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An unfortunate abuse in the administration of justice was the cause of much oppression to the French Canadians. Murray's ordinance of September 1764 gave to the justices of the peace jurisdiction in property cases not exceeding £10, but this power had been degraded by the magistrates into an instrument of extortion. As Carleton explained it, the magistrates who prospered in business could not afford to act as judges:

When several from Accidents and ill judged Undertakings, became Bankrupts, they naturally sought to repair their broken Fortunes at the expence of the People, Hence a variety of Schemes to increase the Business and their own Emoluments, Bailiffs of their own Creation, mostly French soldiers, either disbanded or Deserters, dispersed through the Parishes with blank Citations, catching at every little Feud or Dissension among the People, exciting them on to their Ruin, ... putting them to extravagant Costs for the Recovery of very small Sums, their Lands, at a Time there is the greatest Scarcity of Money, and consequently but few Purchasers, exposed to hasty Sales for Payment of the most trifling Debts, and the Money arising from these sales consumed in exorbitant Fees, while the Creditors reap little Benefit from the Destruction of their unfortunate Debtors.^[1]

The abuses perpetrated on an ignorant and submissive people under the pretext of the administration of justice were a disgrace to British citizenship. In French Canada after the Conquest, as elsewhere and at other times, the greatest hindrance to the anglicizing of the community was the Englishman. Murray and Carleton, in their endeavours to establish the loyalty of French Canada to the British crown on a firm and natural basis, were compelled to be constantly on their guard against the rapacity of their fellow-countrymen. In spite of the bitter opposition of the British element, Carleton succeeded in securing an ordinance which defeated the designs of these unscrupulous self-seekers. The jurisdiction of the justices of the peace in matters of private property was withdrawn except in case of a special commission, and certain of the necessary possessions of the habitants were exempted from seizure.

While there were minor abuses in the administration of justice, the larger question of the law of the province was pressing for solution. To what extent did the ancient laws of the colony remain in force and to what extent had English law been introduced? The principle that the laws of a conquered country remained in force until specifically altered by the conqueror had been accepted by the British legal authorities, and later received a definite judicial sanction in a judgment of Lord Mansfield.^[2] The Treaty of Paris practically remained silent on the question of laws, so that the only instruments relating to the issue were the Royal Proclamation of 1763, the commission to General Murray and the ordinances of the governor and council.

The proclamation of 1763, after providing for the summoning of a legislative assembly, promised that in the meantime the colonists would be protected in 'the enjoyment of the Benefit of the Laws of our Realm of England.' This proclamation permitted of two distinct interpretations. The British residents of the province understood it as authorizing the general introduction of the laws of England. In this view they were evidently supported by the Lords Commissioners for Trade, who, in a report to the Privy Council in 1765, advised that in cases founded on events prior to the Conquest the courts should be governed by the customs 'which have hitherto prevailed.' On the other hand, the attorney-general and solicitor-general of Britain, in a report prepared in April 1766, laying special emphasis on the phrase the enjoyment of the benefit of the laws of England, interpreted the proclamation as introducing only such parts of the law as would be beneficial to the colonists. The English law of descent, of alienation and settlement of real property would, in the opinion of the British law-officers, only work confusion and injustice. The criminal law of England seemed to them to be the only branch of English law which would operate to the benefit of the inhabitants of Canada.

His Majesty's commission to General Murray appointing him governor of the province conferred on him the power, with the advice of the council, of erecting courts of justice, but contained no reference to the laws which they should administer. In outlining the legislative authority of the colony the commission anticipated the formation of a legislative assembly, and conferred very limited legislative powers on the governor and council.^[3] The validity of private instructions as the sanction for the exercise of any legislative power not conferred by the royal commission was very properly questioned. In any case the authority granted by the instructions could not be construed as extending to the establishment of a system of criminal and civil law for the province.

Under this authority, however, the governor and council passed the ordinance of September 17, 1764, regulating and establishing courts of judicature. The superior court of judicature was empowered to determine all criminal and civil causes 'agreeable to the Laws of England and to the Ordinances of this Province.'^[4] In the inferior court of judicature civil cases were decided agreeable to equity and the laws of England 'as far as the Circumstances and present Situation of Things will admit.' In criminal matters the application of English law was admitted by French and British alike, but in civil causes the wildest confusion arose. The French custom was naturally preferred by the majority of the inhabitants and was at first employed quite generally. As the English common law became more generally known and as its advantages were discovered, the French inhabitants were prepared to resort to it whenever it would apply favourably to their particular case. During the few years of its operation the French Canadian revealed no strong antipathy to it, but rather demonstrated that he could with little difficulty readjust his business to new principles which freed him from the restraints which in former days he had found cumbrous and irksome. The result was the growth of a hybrid creation of French-Canadian custom and English law, unintelligible alike to the judges, to the advocates and to the suitors in the courts.

The British government was aware of the serious character of the situation, and in 1767 dispatched Maurice Morgan for the purpose of collecting information leading to a permanent solution. At the same time the governor of the province and the attorney-general were directed to report on the administration of justice. The attorney-general of the province was Francis Masères, later Baron Masères, who was descended from a French Huguenot family. Masères, who had been educated at Cambridge and had been elected a Fellow of Clare Hall, was a man of wide learning. In his report on the Canadian legal situation he outlined four possible courses of settlement. The first was the creation of an entirely new code. While such a method possessed obvious advantages, the difficulties of carrying it into execution were such as to render it impracticable. Again, the French civil law might be retained in its entirety, and at the same time such English criminal law introduced as would operate to the advantage of the colony. The third and fourth methods were very similar. The law of England should be the general law of the province with the exception that, in relation to certain subjects, the Canadian customs should remain as at the Conquest, in the one case without being codified, in the other reduced to definite form in a provincial ordinance. Carleton's experience led him to favour the second plan, though this, to the Protestant mind of Masères, was open to serious objection.^[5]

Another question of uncertainty was the status of the Roman Catholic Church. The extent to which the British statutes relating to Catholics applied in Canada was not clearly defined. No permanent provision had been made for the appointment of a bishop, though Monseigneur Briand had received the recognition of the governor in 1766.^[6] The right of the clergy to collect tithes had not yet any legal sanction. In no official act had reference been made to the legal position of the Roman Catholic Church, though, seeing that it comprised the overwhelming majority of the inhabitants of the province, the determination of its legal status was a subject which could not long be neglected.

The agitation for a House of Assembly, though pursued with less vigour than during Murray's time, was not permitted entirely to subside. The Lords Commissioners for Trade, in a report on the state of the Province of Quebec, in 1769 proposed the establishment of a House of Representatives to be composed of twenty-seven members. The franchise was to be enjoyed irrespective of creed, though certain property qualifications were to be imposed by statute. The cities of Quebec and Montreal and the town of Three Rivers together were to elect fourteen representatives, and for these districts Protestants alone were to be eligible.^[7] A petition for an assembly was presented in 1770, and, when it became evident that some change in the government of the province was contemplated, the agitation was renewed with redoubled vigour.

Carleton, who in 1768 had been appointed governor-in-chief, was following with deep concern the movements in the American colonies. In order that he might be of greater service in framing the new constitution for the colony, he returned to England in August 1770, leaving Cramahé in charge of the government. In 1773 the English traders presented two petitions, the one to the lieutenant-governor and the other to the king, requesting the constitution of an Assembly of Freeholders in such manner as His Majesty should judge most proper.^[8] A committee of the petitioners in a letter to Masères stated that it was 'the general opinion of the people (French and English) that an Assembly would be of the utmost advantage to the Colony.'^[9] The statements of Cramahé, however, did not accord with this opinion. 'The Canadians suspecting their only View was to push them forward to ask, without really intending their Participation of the Privilege, declined joining them here or at Montreal.'^[10] Cramahé also observed that of the signers of the two petitions there were not five who could be properly styled freeholders, and that the value of four of these freeholds was very inconsiderable. 'The Number of those possessing Houses in the Towns of Quebec and Montreal, or Farms in the Country, held of the King or some private Seigneur, upon paying a yearly Acknowledgment, is under thirty.'

[1]	Carleton to Hillsborough, March 28, 1770; the Canadian Archives, Q 7, p. 7.

[2]	See the judgment in Campbell v. Hall, quoted in Constitutional Documents, 1759-91, Shortt and Doughty, 1907, p. 369, and Walton, F. P., Scope and Interpretation of the Civil Code of Lower Canada, p. 6.

[3]	See p. 435.

[4]	See the Ordinance quoted in Constitutional Documents, 1759-91, Shortt and Doughty, 1907, p. 149.

[5]	For the report of Masères see Constitutional Documents, 1759-91, Shortt and Doughty, 1907, pp. 228, 258.

[6]	See in connection with the ecclesiastical supremacy of the crown p. 439.

[7]	See Constitutional Documents, 1759-91, Shortt and Doughty, 1907, p. 263.

[8]	Ibid., p. 345.

[9]	Ibid., p. 343.

[10]

Ibid.