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S!«IW^»Nit tv ^M(f.'^^^5' \ .- NOV 1 4 1931 APPEND IX. <■ York, 13lh July, 1S23. , May it plkasb your Excellency, The peculiarity ofr^y situation will, I hoj.e, justify the presumr tion of passing by your private Secretary, to address myself di- rectly to your Excellency. Being called upon by JVlr. Hillier with the last Dispatch from Earl Bathurst, on the subject of claims for loss by the war, he read to me a list of names intended by your Excellency to be inserted in the Coniniission of Enquiry referred to in the Dispatch, and said that it was your Excellency's pleasure that I should be con- sulted if there was any objection to the persons named. I thought that there could be none, and said so ; but observed that the Attorney-General would probably wish to be excused from such a duty. Some time after, I saw in the Gazette Appointments of the Commissioners named, that in place of the Attorney-General's, that of Mr. Alexander Wood was inserted. I was surprised, and enquired of Major Hillier il Mr. Wood's name was in the list which he read to me. Mr. Hillier instantly replied that it was not ; but that as your Excellency approved the remark in respect to the Attorney-General, his name was left out, and that he was directed to find another person, and that he had consulted Dr. Strachan, who mentioned Mr. Wood, to whom he considered that there could be no objection, and therefore had not referred to me. which 1 desired the Major to bear in remembrance. The Major then said, that he hoped that there was no objection ; to which I answered, there was such a one as did not admit of my silence if called upon by his Excellency to approve. There was Ihon no specific cause shown ; but Major Hillier ob- served, thut your Excellency doubtless expected that I was con- sulted, and inat he would explain the reason why I was not. • B I w Some days iil'ierwiucls, Major Uillior told luo that he liardly knew what to sny, without soiuelhini; specilu; to act uiioii, I put into his hand the Convs'^ondence (No. 1. 11.) accompany- ing this. The next visit of Major Hillier to me was to say, that the ex- pression of my feeling to Mr. VVood in that Correspondence was very strong, hut still there was nothing tangible. 1 then put isito his hand the detail referred to in tiie Correspondence, which 1 for- hear to transcribe, not to offend your Excellency's moral sense.— Upon the perusal of that paper, the Secretary was pleased lo say, that your Excellency could not permit Mr. Wood to sit on the Commission with those Gentlemen ; but that it would be painful to him to discuss the matter with your Excellency ; that he would adopt means to induce INIr. Wood to decline ; and expressed a hope th^t he was at liberty to use the Communication which i had made to him. I certaiidy thought that the Correspondence between M . Wood and myself, although so long past, might have sufficed to account for my declining to approve his nomination when consulted by your Excellency ; but when that was questionable, would not withhold the last document. It is here proper to remark to your Excellency, that, notwith- standing my strong expression to Mr. Wood in answer to his note of the 6th July 1810, I had met Mr. Wood, since his return, in all places and societies as before this knowledge came to me ; and no public prosecution having followed, treated him as before, except that his personal visits at my house and table, which had been very frequent for eight years before, were entirely dispensed th for twelve years since. Thus things remained when accident recalled notice. At the Gaol Dislivery durinir the last Session of the Legislature, Mr. Justice Campbell had kindly oilered to relieve me from that duty, as I was engaged in the Legislative Council. The usual associate Judges not being able to attend, Mr. Baby being absent at Quebec, and Mr. Allan in domestic affliction, F requested Mr. Campbell to name his associate, and the name of Mr. Wood. was by him transmitted to me to insert in the Commis- sion. I felt it to be beyond all power of complaisance or friend- ship, and declined it, with a verbal message by the Clerk of As- size, that I would offer my reas(m for so doing, at our first meeting. We met at the Court-house ', and Mr. Justice TJoulton, who was conversant with the whole matter, was present when we ex. plained to our Brother Judge the conversation for not putting Mr. Wood's name in the Commission. Whether my conduct, in all this, was right or wrong, 1 put it to your Excellency to say, what would have been your opinion had I, being consulted by you, allowed to pass unnoticed that which, with respect to Mr. Wood, had induced me to decline inserting his name as an associate in a Commission of Gaol Delivery. r ¥ w Hsn r 9 I ask no other Jud^o than your Excellency's discriminution on such an event. IJefore Major Hilliei had informed me of your Excellency's decision, the CommiPsioners wailed upon me, williout notice, lobe sworn m. 1 was sur|)rised to see Mr. Wood with them, an '. licsitated how to act ; but lindiny;, upon enquiry of Colonel Wells, that he had soon Major Hillier that niorning, I assented to mention to Mr. Wood himself the objection ; and'going- with him into my closet, expressed to hisn a hope that he would willuiraw for the present, on any excuse, as I had found myself obliged 1o refer lo former matters on the occasion of this appointment. Mr. Wood was indignant, and vehemently refu?ed to withdraw, with so much personal acrimony, that 1 was obliged lo return with him to tiio Commissioners, where, much agitated, I requested their patient indulgence whilst I dispatched a note lor Major ilillier. As I wei't to the door to the servant, with the note requesting Major Hillier's immediate attendance, Mr. Wood asked me if tlie note was to Major ilillier, and said that he would go with the ser- vant, and left my house. On my return lo the Commissioners, 1 administered the oath, and reserved the blank certificate for Mr. Wood when he should return to be sworn. The Commissioners left my house, without the least knowledge from me of the cause of mv agitation or proceeding. Mr. Wood returned with "Major Hillier, and much warm re ■ proach ensued, without any request to be sworn, and certainly with- out any refusal on my part ; but, on the contrary, he declared that he would not act. Major Hillier since told me that Dr. Stiachan had advised an ap- peal to the laws for redress ; but I heard no more of it untd Saturday last, when Mr. Macaulav told me that a Writ of Mandamus would be moved for on Monday, and that other proceedings w«re resolved upon in consultation, which he was not at liberty to fipecify. I then declared to Mr. Macaulav, thai when it came, it would be obeyed ; but that I had tiever refused to swear in Mr. Wood. On the Monday morning before the meeting of the Court, Mr. Macaulay and Mr. Wood were announced in my drawing-room, where my son, who attended as my physician, then was pr. s( nt. I asked their commands, and it was intimated by Mr. Macaulay that it was not his request, but Mr. Wood's, that we should be left. I desired Mr. Powell to withdraw ; observing that such a visit was, I believed, unusual tor an attorney and his client to a defend- ant, but certainly more so from the retaining a witness on one side, and declining a fourth person on the other ; but that I was a public man, and it appeared exempt from ordinary decorum, and again asked their commands. They requested to know my imlucement for refusing lo swear in Mr. Wood ; and upon ray explicitly declaring that I had not so refused, I was rcq ustod ;o state njy inducement fur what I haa ..J to Mr. Hillier ; and especially requested to sec the papers wiiich they understood I had shown to Major llillier. The answer was, to place tin; papers m the hands of Mr. Macau - lay to read aloud ; observing, at the time, that it was not usual to open to a prosecutor the means of defence ; but that I considered myself in the hands of men of honor, and had no concealments. The Correspondence with Mr. Wood of 6th and 7th July, 1810, was then read, and Mr. Wood admitted that he had received my letter. They then requested the other paper, which Mr. Macau- lay read until he came near some names ; on which I put my hand, saying that I could not allow him to go further, unless h« would declare th;.t the names of any persons should )!(■ je repealed, or in any wise made use of. Mr. Macaulay then declared that he had accompanied I.'r. Wood professionally, to report all that should pass, and cojkl not underlc'/ic to conceal any thing. 1 took the paper from him, and declared that I was soiPy, on Mr. Wood's account, that this business had taken sucf • course ; but that for myself, I was equally ready to re[)ose my ci'fence on the public at large, a jury of twelve Dutchmen, or any twenty Gentlemen of York. The same da;-, in \hi' robing-rooni, I found Mr. Justice Boulton, the Attorney and Solicitor-CJeneral, and mentioned to them tlie expected motion for a Mandamus, and expressed to his Majesty''? Attorney-General ?«. 'ope that I might hav3 hia aid to make my Return ; but I uncUiStood from him that, on his arrival at New York, Mr. Wood's case had been stated to him, in hope to retain him, which he had declined, but could not be against him. The motion was made for a Mandamus, on the usual affidavit of a rif: '.ii, and the refusal to administer the oath ; and it was served upon k.e on Tuesday ; and the same day a declaration in damages to the amount of twenty thousand pounds, for the supposed injus- tice of such refusal, without probable cause, but from malice and wickedness of heart. Your Excellency may perceive, from the accompanying certifi- cates of the three Commissioners and Major llillier, that there is no foundation in fact for the affidavit on which this Mandamus issued ; for I never saw Mr. Wood on that day but in presence of those persons, except whilst we were by oui'selves in my study, where I urged him to decline for the pre; ent to be sworn in ; but on his persisting, I accompanied him into the presence of the other Commissioners, determined to require the presence ol your Excel- lency's Secretary at the administration of thft oath <>( Mr. Wood. However misguided this gentleman is in this affidavit, I have fears that it may lead to ulterior measures, which may compel a disclosure to the public which I have ever deprecated from motives, I persuaded myself, of the purest philanthropy ; but others may not think so, and the array against me is formidable in talents and injluence. MiJ ■:ixvj If ■ \ 5 Whatever niHy liave comhiccil to my present state nfluimilia- lion,of wliicli I Ijavo drained the cup to ihe very dregs, 1 (rn«t lh.it your Excellency will perceive, in the above relation, that my pre sent crisis arises ironi a confidence in your Excellency's Private Secretary, on anoccasion which I was justified to suppose rc(|uireil that confidence as a duty »»l rrspect to your Excellency, as the Representative of his Majesty. 1 have Ihe honor to be, IMost respcctlully, Your Excellency'.'! Servimt, AVILMAM DVMMEll TOWELL. The following is Major liilller's explanation, received through His Excellency Sir Peregrine Maitland : — York, July 28lh, 1823. May it plkase your Excellency, Your Excellency having desired nie to afford an explanation of certain circumstances detailed in a letter lately addres"f;d to yon by the Chief Justice, I tahe the liberty to submit the following statemjui : — 9specially so with regard to the Attorney-Gene- ral. We had much conversation on the subject, and at length it appeared suddenly to occur to Dr. Strachan, that Mr. Alexander AVood would be a very fit person for the Commission ; but at the same time he expressed a doubt whether Mr. W.'s stay in the Pro- vince would be of sufficient duration to admit of his taking unhip-j VMM such iin oflicc. I itgiTtnl with Dr. Sirachnn thflt lie should nscrr- taiii from Mr. Wood tin; |)rob.d)Ie Iciv^iU ot his stav in this t-nuii- Iry, without coninuudiuliiiii to him the prtrlicuhir ohjett of thr en- quiry ; and Dr. S. informed me, whnn 1 next saw him (12lh IMny), that Mr. Wood was likely to he detained in Canada a year or more. As that gentleman, from all I knew oi him, appeared to me to be a person in all respects (iualified for the situation in question by talents as well as by tharacler, I eonfess it never occurreil to mo to be necessary thai I should return to tlie (;iiiel Justice to consult him on the point ; but, without hesilation, I decided on su!»;o;estint>- Mr. Wood to your Excellency as a lU person to be substituted for the Allorney-Gcneral in the proposed Commission. Dr. Stra- chan's last communication (o me, i. e. (>i the probable length of Mr. Wood's stay in the country, was made on Monday the l"2lh May ; on which day 1 embarked to join your Excellency at Stam- ford, and (iroceeded with you to Kingston, without returning to York. During our absence, I laid this suggestion bei'ore you, atid your Excellency was pleased to upprove of Mr. Wood's being substituted for the Attorney-Cenrral, and direct that the necessary steps should be taken as soon as possible. 24th IVIay.— On the morning of Saturday the 24lh INIay, your Excellency landed at York from Kingston. The Commission for the Claims, which had been prepared in blank, was brought to you by Mr. Cameron, signed by VfUi at the Government House, and the names given to Mr. Cameron to insert in it. On Thursday the '29th the Appointments appeared in the Gazette. 31st May.— On S.turday morning the 31st, your Excellency arrived at York, to preside at the meeting of the Bible Society, which was hold at 2 o'clock, r. m. that day ; and it was whilst the subscribers were assembling in front of the School-house, that the Chief Justice took occasion to ask of me whether the name of Mr. Alexander Wood, whom he had seen in the Gazette as appointed to the Jioard of Claims, had been in the original list of persons pro- posed for that situation, which I had formerly shown to him. I immediately replied that it certainly had not';— that Dr.Slrachan, whom I h)d likewise been desired to consult, and who had agreed in his sentiments about the Attorney-General's probable desire to be excused from the office, had suggested in his room Mr. Alex- ander Wood ;— that as Mr. Wood was a person of whose fitness in all respects I could entertain no doubts, it had not occurred to ntie to be necessary to return and consult him about it, but had submit- ted the name to your Excellency, and had received your orders thereon. The Chief Justice begged that I would bear in mind these circuiTistances, which I of course said that 1 would do, and that I would explain to your Excellency : and here the conversa- tion broke off. It however naturally struck me that the anxiety manifested by Mr. Powell that he should be understood as not having been instrumental in Mr. Wood's appointment, could pro- ceed from no other czm*i than a knowledge of some unfitness on > ■■mn^m^-f the l>«i't ol' thil person lo il !.>.•( I laii^o ils iluli'/f< ; nml I iVIt rciiil'i'l that 1 iiuj^hl have uclcd mijinitlcntly in not n cuiritij;' lo liiin on ll,o point \v hen iMi'. Wood was lir.si (hou^Mit dl. I lliticlort.' took llu- first opportunity nhen i saw l\Jr. I'owell not enpi^^cd in ('onvtrsa- tion, to draw him asidf, and to ox{)rcss niy iiupc liiut there ucio no objections of niomentjo Mr. Wood. He leplied thai thtMo were such as had he beet! rnnsulted on his appointment wouhl not have permitted him to approve it ; and on my prcssinj^ him to know iheir nature, he put into my hand two papers — the one a letter from JVIr. Wood to himself, ol'a very remote date, purporting to decline an invitation he hail received Irom Mr. Powell, and reipjestin^ ad- vice on the subject of some dilemma in which he (Mr. Wood) found himself involved, the nature of which, however, was not de- fined, and which ho feared would expose him lo much derision : the othtr paper was the copy of the (^hief Justice's reply ; it refer- red to proofs of friendship formerly {^iven, expressing great distress at the situation in which Mr. Wood had j>laced himself, warning him that worse than derision must attach lo it, and not encouraging him lo brave investigation. Tiie nature of the business was not ex- pressed, thoutrh something very bad was pointed at. The letler began — " Dkak Siu," and was subscribed " Your fiilhl'ul Friend." f returned the papers lo Ike Chief Justice with a remark that there was evidently something very wrong, although there was nothing defined ; and wo were inlerruiited by a summons that the business of the meeting was about lo commence. I have already explained to the Chief Justice, on his reading me a part of the stalement now before your Excellency, that iliero could not have been a longer interval between the two conversa- tions above detailed than a few luinules. The Chief Justice, nevertheless, I observe, slates there was one of *' some days." — The dales will show that only one day intervened between the ap- pearance of the Gazelle, from which Mr. Powell first learned Mr. Wood's appointment, and the meeting of the Bible Society ; and I feel very confident that I had no conversation wilh the Chief Jus- tice, either on Thursday the29lh, after the appearance of the Ga- zette, or on Friday the 30lh, the only intermediate day, or on Sa- turday the 31st, until I reached the neighbourhood of the School- house, a little before 2 o'clock, p. m., when he first addressed to me his enquiry on Ihe subject of Mr. Wood's appointment. Atlhe closing of the meeting of the Bible Society, I told the Chief Justice that I was then obliged toallendyour Excellency to an inspection of the troops ; but that I should be anxious to renew the conversation. I look occasion to call on him the next day, (Sunday the 1st June, about 3, p. m.,) for that purpose. I found him walking in his garden. I repeated what 1 had said before, that there was evidently something very bad about Mr. Wood, and which I felt I should have to communicate to your Excellency as an objection to his continuing in the Commission of Claims, but that still there was nothing defined or tangible in what I had s sent , .111(1 llial I filioiiM d'-sin', in orlt r lo .ft on it, to know fur- tlicT piirlictilHrs. Till- Cliii I Jiislicc ilioii |,n».lii(t'(l Horn Iun poc- k«*l a nitt(! iip|)iir(Mi(ly niiulc iit ilii> tiiac ol the octurronce (o which the k>(l(ii'j I had bciore socn iillu'.l*.Ml, and uhi( !> ( onlained details of a v«Ty difi^usting' nature, and disciuscd conduct on the part ol Ml'. VV. wliicli, unless most sniis!actorily diij'n- <•(!, must uidilhini h)t only tor otlices of pubiit; trust, but lor admission jnto society. I Iclt (his very slronjjly, and, ] have nodouht, expressed myselfso. 1 was confident that if such tlun^s were knov.n to your Excellency, you would not suffer Mr. \Vood to contin c a the Commission ; and I lelt that, knowir);^ them myself, 1 oi. . lo take every men- sure to prevent It; lhou draw frotn cumstanco plication t given the away with sion. In t'lic e to lake n( knew the objection Allan the Mr. W submitted me, expl Commissi The CI arisen fro having b Board of his recen made Chi mental i S^S^J^^IfM*'- 9 any course ho miffht have thought it right to lake, hail the Chief Justice (lone so, it was still pe./cctly in his j-owor to pursue Mr. Wood coiUinuul his reproaches to Mr. l»owell, ami with much warmth attrihutcil his conduct to a lecling ol hostility to the person by whom he hi.d been siig^c^ted lor his present appoinlincot. 1 he Chief Justice, with much comnosure, rcmimk-d Mr. Wood that ho would not submit to insult in his own hous.j ;— that as Mr. Wood had advanced such an imputation, it became necessary that he should causo tho persons who had formerly brought allegatioin a"-ainst ISlr.Wood, to take their depositions before a Magistrate, an,l to add to these his own affidavit of Mr. Wood's admissions tc him made al tho time. Mr. Wood, on this, with a very changed tone imd manner, denied all intention of insult. &c. 1 JH-re a.niin inter|)Oscd. 1 told Mr. Wood that, placed as 1 was^ I ba.l oiilv'one course to pursue ;— that I had hoi)ed to spare him rnd invseUfho pain of a personal explanation by communicating with him tln-ou-h Dr. Slrachan, w'ao had Hrst suggested his name for th.^ prcsful iipi)ointment ; but that as this was no longer pcr- mitlcd by wh.U had taken idace and the Doct.ir's absence I l>eg- "cd him to uiuleisland ihat I must be under the necessity of .aymg all that 1 knew before the Lieutenant-Governor, distressing as it wouhl be lo me lo have to submit to him a subject so disgusting, unless he, on any pretext he might choose, should, before the evening of the next day, signify to me a wish o be allowed to wUrulraw from tho Commission. Mr. Wood admitted the pe- culiarity of mv situation, and added that he should certainly with- draw from tin" Commission, and left the Chief Justice's house. 'iMiou..!i nuu.y more words passed, these wei;e the leading cir- cumstances ..f this very painful scene. Mr. Wood made no ap- nlication to b,; sworn into office in my presence, of which 1 have given the Chief Justice a certificate; on the contrary, he went away with a professed intention of withdrawing from the Commis- 'ay sion In the evening, I received a note from Mr. Wood, begging me to take no stops until Dr. S. returned from Niagara ; and as 1 knew the Doctor could not be more than a few days absent no objection occmrcd to me, and I signified my assent through Mr. Allan the next day. . i u «., ^..i«. Mr Wood's subsequtnt communicatious to me have been duly submitted to your Excellency, as well as Dr. Strachan's letter to me, explaining his having suggested him for the appointment of Commissioner. ,1114^ i,~„« The Chief Justice's tirst remarks to me I understand to have arisen from his desire to be considered by your Excellency as not having been instrumental in Mr. Wood's appointment to the Board of Claims. I am confirmed in this conception of them by his recent declaration that he would not mind if Mr. Wood were made Chancollor, so that he, the Chief Justice ^^e^e not instru- mental in the appointment. The enquiries I addressed to th« c •m^..' M ■i. f { O.I % Chief Jnslice arose from a dosire to ,.rpvent some evil tothe pub- lic service (Uie exleiit of which I could not tell), if Mr. Wood continued ill the Commission. , c^^.^«i Willi reier.ncc to the Chief Justice's statement to your Excel- lency that I inf-rmed him that Dr. Strachun had advised an ap- neal (') the hnv for redress, 1 certainly remember perfectly to have told the Chiof Justice that 1 had ascertained to my satisfaction that J)v Strachan had never known the extent of what was imputed to Mr Wood ; and that on the present occasion he had plainly told him that if " he did not clear himself ofthese charo;es, he, Dr. h., must clear himsell of tim." It must be to this the Chid Justice has aiven the above interpretation ; but as by a similar latituoe it miffhl be inferred that I had denounced Dr. Strachan to the Chief Justice as the instigator of a prosecution designed to ruin him, I hope to be forgiven for remarking that my knowledge of your Excellency's desiv of effecting harmony and unanimity, and the discomfort I have already experienced in the necessary official m- lervention where discordant reelings unhappily prevail, would, as well as common sense and honor forbid any intention, on my part, toc'ccite feelings which I have ever seen yom Excellency so desi- FOW to allay ; and it would little accord with a remark I remem- ber to have made to your Excellency, of the light m which 1 view Dr. Strachan'8 conduct on the present occasion. j,i I have the honor to be '' Your Excellency's most faithful and obedient Servant, J. HILLIER. I ceriify that this writing and signature upon this paper is in the proper handwriting of Lieutenant-Colonel Hilher, late Secretary to Sir P. Maitland. EDWARD M^MAHON. Vork, lOlh Jan. 1831. I