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186

No. XIX.

FINANCES.

THE SUBJECT CONTINUED.

Statutes of the 14th and 18th of the King.

The statutes known in the colony by these names, are the 14th, Geo. III. c. 88, intituled "An Act to establish a fund towards further defraying the charges of the administration of justice and support of the civil government, within the Province of Quebec, in America ;" and the 18th Geo. III. c. 12, intituled "An Act for removing all doubts and apprehensions concerning taxation by the Parliament of Great Britain, in any of the colonies, provinces and plantations in North America and the West Indies; and for repealing so much of an Act made in the 7th year of the reign of his present Majesty, as imposes a duty on tea imported from Great Britain into any colony or plantation in America, or relates thereto."

So much has been said respecting these statutes, that it may be proper here to give a short history of them before proceeding to examine into what is their legal construction.

At the time of the cession of Canada to Great Britain, there were legally existing in the Province of Quebec the following duties upon wine, brandy and rum, imported into it from old France, and the other dominions of the French King, to wit, 7s. 6d. sterling per hogshead upon wine; 44d. per gallon upon brandy; and 12s. 6d. per hogshead upon rum. These, by an edict of the King of France, passed in January, 1747,

were increased to the following rates, to wit, to 10s. sterling per hogshead upon wine, 6d. per gallon upon brandy, and £1 per hogshead upon rum. This augmentation of these duties was made for a special and temporary purpose, namely, to defray the expenses of the fortifications of Quebec, and was appointed to continue only for three years, or till the year 1751. These augmented duties, notwithstanding this limitation of time appointed by the edict that augmented them, did yet continue to be levied and paid by the Canadians after the expiration of the said three years, and down to the time of the annexation of Canada to the British Empire. But there was no authority for this continuation of them by any edict of the King of France, except doubtful expressions in the edict of February, 1748. Therefore, these augmented duties were raised illegally from 1751 to 1759, and during that period the French officers of government in Canada ought only to have raised the old duties upon those commodities above mentioned. It is now proper to mention what had been done with respect to them after the years 1759 and 1760, down to the year 1764.-In the year 1761, Major General Murray, who was left in Canada, in the chief command of the King's troops there, imposed, by his own authority, arising from that military command, the following duties on strong liquors imported into that country, viz: 5s. Halifax currency upon the importation of every hogshead of wine, 6d. of the like currency upon every gallon of rum or brandy imported into Quebec, except British brandy or corn spirits made in Great Britain, which, in favour of the trade with Great Britain, he exempted from this duty, and 4d. of the same money upon every gallon of shrub.

These duties were regularly paid from the year 1761 to the year 1765, when the military authority by which General Murray had imposed them was at an end, and the country was governed by him as Civil Governor, in virtue of his Majesty's commission of Captain General and Governor-in-Chief of the Province of Quebec, which had been received and pub

lished there in August, 1764, and then they ceased to be collected. The whole amount of such duties levied during those four years was £12,223 currency, as is to be collected from an account of these duties drawn up by the direction of the said General Murray, and delivered by the commissioners of his Majesty's Treasury in 1768, to the Receiver General of the Province of Quebec. These duties, it will be observed, were not precisely the same with those which had been paid in the time of the French government.

Although the merchants of Quebec paid those duties, they were considered by many of them to have been illegally imposed; and, in consequence of this opinion, when General Murray returned to England in the year 1766, five English merchants, who had imported French brandy and New England rum into Quebec, and had paid these duties to the General's collector at Quebec, resolved to bring actions against him to recover back the amount of these duties, which they considered to have been illegally exacted. Accordingly, four actions were instituted against General Murray in 1768, in the Court of Common Pleas in England, for the recovery of the sums thus paid as duties upon the said commodities to the General's collector, as being money had and received to the use of the merchants. To these actions, the general plea that General Murray did not undertake to pay the said sums of money, being in no wise indebted for them, was pleaded. On the 10th February, 1768, his Majesty's Attorney General and the Solicitor General (Mr. Dunning) gave their opinion that the French duties might legally have been collected, but that the excess of the duties collected by General Murray above the French duties, ought to be refunded, and that the plaintiffs would not be able to recover more than that surplus or excess in their actions. This opinion afterwards proved to be correct, as the jury before which their actions were tried, gave verdicts for the excess of the duty on rum imposed by the defendant, above the duty upon the same commodity in the time of the French government. In consequence of

the event of these actions, by which it seemed to be generally admitted by the judge, jury and counsel concerned in them, that the King had a legal right to collect the French duties upon rum and other liquors imported into Quebec, the Lords of the Treasury resolved once more to demand payment of these from the merchants of Quebec, although they had failed in an action instituted for the same purpose in 1766, when the jury, contrary to the instructions of Mr. Chief Justice Hey, found a verdict for the defendant. They imagined that the authority of the Chief Justice of the Common Pleas and of the Special Jury of London merchants and of the Plaintiffs' Counsel who had consented to the verdicts above mentioned, might prevail upon the Quebec merchants to acknowledge the King's right to these duties. In this hope, they directed Thomas Mills, Esquire, the Receiver General at Quebec, to institute a new suit for the recovery of the duties which were claimed by his Majesty, as having theretofore belonged to the French King, and gave him the following instructions:

"That in case a verdict should be obtained in favour of the crown, he should collect all the duties that appeared to have been collected by the French government in 1757. Except that on all British brandies and other spirits imported from Great Britain, and being the manufacture thereof, he should collect no more than one-half the duty levied by the French government in 1757, on brandies and spirits of the like quality imported into Canada. That he should forbear to collect any part of the duties which were levied by the French King in 1757, upon dry goods imported and exported, except the duties upon tobacco and snuff imported; his Majesty being graciously pleased to remit one moiety of the duties on British brandies and spirits, and the whole of the duties on dry goods imported and exported, except as before, as well in tenderness to his subjects in the Province of Quebec as in favour of the manufacturers of Great Britain."

These instructions were received at Quebec about the end of October, 1768, and in consequence of them, public notice was given in the Quebec Gazette in February following, that

these duties on rum, brandy and wine, would be demanded upon all quantities of them imported in the ensuing spring and summer, according to the rates appointed by the last instructions from the Lords of the Treasury. None of the importers would consent to pay them, in consequence of which an information was fyled by the Attorney General of the Province (Mr. Mazeres,) against two of the principal importers, in which the defendants were charged with wickedly and craftily intending to deprive and defraud his Majesty of the duties aforesaid, and to diminish the revenue by importing into the port of Quebec, from certain of his Majesty's colonies in North America, twelve large casks of rum, &c., upon which a duty of £62 10s. sterling, was due to the King, and by causing the said rum to be landed without paying, or securing to be paid, to the use of his Majesty, the said duty, to the damage of the revenue of £500. To this information the general plea of not guilty was pleaded, and issue joined upon it. This cause was tried in July, 1769, at Quebec, by a special jury, before the Chief Justice. The facts of the case were clearly proved, and the only remaining doubt in the cause was concerning the above mentioned point of law— whether or not, in consequence of the cession of the country, and the transfer of the sovereignty over it, from the French King to the King of Great Britain, these duties were become legally due to the King of Great Britain.

The Chief Justice summed up the evidence, and exhorted the jury (as he had done the former one in October, 1766,) to bring in a special verdict, that the matter of law might be fully examined by himself and the other higher tribunals to which it might be removed by writ of error, and in the end rightly decided. But the jury (though they consisted of some of the most respectable inhabitants of Quebec) could not be persuaded, either by the exhortation of the Chief Justice of the province, or by the example of the jury of London merchants, who tried the actions against General Murray in February, 1768, and the concurrent opinions of the Chief Justice

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