Mr. Maseres called in and examined.

Mr. Solicitor General. What form of Government have the Canadians expressed themselves most desirous of?

Mr. Maseres, They have no clear notions of Government, having never been used to any such speculations. They will be content with any you give them, provided it be well administered.

Mr. Mackworth. Have they expressed any dissatisfaction at the trial by Jury in criminal matters?

Mr. Maseres. They like it very well.

Mr. T. Townshend. Do you know that they have any objection to the same trial in civil cases?

Mr. Maseres. Certainly they have; but they principally consist in the expense and trouble of that attendance. Were they allowed a compensation, I should apprehend they would be well satisfied in all cases; and I think so small a sum as five shillings a man would do for that purpose.

Mr. Solicitor General. Does Mr. Maseres think that they would be pleased with the abolition of their old customs by the introduction of our civil law?

Mr. Maseres. A total abolition of their customs relative to descents, dower, and the transfer of land, would be highly offensive to them. In other matters I believe they would be very well satisfied with the English laws.

Mr. Mackworth. Would they have any objection to the law of habeas corpus?

Mr. Maseres. It is impossible that any People should object to that law.

Mr. T. Townshend. Did not the Canadians think themselves promised, by the Proclamation, the benefit of an Assembly, and do they not now desire to have it?

Mr. Maseres. As to an Assembly, they have a very confused idea of what it is; the generality of the People have no desire to have it, for they know not what it is; but there are a few among them who have considered the matter, and they would prefer an Assembly.

Mr. Mackworth. Does Mr. Maseres think that the provisions of this Bill for the Government of Canada are the freest that could with propriety be granted?

Mr. Maseres. Certainly not; I have sufficiently explained to the world how I think there might have been a judicious mixture of a law for the free Government of that Province.

Mr. Dunning. Is Mr. Maseres acquainted with the laws of Canada ?

Mr. Maseres. I have some slight knowledge of them.

Mr. Dunning. As by this Bill resort is to be had to the laws of Canada, and not the laws of England, in all matters of property and civil rights, I would ask Mr. Maseres, whether the Governor of the Province will not have a right by the laws of Canada, if this Bill should pass, to issue a lettre de cachet to imprison any of the King's subjects in the Province?

Mr. Maseres. I believe he would not have a right to imprison persons by lettres de cachet signed by himself; because I have always heard that no lettres de cachet are ever used for that purpose in France, or the French Dominions, but such as are signed by the French King himself. But I have also been told, that blank lettres de cachet, ready signed by the King, are sometimes given to Governors and Intendants of Provinces, to be used by them as occasion shall require.

Mr. Dunning. I desire then to know, whether if lettres de cachet, signed by the King, were to be delivered to the Governor of Canada, after this Bill shall be passed into a law, these lettres de cachet might not, in Mr. Maseres' opinion, be lawfully made use of by the Governor, to imprison the King's subjects in that Province?

Mr. Maseres. [After some pause.] I think they might.

Mr. Solicitor General. I desire to know of Mr. Maseres, upon what principle of the French law he supposes the authority of issuing lettres de cachet to be founded?

Mr. Maseres. I do not know. It seems probable, that it was at first an usurped authority. But it is now constantly practised, and acquiesced in throughout the French Dominions, and is therefore now understood to be the legal prerogative of the Crown of France, whatever might be its origin.

Mr. Solicitor General. Mr. Maseres does not rightly apprehend my question. I will explain myself. I want to know in what capacity the French King is supposed, by writers upon the French laws and Government, to act, when he issues a lettre de cachet?

Mr. Maseres. I do not yet thoroughly comprehend the question.

Mr. Solicitor General. I mean to ask whether Mr. Maseres does not understand the King of France to act in his legislative capacity, when he issues one of those letters?

Mr. Maseres. I have never yet considered the relation between a lettre de cachet and the legislative authority. It may perhaps be on that authority that the right of issuing those letter is grounded, or said tote grounded. I cannot say to the contrary. Yet there seems, at first sight, to be a considerable difference between a law and a lettre de cachet; since a law is generally understood to be a previous declaration of the will of the lawgiver, or lawgivers, whether one or many, upon a particular subject, with penalties annexed to the breach of it, when so previously declared; whereas a lettre de cachet is a sudden exercise of power without such a previous declaration of the will of the legislator.

Mr. Solicitor General. Though Mr. Maseres has not considered it in that light, yet it is certain, that the French King's power of issuing lettres de cachet is generally understood by the writers on the French laws and Government to be a part of his legislative authority, by which he provides for the sudden emergencies that occur in Government, as he does by the more formal kind of laws for the usual business of the State. And, consequently, as,, the King of Great Britain has not in himself alone the legislative authority over this Kingdom, and the other dominions of the Crown, but this authority belongs to the King and the two Houses of Parliament conjointly, this power of issuing lettres de cachet, in the Province of Quebec, which had formerly belonged to the French King, by reason of his being the sole legislator of that country, cannot, by this revival of the laws of Canada, accrue to the King of Great Britain, who is not the sole legislator of it, but only to the King and the two Houses of Parliament, who are so. I dare say Mr. Maseres must now see this matter in the same light that I do, and be convinced, that no lettres de cachet can legally be used in Canada, by virtue of this Act.

Mr. Maseres. This reasoning may perhaps be just. It is so new to me that I cannot undertake just at present to form a judgment of it. But though it should be just, and, in consequence of it, the use of lettres de cachet should not be legal, yet I cannot help thinking that, if they were used, the subjects against whom they were employed would be without any legal remedy against them; for if a motion was made on the behalf of a person imprisoned by one of them in the Court of King's Bench in the Province, for a writ of habeas corpus, or any other relief against such imprisonment, the Judges would probably think themselves bound to declare that, as this was a question concerning personal liberty, which is a civil right, and in all matters of property and civil rights they are directed, by this Act of Parliament, to have resort to the laws of Canada, and not to the laws of England, they could not award the writ of habeas corpus, or any other remedy prescribed by the English law, but could only use such methods for the relief of the prisoner as were used by the French Courts of Justice in the Province during the time of the French Government, for the relief of a person imprisoned by the Inténdant or Governor, by a lettre de cachet, signed by the King of France. And such relief would, I imagine, be found to be none at all. Therefore, if it is intended that the King's subjects in Canada should have the benefit of the Habeas Corpus Act, I apprehend it would be most advisable, in order to remove all doubts and difficulties upon the subject, to insert a short clause for that purpose in this Act.

Lord North. I desire to know of Mr. Maseres, whether he does not think it would be criminal in a Governor to make use of any such letters de cachet, and in a Minister of State to advise the King to sign them; and whether they would not be punishable here in England for doing so?