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THE HUMBLE PETITION of the undersigned the Honorable ELZEAH BEDARD, one of the Justices of the Court of Queen's Bench for the DisTuicT OF Montreal, in that part of the Province of Canada which formerly constituted the Province of Lower Canada. That on the twenty-second day of February, in the year of Om- Lor«l one thousand eight hundred and thirty-six, your Petitioner was appointed one of the Justices of the Court of King's Bench for the District of Quebec, by Letters Patent and Commission under the Great Seal of the Provh.cc, bearing date, at Quebec, the day and year aforesaid, and subsequently .sanctioned by Warr ,nt under tl.e lioyal Sign .Afanual and Seal of His late Majesty William the Fourtb, !;eari.i» date, at Windsor, the Sixth day of April, one thousand eigiit hundred and thirt^-six ; in virtue of Avhich your Petitioner assumed the duties of Judge of the Court of King's Bench for the District of Quebec, taking bis rank immediately after the Honorable Mr. JustU'o Panet, his senior. 1'bat under several Provincial Statutes, to wit ;~34 Ceo. III., chap. ; 3 Geo. IV., chap. 17 ; 10 and 11 fJen. TV., chap. 7 : 7 Vict, cliaj). 17, the Province of Lower Canada was, for the more convenient acbninistration of justice, divided into five Districts, when Courts of King's Bench, iiavmg in eadi of these divi-^ions tlie same i)owers and jurisdiction, were estabUshed. That since ids appointment, as aforesaid, yuur Petitioner has been from time t(rtime called upon t.. si(, and has acted as Judge of tlie Court of Queen's Bench h. four of the said Districts, namely, in the Districts of Quebec, Three Pivers, St. Francis, and Gasi)e ; and as such Judge of tlie Court of Queen's Bench, in the year 1843, your Petitioner became, under the operation of the Provincial Statute 7 Vict. chap. 18, one of the Judges of the '< Court of Appeals for Lower " Canada," wliose jurisdiction extends to the whole Province of Lower Canada. Tliat up to the 2Gtii day of April hist, your Petitioner, whilst attending those several C'ourts, took, in virtue of his said Commission and Letters Patent, his rank and preoeden(!e in the C(.uj-t of Apj)eals Ibr Lower Canada both at Montreal and Quebec, and in the sittings in Ban-o uf (be Couri of Kings Rcnch at (iuclx-c, Three Kivcrf, and St. Francis, next ininicdiatcly after Mr. Justice I'anet, his senior on the Quebec Bench, and before Messicrnvs Justices^ Mondelet, Day, and Sniitli, whose Commissions as Judgcfi of the Queen's Bench are posterior in date to the *22d February, Tliat wiien recjuired to act under tfie' 7th Vict, cliai). IG, sec. 15, (authorizing in certain cases the Governor, by special iiistnunent under liis hand and seal, to appoint and empower any one of the Justices of one Court to sit «^/ hoc in another District,) the Judges have invariably ttUicn their rank and precedence according to the date of theli- former Commissions as Judges in their own Districts, and not according to the date of tlu' Conunission appointing them Judges, ad hoc, in the other Districts in which they could claiiii no jurisdiction b)- virtue of their original appointment. That on the 2()th day of April last, at the City of ISIontreal, Letters Patent and a Commission under the (Jreat Seal of the Pnnince were issued, api)ointing your Petiti(mer one of the Justices of the Court of Queen's Bench for the District of iNIontreal ; the said Letters Patent containing among others the followng clause, to ^vit : — " And whereas, on the twenty-second day of February, in the year of our Lord one " thousand eight hundred and thirty-six, our Eoyal Uncle and I'rodeeessor, the late King William " the Fourth, did by certain Letters Patent and Commission under the Great Seal of our late " Province of Lower Canada aforesaid, ai)[)oint you, the said Elzcar Jkdanl, one of the Justices of *' the Court of King's Bench for our District of Quebec, in our said Province, which office you held " and enjoyed up to this day, with all its rights and privileges, it is our Koyid wUl and pleasiu-e, and " PVc do hereby grant and declare, tluit you, the said Elzcar Bcdurd, shall have and take rank ant! " precedence in our said Court of Queen's Bench for our District of iSIontreal, next after our Chief " .Fustice thereof, and before the Ht)nouniblc Charles Dewey Day, one of the Justices of the same, <' and in all and every our other Courts ^nthin the siiid ])art of our Province of Canada which " formerly constituted nsc as to justice may appertain, cause right to be done to yom' Petitioner on this behalf. Yom: Petitioner cspeciaUy praying, in conclusion, that the .aid - Detcnninntion, Rule, .n Order '^ of the 1st of JiJy, 1848, be rescinded and declared m.U a.id void, a.s being unjust and .Ucgal, and that the entry thereof made by the Prothonotary be declared of no effect Avhatever, or that .uch r,thcr relief in the premises be granted as in your Royal VN-isdom and justice Your Majesty may decn. fit to allow. And, as in duty bound, your Petitioner will ever pray. ]{ M0NTnEAI>, August, 1848. th dc g' }{( it be 00 J I 5 scil to lUmblc jcsty"s one to ulo, oi illc'i^al, it such f dcciu IIECJISTER OK iHi: PROCEEDINGS had in Ik-r Majesty's Court of Queen's Hcntb, holding Civil Pleas in and for the District of Montreal, during July 'I'erm, 1848. Satl'kday, the Fnisr day of Jily, One thousand eight luimlicd and f'orty-ciftht. The Honorable ('Incf Justice Kolland, " " Mr. Justice Day. " " Mr. Justice Smith. // is onkroil ihni the folloicing be entered of Record in the Register, and remain upon tht Jilts of this Court: lOT July, 1848. IN THE JUDGES' CHAMBERS. PuESENT : — The Chief Justice and the Throe Puisut- Judges. Tlie Judges assembled for the purpose of eu( paring uito the fjuestit a of precedence claimed by Mr. Justice Redard in virtue of Ids Comiuission, and it was lirst proposed that they now decide thereon : whereupon the three Puisnes Judges b'.'iug of o])iuii)U, against the Chief Justice, that ."uch is the right course, — it was dcternuned by the majority of tlie Judges that they now pronounce on the validity of the grant of precedence given by the Crown to Mr. Justice Bcdard, uvei- and above Mr. Justice IJay ami Mr. Justice Smitii, his seniors on tlii* Bench. And tlie nuijority oi" the Judges are of opinion, that the rank uf a Judge being an incident of his office, it is not in the power of the Crown to deprive lilin of that rank, and that Mr. Justice Day and Mr. Justice Smith, being the Senior Judges on the ]5encli, must rank and take prcceih'uee accordingly, notwitlistanding tlie clause contained in Mr. Justice Bedard's Commission giving him precedence, which grant, in the Letters Patent, th« Judges are of opinion is void and of no elfect, as being contrary to law. DisscntienU; Mr. Justice Bedaud. (Signed,) J. H. KOLLAND, Chief Justict. CITS. 1). DAY, J. B. R. sMiriL J. Q. B. (^Signed,) i:. BEDAliD, J)isscntknfi\ I'rue < opy. MONK. COFFIN, AND PAPINEAU, Prothonolorii. ^ REASONS suhmittcd In Mr. Justice BKOAHD, in olicdicn.r to \W Oid.-r in Council Ix'iirinfT (late the l'2tli Fobruarv, I SI.), shewing liic «:Toun(ls upon which ho dissontod from t ho "Determination, Hule or Order," pronoun' cd by his Honorable Colleagues on the first of July last, and for the reversal, rescinding, and declaring null of which he has applied to Her Ma)csi\ the Queen. First. — As to the course aJujitcd by Mr. Jiistieu BeitarJ, who, on llie lirst day ot'ilie Term, elaiiueJ hi* precedence in virtue of Letters Patent, (the Chief Justice being uf oi)inion tliat it was nut the riglit course,) Mr. Bedard observes, that uo other course was left to him, except tiie abandonment of his legal right, without even oonsultlng the Judges. Entertaining no doubt on that point, he had to assert his legal claim either publicly on the liench, or better, as ho thought, in Chambers. ^Ir. Bedard's legal right of taking precedence could not be pxerciscd against the will of the Judges, and the very seat which he was to occupy on the Bench became a pre- liminary question, which such of the Judges as felt themselves competent, wore bound to decide. No other course was suggested by any of the Judges, save the jiroposition made by Mr. Justice Bedard, that he might take the rank he claimed, reserving to Messrs. Day and Smith their right of appeal, a proposition which did not meet with the concurrence of these gentlemen, or to take the opinion of the Chief Justice of tlie Province, and the Quebec Judges, a proposition which did not meet with the approbation of the Honorable Mr. Chief Justice Rolland, SecomJhj, — As to the Determination, Rule or Order adopted, dissentiente Mr. Justice Bedard, it is to be observed, that it was never admitted by him, as stated in the l')etormination, tliat ^Ir. Justice Day and Mr. Justice Smith were his seniors on the Bench of Montreal. Tiiat statement assumes to be true the very question in controversy. Attempting to jn-ovc a proposition that is denied, by assuming the truth of the pro- position itself, is what is termed in the schools " a vicious circle," nor can a claim of right be dealt with upon the bare assertions of either iiarty. Had a Member of the l?ur been i)laced over Messrs. Day and Smith, some plausible reasons of expediency might be given against such a nomination, as allecting the loss of rank, stated to be an incident of the Judicial office. But s\icli is not the case. The present ease Is that of the removal of a .ludge of the Court of (Jueen's Bench from one District to a similar « 'ourc in another. As to the exercise of that right by the Crown, we hnd the following citation in 1st Arelibuld's Practice of the Court of King's Bench, London Tldition of 1820, p. i> : — " In the ArtU'uli s)ijwr curtus, I'JS Ed., 1 c. .">, i it is provided, that the " .lustices of this Court shall follow tlie King, ' so that he may have always near unto him some that be learned " ' in the laws.* I'or some centuries past, however, they have visually sat i.t Westminster, an ancient Palace of •' the Crown ; but they would of course be obligeil to follow the King into any i)art of the kingdom, if he should •• think proper to connnand them to do su ; and theie is even an instance, in the reign of Edward the First, ol '• this Court haviiig sat at Ro.\burgh, hi Scotland.— M. 20, 21, Ed. 1. JIal. Hist. C. L. 2U0." 'J'hi' ([uestion then is, wliich of the Judges is to take rank and precedence as senior ? The answer is obvious, 'i'iie one Avhom the law acknowledge? to be so, either by its own operation, or through the exercise of a legal power in the Crown. liither of these two propositions being ja-oved, Mr. Bedard's I'ight to take precedence is established. The principles according to which these ]iropositions are to be decided are eminently those of the English Law. They iiuoUo a (juestion of Public Law. But were it not so, it will be found that both the old French Law, as administered in certain matters in this country, and the present code in France, are in perfect accordance with F^iiglish principle on this brar.eh of the law. First, as to the legal power of the Crown to establish rank and precedence amongst the Judges. Passing by the old cases in England, such as that of Master likhard de Ahjjmhn, to whom Edward the Second gave, by Letters Patent, the same place or precedency in the Court of Exchequer as he had in the time of his predecessor, h'dward the First, (History and Anticpiities of the Exchequer, p. 57,) it is now a settled principle, that " 'J'he King may grant place or precedence to any of his subjects as shall seem good to his Royal wisdom. — " 4 In&t. y. oil I, and 1st IMackstone, p. 27L The King, by the Common Law, could have created a Duke, '• Earl, &.C., and could have given him precedence before all others of the same rank, a prerogative not unfrequently " cxerciseil in ancient times, but it was restrained by 31 II. 8 c. 10, which settles the place or precedence of all " the tiobilit y or great officers of State. This statute docs not extend to Ireland, where the King still retains hi« " prerogative without restriction. Christian's note to i Black, p. 272." If, therefore, the King could at Common H l.iu thu- (ii'iuiM' a iiulili mail nf lii.i prtrLMlt'iiir, ln'ltl u^ iuciiU'iit to an iiilici'iuilili; tulf. by |il.iiiiig iiiiollici ovti liiiii. Low iiim-Ii iiion; inu-t it lit- within tho scopo nl' tiic prorogativo to dwil witli lucn- olHrial i.iiik, ami lliat io liis owti Court". Again : " It is iiiipossiMo tliat (Jovfriiiin'iit can be luaiutaiiiod witlioiit a liiic siiboriUiiatioii ol' '• raiiiv, tliat tlu' pcnpli' may iiiiow atui tlistingiiisii Mich as are ovor thuiu, in oriU;r to yield tlioni thoir duo respoi.'t '• and ohodii'iiuc; and alio, that tin; ofliuiTs Itcing oncouragud by uinuhitiun, and the hopes ul' supcriority.'inay " tlie bcttrr di-<'hari:e th .ir I'unrtions ; and tho law suppost^s that no man can bo so good a. judge ot" the several '• meiits and i.Tviei't as tlie King Iiimself who employs them." Again, I IJlackstune, p. :\W : " All degrees of '• iiiibilitv and hon'ur are diTJvcd from the King, a> thi'ir fountain, and ho may institute what new titles ho '• |.l " is the source of all judicial power in the .State. Ho is the chief of " all Courts of Laws, and tlic .Fudges arc only his substitutes." It is laid down in .1. Ciiitty's General Practice, Part v. chap. I, pages o and 0, that " The number of the " JniliiT and llifonx of each of the Sn|)erior Courts of Law at Westminster, vl/. : King's Bench, (.'onnnoii Pleas " and I'Acliefiuer, constituting tho fuH Court sitting in banc, has varied at different times, according as it has " been considered essential to cxct'cinc the i>m', sec. 1) sometimes gives hiui " express power ;" and in a note : " In modern times it has been customary for the King very rarely to exerciao " his prerogative, but to delegate tho exiwdioncy of every measure in the least atl'ecting tho public to the con- " sideration of Parliament, so that most changes have boon made by statute, thoi;gh tho King might of his own '• authoritN have elfccted tiio object." Those prerogatives in tlio Sovereign are a necessary cousoqucnco of tho obligation imposed upon him, of .administerinsr justice to tho State, a solemn obligation on his part, which alone entitles him to tho allegiance of his i)eople. To tho Sovereign, ncn, must be left the moans of judging of the best mode of administering that iustico, and of choosing his substitutes, as (though in contemplation of Law tho King is always present in Court) he cannot administer it but by his Judges. These principles are those of tlie Prencli law. " Touto justice einane du Roi ; olio s'administre en son " noni par des .luges ipi'd r.omiiK; et ([u'll institiie," said the ('onstitutional ('hartcr of Trance, in 1830. The able writer Proudliou, in his " Traite du Doma! o Public," (p. 104, 1 vol.,') says: " Lo jiouvoir judiciairc, " consideri' dans sa source est aussi uue piU'ticipation du Domaine do Souveraiuete, puls(iuc scs decisions so " rendent et s'ext'cutont au nom du Souveraiu." This is not new law in I'rauco. Wo llnd in the l{epertoiro do .lurisprudeiico do fiuyot v. Presoance, Edition -t, p. -173, 1 vol. : — • " La volonte sculo du Prince pout etablir des preseancos : il en est d'autrcs qui no sont point arbitr.aircs, " telle ijuo cello d'un Clianccllicr (pic sa dignite elcve au dessus do tons les oflicicrs qui sont employes dan:i '• radmitiistratioii de hi justice." " Anh'efojs PAg,. (''tait une raison de ])r('seaiico ; — les viellards avaieat des droits aiix premieres places ; " mais inij'ourd'iiui le \ieux militaire est precede par un jemio homme favorise do la fortune. L'Auciea *• Magistrat marciie apres un jeune president." l')omat. v.liom d'.Aguesseau honours witli tlie title of " Le .lurlsconsulto des Magistrats," in his " Proit Public," livre I. tit. II. sec. 2, ji. HI, No. .'5, (Edition folio of 174,'),) expresses himself thus : — " Parmi cos droits du Sonvorain 1(> ]iri.Mijier est celui de radministration de la justice qui doit etro Io " t'onilemeiit de I'ordi'o public soit qu'il la rende lui meiue dans los occasions qui peuvent I'y engager, oil qu'il " la fas«o rendre par ceux a qui il donne ce droit." And No. 8 : — " (Jonimo il est do I'ordre general do la " justice et de la bonne police d'un Ltat f|UO les scr\ices et autres meritcs qui iteuvont contribuor au bieii '• public soii'iit r(''('ompons('s ou jiar des titres d'lionnenr on par irautres graces ipii venant do la main du " Souverain soient jiliis distingui'os ; il a i^cid Io droit do dispenser cos sortes do graces, c'est line suite du " droit du . 11-, til. U>, sw. 1, No. .'5 : •' II y a cetk- Uillfn'iux' fiilii.' U-* cliiirges Muiiici|'uli-i i-j '' los .autiot snrtcs tic diargf^, roiiiino (.'I'lli's dcs ofHciurs ilo justicv da liiian('i.'s it autrcs (iu'dii appellu otlicicib itii *' Hoi, tjue comine lea i'oiutions du foux-ci It'ur sDiit i.'oiiiiiiise.s par If UdI ils on out pour tilio Ics provisions (pi'ii " lour on ilonne, an lii*u que Ics tbnctioiis Mnniiipak's etant comniia(.'s a. ceux qui lea t'xcrct'ut par les coiii- " niunantes que ces font'tions n-garJi'iit ils sout aiipullt'-> a wa di^n'j^v, par rKlcctioii lU; ceux qni out droit do la " fairc." To tlieso eitationo from Doniat, oin; ut'a nioro ancient date maybe addeil I'loni 1 vol. IJacquet, Traite Ue* Droits tie Justice, ch. iv. pp. !), 10 : •' ( »ri ticnt en I'rance pour niaxiuio certaiiie, i|ue le iloi seul est fonde do " di 'it eoinnnni en tonte justice, liawte. iiiuvenne et basse jiar tout son Koyainine. Kt dit on que : /ii eo tuw/uatii " principc swnmo omncs tln'.^nnri ilijiiitatmii riTuiiditi nunt : it ab co rclut a Joutc vmnes jiiriinlictioni's proccdunt, " sicut omnia JlumliKt per maitu.t tiniifuHiit a mari ct ar de aUinl. in usih. fnuL AI'SSJ hyc nyiii oinnc impcrinni in Casarcin translata vd ; " oinnisipus poptdi potestus in prinripiiu trfrirtditin dc cloi. in swrto : I'artant plusieurs sont d'avis (ju'aucnn Seigneur ue " peut prctendre droit de justice, en auunn lief Terre ou Seigneurie en I'rance, sans litre partieulicr, ooueebsion, " ou permission du Koy ou de .ses predecosseurs lloi.s de I'rance. " Quilt li prinripe t : " Quondojiirixdirtio t.s'f in Mann Ifcijid est j>rojn'ir in natura et substantia sui vol in " esse suo : cum Rex de jure comnunii I'luidatus sit in omni jurijdietione." These principles once aduiittcil, and tln'V do not seem ti> be denied, the oidy corollary to bo drawn from them is, the nsiliniited risht of the Sovereign to appoint whom he (.'hooses as liis substitute, and to assign to such substitute any rank or place, near him, as Ur; may deem lit, ex"!';'!; when the prerogative in such matters has been specially rcstraineil by Statute. ^Vero it otherwise, the Sovereign could be no longer considered as the source and fountain of all justice and honors, lie would cease to be the chief of all the Courts, and would be deprived of all power in his special domain. So much for the right inherent in the Sovereign to assign precedence in virtue of his prerogative. It now remains to bo considered wliether Mr. IJedanl would have been legally entitled to the precedence which h(^ now claims in virtue of his former commission of 1830, by the mere operation of tlie Law, even though his ]>recedence were not specially maintained in his Letters Patent. Tiie jirinciple laitl down in (!omyn's Digest, vol. iv. ]>. 57 'J, \ erbo Justices, is conclusive in the allirmative : — " If a Justice be removed from one Hench to the other, lie shall have precedence according to his *' seniority :" so if a Ihiron of the Kxchequer be removed to C. P. or ll. IL 1 Sid. p. 408. This iirinciple has ni^ver been controverted, larfrom it ; it was ilecitled in cases adjudged before the rule was laid down by Com- myn ; and this rule has been acted upon ever since. In 1st Siderlin. in p. 4n^, is given the ease of Sir llichard Uainsford, one of the liarons of the Kxchecpier, who, having been appointed a Judge of the Court of C. P. took his scat over Judge Morton. " Sans ouster I'ereiiioiiy," says the author, " il sea sur le Ihi suprll Morton scil. " prit lieu en uniformly acted upon over since, the following cases will sulficiently shew. The reports from which they are taken do not, it is true, mention the form of the Patent. Hut they show the fact of the parties taking proct'dence according to their antiquity, and there can be no doubt the Patents were framed accordingly. In many of the cases, too, it is expressly stated by the reporters that tlu! parties " resigned" their place " and" were appointed to their new seat ; which shews that they were not in all cases " translated," as it is said in Mr. Justice Croke's ease ; and that thereupon they had for a moment actuidly ceased to be Judges. Indeed it is probable that tliis has been the uniform course since the Statute altering the tenure of the office ; as the issuing a Patent to a person already a Judge, appointing him to a place on the )?onch of another Court, nuglit iKvhapa look like au attempt on the part of thf Crown to cv.kIo in .sniiic tk-grfC ilir Statiuo, But ic proceed to the cases. 1. Mr. Justice Clivc was originally appointod to the Bench as Baron of the Exchequer in 1741. — Tabic to i Wlls. Rep. He :vas in II. T. 1753, removed to the C. I'. — Ibid. The other ruisnc' Judges of this Court were at the time M. J. Bathurst, originally .ippointed to tli Beuoli as Judge of the Common Pleas, 2d May, 1753 (sec Woolych's Series of the Chancellors, .Tudges, &c., p. 80,) and Mr. J. Gould, originally appointed to the Bench as a Baron of the E.xchequer In M. T. 17G1. — Wool. 02. And ■vvc find by Wilson^ Reports, that on ouch removal, Mr. Justice Clivc took place before both these Judges, 2. Mr. Justice Gould was originally appointed to the Bench as B.aron of the Exchequer in M. T. 1701. — Tiible to i Wils. and Wool. 92. He was removed to the C. V. iu M. Y. 17G2.— 5 Wils. ll'J, Wool. 92. The other Puisne Judges of the C. P. at the time, were Mr. Justiee_C'U\ e, originally ajipointcd to the Bench as i^aron of the Exchequer in 17H, (Table to 1 Wils. and Wool, 87,) and Mr. .1. Bathiu-st, originally appointed to ilic Bencli a.; Judge of the Common Pleas, 2d May, 1 753. — Wool. 89. And we find that on such removal, Mr, Justice Gould took place nfkr both these Judges. 3. Mr. Justice Yates, originally appointed to the King's Bench 11. T. 1701, (Table to 1 Wils,) resigned his seat there, and was appointed to the Common Pleas II. V. 1770, Arherc he sat as junior Puisne Judge, al- though ho had been senior rulsn<'' Judge of the King';; Bene!'., because his first commissioii as Judge of K. B. was posterior to those of the other PuiKn(l Judges of the Court to which ho was removed. — 1 Wm. Black; Rep. 081. ■1. Mr. Justice BuUer was originally appaintod to the Bcueli as Judge of the King's Bench, E. T. 1778, — Cowper, p. 753, 2 Wm. BIacl<. 1185 — SVool. W. lie resigned his seat In that Court, and was appointed a Judge of the Com. Pleas in E. V. 179 1, 2 II.^Black. 3S5. The Puisne Judges of the Com. Pleas at that time were, Mr. .Justice Heath, originally appointed to the Bench as Judge of that Court, 19th July, 1779 — Wool. 07 ; Mr. J. Rookc, originally appointed to]_thc Bench as Judge of that Court 13th November, 1793. — 2 H. Black, 211, Wool. lOOl And by reference to 2d II. Black, p. 310, 'it will be found that Mr. Justice Bulloi invariably took place before both those Judges. 5. Mr. Justice Lawrence was originally aj^polnted to the Com. Pleas II. \'. 1791. — 5th Term Reports, 549 ; 2 II. Black, p. 287. In the \acatIon after Easter Term, iu 1794, he resigned, and was transferred to the King's Bench. — 2 II. Black, p. 385. The Puisne Judges of the K. 15. at that time wore, Mr. J. Ashurst, first appoiiit'-d Judge in the K. B. 22d .lane, 17C9— Wm. Bhck. 719; 5 Biut. 20, 38 ; Wool. 95— and Mr. Justice Grose, first .appointed Judge in the same Court 9th Feb. 1780 ; Wool. 99. Mr. Justice Lawrence, therefore, !.at after both these Judges, as will be seen by reference to 5tli T. R. lie was, however, afterwards removed back to the Com. Pleas iu II. \. IS08.— 9 E. Rep. 329. The other Puisn<:'! Judges of this latter Court were then, Mr. Justice Heath, originally appointed a Judge in that Coiu't 19th July, 1779, Wool. 97, and Mr. J. CIiamLre, originally appointed to the Bench as a Bai'on tj the Exchclacc, precedence, seniority and antiquiti/," as he enjoyed in virtue of liis original Conunission, Mr T. Bedard obser\ cs that the practice must be aibnittcd to be legal, or else it must be said in Canada, that the liighcst judicial authorities in England ha\e for centuries past misconstrued the law. It is immaterial whether these Judges took their rank by virtue of a saving clause in their Letters Patent or otherwise. If they tlid so under a saving clause, then the legal right of the Crown was acknowledged : if there were no such clause in their Letters Patent, then they can only have taken precedcnr: in virtue of the Common Law laid down in Comyn. Anything like an acquiescence on the part of tho Juu^vj cannot be sup- posed without casting gratuitously on the Judges of England the odium of having, on the one liand, assumed a rank and precedence repudiated by the law of the land, and of liaving, on tlio other, sanctioned an act of usurpation. And if the often misapplied Roman quotation, " Incluslo uniua est cxclusio alterius," can be made use of in this instance, it will be found, on referring to the Provincial Stat, 7 Vic. ch. IG, sec, C, nuthorizing tho Governor, in case of illness or necessary absence, or of suspension from office of any Judge, to appoint some Advocate as an iVssistant .Judge, that tho Legislature seems to have recognized tho right of the Crown to grant rank and precedence to such Advocate, by providing " that notliing therein contained shall be " construed to give precedence to any such Assistant Judge over any Puisne .Tusticc of the Court.'' As justice and reason arc universal, French authorities and decisions may liere be invoqucd. Loyseau in his "Traite dos OfiTiccs, ' (Edition of Parii, IGTP,) liv. I. chap. vii. p. 47, after having laid down the general rule of the 1 'rcnch law that an " ollicer loses his rank after his resignation," uses the following terms: — No. 77. " Et toutosfois la maxinie 'qui vlent d'etre proposee (Hang perdu uc se rocouvre) re(;oIt unc excep- tion notable, " a scavoir que s'ihj avail continuation sans Iiuermission, non seulemeut do la seance houoraire, mais " aussi de rcxercicc parfait : alors la mutation d'olllcc no ferait pas perth-e le rang il Tofficler qui serait toujours demeur6 " vrai olHcier conjuncto reverii munere utruisque militia\ Et ainsi se pratique journellemeut, qu'un Conseillcr " d'Eglise, prenant un Oftice de Conseillcr Laic, retient son anclen rang, pour\-u qu'il soit si avise que de pr^^sontcr " ses Lcttrea de Nouvel oflico auparawant, ou du monis (juand et quand son I'csignatalrc ; coume quand un " Conseillor Laic ct un d'Eglise pernnitcnt leurs ofllces ensemble, si tout en menie temps ils pr(^sentent tous " deux lairs NoiiveUes Lcttrcs de provision j'estimc que tous deux, doivent garder leur ancien vnngpouroc qu'il no " se petit quotcr d'intervallc de temps auqucl I'un ou I'autrc ait etc homme prive et non oflicier, et ainsi par con- " tinuation d'excrciec Ils out conserve ce rang anclen." Tho words in Croko'a Reports : — " II a (:t& juggU' par la voloiiK' liu l\oy, roltieicr avira lo rang quo lui donne co titre) il se regie pai" " los dlllcronts C't^ards qu'on dait avoir uux diverses causes qui donucnt le rang, et comme cos causes sont la '■' di^uit^, I'autoriti'', los foiictions, los droits ct Ics privilogos des charges, et se reucoiitreat dirteromiueut eu divers " degr(''3 dans les difterentes espeees do charges : co qui on fait uno infinite do eombinaisons, e'cst par Ics '• vues do ces difterentes condnuaisons (juo se reglent les invsoances : ainsi jjar oxeniplo eiicoro quo la justice " ordinaire ait do sa nature plus do dignite quo n'en out les autres Jurisdictions, les otticiers des Cours des " aides precedent los oiHciors dos I'residiaux a cause quo dans lour ordro ils oat plus d'autorite quo n'en ont dans " lo lour \c^ Presidiaux, ot (juils ont aussi plus di; privdegos, et c'est par do semblablos vues et par do pareilles " jn'Oi)ortions que se regleut los rangs do toutos les charges." It now remains to he shewn that in the Province witli the sauutiou of the whole of the Judges, the rani; and precedence in one Court has invariably boon regulated by the date of the first Commission, and not by the date of the last or tho "locus" of the court. In two cases reported, 1 vol. Revue do Jiu'isprudenpc, j). I'Jl.', No^. 1000 and 1798, argued in the Kincr's Heneii at (Quebec, the (Quebec Judges being equally di\ided, the Ilonorable (now Mr. Chief) Justice iloUand was, by a special eoiiiinission, wherein his antiquity and precedence had been omitted, named the Judge aii line, and came to (^lebec and on " tiiat ]?i'neh " took his seat, rank and precedence, and delivered his opinion next after Mr. Justice Bowen the oldest by Cunmiission, and immediately before Messrs. Justices Panet and Bedard. Mr. Justice Gale of Montreal, vuidcr similar clreumstancos, took his scat before Mr. Justice Bedard in tho case of the I'rsulines vs. Botherell. So in the ease Cuthbert and ToUior, July, 1840. Mr. Justice Mondelet of Throe Rivers, sitting in Montreal, took his precedence over Messrs. Justices Day and Smith. Had the principle, now for the first time attempted to bo laid down, been recognized, Messrs. Rolland and Gale at (^lebee, an.l Mr. Mondelet at Monti'cal, should lure raidced in these respective Benches after the last Puisne Judge, and according to the date of their respective si)eeial commissions. Neither of these gentlemen had ever been invested with any Jurisdiction out of their own respective Districts. No acquiescence, any more than in the I'.nglish cases, can be supposed. Mr. Justice Bedard repudiates the odium of having at any time sanctioned an usurpation, and takes this opportunity most distinctly to repel any imputation wliioh may be east ujion him cf having sought at any time to degrade any of his l)rethren, by seeking over any of t'.ie Judges a raidc and iireeedence to which ho was not fairly and legally entitled, and which he would rather be inclined to give iqi, were it not that such a surrender on his part might bo properly construed into a dereliction of respect and duty towards his Sovereign, and a submission to an unmerited degradation before the public. The rank and j>recedeiiee, heretofore, taken by the Judges in this Province, has been thus shown to have been in accordance with the principle laid down by Comyn. The two propositions laid down as general I'ulcs binng proved to bo correct in law, Mr. Hcdard's legal rigid must 1)0 admitted. If there be an exception to them, tho onus prohand'i lies on the Exceptors. No law can be cited limiting the Royal jirerogative ; nor can it be proved that any of tho ifgai rights of Messrs. Day and Smith are violated or infringed by Mr. Justice IV'dard's removal to Montreal with tho same precedence he held formerly owv these gentle .;en, both in tlie Court of Aitjieals and in the Queen's liench, at (Quebec, Three Ri\ers, and St. l''raneis. The proposition stateil in the determinatinn adopted by tlie Moiitreal Judges that " the rank of a Judge being an incident to his ollieo. it is not in the power of the Crown to deprive " him of tliat -ank" — if true, is eipially apidicable to Mr, Justice Bedard. 15ut Messrs. Justices J)ay and Snath cannot complain of the loss of a rank which they have never had or enjoyi'd, and fur which they can show neither a title from the Crown nor from the law. \Mien they g<;t it from either of these scur<,'cs, then tho principle laid down by Comyn may be api)licable to tiiom in ease of nnnoval, and it may not be then in tho power of the Crown to alter their rank and precedence. Wen> the law relating to the independence of the Jutlges, which is the same in Canada as in England, to be construed so as to deprive Hei' Majesty of her Royal l)rerogativc, and in this instance Mr. Bedard of his precedonco, it could no more be said that rank is an incident of oflice, because then there wovdd be on the part of tho ancient Judge a real loss — the loss of a raidv and pre- cedence already enjoyed and possessed even in a superior Court, in virtue of a legitimate title recognized by law. The next claim of a J'uisne .Imlge alleging his rank as a legal ii..,ident of his otfice, woidd be a legal title to the Chief Justiceship in case of vacancy, intlei)endently of the Royal prerogative. It cannot be said that the right to colder a special precedonco necessarily involves a right to supersede anlay of at the City of Montreal, T CC PR< WI cit: mot PH Pro pri\ bel our vin( AY in( our Jur whi P«( LI C( 15 A P IVE N 1) 1 X . ABSTRACT of the DOCUMENTS transmitted by the Petitioner, Mr. J. BEDARD. No. 1. COMMISSION iippointing PHILIPPE PANET, Enquire, to he one ot Ili^ Majesty's Puisne Judges for the Distuict of Quebec. PROVINCE OF LOWER CANADA. (Signed,) AYLMER. WILLIAM THE FOURTH by the Grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faitb. To all to whom these presents shall come, or whom the same may concern, GREETING : KNOW YE, that confiding in the loyalty, integrity, knowledge, and ability of PHILIPPE PANET, of the City of Quebec, in Ur Province of Lower Cana'da, Es,,uire We, of our espec.al grace, cer a,n knowledge a„d me e motion, have as'signed, constituted, and appointed and by these presents <^° ^f 'g"' /{^^ ct d" ole^^^^^^^^^^ our ad PHTT 1 PPF PANET to be one of our Just ces of our Court of King's Bench for our District ot yueuet, m our sdiu Pr" i^n eKweTclna^^^^^^^ exercise, and enjoy the said f --ithf and singular ^^ privileges, profits, and emoluments to the said office belonging, m as full and ample mariner as ''« |f ^« jLx'^i^.tn be held, exercised, and enjoyed for and during our pleasure, and the residence of the said PHILIPPE PAJNE I witUin our -J/-™„;f^^^^^^^^ ,,„,ed these our Letters to be made Patent, and ^- Great Seal of our said P^o^ vinee of Lower CaLda to be hereunto affixed Witness our Rig^ Trusty .-"iJ^ell BeWMA™ AYLMER, Knight Commander of the Most Honorable Military Order of the ^ff-""; Captain Ocncra^^^^^^ in Chief in and ewer our Provinces of Lower Canada and Lpper Canada, ^V^.^l^^ CaLda the t^^^^^^^^^ of our Castle of Saint Lewis, in our City of (iuebec in our said Provinne "^ ^'^^*^^,i^f"j3''' f/of^ufK^^^^^ June in the year of our Lord one thousand eight liundred and thirty-two, and in the third year ot our neign. (Signed,) D. DALY, Secretary. I hereby certify the foregoing to be a true and correct copy of the Record of the original Commission, with which it has been carefully examined by me. ^ ^ TUCKER, Registrar. PiioviNCiAL Reuistuau's Office, Montreal, '22d July, 1.S4^<. No. 2. LETTERS PATENT bearing dutc, at Quebec, 22,ul Februai-y 1836, '{['Po^^^ting ELZEAK EEDARD, Esquire, to be one of the Justices of the Court of Kino h Hencu tot the District of Quebec. Same term as hi No. 1. No. ;3. COMMISSION bearing date, at Montreal, the l.t day of June 1842, appointing f>|^>^Il^\\^^^ ^^ MONDELET, Enquire, to be Resident J.poe for the Distiuct «>i I hum. Ki^Elv. Same fcnnx an in A'". 1. 1(> No. 4. COMMISSION l)canni:<.l.trumont under his hand and se.il, to appoint and emi)ower any one of the Justices of any other of the said Courts of Queen's Bench or any Circuit Judge, to sit ad hue with the Justices of tlie said Court so equally divided, for the purposes of hearing and determining the cause or matter in wliicli they shall be so divided ; and tho Justice so aiipointed ad hue, when acting as such, shall have, during the continuance of his appointment aforesaid, and with regard to such cause or matter as aforesaid only, the same powers and authority as any other Justice of the said Court of Queen's Bencli, as in and by the said Act, reference being tlioreunto had, may more fully api>ear. AND WHEREAS, it liath liceu duly certitied unto me by the Prothonotary of the Court of Queen's Bench in and fur the District of Montreal, that in a certain cause now jiending before the said Court, wherchi the Honorable James Cuthbert is the PlaintiH'and Antoine Tellier is the Defendant, the four Justices of the said Court arc equally divided, >o that no judgment can be given therein. Now KNOW YOU, that in virtue of the authority conferred upon me in and by tlie said Act, I have appointed and empowered, and by this instrument under my hand and seal do appoint anL, pending at Quebec. Same tfriNn as in No. 8. No. 11. I'udViNCK in' Canada,) Dit-tiiet (h' Montreal. ^ COUK DC BANC DK LA HKINK. Mahdi It' Vingt-luiitiome joiiv ourt of Queen's Bench necessarily take jirecedence according to the dates of their Commissions, unless such a construction can be given to the Act for securing the independence of the Judges. I have the honour, iSrc., U. B. SULLIVAN. The Honourable Mr. .Ii-srin; S.miiii, &c. kc. ki\ A true Copy, Secreturi/. E. C. PARENT, Aast. Seci/. lurt of ;ices of I bell a - ! Hon- by the of the ,1, pre- No. 13. MoNTKKAt,, PuOVINCE OF CaNAT},\, VMk May, 1818. TO HIS EXCELLENCY THE EARL OF ELGIN AND KINCARDINE, GOVERNOR GENERAL, &c. THE MEMORIAL of CHARLES DEWEY DAY, Senior Pcisne Justice of the Court of Queen's Bench for the District of Montreal. KespectfuUs S'tetDs: That by the late resignation of the Honourable Samuel Gale, your Memorialist became the Senior Puisne Judge of the said Court, and was entitled to take precedence there, next after the Chief Justice of the District. 20 TliJt yiur Mcmoriali.'*t lia» this day had L-ommunication of Letters I'atcnt under the Groat Seal ol' tlie rrovince, appointiiiL' to thoolHceof Jud^e of the said Court tlii^ Hoiiourahlo Klziar I'.edard, fonnorly Junior Pui-nr Judge of tho Court of tiucon's Bench for tlie District of Quebec, and assiKing to him, in terms, i.recedeiiee over your Memorialist. ,. , , , , i . i i i i That the order of iirecedence of Puisne Judges, according to usage and law, ought to be regulated.by the dates of their reM.eclive Commissions ; and any disturbance of tlii^ order, by conferring upon ;, in his humble o|>iiiion, unsound and insutlieieiit. Air. Justice Bcdard has never'heretofore held Judicial authririty in any Court of original jurisdiction in thi.-, District— and moreover by hi- resiguatioii of the oHicc; of Puism .hidge for" tiie Di.-trict of (iuebee, as announced in tlio Official Gazette, he ceased to possess any Judicial rank or character whatever, and can now claim tlieni by virtue and from the date only of the said Letter- Patent. ,. , . . ,, That your Memorialist is aggrieved by this unexpected degradation from his rank of seniority. I pon a careful r"vi< w of his Judicial conduct, he is unconsc"ioii.- of any act which has merited from tlie Provincial Covcrnment the in- dignity of wliich he cunipiain^ ; and be lelic^ upon Voiir KMelicncy's sense of.ju.-tice, and familiar aciiuaintanco with the in>titution.s of a country, wiicre it is seldom claimed in vain, to extend a favourable consideration to his renion ■ -trance, and to aid bis endeavours to obtain redress. Your Meiiiuriali.-t tiiercfore pray.-, that Your LxceHeiicy will be jileased to transmit to the Lnjierial Government this his Memorial, (with -ucli other do'enineiits and iiiforniiitioii as may be deemed necessary,) to be submitted to the [iropcr authoritie- there, and for liie decision of Her Most Gracious Majesty the (iueen : and your Meinorialist further prays tliat, in (jrder to avoid the indecurum of a confe,-t between Judges as to their right of iirecedenco in Court, Your ICxcellency will be i)leased to grant, tither to your Memorialist or to Mr, Justice Hrdard, if be doire it, leave of absence from the duties of the Superior Courts, until Her Majesty's pleasure in the prelni^es be made known. And your Memorialist has the honour to be, with profound respect, Your Excellency's most humble servant. (Signed.) CHS, D l)\\ \ trui' Copy, !•;. C. PARENT, A^nt. Scrjj. ( (■ I' V . ) S E C II K T A J< V • S (.) I- 1' I C E , MoNTKKAi., 27th May, 1848. sue I iiave tlie lionour to acknowledge the receipt of your letter of the 23d May instant, which was placed in my hands on the -J.'jth, inclosing a Memorial to the Governor General on the subject of the order of precedence of the Puisne Judges of the Court of tiueen's Bench for the District of Montreal, as the same is atl'ected by the Commission lately granted to the Honourable Mr. Justice Bedard. I have laid tlie Memorial before His Excellency, a-id am commanded to convey to you His Excellency's pleasure regarding the comjilaint you have addressed to His Exeellenr'y. You complain that tlie Honourable Elzi ar Bedard, formerly Junior Puisne Judge of the Court of (Queen's Bench for the Di.strict of Quebec, has had assigned to him by bis Commission |)re<'edence over you — you being, on the resig- nation of Mr. Justice Gale, Senior Puisne Judge of the Court of Queen's Bench at Montreal. You say that, according to usage and law, the precedence of Puisne Judges ought to be regulated by the dates of their resiiective Commissions, and that any disturbance of this order, by conferring upon one ,Tiidge a jpccial rank at the expense of another, is an interference with an a«((uircd right, inconsistent with tho spirit of the Statute made for securing the independence of the Judges, and an unusual if not an excessive exercise of l-Accutive power. Y'ou further state that Mr. Justice Bedard has never heretofore held Judicial auttiority in any Coi rt of original juri.-dietion in the District of Montreal ; and moreover liy his resignation of tlie office of Puisne Judge of the District of Quebec he ceased to possess any Judicial rank or I'liaracter whatever, and can now claim them only by virtue of and from the date of his present Commission. You jiray His l']xcelleiicy to transmit your Memorial, witli such other documents and information as may be deemed necessary, to Her Majesty's Government in I'^ngland, to be submitted to the proper authorities there, and for the decision of Her Most Gracious Majesty the (iuoen ; anil that in order to avoid the indecorum of a contest between Judges as to their right of iirecedence in Court, leave of absence may be granted to you or Mr. Justice Bedard until Her Majesty's pleasure shall be made known. His Excellency commands me to say, that before deciding upon giving to the Court of Queen's Bench, in the District of Montreal, the advantage of the Judicial talents and experience of Mr. Justice Bedard, whose Commission as Judge of the Court of Queen's Bench for (iuebec bears a much earlier date than yours for the District of Montreal, His Excellency considered whether this object could be accomplished without jilacing that gentleman in a lower posi- tion with regard to precedence than he was entitled to expect from his rank and length of service, relatively to others with whom he might exercise the functions of a Judge in this District ; and being advised that the prerogative of the Oown intrusted to him, permitted the arrangement of rank and order of precedence in the Court, the place of Judge in the Court of (iueen's Bench in the District of Montreal, with the precedence designated in his present Commission, was otfered by His Excellency's command to Mr. Justice Bedard. His Excellency sees no reason to doubt the correctness of the legal advice by -which he was guided ; but never- theless be sees no objection to the transmission of your Memorial, with all necessary documents and information, to Her Maje-ty"s Governnicnl ; which tran-nii-sinn His E\i clleiiey commands me to inform you will take place without rielav. scare.- 21 As rc^arils your peixiiial (.'i>iti|iluint of dc^'radatinn in hciti}; pl.ii-cil next in order of prrcedencc to Mr. ,Ii .. Hedan), viewing it a[iart t'roiii tlio lofral i|U'Sti(iii yon liavo raised, tlio (iovernor (ji'iieral coinniands me to .■•av, tii . i cannot ap;rre witii tlic (>iiinion (;xi)i-us-.od in your Meni'iriai, ur tiiink t!iat any dej^radation of yourself or inUiitii dcj^rade you is to l)is implied I'roni the proeeediu^'. lie would indeed rej^ret very inueh to linil that lie was pri\entc ( construetion of law or hy intlexihie u-ane, from avaiiiu;;' himself of tlie serviees of Judj;es of the Superior Ccjurt (Jueliee and Montreal, or that any rule existed whieli would limit the prem^rative of the Crown as to the jireeedi of I'uisne Jndtfis in llie>e Courts, whieh would recpiire a Jud;;e removed from one Court to another of great'-r lul ■:'. in order to make his pul)li(^ services the more availahle. to desi-end in the order of prceedetioe lielow others wlioi 1 had been lonj; aeeustomed to |)reeede in the c.veicise (d',Judieial functions in the Court of Ajipeals as well as at tin tinjfs of the Cmirt of tiueen' ■ Meindi helil at Three Rivers and at Mherbrooke, when the Judges of the Courts of (^uvv iicnel) of (Juohee aii>l Munfreal had Iieiii hriiiiL''iit tugether. His Kxeelleney further eonnnands me to say, that he has not suflieient doubt (jf the legal (juestion whii'li y state to be involved, or apprehension of an inleeorons eontest on the subject of precedence between two gentlemen > ercising' the ofliee of ller Majesty's .liidu'es, to iiidueo him to einnply with your recpiest for a leave of absctu-e, or sugt^est the absence of Mr. Justice liedard. If there be a lei;:al question remaiuint,'' ojien. His Kxeelleney cannot how your rights can be eotnproniised in any way by the order of preeedenee to be observed in accordance with '•' Commission of Mr. Justice IJedard, during any time which may intervene between this period and the final sohitio ■ the doubts you have sid.'mitted on the legal (piestion stated in your Memorial. His F,xce'.leiu-y is informed tliat t: . administration of Justice and the rights of suitors in this extensive and important District, roiiuire the proseiiee ai active exertions of all the .Iiidgcs, and His Kxeelleney cannot permit these great interests to sutler by any personal contests on the subject of preeedenee between public servants. I have the honour to be. ■Sir, Vuiir most obedient servant. The Honourable Mr. Jcsthk D.w, &c. i«;c, Scr. (Signed,) K. 15. SULLIVAN. Secretiiri/. A true C^opy, K. C. I'ARKNT. Asft. Sfcif. i\(). 14. MONTHEAL, 20t/l Ju)w, 1848. TO JUS EXCKLLKNCY THE EAKL OF EL(}IN AND KINCARDINE, GOV EUNOll GENERA L. May it I'le.vsk Youit i;x('ki,i.i:n(.v, I take the liberty of addressing Your Kxeelleney directly in continuation of the subject of my Memorial of the 2nd of May last, coniplaiiiing of the precedence granted to Mr. .histiee liedard, because the jiresent eoinmunication, as well as the former, in so f.ir as the legal (|ue-;tion is involved, is intended for Your ICxeelleiiey's eonsideratioii as the proper channel of eoinmunication witli Her Majesty's (ioveriiment. To have submitted the matter to \oiir Ivxcellency's legal advisers here woukl of (bourse have been unavailing', for these gentlemen having already become responsible for the legality of the Letters Patent issued upon their advice, could grant me no redress without such plain acknowledgment of error as Governments must ever be unwilling to make. The only portion of my Memorial upon which I expected a decision from the Provincial Government, was that soliciting leave of absence for myself or Mi-. Justice Hedard, if he desired it, from the duties of the Superior Courts, until Her Majesty's pleasure could be known. In answer to this respectful solicitation, ! am informed by a letter from the Honourable Secretary of the Province, bearing date the 'J7th day of May last, that Your Kxeelleney commands him to say, that Your Excellency has not sufficient doubt of the legal (juestion which I state to be involved, or ajipre- hensiou of an indecorous contest on the subject of precedence between two gentlemen exercising the office of Her Majesty's Judges to induce him to comply with my request for a leave of absence, or to suggest the absence of Mr. Justice Bedard ; that if there be a legal question remaining ojien, I'our Excellency cannot see how my rights can be compromised in any way by the order of precedence to be observed in accordance with the Commission of Mr. Justice Bedard, during any time which may intervene between this period and the final solution of the doubts I have submitted on the legal question in my Memorial ; that Your Excellency is informed that the administration of justice and the rights of suitors in this extensive District, require the presence and active exertions of all the Judges, and that Your Excellency cannot permit these great interests to suffer by any personal contest on the subject of precedence between public servants. This answer, although It purports, in accordance with official observance, to be writter by Your Excellency's command, evidently ,,riceeds from Your Excellency's legal and constitutional advisers : and I must be permitted to deal freely with it as such, without being supposed to forget for a moment the duty which I owe to the Representative of my Sovereign. Mr. Secretary's letter was delivered to me but a short time before my departure for the Court of Appeals at Quebec, and both the matter and the manner of it were such as to induce me to suspend my reply until I could haye an opportunity for deliberation, and a calm review of the whole subject. U[)on the maimer of the answer, which is certainly one of marked though possibly not intentional disrespect, 1 am not disposed to dwell ; but with re- gard to the matter, I mean the refusal of the leave of absence and the reasons assigned for it, I ir>i:st take leave to offer a few remarks. The legal advisers of Your Excellency are pleased to treat my pretensions as so frivolous and unsubstantial as scarcely to make a question, 'ind therefore it is implied that there is no occasion for leave of absence being asked or •>•> grinti'il. The present difficulty, lidwivcr, is not to \u' so disposed of. A claim of rijfht o.innol be dealt with merely upon tin- unreasoiifd iicsortiuns ofiiftiiial iiutiiMriiy. Tin- (|iii>tIon rai>ed is .1 grave ,iiid impnrtant one, and is to bo si-ttlod, not by any show of t;oiitfMi]it lor om; opinion or of cimtideiici' in anotluT, but t>y tht' >ol)fr application of tho principles of rcasiin and law. My conviction of the soundness of my prctcn>ion, formed alter niucii retleclion anil re- search, is at least sincere; and it is a source of ;rratitication and eiieourazenuiif to me to know, tlirif 1 am >ustaineon assigned I'nr the ri'tii>al of my reipiest is, that mv •' rights cannot be conipromi'^ed in any way by the order of ]irecedencc to be ob.ervcd in accorihincc with tlie (.'oin- "'mission of Mr. Justice Hedanl, duriiig any time which may intervene Ijetw.'on this period and the final settlement of " the question." This is, I nm>f confess, a doctrine (plite new to me, and would .-ound oddly enough in a Court of Justice. How stands the jiroposition 'f It is incoutnivertibk' that before the apiiointment of Mr. .Justice Heiiard I held rank as Senior Puisne Jud^c of the Court of (Queen's Kencli at Montreal: it i-^ eipially so, that by his special prece- dence I am deprived of this nuik. I challenge his title to this precedence, declaring the Letters Patent granting it to be illegal and void — if I be ri/ht then his Commission give^ liim no title to occupy for an in>tant my .Judicial place, and bis doing so is ai\ intrii>ion upon iny otlice. To >ay then that, with the title of Seniority and actual ))os.se-jsion in my favour, no right is compromincd by being thrust from my seat and rank in < 'otirt for weeks or months by a stranger, upon a bad or at least a doubtful title,' is certainly a view of'the subject which an impartial nund will tind it difficult to justify. I allude no further to this jiortlon of the letter, beyiuid saying that if it implies a cliar'_'o that I have originated " personal contests on the subject of preccileiu'e," I most distinctly repel the imimtation. The contest has not been sought by me, but forced u()(]n inc. ( suggested to the IVovineial (iovcrmuent a mode by which the indecorum of such a contest might be a\oided. — Your F.xcellency's Advl>ers have not thought proper to act upon the suggestion : tho responsibility therefore rests with them, not with me. Tho rij^lit to grant or refu.-e the leave of absence asked, is not to be questioned. I submit to the decision, but I also have rights which I am not dis|M).>.ed to surrender. I proceed to oft'er a few observations njion the advice given to Your IvMcHeiiey in Mr. .Secretary's letter. As a law (juestion, the oidy distinct legal proposition announced in ju!-ti(ication of the course atlopted is, that " the prero- " gative of the Crown entrusted to Your F.xeelleiicy permitted the arrangement of rank and order in the ( 'ourt." He- foro going on to show that this is a doctrine untenable in law. I advert to certain passages in the letter which seem to me to be urged rather in aid of the main projiosition than as containing in themselves any matter of legal justification. It is said that Mr. Justice Hedard, by virtue of a Cotninission long anterior in date to min(', took precedence of me in the Provincial Court of Appeals, and whenever we were brought together in the Court of (Queen's Heuch for the Dis- trict of Three Rivers and St. Francis. This is true; but I do not see bow it bears upon the (lucstion. liecause that gentleman had a right of precedence over me in certain Courts, it surely does not follow as a logical nr a legal conse- quence that the precedence in other Cotirts to which heretofore he had no ^liailuw of claim should be taken from me and given to hrni. The constitution of our Courts i> without douht pectiliar and anomalous, but there is nothing in it to warrant such a pretension. The .ludicial authority in the three (Jo\irts just named, is incidental to the Commission and office of Judge of the Court of tiuccn's Ilench for the District of Montreal (jr Quebec, and the order of precedenco there is of course regulated by the date of such ('ommii«sion ; but the Courts of (Queen's Heneli for Montreal and Quebec are perfectly distinct'and independent tril'unals ; they are created by Statute with ditt'ereiit local jurisdiction, and the authority of the one does not e.\tend into the District of ih^: other. The Commission of Mr. Justice Bedard as a Judge of the Queen's Bench for Quebec gave him no Judicial character in the same Court for Montreal; and his pretension to take rank by seniority here from his Commission in the former, is no better than would be that of a Judge of the Court of Canada West, or of any other of Her Majesty's Colotual or Metropolitan Courts, to claim precedence from his Commission in such Court. As a legal argument, therefore, the fad adverted to is of no value, and indeed it does not seem to be relied ui)ou as such. IJut if it had been of a nature to alVect the question, if would receive a ready and conclusive answer from Mr Justice Hedard's resignation of otbee ; by this resignaiicui he ceased for a time to be a ■ludge at all ; and having thus voluntarily aimuileil his former Couunission, be can now 'aim no benefit of judicial rank under it. It may be saic'evertheless, had he been content with the iireeedence which be had under his former Commission, and not sought to degrade me from my ]ilace in ray own Court. I should have raised no difficulty, as my object is not to cbtaiti an advantage, but sim))ly to protect myself in an aeipiired right, essentially connected with the independence of my ofKce, and which as such I am bouiul to defend. Hut to return to the question, It it true that it is a prerogative of the Crown to grant a special precedence to one Puisne Judge over another, without reference to tho respective dates of their Commissions? admitting the general ])rinciple that the Crown, as the fountain of justice and honour, was entitled by the Common Law to an absolute controul over the rank of its officers, including the Judges, it will not be difficult to show that this controul has by tiie Statute Law been (pialified and limited, and does not now extend beyond a power to apjioint and to remove in the cases especially provided. My business is to treat the subject as governed by our Colonial Laws, but I have no doubt that the Laws and usages of Fngland will be found at least eipially favourable with our own. By the Provincial Statute at Geo. III., c. ti, a Court of King's Bench is erected in each of the Districts of Quebec and Montreal, to consist of a Chief Justice, and three Puisne Judges, in each District. Since the passing of that Act, and up to the present time, mention is frc(iucntly made in our Statutes of the Senior Puisne Justice, in connection with the business of the Courts. Thus, for instance, by the 41 Geo. III., c. 7, all Writs of Summons are to be tested by him in the absence of the Chief Justice. The same provision is to be found in a recent Statute, 7 Vic, c. 17, with respect to Writs issuing in the District of Gaspe; and by another Statute, passed in the same year, establishing a Provincial Court of Appeals, the Senior Justice is made tho presiding officer of the Court in case of the absence of both Chief Justices. It would be tedious, and is unnecessary, to multiply examjiles on this point ; they have been cited to show that the rank and precedence of the Senior Puisne Judge is something recognised by Statute, and that particular functions devolve upon him in consecjuence, while no word is to be found of a Junior Judge assuming the same functions by virtue of a special precedence under Letters Patent, and it is certain that such an occurrence is no where contemplated in our Statute Book. But the law which chiefly controls the Prerogative, in this matter, is to he found in tho Provincial Statute 7 Vict., chap. 15, which secures to the Judges their tenure of office during good behaviour, restricting the Crown from removiiig them, except upon an address from both Houses of the Legislature. It is substantially tho same with that passed in England, first in the Ileign of William III., and afterwards in a more perfect fornj in the beginning of the Reign of Geo. III. The only material difference between the two laws is, one suggested by our position as a colony and consists in giving to a Judge who considers himself aggrieved by removal, an appeal within six months to Her Majesty in Privy Council. It would be idle to expatiate on the value and importance of this statute ; every man must regard it as an inestimable part of our constitutional laws. I'pon its fair legal construction and its application to my raso t am content to rest. 23 inated been the nut Tlie wliolo arniimont lies in a narrow litiiit, and may ho lliiu Mnipl_v btateil — Ho who takes an office takos i| with all its IfRal incidentn. His l^^omniission a.i certainly anil as perffrtly convoys to iiitn ail tliat by law bolnngs to his office an it conveys the otfico itseit'. Tlie ri(?iit ul a Puisno Juilffc to taku rank accordiujj to his !-onioriiy is iwidnubtcdly an incident of his office If thu Crown has a rip;ht to recal hiii Commissi, jo, tlicn, Ui> llio (;reatcr power include* the less, it has also a ripht to regulate his iirecedenre. IJiil if the law Iiuvl- doprived the Crown uf this power over his Cotnmixsion, then it has also, by necessary implication, and as a legal oonsti|nence, dejirived it of the power to take away the Icfjal incidents of the olJice conferred by that Commission. A contrary doctrine tends to a palpable logical absurdity. The aggrejrate of every ofhee ia made up of its specific duties and rights; if, notwithstanding the protective law, one right legally incident to it may he taken away, then also another may. The rank first, the patronage (when, as in lOntrhind, such exists,) n.xt, the eniolument.s afterwirds — and thus" the honorable and lucrative place wliioli i.s hestowcil during good behaviour, and is by statute and for wise jiurpo.ses put beyoiul the control of the (Jrown, may be reduced to a charge from the burdens ami luimilialions of which the incumbent would be glad to escape. IJut the same argument may be stated iu another form :— the Letters ''atent granted to Mr. .lustico Bedard have a two-fold olVoct; the one is to settle his rank; the other is to degrade me from mine. The right then to confer a special precedeiu-e. necessarily involves a right to supersede and to deprive of the same prece- dence. The conseijuenee is, that a (iovoriimont disposed to gratify its personal or poliiical partialities and antipathies might, by bringing up the .lunior Members of the IJeneh, degrade the Senior Judge, if he happen to be obno.\ious to the men in power, from the first place after the Chief ■liistiee to the last in the Court. Hut the same Prerogative which had thus degraded him, might, in the bands of a succeeding (joveriiment more favorable or le>s unjust, restore him to his former place, thus destroying all right of iireeedence given over hi,u. Can it be contended that s ith a power in the Crown is consistent with the iiiilepeinlenee of the .ludges, or can co-exist with the Statute for scci ring that independence'' It is plain thai, with one of the most important legal incidents of their otKee (their rank) thus at the mercy of each successive administration (especially in the ])eciiliar sijcial position of this country) the purity of the Hench must be exposed to the corrupting intiuenee of pcditical favoritism and intrigue, and that the law will, in effect, be evarecedence derived from their original Cominissious. The reason assigned for this, iu one of the old Reports Cro. car. Ii27, is that in coining from the one Court to the other, the jiarty merely changes his Court, but never ceases to be a Judge, — the same reason ap]>lies to the case reported in Sid. 408. 'I'liese cases, and several others to be found in the books, occurred before the ]>assiug of the .Statute for securing the independence of the Judges. There are other cases of the transfer of Judges from one Court to another, to be found since that period, and I am informed that one of these, the exchange IxJtween Sir Francis JJuller aiul .Sir Souhlen Lawrence, is relied upon as an authority against me. Sir Francis Duller iras appointed Puisne Judge of the King's lieneh in 1777. and the exchange alluded to by which he went into the Common Pleas and Sir Souldeu J-awrenee into the King's Heiich. took place iu 17!M. There are facts connected with this case which are not satisfactorily ascertained, and without which it is impossible to draw any conclusion from it ; one is, that it does not certainly appear where, or by what rule .fudge Huller was placed iu the Court of Common Pleas, In the report of the eases in which his name oeeurred it is for the most part, but not invariably, mentioned before that of Mr. Justice Heath, whose Coiumission in the Connuou Pleas was posterior to his iu the King's Bench. It is also true, ttmt in the absence of the (^liief .Iiistiee. be usually delivered the opinion of the Court, but this be did also in (be King's Bench, although Sir William Asburst was by many years his senior there; and the certainty of the conclusion which might be drawn from these facts, is disturbed by an uisjiection of the list of Judges in the beginning of the volume of Reports, where we fiinl his name placed last. Another fact not certiiinly known, relates to the manner in which he ceased to be a Judge of the King's Heiu:h. The memorandum to be found iu the jth vol. of the Term Reports, page (iSti, states that " Mr. .luslice Holier rtsi;/nc(l /li.i siiil iu t/iis Court." I am not aware of the terms of the Letters Patent by which the Judicial authority is conferred in Lngland, but 1 doubt, whether by this is meant the formal resignation of bis ollici! of Judge. .Such resignation, 1 apprehend, would be unnecessary, for nothing is more certain than that, by the common law, the acceptance of a second olliee determines the tenure of a former one with which it is incompatible. And it is undoubted that the otlico of .lu