeals from the Courts of justice in this Province to the Crown be made to a Board of Council or Court of Appeals, composed of the Right Honourable the Lord Chancellor and the Judges of the Courts of Westminster Hall ". The answer was that "This Article appears to cast a reflection wholly unmerited on the decisions of the Privy Council, and the proposal is certainly incompatible with the other duties of the persons named." (23)
Another case may be briefly mentioned
In 1759, Johnstone bought of Anthony Peter Houdin, merchant, of Quebec, a Bill of Exchange for 60,000 livres due in 1761. He transferred it to John Ord, Jacob Rowe and William James, who sued in the King's Bench and recovered, August 19, 1765. An appeal was taken to the Governor and Council of Quebec, and it was successful April 18, 1766. The plaintiffs appealed to the King-in-Council, but did not prosecute the appeal; and it was dismissed for want of prosecution July 24, 1777.
The next case I shall mention convulsed early British Canada
Thomas Walker, the hero and victim, was a merchant and a justice of the Peace-an Englishman by birth but, from a long residence in Boston, infected with New England sentiments. In Montreal, in 1764, there was a quarrel between the Military and the Magistrates in respect of billetting, in which, be it said, the Magistrates seem to have been in the right. Walker committed Captain Payne to gaol, but he was delivered on habeas corpus. On December, 1764, when Walker was at supper, several persons armed and with their faces blacked or covered with crape, broke into his room and made "a violent assault and assassination" on him "leaving him for dead"-his ear was cut off and he received fifty-two contusions.
Several officers and soldiers of the 28th Regiment "were taken into Custody on the strongest presumptions of being Principals in this atrocious Act : certain Officers and Soldiers of Your Majesty's Twenty-Eighth Regiment, then quartered at Montreal, broke open the jail, and in Defiance of all Law, set the Prisoners at Liberty, publickly threatening Death to all Persons who should make any further Enquiry into that affair."
The London merchants interested in Quebec, complaining that the Governor, Murray, and LieutenantGovernor, Burton, had not done their full duty, brought the matter to the attention of the Privy Council, April 29, 1765, who, May 15, referred it to the Board of Trade who, through the Privy Council, called for a report from Governor Murray. Murray reported; and another Petition, this time from the British Merchants in Quebec, was lodged and all were referred to the Committee.
It appeared that the accused persons had been again arrested-that a Commission of Oyer and Terminer had been regularly issued for the District of Montreal but recalled, so that they could not be tried in Montreal. Then a Commission of Oyer and Terminer was issued for the District of Quebec with a jury from the whole Province; and it was proposed to indict them there. The 28th had been removed from Montreal to Quebec; and, as was alleged, " in consequence thereof, not only from the great expense of travelling near two hundred Miles from home, but from the danger apprehended by the said Walker and his Witnesses on the Road of being way laid by the Soldiers of the said Twenty-Eighth Regiment, and in the Town of Quebec, surrounded by that Regiment then removed from Montreal, and Quartered at Quebec, He, the said Walker, and his Witnesses could not venture to attend the Trial of the said supposed Offenders there, whereby their punishment has been eluded."
Then a Special Commission of Oyer and Terminer was issued for a Court to sit at Three Rivers and try the offences alleged to have been committed at Montreal, by a jury summoned from the whole Province at large.
A True Bill was found against one person for the assault on Walker, and five True Bills for the riot, prison breach and rescue. For want of witnesses, the former was acquitted, as were four of the latter, while one was found guilty of the riot only.
No wonder Their Lordships of the Committee were of " opinion that a new Commission (if it may be legally done) should be issued in such a manner as Your Majesty's Attorney and Solicitor General shall advise, for the Trial of the said supposed Offenders at Montreal; but as this matter is proper for the consideration of Your Majesty's Servants of the Law, the Lords of the Committee have referred it to Your Majesty's Attorney and Solicitor General for their Opinion thereupon."
The Law Officers of the Crown-Charles Yorke, Attorney General, and William de Grey, Solicitor General, "being of opinion that the Governor of Quebec is fully authorized and impowered by His Commission and Instructions to appoint Courts of Oyer and Terminer within all the Districts of that Province, and that no Special Commission can be lawfully issued for a new Trial of those persons who had been indicted, tried and acquitted at the said Court held at Trois Rivieres but as there is reason to believe there are several other Principal Offenders, who have not yet been apprehended or brought to tryal, the Committee think it advisable for Your Majesty to require Your Governor or Commander in Chief of the Province of Quebec to exert himself in causing a diligent search to be made after such Persons, bringing them to trial in due course of Law in the Vicinage of the Place, where the Offence was committed, and by a jury of the said Vicinage." (24)
This was ordered by the Privy Council, November 22, 1765. So far the records of the Privy Council : but the story does not end there. .In November, 1766, George Magovock, a discharged soldier from the 28th Foot, gave information that M. St. Luc la Corne, Captain Campbell of the 27th, Captain Disney of the 44th, Lieutenant Evans of the 28th, Joseph Howard, a Merchant, and Captain Fraser, Deputy Paymaster General, had been present at the assault upon Walker. They were arrested in their bed, sent to Quebec, placed in the Common Gaol, bail being denied, then returned to Montreal for trial.
The Grand jury threw out the first Bill-that against Lieutenant Evans : Walker broke out in open and passionate abuse of the Grand jury and they declared that they would not proceed with the other Bills with such monstrous charges against them. Francis Maseres, the Attorney General, was willing that they should be discharged, but the Chief Justice, William Hay, refused. Next morning, True Bills were brought in against Captain Disney on two charges, but no Bill was found as to the others, Disney's trial being proceeded with and he, proving an alibi, was acquitted. The Chief justice thought the alibi abundantly established, and approved of the verdict.
So ended the Walker Scandal. (25)
Let us now turn to more recent events. I do not go into the long line of cases in which the respective powers of Dominion and Provinces were determined-the list is not yet complete, but I shall mention one case of dispute concerning territory between Dominion and Province.
It has a curious history. The original Province (or "Government") of Quebec formed by the Royal Proclamation of 1763, came as far west only as a line drawn from the southern end of Lake Nipissing to about the present Cornwall. By the Quebec Act of 1774, 14 George III, c. 83 (Imp.) the boundaries of the Province of Quebec went down along the River Ohio from the western boundary of Pennsylvania "to the banks of the Mississippi and Northward to the southern boundary of the Territory granted to the" Hudson Bay Company. In 1791, the enormous Province was divided into two Provinces, Upper Canada and Lower Canada, Upper Canada receiving all the territory west of a certain line.
By the British North America Act, 1867, the Province of Ontario was given the same limits as the former Province of Upper Canada. Not long afterwards, there arose a contention as to the western boundary : what was meant by "Northward" in the Quebec Act ? Did it mean due North or Northerly along the Mississippi? Ontario, through Sir Oliver Mowat, contended for the latter; the Dominion, through ,Sir John A. Macdonald, for the former, interpretation.
In 1870, by the Dominion Act, 35 Vic., Cap. 3, the Province of Manitoba was formed with its eastern boundary at the meridian of 96 degrees W.L. At once there was a movement in Ontario, the Government of that Province claiming that it went further west than 96 degrees W.L., although this had long been considered in fact about her western limit. Many communications passed between the Governments, but without result. Then, in 1876, an Act was passed (39 Vict., Cap. 21) extending the limits of Manitoba to the "westerly boundary of Ontario." The Dominion and Manitoba claimed that the westerly boundary was about six miles east of Port Arthur. Armed forces of the Provinces of Manitoba and Ontario took possession of Port Arthur, but the scandal was abated by an agreement to arbitrate, December 18th, 1883, by the Dominion and Province. Ontario named William Buell Richards, Chief Justice of the Province, and when he became Chief Justice of Canada, his successor, Robert A. Harrison; the Dominion, Sir Francis Hincks, and the two Governments jointly, Sir Edward Thornton, the British Ambassador at Washington.
These Arbitrators made, August 3rd, 1878, a unanimous award in favour of the Ontario contention, which by this time was in reality limited to the generally recognized boundary. This was at once accepted by Ontario, but the Dominion refused to ratify the award. At length, in 1883, the two Provinces concerned agreed to submit to the judicial Committee of the Privy Council three questions : (1) whether the award was binding; (2) if not, what was the true boundary, and (3) what legislation was necessary to make the decision effectual.
The Judicial Committee, August 11th, 1884, decided (1) in the absence of Dominion legislation the award was not binding; (2) the award laid down the boundary correctly, and (3) Imperial legislation was desirable (without saying it was necessary).
The Imperial Act (1889), 52 and 53 Vic., Cap. 28, carried the decision into effect, and ended the controversy.
The case of the Labrador territory has just been decided, and is too fresh to require more than this passing mention; it indicates, however, the great advantage of such a tribunal.
I have been asked to give my view of the advisability of retaining the Appeal to the judicial Committee
and as it is not a political question I venture to do so. It is to be remembered that the House of Lords is' the final Court of Appeal for part of the Empire, that is, the British Isles, England, Scotland and part of Ireland, and the Judicial Committee for the remainder. The logical thing would be to unite these two Appellate Courts in one Imperial Court of Appeal, one Grand Supreme Court of the Empire-and that I have urged upon more than one Lord Chancellor. This course was recommended by the Imperial Conference of 1911, but it was not adopted although the two bodies are largely identical in composition. I have not been able to discover the objectionperhaps the innate conservatism of the British people has something to do with it. Until such a scheme is adopted I think that the Appeal should be retained. The value of the judicial Committee in settling our Constitution everyone must admit : its value in determining private rights has not been universally admitted, but it has certainly been very considerable. It has moreover done much to keep the law of the whole Umpire uniform. An important feature is the removal of the judges from the local atmosphere. While the most important thing in any Court is that its decisions shall be right, it is not much less important that the litigants can see and must admit that they have had fair play from judges without prejudice or prejudgment.
There is little disposition to accuse our judges of intentional unfairness; but it is not unnatural for an unsuccessful suitor to think that local feeling and prejudice, past political and present social or religious associations, may have given their mind an unconscious bias and so deflected the judgment. I know of at least two cases now in litigation in which I am confident the losing party will not believe that he has had fair play by reason of such unconscious bias.
Is it not an immense advantage that the defeated litigant can have his case determined by judges of the greatest ability, who have lived all their lives three thousand miles away, who have never known the local feeling and are innocent of any connection or association that could warp the judgment ?
Nor does it argue inferiority in Canadian judges-an appeal lies from my Court to the Supreme Court of Canada : none of us feels himself branded as inferior on that account.
It is a matter upon which there may be an honest difference of opinion : and Canadians will settle the question as their best interests seem to demand. The question should be discussed on its merits and without heat. I earnestly protest against any view being made a test of loyalty to British connection-such a test would brand my very dear and honored friend, the late Sir William Meredith, as a traitor.
(1) Of course Quebec, the ultimate basis of whose civil law is, since 1776, the Civil Law of Rome-er criminal law is based on the English ommon Law and has been since 1763. (2) Those interested may consult Bentwiek's Privy Council Practice, 1926 ; Dr. A. 8. Pollard's admirable articles in The English Historical Review, vol. 37 (July, 1922) "Council, Star Chamber and Privy Council under the Tudors," pp. 337, sqq, and (October, 1922), pp. 516, sqq ; also The Law Quarterly Review, vol. 39 (January, 1923) pp. 1, 2 ; Professor Baldwin's King's Council, passim ; the two volumes published by the Selden Society edited by I. S. Leadam, Select Cases . . . in . . . the Court of Star Chamber. Introduction; Hallam and Gneist, Constitutional History of England, are to be read with caution. The language quoted just below is from the first-named article, p. 342. (3) This Star Chamber, Camera Stellata, was a room in the Palace at Westminster (why it was so called in uncertain, perhaps from the decorations on the ceiling ,S-, we have "Stewed Chambre," "Sterrid Chambre," "Starryd Chamber," "Sterne-chamere," "Steve Chambre," "Chambre of Staves.") (4) It must be borne in mind that the titles even in the official Statutes at Large are no part of the Old Acts : "Acts of Parliament . . . had no titles until the Sixteenth Century, and they have been invented for mediaeval legislation by subsequent editors" : 37 Eng. Hist. Review, p. 339 (n) 1. (6) See the Select Cases, ere., mentioned in Note 1, Supra : Hudson : Treatise of the Court of Star Chamber (in Hargrave :' Collectanea Juridica): Leadam Select Cases from the Court of Requests (Selden Society); also the articles mentioned in Note 1, supra. (6) Hallam : The Constitutional History of England, 4th edit., London, 1842, vol. 1, p. 53. The history of the Privy Council and Star Chamber has not been adequately written : I have given an outline sketch in my Address before the Missouri State Bar Association, September 17, 18, 1909 : 1, Essays and Addresses. (7) The language of sec. 5 of the Act is "of this Kingdom": Scotland was a separate Kingdom at the time and had its own Privy Council. Although England and Scotland were under the same King from the accession of James I in 1603, the Statute of 1 Jac. 1, c. 1, speaking of the" Union or rather . . . Reuniting of two mighty famous and ancient Kingdoms . . . of England and Scotland under one Imperial Crown "-yet they remained separate Kingdoms until May 1, 1707. In 1701, the Statute, 1 Ann St. 1, c. 14, provided for the appointment of Commissioners to arrange a Union with Scotland : and, in 1706, was passed the Act, 5 Ann. c. 8, which provided that from and after May 1, 1707, "The two Kingdoms of England and Scotland shall . . . be united in one Kingdom by the name of Great Britain." Ireland remained a separate Kingdom until January 1, 1801, when the United Kingdon of Great Britain and Ireland came into existence under the British Act, 39, 40, George III, c. 67, and the Irish Act, 40 George III, c. 38. Ireland did not wholly escape the Privy Council till 1877, 40, 41, Vic. c. 37, s. 86 (Imp.) since which Statute the House of Lords has been the only final Court of Appeal for Ireland. (8) In my The Canadian Constitution in Form and in Fact, the Blumenthal Lectures, Columbia University, 1923, I gave (pp. 8-10) eight instances of Constitutional change since 1867 ! and say, p. 3, "There is . . . no difficulty in having an Amendment made if and when desired. An Address to the Sovereign is passed by both Houses of Parliament at Ottawa asking for the Amendment specified. According to the unwritten Constitution, the vote on the Address must be unanimous (or practically unanimous) or it will not be forwarded to London. When the Address is received by the Colonial Secretary in London, the desired Amendment to the B.N.A. Act is passed by the Imperial Parliament as of course and without debate. This is, in substance, simply legal validity to an amendment agreed upon by the parties to the original contract, which they desire to amend. (9) Professor C. M. Andrews has given an admirable account of the course of evolution of Committees of the Privy Council in his British Committees, Commissions and Councils of Trade and Plantations, Johns Hopkins University Studies, Baltimore, 1908. (10) Acts of the Privy Council of England; Colonial Series. Vol 1, Preface, pp. XIII, XIV. This extraordinarily interesting Series has been edited with great diligence and ability by our own Dr. W. L. Grant (now of Upper Canada College) and Dr. James Munro. I wish to tender my humble tribute of sincere thanks to these editors. (11) De Ramezay who surrendered Quebec, September 18, 1759, was only "Commandant Les Hautes et Basse Ville de Quebec" and could not surrender anything but Quebec and its surrounding territory : but de Vaudreuil who surrendered Montreal, September 8, 1760, was "Gouverneur et Lieutenant General pour Le Roy en Canada"; and he could and did surrender all Canada. See as to the Articles of Capitulation, Shortt and Doughty : Documents relating to the Constitutional History of Canada, 1759-1761, 2nd edition, Ottawa, The King's Printer, 1918, pp. 1, sqq: 7, sqq: my Michigan Under British Rule, Michigan Historical Commission, Lansing, 1926, pp. 9, 10, 386, 387 : Kingsford History of Canada, Vol. IV, pp. 417-433. (12) By the Treaty of Paris, February 10, 1763 by Article 4 the King of France ceded to "His . . . . Britannic Majesty in full right, Canada with all its dependencies," thereby making Canada British dejure as well as de facto. Shortt and Doughty, op. cit., pp. 99, 115. (13) While there was undoubtedly power given to General James Murray as Captain General and Governor-in-Chief of the Province of Quebec by his Commission, November 21, 1763, and his Instructions, December 7, 1763, by and with the Advice and Consent of the Council, "to constitute and appoint Courts of judicature and justice," it was thought prudent to await the lapse of the eighteen months allowed by Article 4 of the Treaty of Paris for the subjects of France to remove from the ceded territory, if so inclined. Accordingly the Civil Courts were constituted and appointed for the first time only on September 17, 1764, by an Ordinance "Given by His Excellency the Honourable James Murray, Esq .. ..In Council, at Quebec, the 17th of September, Anno Domini, 1764 . . ." See Shortt and Doughty: op. cit., pp. 173, sqq: 181, sqq. 205, sqq. (13) "Snow": "A small sailing-vessel resembling a brig carrying a main and foremast and a supplementary trysail mast close behind the main mast formerly employed as a warship." New English Dictionary, sub-voc-the latest instance of the word given is in 1860 The term was for years applied to King's vessels on Lake Ontario : many instances of its use will be found in the official despatches of Simcoe and other Governors. A snow was, e.g., lost on the False Ducks. (14) "Isle of Beck." Bic or L'Islet au Massacre, off the South shore of the St. Lawrence opposite the present Village of Bic, about 180 miles down the river from Quebec and a few miles above Rimouski. The legend is that some two centuries ago over two hundred Micmacs were there slaughtered by the Iroquois. The island is not large. (15) Nova Scotia Currency, often called Halifax or Provincial Currency, and later Quebec Currency, was at this time considered worth 9/10 of sterling. The name Halifax Currency persisted in Canada until after the middle of the 19th Century, when the Currency disappeared with the name. In my boyhood it was still well-known and commonly used-the pound being $4, the shilling 20 cents. This must be distinguished from the "York Currency," long in vogue in parts of Canada, in which the pound was $2.50 and the shilling (York Shilling or "Yorker") was 12Y2 centseight to the dollar. For the `Yorker" the English sixpence was the coin. (16) The Statutes of the Commonwealth were not recognized after the Restoration in 1660 (at least in theory); and they are not printed in the Statutes APPALS TO THE PRIVY COUNCIL 83 of the Realm. They are to be found in Scobell's Blackletter work, A Collection of Acts . . . . London, 1868 : this Act is on pp. 176, 177. See also John Reeves A History of the Law of Shipping and Navigation, London, 1792 (an admirable work in every sense), pp. 44, sqq. (17) Reeves, op. cit., p. 72. (18) Amendments were made from time to time : in 1670, by 22, 23, Car. 2, c. 26 ; in 1672, by Car. 2, c. 7. In 1696 the Act 7, 8, W. & M., c. 32, by see. 2, allowed the "built" to be of England or Ireland or of the Colonies or Plantations; but in the latter case the ship must be wholly owned by the people thereof. (19) Reeves, op. cit., pp. 123 124. A ship, French built, taken as a prize but not legally condemned, wholly owned by Englishmen, imorted fish and oil from Newfoundland. The question arose whether this was a violation of the Act of 1696, forbidding importation from "any Colony or Plantation" in any but a ship of specified 'built'," which this ship was not. The Law Officers of the Crown gave their opinion on the question, January 24, 1698. Sir Thomas Trevor, the Attorney General (1695 to 1702) afterwards a Manager of the Sacheverell Impeachment said in his written Opinion that he should have thought Newfoundland was neither a Colony nor a Plantation had it not been that the Statute law, 15, Car. 2, c. 7 and 27 Car. c. 7, reckoned Newfoundland among His Majesty's Plantations. Of course, all questions ceased with the Treaty of Utrecht ; but up to that time, the sovereignty over Newfoundland was always in dispute. For a discussion of the meaning of "Colony" and "Plantation" see Tomlinson : Law Lexicon. Later the status of Honduras was also in dispute after the Treaty of Paris, 1763, by the 17th Article of which Britain undertook to destroy her fortifications there, but British subjects were to be allowed to cut logwood, etc. Sir William de Grey, Attorney General (1766-1771) afterwards C.J.C.B. and Lord Walsingham, was of opinion, November 19, 1768, that it was not a Colony or Plantation of the King, but a part of the Spanish territories. Reeves, op. cit., pp. 126, 127. (20) Acts of the Privy Council of England: Colonial Series, London, The King's Printer, 1912, Vol. IV., pp. 540-3. (21) The amount of money to be paid for Bills of Exchange varied with the season. I have in my Life of William Dummer Powell, Michigan Historical Commission, Lansing, 1924, thus explained the fact : "The exchange fluctuated very much as there was only one convoy to England every year : this being in October, it is obvious that the Canadian debtor received no benefit from any remittance to his English Creditor sent after October of one year until October of the next year : accordingly the Quebec merchants preferred to receive interest from their debtors rather than keep cash or bills locked up ; the natural result was that bills in England dropped sharply in value immediately after the departure of the October convoy and rose gradually till immediately before the sailing to par or about par, and immediately after anywhere from one to ten per cent. below, gradually rising to par".-See Acts, etc., Vol. IV, p. 559. (22) The Ordinance Establishing Civil Courts, September 17, 1764, will be foundi n Shortt and Doughty: Op. cit., pp. 205-210 , Can. Arch. Q. 62a, pt. 2, p. 500. (23) Petition to the King's Most Excellent Majesty of "His Majesty's Ancient and New Subjects, Inhabitants of the Province of Quebec," dated at Quebec, November 24 1784. Shortt and Doughty: op. cit., pp. 742, 745. The 13th Aticle reads "That appeals from the Courts of justice in this Province to Council or Court of Appeals composed of the Right Honourable The Lord Chancellor and the Judges of the Courts of Westminster Hall." The short and sharp reply is, do., do., p. 982 of Can. Arch., C.O. Vol. 21, p. 85. William Dummer Powell's part in this movement is spoken of in my Life, ut supra, pp. 43, sqq ; 177, sqq; Shortt and Doughty : op. sit., p. 742, Note 1. (24) For the proceedings in the Privy Council and Committee see Acts, etc., Vol. IV., pp. 719-720 : for subsequent acts see Kingsford : History of Canada, Vol. 5, pp. 165, sqq. It cannot be said that the proceedings in the Walker affair reflect much credit on the Administration. Perhaps in part because of his "unyielding and surly carriage", Walker was persona non grata with Governor and officials ; but there were many of his sympathizers in Montreal. and the authorities did not wish the trials to take place in that Town.
The Ordinance of September 17, 1764, had erected a Court of King's Bench presided over by the Chief justice, an English lawyer, and having authority to try all civil and criminal cases. This Court sat at Quebec : and "in all Tryals in this Court all His Majestys Subjects in this Colony to be admitted on juries without Distinction." Of course, the accused might legally be sent to Quebec for trial and there properly enough the jury was summoned from the whole Colony ; but the more usual course would have been to have the trials before a Court of Oyer and Terminer and General Gaol Delivery in Montreal. A sufficient reason for the non-attendance of Walker and his witnesses was the pecuniary one, for it must be remembered that at that time and for long after, Crown witnesses received no pay ; and it would have been a heavy tax on Walker, even if he could persuade his witnesses to go, and dared himself to go to Quebec.
The Ordinance provided that the Chief justice should hold a "Court of Assize and General Gaol Delivery" once a year at the Towns of Montreal and Trois Rtvieres "for the more easy and convenient Distribution of justice to His Majesty's Subjects in those distant parts of the Province." Obviously, the usual course was to try Montreal cases at Montreal.
But by the Common Law of England a jury must be summoned from the body of the Count ; and, in old Quebec, the District corresponded to the English County. There was no provision in the Ordinance for the locus of the Jury in the Courts at Mntreal and Three Rivers ; and the usual and proper course was to summon the jury from the particular District only. It was determined by the authorities to avoid trial by a Montreal jury ; and an Ordinance was passed, March 9, 1765, to effect this object. The Ordinance is not in Shortt and Doughty: op. cit.: it will, however, be found in Ordinances made and passed by the Governor and Council of the Province of Quebec, 178891, Ottawa, The King's Printer, 1917, pt. 1, pp. 67, 68. It recites
"Whereas at a Council held by His Excellency the Governor of this Province at the City of Montreal, on the Third Day of January last, it was, amongst other Things, Resolved, That it was not necessary to hold a Court of Assize in the City of Montreal, as the Court of King's Bench, to be held in the Capital, would be sufficient to answer every purpose. And whereas several Crimes and Offences have lately been committed in the City of Montreal, and the Offenders charged therewith, as well as most of the Witnesses to' prove the same, are now residing and dwelling in the City of Quebec : and whereas several Persons stand bound by Recognizances to appeal and answer, and others to appear and prosecute, and give Evidence against the several Persons so charged at the next Court of Assize and General Gaol Delivery, to be held at the said City of Montreal; In Order therefore to avoid the great and unnecessary expense to this Province, which must unavoidably happen, as well as the great Delay of Justice by bringing Jurors from the District of Montreal to Quebec, for trying the said Offenders, or by removing the several Persons charged with the said Crimea and the Witnesses to prove the same, from the City of Quebec to Montreal aforesaid, it has been resolved by His Excellency the Governor in Council, That a Commission for a Court of Assize and of Oyer and Terminer and General Gaol Delivery do forthwith issue, directed to the Honourable William Gregory, ChiefJustice of this Province, for the hearing and determining at the City of Quebec aforesaid, all Causes of Nisi Prius, Treasons, Felonies, Crimes and Misdemeanours whatsoever, done or committed in this Province as well out of Districts as within, and the Gaols in the same Province, of the Prisoners therein being to deliver; In Order therefore to avoid any Doubt or Objection that may hereafter arise or be made, touching any proper Venue or Vicinage of juries hereafter to be summoned and returned. Then it proceeds to Ordain and Declare
"That all Precepts for the summoning and returning of Grand-Juries; and all Writs of Venire Facias, hereafter to be issued out of any Court of Record in this Province, shall, for the future, in all Cases whatsoever, be for the summoning and returning of juries from the Body of this Province at large, as well out of Districts as within ; and all juries, so summoned and returned, and who are otherwise by any Ordinance of His Excellency the Governor and Council of this Province declared to be qualified to serve on juries are hereby declared to be lawfully summoned and returned, and shall serve accordingly, any Law, Usage or Custom to the Contrary notwithstanding."
This accounts for the constitution of the jury at Three Rivers.
Of course those who were acquitted at Three Rivers could not be again tried : N etxo bis verxari debet pro eadem causa.
By the time the soldier gave information in 1786, Murray had left the Province, being succeeded by Sir Guy Carleton. Chief Justice Gregory and At. torney General Suckling had been succeeded by William Hey and Francis Maseres, very different and very superior characters. The prosecutions were now proceeded with with due vigour : but Walker's luck was against him.
(25) Walker's subsequent career can be read in Kingsford : History of Canada, Vol. 5, pp. 167, sqq.: 196. Vol. 8, pp. 39, 69. He was dismissed from the Commission of the Peace, but was restored : he opposed the Quebec Act of 1774, actively supported the rebel cause, was arrested but released by Montgomery and finally left Canada after his fruitless attempt to win the Canadians over to the Revolutionary side in 1776. Franklin, who was an excellent judge of men, says of Walker and his wife : "I think they both have an excellent talent for making enemies, and I believe, live where they will, they will never be long without them" : Franklin, Works, etc., Vol. 8, pp. 182-3.