6-7 EDWARD VII., A. 1907 power, upon an information laid against him by any person tempted by a prospect of the reward. Nor though the information be false, is there any provision to redress the Trader, though he may be equally ruined by the Expence, and the delay of his Journey in the proper Season. These difficulties are so alarming that though this Trade is by far the most considerable in the Province since the commencement of the Present Rebellion, whenever the communication from Albany shall be open a great part of it will be carried on from the Province of New York, notwithstanding the situation of Canada be in all respects more convenient. We beg leave to assure your Lordship that these causes originating chiefly from the Quebec act, have concurred to spread a general discontent throughout the Province, without any advantage to the present state, and so far as to alienate the affections of His Majesties subjects as to give great reason to apprehend a disposition in them to change their present form of Government, should such an Opportunity unhappily offer. We therefore humbly entreat your Lordship to take into your consideration the dangerous, and confused situation of this Colony, and grant us your Patronage and assistance in endeavouring to obtain a repeal of the Quebec Act, the Source of these grievances and an Establishment, in its stead, of a free Government by an assembly or Representation of the People, agreable to His Majesty's Royal Promise contained in the Proclamation made in the year 1763. This measure alone, which we are firmly persuaded is founded equally on the Principles of Justice and good Policy is adapted to conciliate the minds of a dissatisfied People, to confirm their wavering Disposition, and to restore that mutual confidence between the Governors and the Governed which is essentially necessary to the happiness of both. (signed) London 2 April 1778. Instructions to Our Trusty and Welbeloved Frederick Haldimand Esquire, First. With these Our Instructions You will receive Our Commission under Our Great Seal of Great Britain, constituting you Our Captain General & Governor in Chief in and over Our Province of Quebec in America, & all Our Territories thereunto 1 Canadian Archives, M. 230, p. 213. For some time there had been an obvious lack of harmony between Germain and Carleton, but when Burgoyne was selected instead of Carleton to conduct the expedition to Albany, the latter's indignation knew no bounds and his despatches to his chief, the Colonial Secretary, became anything but respectful. Thus, though Carleton was in favour at Court, it was decided to remove him. The King, in writing to Lord North and referring to a subsequent appointment for Carleton, says, "Carleton was wrong in permitting his Pen to convey such asperity to a Sec of State, and therefore has been removed from the Govt of Canada. But his meretorious defence of Quebec made him a proper object of military reward, and as such I cd not provide for any oer Gen1 till I had paid the Debt his services had a right to claim." Brougham's "Statesmen of the Time of George III." p. 107. It was not, however, so easy to find a suitable successor for Carleton. On Feb. 24th, 1777, the King writes to North,-"La G. G. will tom.orrow propose Clinton for Canada, " ibid. p. 97. This proposal however was not realized. Meantime SESSIONAL PAPER No. 18 belonging, bounded & described, as in Our said Commission is set forth; in Execution therefore of the Trust We have reposed in you, You are to take on You the Administration of the Government, & to do & execute all things belonging to your Command, according to the several Powers & Authorities of Our said Commission & these Our Instructions to you, or according to such further Powers & Instructions as you shall at any time hereafter receive under Our Signet or Sign Manual, or by Our Order in Our Privy Council; and you are to call together at Quebec (which We do hereby appoint to be the Place of your ordinary Residence, & the Principal Seat of Government) the following Persons, whom We do hereby constitute & appoint to be Our Council for the Affairs of Our said Province & the Territories thereunto belonging, Viz Hector Theophilus Cramahé Esq' Our Lieutenant Governor of Our said Province, or Our Lieutenant Governor of Our said Province for the time being, Peter Livius Esq Our Chief Justice of Our said Province or Our Chief Justice of Our said Province for the time being, Hugh Finlay, Thomas Dunn, James Cuthburt, Francis L'Evesque, Edward Harrison, John Collins, Adam Mabeane, Chaussegros de Lery, George Pownall Esq' Our Secretary of Our said Province, or Our Secretary of Our said Province for the time being, George Alsopp, La Corne St Luc, Alexander Johnston, Conrad Gugy, Picotté de Belestres, John Fraser, Henry Caldwell, John Drummond, William Grant, Rocque S' Ours Junior, Francis Baby, & De Longueuil Esq every one of which respectively shall enjoy his Office of Councillor aforesaid for & during Our Will and Pleasure, & his Residence within Our said Province of Quebec, & not otherwise. 1 (The following sections of the Instructions to Haldimand are identical with the General Instructions to Carleton of 3d Jan 17752-omitting the latter part of section 9 as shown-and adding section 16, as follows,) 16. And Whereas, in pursuance of the foregoing Instructions, Ordinances have been framed and ordained for the Establishment of Courts, and directing a proper mode of Administring Civil and Criminal Justice within Our said Province of Quebec, conformable to the Spirit and Intention of the aforesaid Act of Parliament, Intituled, "An Act for making more Effectual Provision for the Government of the Province of "Quebec in North America," It is Our Will and Pleasure that you do from time to time, with Our said Council in their Legislative Capacities, deliberate upon, and frame such Ordinances, as the Circumstances and Condition of Affairs may require, either for continuing, Amending or enforcing such Ordinances, as have been Ordained, as aforesaid, or making any further and necessary Changes and Regulations in the Courts as established, or in the mode of administering Justice within Our said Province; provided, that such Ordinances be strictly conformable to the Act of Parliament aforesaid, And to the Tenor of these Our Instructions. endorsed Frederick Haldimand Esq' Governor of Quebec Dated 15th April 1777. (1778). The Usual Trade Instructions" were signed & dated as above. Carleton, in his correspondence with Germain, had thrown off all restraint and was openly insulting. On the 27th of June 1777, he expressed the hope that he might be permitted to return to Britain that autumn. Burgoyne, fearing that he might be selected to follow Carleton at Quebec, in a letter to Germain, on July 30th, begs most respectfully to decline the possibility of the appointment. He in turn recommends Phillips, one of the British generals associated with him on the expedition, but is doubtful of his willingness to accept. Ultimately, Haldimand, who was then Inspector General of the forces in the West Indies, was selected for the Quebec Governorship, and informed of the fact in August. He was unable to reach Quebec before June 30, 1778, during which time Carleton retained his position. Haldimand was a Swiss soldier of fortune in the British service. He had been employed in the war for the conquest of Canada, and was in command for a time at Three Rivers and Montreal, hence he knew something of the country and its problems. 1 By comparing this list with the corresponding one in Carleton's Instructions in 1775 (see p. 420) the number of changes which had taken place in the Council may be ascertained. Peter Livius, who succeeded Hey as Chief Justice, Aug. 1776, had been sent out in 1775 by Dartmouth who had a high opinion of his abilities and who designated him as a judge of the Common Pleas at Montreal. All the other new members had been recommended to Germain by Carleton. 2 See p. 420. 3 See p. 438. 6-7 EDWARD VII., A. 1907 [L.S.] George R Whereas by the Second Article' of Our Instructions to You the Governor of Our Province of Quebec, We have thought fit to direct that any five of the Members of Our Council for that Province shall constitute a Board of Council for transacting all Business, in which their Advice & Consent may be requisite, Acts of Legislature only excepted, in which case you are not to act without a Majority of the whole And Whereas it is highly fitting & expedient that no misrepresentation of Our Royal Will & Pleasure in this Instance should continue or obtain, We do hereby direct & require that this Article shall not be understood to delegate Authority to you Our Governor to select & appoint any such Persons by Name as you shall think fit to make such Quorum, terming the same a Privy Council, or to excuse you from summoning to Council all such thereunto belonging as are within a convenient distance.--On the contrary that you do take especial Care to preserve the Constitution of Our said Province free from Innovation in this respect, to which intent you shall communicate this Our Royal Will & Pleasure to our said Council, that so the Trusts, Powers & Privileges which We have thought fit to vest in them by Our General Instructions may by this express Signification of Our Purpose, be in future ascertained & confirmed 2 G. R. 1 See 2nd article of Carleton's Instructions, 1775, p. 420, and which remained unchanged for Haldimand. 2 The high-handed measures adopted by Carleton, just before the arrival of Haldimand and his own departure from the country, as evidenced by his treatment of those who dared to question his measures in Council, and his summary dismissal of the Chief Justice, left at once an unfortunate example for Haldimand and a tendency on the part of certain members of Council to resent anything like an encroachment on the rights of the Council as an essential element in the constitutional government of the colony. Chief Justice Livius after being dismissed by Carleton returned to Britain and laid his case before the King. It was referred to the Board of Trade, who sent a copy of the memorial to Carleton, then also in London, asking him to give his reasons for the dismissal. Q18 B, p. 125. Carleton made reply that his reasons were given in his letter to Germain of June 25th, 1778. See B 37, p. 192. He also referred to the Minutes of Council in March and April, 1778. On Dec. 15th, the Board invited both Livius and Carleton to be present and defend their cases, when Carleton declared that he had nothing further to add. On March 2nd, 1779, the Board of Trade made a very full report on the whole matter. Q 18-B, p. 131. In this they declared that nothing whatever had been brought against the professional conduct of the Chief Justice, and that therefore the Governor in dismissing him without cause had disregarded the 17th clause of his Instructions. They then reviewed the whole conduct of Mr. Livius as a member of the Council. There they found that the only possible grounds for criticism lay in two motions made by him in Council. One was, that the Governor should communicate to the Council so much of his Instructions as it was necessary for the Council to know in order that they might conform to them. As this was strictly in accordance with the 7th article of the Instructions which the Governor should already have acted upon, the Board were so far from seeing anything amiss in this that they recommended to the King a special instruction to Haldimand. (See the following instruction.) The other motion was, that, as Carleton, placing his own interpretation upon the 2nd clause of his Instructions, had formed an inner circle of the Council consisting of five members, which he designated the Executive Council, and before which all the accounts and the more important business of the Government were brought. The Chief Justice moved that an address be presented to the Governor drawing attention to this innovation and praying for a remedy. Here, too, the Board not only quite agreed with the constitutional stand taken by Livius, but recommended the sending of a further additional Instruction to Haldimand, repudiating Carleton's interpretation of the second clause of the Instructions and requiring him to discontinue the practice. This is the Instruction here given. Finally, after noting that the language of the last remonstrance of the Chief Justice might have been somewhat more careful of the dignity of the Governor, the Board of Trade completely exonerated Livius alike as Chief Justice and as a member of the Council. On July 19th, 1779, Germain sent to Haldimand a Mandamus to re-appoint Peter Livius Chief Justice of the Province of Quebec. Q 16-1, p. 62. Ses also Germain to Haldimand, B 43, p. 63. SESSIONAL PAPER No. 18 C.O. (Quebec 1768-1787 Vol. 1.) (L.S.) George R. Additional Instruction to Our Trusty & Well beloved Frederick Haldimand Whereas it is fitting, and Our Royal Purpose, that Our Council for the Province of Quebec under your Government, should be fully informed of Our Gracious Intentions in the Constitution proposed for Our said Province, to the end, that they may jointly with You Our Governor and agreably to the Powers vested in them by Act of Parliament carry Our said Intentions effectually into execution to the benefit of Our Service, & to the ease and security of all Our Subjects, Inhabitants of the said Province. It is Our Will & Pleasure and you are hereby strictly directed and required if you shall not have carried Our Royal Instructions for that purpose given already, into effect; upon receipt hereof, by the first opportunity & without delay, to communicate to Our said Council, such and so many of Our said Instructions wherein their Advice and Consent are made requisite, with such others from time to time, as you shall judge for Our Service to b imparted to them.1 C.O. (Quebec 1768-1787 Vol. 1.) George R. [L. S.] G. R. Additional Instruction to Our Trusty and Welbeloved Frederick Haldimand Whereas it is expedient and agreeable to Our Royal Will and Pleasure that Our Subjects Inhabitants of Our Province of Quebec, under your Government, should have, and enjoy every Benefit and Security resulting to them from a speedy and effectual Distribution of Law and Justice, according to the principles of the British Constitution, as far as the same can be adapted to their peculiar Circumstances and And Whereas according to the practice of the Courts of Civil and Criminal Situation. 1 This is one of the recommendations of the Board of Trade referred to in the previous note and which was rendered necessary on account of Carleton's having withheld his Instructions from the Council, contrary to the seventh article of the Instructions. See Q 18-B, p. 143, also p. 155. Haldimand, who had adopted Carleton's policy, naturally did not relish the Instructions received, and in a despatch to Germain of 14th Sept., 1779, marked "Secret and confidential," after referring to other matters, he takes up the question of the additional Instructions: "From the State of the Province herein Exhibited, your Lordship will please to consider, whether, consistently with the King's Service, the additional Instructions sent over this Spring ought positively to be attended to, and followed, whether every Measure of Government ought to be exposed, and laid open to that Mixture of People which compose our Council, and whether it is not more probable that the generality of its members will rather incline to the particular and concealed Interests, to which they lean, or which is more probable, be biased by what they conceive to be their private and particular Interests, than act upon Just and liberal motives for the Good of the State in general." Q 16 2, p. 591. See also Q 16-2, p. 616. He therefore withheld the two Instructions of March 29th and continued his previous course. When these facts, including Haldimand's explanations, were laid before the Board of Trade they passed the following judgment upon his conduct," Sensible as we are of your merit, and the purity of your intention, it is painful for us to proceed to the consideration of your not communicating to the legislative Council the General Instructions, which you were particularly directed to do by the additional Instruction transmitted to you for that express purpose; And, as far as appears to us, not complying with another additional instruction sent you therewith, for regulating and preventing an abuse introduced by your predecessor, of doing the business of Council by a select number of the Members, under the name of a Privy Council; yet not paying obedience to express Instructions, the compliance with which rested with yourself only, is a matter of too serious importance for us not to give you our un reserved opinion upon it. The instructions in question were founded upon the most convincing necessity, and His Majesty's Pleasure was conveyed in terms so peremptory and express, that we are at a loss to conceive, how it was possible for you to hesitate upon an instant obedience to them: had we only consulted our immediate line of duty, we should have submitted to His Majesty our opinion upon this conduct on your part; but as a proof of our good wishes for you, and that we place the utmost confidence in your assurances, that your views, as well in the civil as the military affairs of the Province, have no end, but his Majesty's Service; however we conceive you to have been in this instance mistaken, we have adopted this method to inform you what we think of this part of your conduct, as Civil Governor; and as we persuade ourselves, that you will immediately, upon the receipt of this letter, comply with the said instruc tions, we forbear to add what we must upon a contrary conduct of necessity do.' Q 18-B, p. 182. 6-7 CDWARD VII., A. 1907 Judicature, as constituted by the Ordinances now in force, the Official Duty of the Chief Justice of Our said Province is confined to Causes of a Criminal Nature only except in Cases of Appeal, where he sits in common with the rest of our Council. In Consideration hereof, and to prevent (as far as in Us lies) the Frequency of Appeals, It is Our Will and Pleasure and you are hereby strictly enjoined and required, by and with the Advice and Consent of Our Council in their Legislative Capacity assembled to frame an Ordinance to be passed for the purposes of explaining and amending the Ordinances before mentioned by directing and enacting that the Chief Justice shall preside and be made a Member of the Court of Common Pleas, and as such shall sit in the said Court four times in the year at Quebec, & twice in the year at Montreal, at the latter place immediately after, or before the present Circuit Business, as shall be deemed most convenient, that notwithstanding his having given his Opinion in the Court below he shall sit and give his Opinion in the Court of Appeal, that such Court of Appeal shall consist of four persons besides the Chief Justice to be nominated by the Governor or Commander in Chief for the time being from among the Members of Our Council, and approved and confirmed by Us, together with the Judges of the Court of that District from whence the Appeal does not come, the Lieutenant Governor of Our Province not to be one; That of these persons five to be a Quorum for the Dispatch of Business, the Chief Justice or the Person or one of the Persons officiating in that Capacity always to be one; And that the said Court of Appeal be confined to examine Errors of Law only taking the Facts, as stated in the Transcript transmitted by the Court where such Cause shall have been determined, & without going into New Evidence, or re-examining the Evidence before taken.1 G. R. 1 A memorandum drawn up by Mr. Livius, without date but evidently while he was in Britain, proposed an amendment to the judicial system of the Province; "In order that impartial & Substantial Justice may be easily attained in Canada by a course of Law, three Points are principally to be attended to:" The three points are,-"First-to interpose such an Authority between the Sword & the People, that they may not be oppressed by any Person using the Generals name." &c. 2dly "To divide the supreme Judicial from the Legislative Authority which are now conjoined in precisely the same Persons, viz the Council:" &c. 3rd "To establish some Judicatory for small causes arising at a great distance from the Seat of the Ordinary Court in each district." These features, and especially the latter two, are discussed at some length, with detailed suggestions for bettering the system. See Q 16-1, p. 3. On May 6th the Lords of Trade sent an official communication to Richard Jackson, the Counsel of the Board, saying that it had under consideration "what Amendments it may be expedient to propose to His Majesty in the constitution of the Courts of Common Pleas within the Province of Quebec,' Hence they desire your "opinion for their Lordships information, whether it is not fitting and expedient for the better distribution ' of Justice in Matters of Property, that the Chief Justice, (whose function is at present confined to the 'cognizance of Criminal Causes only) should also preside in the Courts of Common Pleas established for 'the Districts, into which the Province is divided; and if so, at what and how many periods in the course of the year his presence should be required so as best to satisfy the convenience of parties resorting to his 'judgment, and least to interrupt and obstruct the other Duties of his office; also whether any objection 'lies against his sitting as a member of the Council upon Appeals from Courts, where he has presided in 'judgment upon the causes; and if so, what regulations you would recommend as to his interference in the Council upon such Appeals, whether by barring him from Vote, or even from Debate, unless called upon to give information in the same, likewise whether any regulation is advisable as to the persons composing the Council in cases of Appeal; and whether in such cases the Council, shall proceed to examine and correct all errors both of fact and Law, and admit new or further Evidence.'" Q 18-B, p. 157. On July 1st the Board of Trade reported to the King in Council on the systein of justice in Quebec and the Ordinances passed there in 1777, "and we thereupon humbly beg leave to represent to your Majesty, that, however it might have appeared to your Majesty's Governor and Legislative Council, that these Ordinances would be adequate to the Salutary purposes for which they were framed, we find on the best information, that they are in many instances insufficient, and particularly for that the official duty of the Chief Justice is thereby confined to matters criminal and cases of Appeal; and that the frequency of Appeals from the Courts of Common Pleas, under their present Establishment, is attended with every manifest inconveniencies to your Majesty's Subjects," Q18-B, p. 161. After this follows the substance of the Instruction here given. Ön Oct. 24th, 1779, Haldimand acknowledged the receipt of this Instruction and promised to lay it before the Council, though he doubts the wisdom of making any changes under the existing circumstances of the Province. He promises during the winter to give his views on such alterations as appear to him practicable. See Q 16-2, p. 621. |