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Les diagrammes suivants illustrent la mithode. 1 2 3 1 2 3 4 5 6 /r^/rF// REVIEW or THI PROOBfiDIXrO IN THE SESSION OF 1831; '.■>■( WITH AM APPENDIX CONTAINING SOME IMPORTANT DOCUMENTS NOW FiaST aiVKH to the FOBUEy \ ture, delivering them personally in the several Houses to their respective Chairmen or Speakers. 6 OI'ENINCi On the first day. then, of the meeting o( flic Hoiuse, Lieu- tenant-Colonel Glegg, Civil Secretary of his Excellency, de- livered personally in the body of the House, to the Clerk oi the Assembly, then occupying the chair, the following nies;- sage : — AYLMER. Castle of St. Lewis, | Quebec, Januar?/ 24, 1831. J " Mr. Clerk of the AssemUy, «' You will inform the Assembly that, by reason of severe indisposition, 1 am not able to meet them this day, in Pro- vincial Parliament, and for prevention of all inconvenience, it is my desire that they will adjourn themselves until to-morrow." As this proceeding gave occasion at the moment to much angry discussioai, and was afterwards made the subject of proceedings, to which I shall presently advert, wc may pause to inquire whether it afforded any legitimate grounds of com- plaint on the part of the Assembly, and I apprehend that it did not. The only alternative, as has been already stated, was between a prorogation and a direction of adjournment to the House itself. Now, the first is the exercise of a higher authority than the last ; it is absolute and imperative upon the two branches of the Legislatu j, and operates a suspension of the power of the Legislature by the sole act of one of its bran- ches. Besides this, it could not regularly have been made from day to day, and it mi^ht, therefore, have happened, that a longer interval than was necessary for the re-establishment of his Excellency's health should be taken, to the great incon- venience of the members individually, and to the delay of the public business; or, notwithstanding all proper foresight, too shovt a delay might have been taken, and then a new proro- gation would become necessary, and so on tolies quotics. On the other hand, the course here pursued wac exempt from these inconveniencies, adjourning from day io day, the delay in the public business would be malhematieally commensurate ivith (hf necc??ity 'vhich had given occasion to if ; and the OF THE LEGISLATUHfi. H remedy, inslcad of coming from the sole act of the Governor came to be the joint act of him and of each of the other bran^ ches of the Legislatu.e. Nor does there appear to have been any thmg exceptionable in the form in which this measure was earned into effect. To have transmitted the message by etter would have been contrary to usage, and would ha-.-e been ess respectful than the delivery of it in person by his Excellency s Secretary ; the message, it is plain, could not go any other than the Cler- .f the AssemL-v ; for the House had not yet received its regular organization, and the Clerk of the Assembly was in legal and actual occupation of the Chair. Nor could the message be delivered at the bar of the House a. was subsequently pretended, or elsewhere than at the chair' ^vnere n. point of fact it was delivered. Thus far, then, all' seems to have been right. The proceeding which his Excellency was advised ultlnuUely to take IS of a more questionable character. The next day a second message was sent by his Excellency to the followL- ertect : — '^ Castle of St. Lkwi«, \ UitcOec, Januan,- 25, 1811 i AYLMEIi. '^ J> io.»i. j "Mr. Ckrhofthe As^.cmhly, is my desire .I,at the Assembly XTtli sZl t'l'.l.T''' f journ, do adjourn themselves ,mtil to",, o™,7. ,| o ^ r two ,„ the afcmoo,,, when I shall procee;;o°;'e"„'thrs[S„°.! On the following day the Session was opened, not at the usual place, but m his Exeelleney's bed-roon,, he lying m his bed. and ,t was Horn this and not f™m the throne that the speed, was dehvered.-Most willingly aeknowledging the 1, ..te.u.„„s on the part of his Excelleney, in waivmg the es a bhshed forms, I hesitate about .1,,. „.i,,l„^ „,■.„_,. .° "'" 1 . — ^"'^"' ^» a'Jw" a proeeedinp- ami very much doubt its legality. ^' 8 Ol'ENINC If this course liad been adopted in consequence of the idle clamour of the previous day, this afforded no adequate motive for it. He has read but littlt; in the book of human nature and government, who thinks that tranquility is to be bought by submitting to, or in the smallest degree countenancing, unjust pretensions and idle complaints— or who has not yet learned that forms are things. Accordingly, one of the first acts of the Assembly, after it was organized, was to refer these several messages to the Committee of Privileges, implying thus a censure of the proceedings taken by his Excellency. This censure was embodied by the Committee in certain reso- lutions subsequently adopted by the House. They are to tlie following effect : — RESOLUTIONS CONTAINED IN THE FIRST REPORT OF THE •STANDING COMMITTEE OF PRIVILEGES. Ilesolved— That the first Session of this fourteenth Provincial Parliament, by proclamation to meet for the despatch of busmess on the 24th of January last, was not opened on the said day, m the customary form, by reason of the severe illness of the Governor. Eesolved— That the effort made by his Excellency to meet the two Houses of Parliament at the Castle of St. Lewis on the 26th of January, after finding it impossible to open the Session on the appointed day, and in the customary form, IS a proof of his desire to communicate with this House, and of his wish .not to retard the dispatch of parlia- mentary business. nesolved—Tbat at the tin^e when this House had not become organized by the choice of a Speaker, no message ought to have been received within the bar ; and that this irregular proceeding which took place ought not to be drawn into precedent, or be repeated in future. Resolved—That the written messages of the 24th and 25th of January, signed by his Excellency, being addressed to the Clerk of the House, in the words following : " Mr. Clerk of the Assembly" are irregular and contrary to parliamen- tary usagss, and ought also not to be drawn into precedent, or cited as such hereafter. Whether these resolutions form any part of the proceedings which afterwards called fo 'i'tiJ UlC expression oi nis iixceJIency's OF THE LEGISLATURE. 9 adiruration, 1 am not prepared to say. In most other breasts they would assuredly not have this efFect. I have already stated my belief that the opening of the Le- gislature, elsewhere than in the usual place, was irregular; and U IS not merely because this and the other measures just adverted to, hold the first place, in time, that I have first directed my attention to them, but because, also, whatever touches the constitution, occupies the lust place in import- ance. And I shall accordingly proceed to consider such other measures of the late Session of the Provincial Parliament, as are immediately connected with its constitutional powers, and the laws which regulate them. m ■■>! 10 NO. III. ENCROACHMENTS on the CONSTITUTIONAL POW- ERS OF THE LEGISLATIVE COUNCIL by the AS- SEMBLY AND THE GOVERNOR. aAssemOlie Nattonale Legislative iet c'est principalement ou au nioins en grande part.e de cette .mprudente conceiitration de la puissance en unlu coros jo.nte a I'm.t.at.ve qui lui etait exclnsivement dtfcree .|ue la l" ance a Tut. commencement de cette lonpue serie de malheurs dont les effe.iet Is suites ut sent encore sur nous si douleureusement. T OtLUFR The essential character of a free government is, that it is a government of laws and not of men ; and whatever false cov- ering may be given to it, or however specious may be the pretexts, wherever the laws are made to bend to the will of individuals, or powers exercised by public bodies which the constitution of the state has not vested in them, or other powers withheld from bodies with which the constitution has clothed them-m that country civil liberty is endangered ; nor is it any alleviation of the evil, but on the contrary a high aggra- vation, if any of the public constituted^odies of the govern- ment tamely acquiesce in acts like these. Powers conferred on them by the law and the constitution, are powers not held by them in absolute property to be used or abused at their pleasure ; they are powers held by them in trust for the peo- pie, for the due exercise of which they are accountable as men, to God, and as citizens to the state. In the ordinary acts of deliberative bodies, error does not always justify blame; men equally enlightened and equally honest, might and do differ as to the measures most conducive to the public weal, It is otherwise as to the assumption of :i ,„ ENdlOACIIMENT.S BY THE ASSEMBLY & THE GOVERNOR. 11 powers not given by law, or the surrender of those which are so given : for these things nothing can be said in paUiation nor in mitigation; they bless neither him that gives nor him that takes. As a lover of just freedom, it is the duty of every good subject vigilantly to watch the conduct of the public bodies in whom the law has vested the high power of making laws, to satisfy himself of their reverence to that law to which they owe their own political being. After a careful review of the whole of the proceedings of the last Session of the Pro- vincial Parliament, I have been led to the painful conclusion, that the House of Assembly, in various acts during the Session,' assumed to itself powers not given to it. by the Constitution,' and derogatory to the just powers of the Legislative Council. The object of the present paper is to bring under the consi- deration of the public some instances wherein it is conceived that the Assembly has exposed itself to the foregoing reproach, and before doing so, I beg leave to recall to the recollection of my readers the nature of the functions and powers of the Legislative Council of Lower Canada. By the Constitutional Act of Lower Canada, the Legislative power is vested in the Legislative Council and the Assembly, concurrently with his Majesty, represented for this purpose,' in the colony by his Governor. The Legislative Council has been sometimes erroneously assimilated to the House of Lords in England, the points of difference between which two bodies are so numerous, and so great, that to detail them would be to institute a comparison, which if not odious, might be deemed invidious. But although the members of this body are not lords of parliament, stdl the functions assigned to them by the Constitution, are of the highest importance, being ana- logons to those which are exercised by the Senate of the United States of America. The division of the Legislature it has been well and truly said, "into two separate and inde- "pendent branches, is founded in such obvious principles of "good policy, and i. so strongly fccommended by the une- "quivocal language of experience, that it l.as obtained the r It 12 ENCROACHMENTS <( I " general approbation of the people of this country. The great " object of the separation of the Legislature into two Houses "actmg separately, and with co-ordinate powers, is to destroy "the evil effects of sudden and strong excitement, and cf pre- " cpuate measures springing from passion, caprice, prejudice "personal influence, and party intrigue ; and which have been ' found, by sad experience, to exercise a potent and dangerous " sway, m single assemblies. A hasty division is not so likely "to arrive to the solemnities of a law when it is to be arrested 'in Its course, and made to undergo the deliberation, and 'probably the jealous and critical revision of another and a I* rival body of men, sitting in a different place, and under ^^ better advantages to avoid the prepossessions and correct ^^ the errors of the other branch. The Legislatures of Penn- ^^ sylvania and Georgia, consisted originally of a single House. The instability and passion which marked their proceedings were visible at the time, and the subject of much pubhc ammadversion ; and in the subsequent reform of their con- stitutions the people were so sensible of this defect, and of the inconvenience they had suffered from it, that in both States a Senate was introduced. No portion of the political ^ history of mankmd is more full of instructive lessons on this subject, or contams more striking proof of the faction, insta- bihty, and misery of States, under the dominion of a single, unehecke Assembly, than that of the Italian Kepublics o the middle ages ; and ^hich arose in great numbers, and with dazzling but transient splendour, in the interya b ' • ween the fall of the Western and the Eastern Entire f the Romans. They were all alike ill constituted, witl a ZfTiT' ^""''^^- '''^y ^^'^- ^' ^''^^ --ablJ and all ended in similar disgrace,"* It is known to all there are certain funds appropriated for Uje contingent expenses of the House ; and legally, Lt Z Kent's Conimt>nt»n>s= BY THE GOVERNOH AND THE ASSEMBLY. I3. any other purposes ; it is a trust fund, in the expenditure of which, doubtless, a certain degree of discretion may be exer- cised, but still a discretion having certain limits ; for it is quite manifest that if the House could legally apply this fund to purposes other than those for which it was specifically appro- pnated, they would for all the purposes of such application, exercise sole legislative power, to the exclusion of the other two branches of the Legislature. The first instance in whiHi this abuse occurred, was one which at first sight might per- haps excite a smile, but further reflectiou and the experience afforded by acts similar in principle, but more grave in cha- racter, would induce us to consider this aggression with feelings very different from those of levity. Soon after the close of the last Session, four honourable members of the House, considering the fragility of human life, and desirous of perpetuating to the remotest postcitv, the memory of the forms which had enclosed their patriotio'souls, had four pictures made of themselves, of three deceased speak- ers and one ex-l.ving one. The family for which these mc tures were intended was not the flimily of each, any, or all of the pictured men, but was the one great family of Lower Canada ; thus far it might be considered as a mere gratuitous testimony of the importance which they considered themselves to have in the eyes of their fellow citi^ens, and of satisfaction With their own faces-a matter upon which but few men are difficult to please. But the thing did not stop here ; these faces were paid for out of the public chest of Lower Canada; they were charged against and paid out of the fund appropriated to defray the contingent expcnces of the Legislature ; they were so paid for, without competent order or authority ; they were hung up m the public rooms of the Assembly without its sanction. It forms no part of the subject, in hand to make any observations upon the temper of mind which dictated this act, nor to .ncjuire how far the assumption of such a distinc- tinn Wild r.^i-.„:„i. a. vi .1 t'on was consistent with the H ouse, and tn the country : I ,(,ok espect which ihcy owed to tht ;n it simp)\' and merely as u ENCnOACHMENTs I an application of monies to objects different from that to vvliich they had been appropriated, an application which the House itself could not legally have made, and an assumption of a power which could only have been exercised by the Legisla- f ure. The sum it is true is small, but the precedent is danger- ous; and we accordingly find it followed in a resolution of the House, passed on the 27th day of January last, whereby the fund of the contingent expences of the House came to be charged with the postage of all letters received by member* during the Session. The resolution bears date the 27th Ja- nuary, 1831, and is as follows :— " Jlesohcd,— That the postage of all letters and manuscripts, addressed to any member sitting in the House during the Session, be paid by the Clerk thereof, and charged in the contingent accounts of the House." It may or may not be reasonable that the letters of menibers should be paid for by the public, but the only power compe- tent to determine that question is the Legislature ; and the form of determining it in the affirmative is by passing a law making an appropriation for that purpose. The House having thus adopted the practice of appropriat- ing monies by votes, the secret could not long be kept that this principle once admitted, and this practice acquiesced in, the power of the Legislative Council would be essentially abridged. The proceedings to whicli I shall next proceed, are those relating to the nomination of an Agent to rej)resent the Pro- vince in England, and these will abundantly illustrate how fatal the exercise of such a power is to the constitutional pow- ers of the Legislative Council. For many years past. Bills have from year to year been sent up to the Lsgislative Council authorizing the nomination of such agent and providing for his remuneration. Differing as the Legislative Council and Assembly have done for years past upon all the leading points of the internal policy of the colony, it is not vrry surprising that these two bodies could BY THE ASSKMULY AND THE UUVEUNOU. ] ,^ not be brought to concur in the non.ination of any individual or this purpose; and unless they could have n.ct with a livin. Janus or a pair of grown up Siamese Twins, the one educated Street of Montreal, it was quite impossible that they should so concur. The Agent would have to state and enforce con- trary doctnnes and advice upon almost every subject touching the colony. How could either of those bodies consent to u selection made by the other! Tho Bills were accordingly umformly rejected by the L gislative Council in all previous Sessions. The Bill in the last Session introduced into the House for this purpose was passed on the 5th of March, and U IS therem enacted. "That the Honourable Denis Benjamin Viger IS appointed Agent for this Province, for the purpose of supportmg such solicitations and representations to his Majes- tys Government, as may be confided to him for the welfare of this Provmce, and that the Speaker and Members of the Le- gislative Council resident in this Province, be, and are thereby appointed Commissioners for instructing and directing the said Agent in his solicitations and in the management of the mat- ters confided to him, pursuant to such direction and authority as the sa.d Commissioners shall from time to time receive from l.e Legislative Council and Assembly respectively when sit- t.ng.-Provided, nevertheless, that the said Commissioners or any nine of them, of each body, may from time to time durin. Uie recesses of the Provincial Parliament, give to the saiS Agennn Great Britain such further instructions as they shall think fit for the public service of this Province. Provided also, that in case a difference of opinion shall at any time happen between such of the said Commissioners as are mem- bers o the Assembly, then and L such case the Commission- ers belonging to each of the said bodies respectively, not being less in number than nine, shall be and they are hereby empowered separately to address their Despatches and in^ s ruction, to the said Agent." The functions thus assigned to l^e Agent are sufficiently laughable, and could not be well i'':!! 16 ENCHOACHMKNTS and honestly peribrnii'd until lit; liail liist learned to serve two masters. 'I'his IJill was retained for some time in the Legis- Jative Council, and was ultimately sent down with amendments and with another Bill relating to the same matter on the 30th day ot March, being the last day but one of the Session. The amendments consist in making of the Agent instead of on Agent for the Province generally on behalf of both Houses of the Legislature, an agent Jor this Province in the United Kingdom of Great Britain and Ireland, especially constituted to act on the part and behalf of the Assembly thereof under .Mich instructions as he may receive from that House according to the provisions in that act contained. By these amendment^ the nomination of the Secretary was given to the Governor for the time being, an indemnity was secured to Mr. Gordon the titular Provincial Agent in England; and it was lastly provided, "that nothing in this Act contained shall have any force or etfcct whatever until an Act shall have been passed by the Legislature of this Province for the appointment of an Agent for the Province in the said United Kingdom, especial- ly constituted to act on the part and behalf of the Legislative Council of this Province, under such instructions as he shall receive from the said Legislative Council." These amendments were accompanied by a Bill intituled, " An Act for the appointing an Agent for this Province in the' United Kingdom of Great Britain and Ireland, to act on the part and behalf of the Legislative Council of this Province." —That no part of the subject may be left incomplete, I give here the heads of the above BiU.-It is enacted by the House of Commons be appointed Agent, to act on the part oftheProvmce and of the Legislative Council in making representations ; and that a Committee of five, named b? the Council when sitting, instruct the said Agent in the thefts fit. "'"'" '"''""^^^'^ '' ^'"^ "^ ^"^'^ ^^y «' '2d Clause—Governor to appoint a SpniPtniv to the r'prv,^:*.- to have the care ot books and papers, and to act under their i(.ee BY THE GOVERNOR AND THE ASSEMBLY. 17 orders. Secretary to receive a salary, out of unappropriated monies, under a warrant from the Governor. 3d Clause — Secretary not to deliver out of his custody any documents entrusted to him, except it be to the Governor or to the Legislative Council or Assembly, under an order for that purpose when sitting, under the penalty of £100; but any member of the Legislative Council or of the As- sembly at all times to have access to them for the purpose of perusal, making extracts, &c., and Secretary to attend when required for that purpose. 4th Clause — Any two of the Committee to open correspond- ence from the Agent at the office of the Committee, and there peruse it. 5th Clause — During recesp, Committee to meet and answer letters from Agent, or for any other purposes of this Act: Any two to appoint a day for the meeting of the Commit- tee after fifteen days notice in the Gazette and in the other newspapers at Quebec, for this purpose. 6th Clause — Proceedings of Committee and names of those present at every meeting to be entered in a book kept for that purpose, and the Secretary within the first eight days of each Session to lay before each House a copy of all the entries made since the preceding Session to that day. > 7th Clause — Agent's salary £ , Governor authorized to pay, out of unappropriated monies in half year payments in advance, clear of all deduction for remittance, difference of exchange, &c. 8th Clause — A sum of £ to be at the Agent's disposal for postage, professional advice, and contingent expenses, to be accounted for every six months. 9th Clause — Monies advanced under this Act to be accounted for through the l.ords of the Treasury. 10th Clause — Continuance of the Act two years. 11th Clause — Act not to be in force until the Assembly shall have an Agent under Provincid Enactment. 12th Clause — Nor until an indemnity shall be granted to the present Provincial Agent. All the trouble taken by the Legislative Council in this matter was of little avail, and we come here to an open appro- H X ir J f i 18 ENCnOACIIMENTS priation of the public monies by a simple vote of the Asscm- bly. not only without the concurrence of the other branch of the Legislature, but in relation to a matter sent up by the Assembly to the Council for their deliberation, and actually under their deliberation at the very time that this vote was passed; and to fill up the measure of marvel, the Legislative Council acquiesced by their silence in this assumption of nu- thority on the part of the House. It is true, that after this vote beca' e public, resolutions, similar it is believed to those which were puhlished somo time back in Neilson's Gazette were landed about the Legislative Council, but it is believed' they were not proposed at all, or if proposed, were withdrawn*. The remaining transaction to which I would solicit attention is that relating to the paymt it of the members. Lower Canada has ever been honourably distinguished by finding amongst its citizens a multitude of individuals willing to serve their fellow subjects in the Provincial Legislature without any remuneration for their time or expenses.-Of late years Bills have been from time to time introduced into the Assembly for the payment of the members, and down to t!ie last Session had been uniformly rejected in the Assembly itself.-The measure originally proposed was for the payment of members who might be elected to a new parliament, for it seems too repugnant to fair dealing, that those who had en- tered upon this public service under a tacit engagement to perform it gratuitously, shduld pay theniselvcs out of the pub- he funds—It is material that this homage to true principles should be preserved. Ml. Neilson, on the 9th February, read the following reso- lutions, which he proposed for consideration. The first was "•That it is expedient to give an indemnity to members of this House, for the expenses incurred by them in attending in their places, w.nlst performing their duty in the House. Secondly-That such allowance and indemnity should begin BY rilB ASSEMBLY AND TUB OOVERNOR. 1$ How the opinions of the honourable mover came to be changed on this head does not appear; but it does appear, that he did introduce, and carry through the House, a Bill upon principles essentially different from that which he had tir»t suggested. By this Bill the members of the existing Assem- biy were to be paid—This is not the place to enter into the consideration of the serious inconveniences that this innova- tion was calculated to produce; it will be sufficient hers to say that it was carried in the Assembly by the majority of twelve, 3* to 22: and was ultimately rejected in the Legisla- tivc Council—It might be supposed that the matter here ended, at least for this Seesion-not so ; in the vote, for the Civd List, passed on the 22d day of March, there will be found the following item : "£2000 to be granted in order to enable the members of the House of Assembly, who have attended the present Session, to receive an indemnity of ten shillings per day, and fou^ shillings a league to defray their travelling expeices, con' stituting a part of the grand total of £4.4.,549 5s, lid." For the appropriation of which a Bill passed through the House and was taken up to the Legislative Council. The Legislative Council passed that Bill,* thus retracing its own * Most Ghacious Soveueign, Whereas it is expedient to maise an allowance to the Members of tlu. otrp/ovti: P ^''^""^ "^'"'""^•^ ''^ ''^-^' attendance aUheS^Lon or 11,0 Provincial Parhanient; May it. therefore, please vou Maiestv .h»» srby^..rSt;"e' 'r ' '"^t' '^ '"^ ^'"^ ^ MirE'ls^'Z Ji-siy. oy ana with the advice and consent of the Legislative Connpil «n^ ^n^o ':'/'" f "7""' ""' ^""^'^ ^^""^^' consti.u't^d and atmbl d jJ St S ;. ■ "'."'f '"''"^"'y °^ "" Act passed in the Parliament of ."R more effl-ctual provision for\hc'Govc?nmerof t'he Provfnce of S^e" 'nentof^r ^h'T'"'" ""'^ '« ">'»•''' ^-"-r provision fjr Govtl" o Lnt P ^\ J ,'^"""« "'^ ^^'^^"'^ ^'^'J following Sessions of tbh e. u r^ Pr^r' , ^r':"'"^"'' «"'» ""lil t'- termination of ihe now „ex ;'.!■■ ;' '■■:•.'.' 1 ;i ''':. • ^H I-:-'' ,H yf .-._ ;^S '»■ ■•::; ,i ■ 'Mj ;■ i \ ::>' '■1 f'-m t ,.':-[■ . : i, . 1 io ENCROACHMENTS •Ji I i' Steps so far as this item was concerned, and virtually enacting^ that Bill which it had a short time before rejected. It is true that it is .aid that that body passed at the same time certain resoluticas, which, that the whole subject may aippear before the public, are here given :— Resolved,~.ThHt the grant of any aid can only by law be ap- plied to the discharge of the salaries, and the contingent expenses of his Majesty's Government, for which such aid has been asked by his Majesty. Resolvedy-^Thtit the grant of any aid to his Majesty, by bill or otherwise, exceeding in amount the sum demanded as such aid by His Majesty, is unparliamentary, unconstitu- tional and unlawful, and consequently that such grant for the difference between the aid demanded and the sum granted as such aid, is null and void. Resolved,— That the application, by any person or persons, ot any sum ol public money whatever, to any purpose what- ever other than the payment of the ordinary contingent ex- penses of one or other of the Houses of the Provincial Par- liament, without the consent of the Legislative Council distinctly expressed in writing by bill or otherwise, would be a contempt of the privileges of this House, subversive ot the Constitution of this Province, and a manifest viola- tion of the Imperial Statute of the 31st Geo. III. c. 31. Iiesolved,—Jhat the application, by any person or persons whomsoever, of any sum of public money whatsoever, to any And be It furthe.- enacted by the authority aforesaid, that for the pur- poses of thi« Act, a sum not (^xceediug the amount of the said allowances for the w..ole nuir.ber of the members returned to serve in the Assembly, shall be annually advanced to the Clrvk of the Assembly, by warrant, under the hand of the Governor, Lieutenant Governor, or person administering the Government, out of any unappropriated monies in the hands of hi* Majesty s Receiver General for this Province, at any time after the open- ing of each Session of the Provincial Parliament, and the amount of the said allowance to which each member shall be entitled, shall be paid ta liim by such Clerk, upon an order to that effect made by the Assembly (on a statement by him submitted of the amount of allowance due to each metnber, under the provision of this Act,) before the close of each and every Session of the Provincial Parliament. ^ And bo it further cnactud by the authority aforesaid, that the due appli- cation of the monies advanced pursuant to the directions of this Act. shall be accounted for to his Majesty, his Iieirs and successors, through the I.ords Commissioners of his Majesty's Treasury for the time being, in such rr.snr,cr ar.u .-rrr: as his "-L^jcsty, hii i.ei,,, am] successors sbali be pleased iH BY THE ASSEMBLY AND THE GOVERNOR. 21 purpose whatever other than the payment of the ordinary contingent expenses of one or other of the Houses of the Provincial Parliament, in consequence of or under the pre- tence of any vote, resolution, resolve, or address of the As- sembly, or of any pretended authority derived from any such vote, resolution, resolve, or address to which the con- sent of the Legislative Council has not been distinctly ex- pressed in writing, by bill or otherwise, would be a con- tempt of the privileges of this House, subversive of the Constitution of this Province, and an open violation of the Imperial Statutes of 31st Geo. HI. c. 31, and the 6th Geo. ni. c. 12. Resolved,-.Tlmt a copy of these Resolutions be laid before His Excellency the Governor in Chief, and that he be humbly and most respectfully solicited to take such steps as m his wisdom he may deem sufficient to prevent the of- ficers of His Majesty's Government from acting in any way contrary to these Resolutions, or any or either of them, or to the spirit thereof. I will not permit myself any observations on these resolu- tions, but will barely say, that either the Law or the Resolu- tions ought not to have passed a body laying any claim to consistency of public conduct. Some delay took place in the payment of the members not- withstanding the passing of the Law. This ought not to have happened, for the Governor has no right to suspend or delay the execution of a law ; and those who recommended tha't delay, or perchance refused to pay the members, had done better to have openly resisted its passing in the Legislative Council, than to have prevented or retarded its execution in the antichambers of the Castle of St. Lewis. In both these instances the course pursued by the Legislative Council seems to be as little susceptible of defence as the proceedings on the part of the Assembly which gave occasion to them. What I have next to add, relates peculiarly and exclusively to the Legislative Council. F'>r several years past Bills have been annually sent up from ti. : Assembly to the Legislative Council, disqualifying Judges to hold seats therein, and the same was done in the last Session. These bills proceed upon the plain principle, that as the Judges hold their seats under ■I 1 ip 22 ENCROACHMENTS BY THE ASSEAIBLY & THE GOVEKNOR. the existing law, the right to sit, nay, the duty even to ut, cannot be take.i away from them but by a repeal of the old law, or by a law disqualifying them from sitting. The Gov- ernor constitutionally possesses no power over the Legislative Council Itself, except that of convoking and adjourning it, and none whatever over its individual members, nor over its eco- nomy and internal discipline, yet an order was sent bv his l-^xcellency to one of the honourable Judges, a member of the J.cg.slat.vc Council, directing him not to attend that body '" h.s place; and as if that were not sufficient, an honourable member of the Lower House was authorized to inform that House of the order which had been so given, and notwith- standmgthis manifest infraction of the privileges of the Legis- lative Council, they were silent to a man. How such a power should have been used at all, or being used should be quietly submitted to, is a problem, for the .o- lution of which I shall offer some conjectures when I come'"to inqmre into the existing Constitution of the Legislative Coun- cd, andmto the nature of the functions legitimately belonging to a Colonial Governor. ** Having thus pointed out some of the instances in which it appears to me that the rights of the Legislative Council weie compronnttcd by proceedings in the Assembly, I shall next proceed to point out some instances, in which, as I conceive It has exceeded its legitimate powers in matters not imme' diately touching the Legislative Council, which will complete this branch of the subject. h. :i1' 2S NO. IV. INTERNAL OIIGANIZ.^TION AND ECONOMY OF THE ASSEMBLY. .£.°;s;;:,^''7r.''.s»".»z:S';^^^^^ Next and hardly inferior in i„p„,,ance to the subjoc. .,ea.. del,beraUvo b„di«, ,v.,ich in any ,vay ,o„cl, their i.rer To the d,so argc - the high functions confided to them by Z law^^ excludes all direct foreign control in relation to fl, matters, but we are not thence to infer that the ,,ow rf ^0 „d,es .n relation to the™ is arbitrary, and carries a „.; w .. , no responstbility. No hu™an power is above tht control of nght, and the higher the power exercis3d is i a correspondtng degree is the rcsponsibility.-This respo 's ihiN «y .n a case l.ke the present, not subject to any direct cr ■so be enforced by the silent but irresistili powe o nltghtencd public opinion. Deliberative bodies ho Id t , i power fron, the people, and to the people member, arc ountab e for the just exercise of it. It is fr„n, the u t am I 'its r,::r' °, ^ ^^i "^^^ '"-' p-"'^- "p---- n,ust uenve its lights, and must be ultimately formed • an,l ■>„ . ,■ the great advantages of a reprcs.n-.,;/. ^o"- -', i.-i.es.oand.eili,a.essucLli,;eu;:io;s::d::::;:^t' WW 24 INTERNAL OHGANIZATION AND ECONOMY !i w \l I 1' ^l upon all matters of public interest, the united sense of the whole country, which cannot be long led astray by passion or misled by prejudice. It serves also to keep continually pre- sent before the minds of the men, to whom either legislative or administrative powers are by law confided, the great truth that all legal power is held only in trust, and is to be exer- cised in full and open view of those from whom it is derived, for whose benefit it was conferred, subject to the law from which alone it derives its efficacy. In enquiring then into that part of the proceedings of the Assembly during the last Session, which relate to their internal organization and econo- my, I am at once exercising a right and discharging a duty, and bringing the subject under the consideration of its lawful tribunal. No deliberative body can carry c i its proceedings with or- der and regularity, without certain established rules and or- ders ; nor when these are once established, ought they to be set aside without great care and reflection, and then directly, not incidentally. The Assembly has such a body of rules and orders, established soon after its creation, and drawn with singular precision and judgment. The formation of Committees, to whom so large a portion of the power of the House stands delegated, is provided for by the following rule : — COMMITTEES. Sect. 2. — Resolved, that the mode of appointing a Special Committee, shall be first, to determine the number it shall consist of, then each member naming one which shall be writ- ten down by the Clerk. Those who have most voices, shall be taken successively until that the number is completed, and if any difficulty should arise by two or more having an equal number of voices, the sense of the House shall be taken as to the preference; but it shall be always understood, that no member who declares himself, or divides against the body or substance of the bill, motion or matter, to be committed upon any of the readings thereof, can be nominated to be of a Com- mittee upon such a bill, motion or matter." — Standing Rules and Regulations of the House of Assembly of Loiaer Canada, OF THE ASSEMELY. 25 revised and corrected to the end of the third and laU Session of the I3th Provincial Parliament^ inclusive Neilson and Cow- an, Quebec, 1830. The framers of this rule evidently had it in view to render tlieir nominations the nomination of the whole House, and to exclude all possibility of management in the selection. If such a power had been to be vested in any individual, it could only be vested in the Speaker ; but as he might be a party man, such a delegation of power would have been injudicious. To have left it afloat to be taken up by any individual in the House who pleased, was evidently altogether without the view of the framers of that rule ; if one could do it, so then could another and another, and all. If he acted upon hig own sole judgment, then he assumed a power which no stand ing or ability would justify, and which no patience on the part of the House would long submit to. If, on the other hand, he consulted with otiiers, then the number of those others might be smalU-they might be united together for the attainment of objects, not the most meritorious— and though probably the most active, might not be the most impartial of its members ; and in one word, the views of a party might be consulted, rather than the general interests of justice and of the country. But besides, there would be no adequate gua- ranty that the nomination would represent the general un- biassed sentiments of the whole House ; so too, the mover would be placed in the awkward dilemma of either recom- mending his own nomination to the House in one or more of these committees, to the prejudice of his modesty, or of passing himself over, and thus depriving the country of services which he at least must have deemed that the House would consider of importance, or they would not have permitted him to select and point out the individuals who were entitled to their con- fidence. Above all it would lead to a concentration of power unfavourable to the interests of truth and of liberty. Let it be observed also, that these considerations might or might not have had weight before a Committee of the whole House, E I M '■ , I i i ill M 26 INTERNAL ORGANIZATION AND ECONOMY sitting to enquire into the expediency of repealing the above rule. So long as that rule subsisted, no other course than that prescribed by it could be lawfully adopted. The following permanent Committees, consisting each of eleven members, were moved and ordered on the 29th Janu- ary, viz : — 1st — A Committee of Privileges and Elections. 2d — A Committee of Privileges, whereof five to form a quorum, to take into consideration all questions which may arise m the Huuse, and be referred to them relating to griev- ances, and petitions of grievances. 3d.--.A Comriittee of Courts of Justice, to take into con- sideration, and eport their opinions and observations on all questions which may arise in the House, and be referred to them relating to Courts of Justice and the Admininistration ot Justice. 4th — A Committee of Public Accounts. 5th — A Committee of Education and Schools. 6th — A Committee of Agriculture. 7th — A Committee of Trade, to take into consideration, and report their opinions and observations on all matters which may be referred to them, relating to Trade, Fisheries and Navigation. 8th.—A Committee of Roads and Public Improvements, to take into consideration, and report their opinions and ob' servations on all matters referred to them, relating to Roads and Bridges, Improvements of Internal Communications, and settlement of Waste Lands, and Reports and Expenditures connected therewith. 9th — A Committee 6f Expiring taws, to enquire into all Laws expired or about to expire, and deemed necessary to be revived, or renewed, or amended. 10th — A Committee of Private Bills, to take into conside- ration, examine and report their opinions and observations on all petitions for Private Bills referred to them. 11th — A Committee of Bills to be engrossed, to examine and report their opinions and observations on all Bills ready to be engrossed, or that have been engrossed. If in the most ordinary cases the House reserved to itself the direct nomination of its own committees, and excluded Its members from anv othpi* nnivpr in r°iofi<^n ♦h"""f'> ^-'■ that of giving an individual vote for one individual of the OF THE AS8i!;MBLY. 27 committee, and if, as is the fact, any encroachment upon this rule had been looked at with so much jealousy during the Sessions immediately preceding the last, that even in solicit- ing an addition of members to committees already established, the House would not permit the mover to name in his motion any individual to be added to the committee, but left them to be selected in the ordinary course, it was hardly to have been expected that any individual would have come forward, and have named all the members of all the committees, still less was it to have been expected that the House would have ac- quiesced in so sweeping a measure as this ; yet, upon the occa- sion of naming these committees to whom so large a power of the House came to be delegated, the new and before unheard of proceeding of motions by an individual member, containing the names of all the members of each of these committees, was submitted to the House and carried. But previous to the passing of these motions the question of the propriety of them was distinctly brought before the House by a motion in amendment, " That the committee of privileges and elections be elected in the usual and customary way," which was lost upon a division of 19 to 46, and a second motion in amend- ment, « That the House do to-morrow resolve itself into a committee of the whole House to consider the expediency of repealing the 2d section (being the rule above given) of the rule of the House relating to committees, so far as the same concerns permanent committees, and that in future permanent committees be chosen by ballot," which was in like manner lost by a division of 21 to 48—1 apprehend that the forego- mg change in the mode of nominating committees is a danger- ous innovation ; but it is to be borne in mind, that this was the first Session of a new Parliament with increased numbers, and that very many of the members ^'itting for the first time could not be expected to be familiar with the details of prac- tice of the House — Notwithstanding this, however, I am per- suaded that had longer time been afforded for reflection, the majority of the House would have come to the conclusion, that "^ I' 28 INTERNAr- ORGANIZATION AND ECONOMY |i ' 1 1 "ii! the old and now eubsisting order for tl.e nomination ofcom- mitteee, acted upon since the first establishment of the Con- stitution, should be pursued. The importance of the consequences flowing from the above proceeding can only be fully understood and appreciated by men familiar with the machinery and movements of delibera- tive bodies. The subject to which I shall next solicit attention is one easily intelligible to all ; it relates to the expulsion of a mem- ber of the House in the last Session, for the third time, and involves an enquiry of the deepest inportance, being no less than whether this act of the Assembly was sanctioned by the Law and the Constitution. I need not here premise that to this standard the Assembly is bound to adapt its proceedings For the right understanding of the question in all its bear- mgs, It IS necessary to go back to the two previous expulsions of the member in question, entering into them no farther than IS necessary to elucidate the decision of the House in the last winter. In the Session of 1829, Robert Christie. Esquire, haying been returned member for the District of Gaspe, various sub- jects of alleged complaint against him having been embodied inr.f AND ECONOMT .. -Resolved- rimt it is the opinion of this Committee, tliat at or about the same time, the said Robert Christie openly and publicly dcclan d his intention of causing the said Iran,,-()is Quirouet, Joim Neilson, IVaiK^ois Blanchet and Jean JJelanger, to be dismissed from the office of Justice of the 1 eace on account of their political conduct and the votes tliey had f,Mven in this House, and that the said Francois Quirouet, John Neilson, Franc^ois Blanchet, and Jean Be- Jan^er were dismissed from the said office because they had voted and presided at Committees in this House at which votes had been passed in opposition to the views of the then Provincial Administration. 8.— Resolved— That it is the opinion of this Committee that in expressing himself on the subject of the said dismissals planned by him, the said Robert Christie publicly declared that the time was come when no political neutrality would be permitted, when those who were not the friends of the Ad- minisfration would be considered as being its enemies • and that those who would not support Lord Dalhousie's Ad- ministration should hold no place under his Government. 9.— Resolved— That it is the opinion of this Committee that it did not by law appertain to the said Robert Christie to prepare the said list, and still less to advise the dismissal of his fellow Justices of the Peace, and that he made the said list, and advised the said dismissals voluntarily, and with the criminal intention of restraining and annihilating as far as in liim lay, the liberties of the people of this Province, and the freedom of the opinions and votes of this House. 10 — Resolved— That it is the opinion of this Committee that in consequence of the list prepared by the said Itobert Christie, the said Francois Quirouet, John Neilson and Fran- 9nis Blanchet, members U this House, were dismissed from the office of Justice of the Peace by the last Commission of the Peace now in force, in and for the District of Quebec, without any other cause than their opinions ' d votes in this House; and that such is the public rumou. and notoriety, founded cliiefly on the declaration and language of the said Robert Christie, as well before as after the said dismissals. II — Resolved— That it is the opinion of this Committee, that the said Robert Christie, at the time he prepared the said list, and advised the Governor-in-Chief to the said dismissals, was one of the members of this House, after having been be- fore and up to that time, one of the confidential officers of this House. 12 — Resoived— That it is the opinion of this Committee, OF THE ASSEMBLY. Si that the Baid Uobert Christie openly threatened to cause to be d.smissed from the office of Justice of Peace, and from every other office, all those members of this Mouse who would not support all the measures v*' the Provincial Government under the administration of his Excellency the Earl of Dal- housie, and pointed out in gross and outrageous language those members of this Mouse whose opinions and votes had been m opposition to the views of the said administration. 13.— Resolved— That it is the opinion of this Committee, that the said Robert Christie took odvantdge of the opportuni- ties he possessed, in the first instance, as a confidential officer, and afterwards a* a member of this House, to become a spy upon the opinions and votes of the members of this Mou^e, and did in fact report them to his Excellency the Earl of Ualhousie, Governor-in-Chief of this ]>rovince. with a design to irritate his Excellency against those members of this House whose opinions and votes were in opposition to the views of his Excellency, and to induce his Excellency to punish them by arbitrary dismissals from office, and by other abuses of the lloyal Prerogative. 14— Resolved- That it is the opinion of this Comu >t"e, that by his repot t and perverse counsels, the said ]{ -rt Christie induced his Excellency the Earl of Dalhousie, Gov- ernor-in-Chief of this Province, to abuse the Royal Preroga- tive, for the purpose of arbitrarily and without any legitimate rsason, dismissing the said Francois Qufrouet, John Neilson and Francois iJlanchet, from the office of Justice of the Peace on account of their votes and opinions in this House ; that by his avowal and conversation, he exposed and made public the odious rnotives of these unjust dismissals; and that by these means the said Robert Christie endeavoured to degrade the Government, to excite feelings of dislike to the authority of the King, and to destroy the confidence of his Majesty's sub- jects in the Provincial Administration. „ 1-5.— Resolved-That it is the opinion of this Committee, that the said Robert Christie is guilty of high crimes and mis- demeanours, and is unworthy of the'confidence of his Majes- ty s Government. •* .^. 1^6;-I^^solved-Tiiat it is the opinion of this Committee, that the said Robert Christie is guilty of a high contempt of this House, and is unworthy to serve or to have a seat as a member thereof. These resolutions were adopted by the House, and were followed by the usual resolution, that Mr. Speaker do issue his warrant, &c. It would be trifling with the understanding , ■ t i'J INTliUNAI. UhCi/iNI/AiiUN ANU UCONOMV uf ui.e'ti leaders to iMslitute any aiiguiiient to hlievv tliat tlie Ineta foiiml in the foregoing resolution'^ eonstituted no Icgiti- ninte ground for I lie expidsion oC Mr. Christie. I'rccd from the tautology and exaggeration of inipenehnient forms, tliey amoinu to nothi.ig more than a (inding that Mr. Christie had recommended to Lord Dalhoiisie to leave out of the list of magistrates four individuals, and that he had heen a spy upon the proceedings of the House. As to the first— The merits of the advice must stand upon its own basis ; it might be very good, it might be very bad, very wise or very foolish, very dis- interested and magnanimous, or very malicious, without ope- rating any legal dis_Comm.'^J„„rv„T ,.],;; Sll'""^" i™o>"rl."'p"r""^"°' "'" "'"''■'^ °f *^'""""»- <■-»■ .1 at t|„, Gemleman was returned anew, and an examination "f the Commons Journals „ill she,, that no attempt was ».ade to expel Inn, whieh would doubtless have been done if . had been considered that his previous expulsion had oper- ated a disqualification. '^ The next ease is that of Sir Koberl ft VValpole, n hich will 1 »u OP THE ASSEMBLY. touiid in the Commons' Journals of 17tli Jan. 1711 ; it is follows : — 35 as Mr. VValpole was heard in his place. After which a debate arose in the House, whether Mr. VValpole should withdraw before a question was stated or any debate had of the matter relati,.g ti him. ' Whereupon the Journal relati..-. to the Lord Falkland in the year 1693. and also the Journal relating to Mr Rid," HI the year 1710 ; were read. ^ Whereupon Mr. Walpole withdrew before any debate was to him.' ''"^ '^"^'^'°" proposed, touching the matter relating A motion being made, and the question being proposed, that Kobert Walpole, Esq., a member of this House, in re ' ceivmg the sum oi 500 guineas and in taking a note for £500 more, on account of two contracts for Forage of her Majesty's r';,Vr'"'^^ " ^'''^' ^"^^'"' "^^^^ ^y '"■'» -hen Se- T?r{V ' I'"''.'"''^"^, '« a PO-er granted to him by the late l.^rd Treasurer, is gudty of a high breach of trust, and noto- nous corruption ! ' An amendment was proposed to be made to the question V eav,ng out these words, " and notorious corription," winch passed m the negative by a division of 155 to 207. Wnen the main question being put, it was resolved in the affinuative by a division of 205 to 148 Res^olved-That the said Robert Walpole, Esq., be for the ^iid offence, committed prisoner to the Tower of London during the pleasure of this House; and that Mr. Speaker do issue his warrants accordingly. ^ fh J'lh" W "''^'^" ^''"^ i"'"^"' ''^"^^ ^'^^ l^estion being put, hat tlu. House do now adjourn. It passed in the negative by a division of 156 to 16H. s"tivc Then a motion being made and the question being put. Jut the said Robert Walpole, Esq., be, fir the said olence also expelled his House, which was carried in the affirma tive by a division of 170 to 148. The subsequent circumstances relating to Mr. Walpole are so fully given in a speech of Mr. Grenville, from which ex- tracts will hereafter be given, relating to the case of Wilkes, to which we shall next proceed, that it would be a useless re' petition to state them here. The ease of Wilkes then is one, which, however familiar to all men in the .light^^st degree conversant with the constitu- 't,-'] 86 INTERNAL ORGANIZATION AND ECONOMY tional history of England, is by far of too much importance to be wholly prstermitted. I shall satisfy myself, however, with a very succinct statement of so much of that case as ap- plies to the question under discussion. On the 23d Jan- uary, 1764-, it was resolved, " That it appears to this House, that the said John Wilkes, Esq., is guilty of writing and publishing « The North Bri- ton, No. 45,'' which this House has voted to be a false, scandal- ous and seditious libel, containing expressions of the roost unexampled insolence and contumely towards his Majesty, the grossest aspersions upon both Houses of Parliament, and the most audacious defiance of the authority of the whole Le- gislature ; and most manifestly tending to alienate the affec- *!Gus of the people from his Majesty, to withdraw them from their obedience to the Laws of the Realm, and to excite them to traitorous insurrections against his Majesty's Government. Resolved—" That the said John Wilkes, Esq., be, for his said offence, expelled this House."— Comm. Jour. vol. 29, p. 723. Mr. Wilkes was afterwards elected for the county of Mid- diesex on the 28th March, 1768 ; he was expelled on the 3d February, 1769; he was rechosen for Middlesex the 16th day of the same month; his election was declared void and him- self declared incapable of being elected into that Parliament on the 17th of the same month ; he was again elected on the 16th day of March, when no other candidate appeared, ex- cept Mr. Dingley, who |iad not one^vote ; his election was again declared void on the 17th of the same month; on the 18th of April he was returned by the Sheriffs as having 1143 votes and Colonel Luttrel only 9G6. On the 15th day of the same month, the House of Commons voted, « That Mr. Lut- trel ought to have been returned," and that gentleman took his seat accordingly. A petition from several freeholders of the county of Middlesex having been presented against Mr. Luttrel on the 29th of April, the House of Commons voted, on the 8th of May, « That Henry Lawes Luttrel, Esquire, is duly elected a Knight of the Shire, to serve in this present Parliament, for the County of Middlesex." OF THE A.S EMBLV. 37 The discussion which these several acts of injustice towards Mr. Wilkes, towards his constituents, and towards the great body of electors of the kingdom occasioned, are famihar to all, and eighteen years after Mr. Wilkes's first expulsion, the House of Commons had the magnanimity or the prudence to recognise the error of their predecessors, and, so far as was m their power, to correct it by their resolutions of the 3d May, 17S'2, in the following words :— "Ordered, That all the declarations, orders and resolu- nons of Ins House, respecting the election of John wSe Esquire for the county of Middlesex, as a void election tr^^ true and legal election of Henry Law'es Luttrel , t ' i ' in! JohltZT\"'-'''''''1 ^^^""'>'' andtheincapaS'y'f John Wilkes Esquire, to be elected a member to serve in HouTe i / '"'"'^ be expunged from the Journalsof tlWs IcTors of 7^ ^^T'""' "^f\'^S^^^^ of the Me body of *hl yf lu '''"Sdom; and the same were expunged bv the clerk, at the table accordingly." >^ApuiJi,ta oy The illegality of the proceedings had bv the House in res- pect of Mr. Wilkes, are so distinctly st;ted in a speech of that distinguished statesman, Mr. Grenville, and the evils which would result from the unjust course they were taking, are so plainly pourtrayed, that I cannot forbear to refer to this mteresting document. It is too long for insertion here • some of the more striking passages of it, however, and more' particularly that part of it which relates to the expulsion of Mr. Walpole ought not to be omitted. It is proper to premise that this speech was made upon the occasion of the motion for the second expulsion of Mr. Wdkes, and by a man who had great cause of personal hos- tility towards that notorious character. It will be recollected that the motion for the expulsion of Mr. Wilkes rested upon several grounds, one of which was the alleged disability aris- mg from his previous expulsion. Now Mr. Grenville in the argument m question contends that the motion was irregular because it wnc f.o">n'""Tf«,i <,., i * ? i o > ..„„ «.j,„p,.^aj;eU, and involved several distinct proposit-ons, about which not only there might be, but ihere \ \. ' i 'm 1 1' ■. 1' 1 iplt 1 1 38 INTERNAL OHOANIZATION AND ECONOMY !i:|i|. actually was, a diversity of opinion in the house ; he examines in the progress of his argument the alleged grounds of disa- bility arising from his previous expulsion. In stating this di- versity of opinion he furnishes us with the opinions of Mr. Justice Blackstone and Mr. Justice Nares, (then Mr. Black- stone and Mr. Serjeant Nares) names of no light authority. "But this mode of proceeding" (alluding to the complica- tion of the motion) (says Mr. Grenville) '» is not only new and unprecedented, it is likewise dangerous and unjust. For the proof of it let me recall to your minds what has passed in the course of this debate ; one very learned and worthy gentle- man (Mr. Blackstone) who spoke early, declared that he gave his consent to this motion for expulsion upon that arti- cle of the charge alone which relates to the three obscene and impious libels ; disavowing, in the most direct terms, all the other articles ; because he thought that the libel relative to Lord Weymouth's letter was not properly and regularly brought before us, a7id that Mr. Wilkes havhig been atreadii expelled by a former Parliament, for the seditious libel of the North Briton, ought not to be punished and expelhd a second time, by a subsequent Parliament, for the same offence. His argument was, that the former House of Commons having vindicated the honour of the King and of Parliament, he hoped this House would not shew less zeal to vindicate the cause of God and of Religion. He spoke with a becoming zeal and indignation, raised, as he told us, by having read some of the wicked and impious expressions contained in the record now upon your table. His opinions, which were soon after followed by another learned gentleman, (Mr. Serjeant Nares) who adopted the>same train Of reasoning, joined to the serious manner in which he delivered them, seemed to make great impression upon the House ; and though I differ with him in his conclusion, yet I agree with him in hi^ prin. ciples, and was glad to see this offence treated as it ought to be. For, &c"—Parl. Deb. vol. xvi., p. 551. And afterwards, p. 554<, " I have hitherto taken the whole of this complicated charge together, and have shewn the dan- gerous consequences resulting from it ; I will now unravel the web, and consider the different parts of it separately and dis- tinctly. The first which presents itself is the libel relative to Lord Weymouth's letter, which has been christened for this special purpose. It was, &c. The next article, p. o55, "is that of the seditious libel the North Briton, for which the author and publisher M'ere de- ^^ THE ASSEMBLY. Parliament. He ts^ ^ ^vp ^l 1, 'f "^^ '^• Commons, for the indi-nnty o£S t ,^ '''? ^''^ """^'^ of o;vn members, of .vhicluij^ werTtt n "'" '^ ""'^ «^ t''^'> they alone could punish- a calpTo • , ,"^^' J^^'^^^' ""^ uhich of a libel on any'partiad r p "son'or f^^ ''^"■?^ ^''^"^ ^'^- H IS qu.te unnecessary to do m oi Inn f ''T "^ ^^'^^^' ^^'^^ observation. For this libel of ] x? " "'''"'^ '' ^^'t ^o Vour has been sentenced and ,^ . '^ ^"'■''' ^'"'f""' Mr. Wilke inflicted on him by C' Piril "nrr"^"'"? '''' i-"'^'-- expulsion from the former House of r "' ^''" P""'^''^'' ^Y cular offence committed agai.S then^ T,'"'' ^'^ ^'^^ P'-^''^'" more sacred in the jurisprudence of t^ ^^'''' '' "°^ ^ ^de man once acquitted or condennl?/ ^ " ,^°""try, than that a ^shed again by the same Micm p f if ' ""' ^' ''^''^ or pun- many notorious criminals chn '''"^ '^'"''^ ^^'^"ce. £ vance of this rule ; ancf yet fo "'''^' ,^^ ^^'^ ^'•'ect obse ' and so deeply root'ed in t^e^ ndfoTnf 1^'' '' '^ -'"^-^ to set his face against it, andTo Ln •*^''^' "° «»e dares through it. It was but a W i ^''^ ''^ intention to breil ed to restrain Mr. VvilLs tV^S ""''''' .'^'^'^ ^^^^^ of his petition, because theT.h ! ^ '"^'' the greater part had been f„I,,,,^ Z^^^^^^^ f hif comp/ah l^ the last House of Commons. TbTu ''"^ acquitted, by a^-;he reasoning, and ^x?^^J;-^^^^ "And shall I within the little « every argument which I then n n,?'"". °^ " ^^^^ ^^^ys forget without shame that the same "'j't''"'' /^''"' «"d dec are sive when urged in behalf il ? '''' ^^^''^'^^ "'^^ conclu «a.me causebeofnoavXhon f'^T'"' «''»"'d in his his that consistency upon vSr^\'^f ^" ^'' ^'ouv? to value ourselves''' J hi ' ^ ^"'' ^^'ose uho hear m« n pie so lightly, nor ;viiar.;rf^''; "^ ^'"^^ '-" "nc! position to Iiim onr] T . ^'^'" ''^"^ respect • im? ,. , . °'" ^ est ties both of blood •>„ i7 / "''^^ connected bv thn . «Poke against th^: ' ^ ' ^'^''^'"P ^ / ^^P^^^^^^dZ ^nourable^PnM:i!?^';^i^I'e same (Lord "'""'e gent eman in -"—^ "uiuu wii i j me, 'cer ■w INTKRNAL ORGANIZATION AND ECO^'JOMy i jesty's principal Secretaries of State, who now hears me, and to whom I appeal for the trutl\ of what 1 have said upon this subject. Is not this the revision of a sentence given in a for- mer Parliament in order to increase it ? And if this motion for the expulsion of Mr. Wilkes, as grounded upon that of- fence, shall prevail, will he not be txvkc expelled and twice punished /or one crime hy the snwe judicature, indirect viola- tion of that salutary principle, to tlie truth of which we our- selves have so lately assented ? The tliird article, &c.'* And afterwards, " But it has been urged, (p. 568) whate- ever may be the case in point of form, with regard to the se- veral articles contained in this question, whether taken toge- ther as an accumulated and complicated charge, or consider- ed separately and distinctly, yet this House must necessarily be the judges, whether any member of their own is or is not a fit person to sit amongst them ; and it has been argued, that if the last Parliament thought him unfit, the present has cer- tainly an equal right to adjudge that he is so. It has been asked, what merit has he had since that time to recomiiiend him, and to induce the present Parliament to think him a more proper man to sit amongst them than he was to sit among their predecessors? This would indeed be a conclu- sive argument, if we really had that discretionary power of excluding all those whom we think improper upon which it is founded. But we have no such general authority vested in UP, nor is there a single precedent where we have pretended to exercise it. Whenever this House has expelled any mem- ber, it has invariably assigned some particular offence as the reason for such expulsion. By the fundamental principle ^ of this Constitution, the rights of judging upon the general pro- prietij and itnftness of their rejjresentatives is entrusted with the electors ; and xvhen chosen ; this House can only exclude or expel them for some disability established by the law of the land, or for some specifc offence alleged and proved. If it were otherwise, we should in fact elect ourselves instead of being chosen by our respective constituents. If I had been one of the electors for the county of Middlesex, I should have shewn by my vote the opinion which I entertained with regard to the conduct and character of Mr. Wilkes, and to the propriety of choosing him a Knight of the Shire for that county. I had not only a right, but it would have been my duty to have manifested that opinion. But when he is cho- sen and returned hither, my duty is widely different. We are now acting in our judicial capacity, and are therefore to found the judgment which we arc to give, not upon our own wishes and inclinations, not upon our m'ivate trary opinioi pri s, but upon specific facts alledged and proved OF THE ASSEAfBLY. 41 riccordinj? to the established rules and course of our proceed- ing. When we are to act as iudees ue are nn/ L . t^e characters oMegisIator. aiy ^^^^rrtSaVThV Co'^^JTf King s Bench who were bound to reverse Mr. Wilkes's out laury ,f they found any irregularity in it, though po siblv thev were convinced in their private oninion^ fli.. f i ^i ^ been n.ore beneficial to t'^e Stat^'to rvf ^o k^JIt Tf we depart fiom this principle, and allow to ourselverala^ude of judging in questions of this nature; if we are L IS Uiosew^om we think most proper, and'except Le ^hon Tarrv us v"Th''^P'''P'''' '" ^''"' ^^"^t^s will liot this doS ine Z2 " ""'^ "'^"^^ ''^' ^ Parliament chosen into wl "h there were not some persons elected whom the g ea^ernS IJ^' ^"T '''""^''^' ""^^^'-^''^^ «f ^'^"t honour, ^i speak of former Parliaments, and it becomes all to be car;fu t mt no/ terity should not speak sti'l worse of ,.= "^ '"*'^^^"' "'»' pos- a moment that this^vere tmrto 1^^^^^^^^^^^^ '"^P"'" u' adopted there was certainly no occLon for our sitting four may wish to .hSte? themsolve"rnde' fe o.^p^ar fc^ gument, and may contend, .hat a man wh^l Clpe,led by a former House of Commons cannot, at Imsf ;?, ,h? j ment of those who concurred in that s/^tenco t decla A' proper person to sit in the present Parliament unle« 1,^1^, ?eTces'"'t"erw';lr«' ,"'■ '""'" "•"" '° -" "' h^ f me?:f! S;stlslt:'"ahf asTe oX? 'toTcs""; ""^ """"'I mciit as ill the nrrspiu . //..„ t ° . , T "•' '""^"'^ * aiiia- prcseut , l/us, I say, xvould he contrary to all 42 INTERNAL CGANIZATION AND ECONOMY precedent and example, and inconsistent "with the spirit of the Constitution." <*1 could cite many precedents to prove the first part of my assertion, but one alone will be sufficient for my purpose, be- cause that is so signal, and so memorable in all its circum- stances, as to render any confirmation or enforcement of it quite unnecessary. In quoting this precedent, I beg leave to say, that I do not intend to throw any imputation on any person whatever. I neither mean to acquit or condemn those who were parties to it, but merely to state the fact as it ap- pears from your journal, andthento submit the result of it to the judgment of those who hear me. The case I allude to was that of Mr. Walpole, who was afterwards first minister to King George I. and King George II., for the term of twenty years and upwards. On the 17th January, 1711-12, he was voted by the House of Commons guilty of a high breach of trust and notorious corruption, in receiving the sum of 500 guineas, and taking a note for ^500 more on account of two contracts made by him when Secretary at War, pursuant to a power granted by the Lord Treasurer ; and for this offence he was committed prisoner to the Tower, and expelled the House. He was immediately re-elected, but declared inca- pable of being chosen during that Parliament. However, on the dissolution of it, a year and ahalf afterwards, he was again chosen into the new Parliament, was admitted to take his seat without the least question or objection on account of his former expulsion, and continued a member of the House of Commons in every subsequent Parliament till the year 1742, when he was created Earl of Orford. It cannot be denied that the offence was in its nature infamous, and such a one as rendered the person guilty of it unfit to be trusted with the power to give or to manage the pyblic money. The same party that expelled him, Vhose enmity was aggravated by his great talents and knowledge of business, continued equally averse to him and prevalent in the new Parliament ; but how- ever desirous they were to get rid of him, and however violent upon many other occasions, yet in the very zenith of their power, they did not dare to set up this pretence, or to urge the expulsion of a former parliament, although not two years before, as a sufficient ground for re-expelling or declaring him ihcapable of sitting in a new Parliament. If this could have been attempted, every circumstance concurred to make them wish it. The crime itself was breach of trust and notorious corrupuon in a public officer relative to public money, an of- fence in the eye of Parliament certainly not less infamous nor less criminal than writing a seditious libel. Few if any were OF THE ASSEIWBLV. 43 more obnoxious or more formidable to tliem than the gentle- man who had been the object of their justice or resentment. 1 he heat of party rage had been pleaded in excuse, if not in justification of many extravagancies on both sides, but they thought this measure beyond the mark of a common violence and therefore resolved not to attempt it. I have said before that It was not my intention to approve or to blame the cen- sure then passed upon that extraordinary man. It was the subject of great discussion and altercation at the time. I do not wish to revive past heats, the present are more than suf- hcient ; and all wise and good men should endeavour by jus- tice and moderation to allay them. Let us, therefore, take it either way. Let us suppose that he was guilty or innocent ot the charge to the utmost extent, and then let us consider how the case will apply to that part of the question which is now before us. The crime, as it related to a fraud concern- ing the public revenue, was certainly under the immediate cognizance of this House, and was perhaps punishable in no other manner. They punished itassevc.ly as they could both by imprisonment and expulsion ; the former of which ended in a few months, and the consequence of the latter in a year and a half. If he was guilty of a high breach of trust and notorious corruption, he was certainly very unfit to be invested with the most sacred trust in the kingdom, that of a member of the legislature. Had the question been asked upon tliat occasion likewise, what merit he had after his first expulsion to recommend him fo the subsequent Parliament? The ansvyer must have been that he had persisted in justifying tvhat he had done ; that he had appealed not only to his elec- tors, but to the world at large, in more than one printed pamphle , accusing the House of Commons, which had con- Uemned him, of violence and injustice. With all these ag- gravations, and with every other inducement, what could have protected nm, what could have prevented his re-expulsion but the notoriety and the certainty that such a measure was not consistent with the known law and the usage of Parlia- Thi"s iX "; f" TT"^ against a guilty and obnoxious man ? JfZf t ^r ^''^ "'" "'•g""^e"t upon that supposition ; but we take the other part of the alternative, and suppose that he was mnocentofthe charge, the proposition would be much stionger ; we must then consider him in the light of a man expelled by party rage, or on worse motives ; not for hi^ crimes, but for his merit; not that he was unfit but that he was too well quahfied for the trust reposed in him. What consequence if this doctrine of transfer- wouk *' H'f m ■■ ■ f* i ring the disability incurred by a former sentence to a subst 4i INTEIINAL OnOANIZATION AND ECONOMY qiient Parliament had been then established? The public and this House would have been deprived for ever of those services, which, from his knowledge and talents, they had a right to expect, and which they so much relied upon, particu- larly in the important business of the finances of this king- dom, and that gentleman and his family would have been precluded, irreparably precluded, by an unjust judgment, from those great emoluments and high honours which were confer- red upon him by two successive kings as the rewards of his admmistration. That loss, however, would have been the misfortune of individuals ; but a much heavier, a much more extensive misfortune would have befallen the Parliament and the Constitution, if so dangerous a precedent had taken place. An easy and effectual plan would have been marked out to exclude from this House forever, by an unjust vote, once passed, any member of it who should be obnoxious to the rage of party or to the wantonness of power. Let not youi prejudices, let not your just resentments against the conduct and character of the man, who is now the object of delibera- tion prevail upon you to ground any point of your proceed- ings upon such destructive and fatal principles. Consider that precedents of this nature are generallv begun in the first instance against the odious and guilty, but when once esta- blished are easily applied to and made use of against the meritorious and the innocent ; that the most eminent and deserving members of the state, under the colour of such an example, by one arbitrary and discretionary vote of uhe House of Parliament, (the worst species of ostracism) may be ex- cluded ft om the public councils, cut off and proscribed from the rights of every subject of the realm, not for a term of years alone but for ever. That a claim of this nature would be to assure to the majority of this House alone, the powers ot the whole Legislature ; for nothing short of their united voice, declared by an Act of Parliament, has hitherto pre- tended to exercise such a general discretion of nunishinff contrary to the usual forms of law, and of enacting such a perpetual incapacity upon any individual. There are, indeed some instances of the latter kind in our statute books ; but even there they have been frequently animadverted upon and heavily censured as acts of violence and injustice, and breaches of the Constitution. Let us remember the well known observation of the learned and sensible author of L LspntdesLoix, who states it is one of the excellencies of the Eng ish Constitution, of which he was a professed admirer, that « the judicial ponder is separated from the lecridnti-^r • nnd tells us mere midd be no Ubcrty if ihnj tvere blended torrether ; OF THE ASSEMBLY. 45 that Ihcpoxver over the life and liberty of the citixem mmld then be arbitrary, for the juil^e tvould be legislator:' Sl.all we then, who are the iuinicdiate delegated guardians of that liberty mid constitution ; shall we set the wicked example and attempt to violate them to gratify our passions or our pre- judicci' and for whom and upon what occasion? not to Ijrcscrve the sacred person of the Sovereign from assassination, or his Kingdoms from invasion orrebeilion ; not to defeat thJ arbitrary designs of a desperate minister or u despotic (^o.irt. but to inflict an additional punishment upon a libeller, wlm appears, by the question itself, to have been convicted of the greater part of his oflences by due course of law, and to be in actual imprisonment at this moment, under a legal sentence pronounced by the supreme court of criminal justice in con- sequence of that conviction. Can we say that there are not laws m being to preserve the reverence due to the magistrate s^t ou'"h!:^'''' '''T' ''''''' ^^"^^" '''-' scandalous ml seditou^hbels? are they not sufHcient, if temperately exe- cuted to punish and deter the most daring fro.J hrcomnnt sion of those offences? If they are. for w^hat purpose i^t apphcation ? If they are not, can the proposition' now made them ?•• ' "'' ' ^''''^'"* "^ '"''"'"'^' "^^''^«^ of enforcing The last case in order of time is one which has occurred within our own day-it is the case of Lord Cochrane. Lord Cochrane being tiien a member of the House of Com- n ons, was indicted in the Kin./s Bench, tried and convicted of a conspiracy, an offence which carries along with ^^^nh^^^y and renders the person convicted of it incompetent to be heard as a witness in any of the King's Courts. This convictfon was complained of by Lord Cochrane, with what reason altogether foreign to this enquiry. He was, in conse'mence on the 5th July, 1814, expelled the House of CommoT and on the Jd July, 1815.-P«,/. Beb., vol. xxxi. p. 1074. There can be little doubt that, obnoxious as Lord Coch- rane then was to the men in power, a second expulsion would have been moved, if it had been conceived that his first ex- pulsion operated a disqualification. No such motion was made. %M ¥ ''^Im^H I, '-'iMi^l t; . '\\)\\ flM 46 INTEItNAL ORUANI/ATI < AND KCONOAIY w After such on overwhelming weight ofreaaon and of author- ity, the (lucstion naturally arises, on what grounds could the House of As&enibly, in the last Session, order the expulsion of Mr. Cl)"istie. The only light thut can be afforded upon this question is to be derived from the speeches of the members who supjjortcd that measure, and these 1 give without com- ment : — "Mr. MoiiiN said, he only wished to consider the (juestion ns it appeared on the journals, which were our guides. Mr. C. was condemned for a contcn)pt of this House ; and mem- bers do not seem to pay attention to what the}- themselves pronounced, namely, that he was unworthy of the confidence of Government, and unworthy of siting in this House. A man that is declared unworthy, is not unworthy only for a day, but must be alwa_, s unworthy. That this is .r new Par- liament nmkes no difference ; no more than it would in a Court of Justice make any difference in the case of a man convicted on sufficient proof; when new judges were appointed to preside, he could not bring his rase forward again. As for disfran- chising Gaspe, this measure is so far from taking away the elective franchise, that it is confirming the rights and privile- ges of all— as soon as the House is organized, it becomes seized of the rights of the electors, and seized of its own rights. I he House had declared that he had invaded the privileges of the House— attempted to controul the freedom of debate ; and had thus attacked the existence and i'ldcpendenco of the House ; by which he tried not only to destroy the House, but to destroy the rights of al! the electors. We, therefore, can- not keep in our bosom a^man like thdt— we cannot rt-admit him, unless the resolutions for his expulsion are rescinded ; and we must still declare him incapable and unworthy of sit- ting. Members should recollect that it was not a pardon that was required of the offence, but an absolution, a clearance. As to precedents, let it be shewn th-^t there has been a paral- lel case, and that members have been expelled in England, for infringing the political rights of members while sitting in the House. It has been said that the decision of one House IS not that of another; but if that be admitted, all our rules would have lo be re-established every Parliament. We must maintain their inviolability, as well as the i -oral independence of the House. I do not say that the Member for Gaspe should be driven back by the Serjeant at Arms ; but I say it is the OF THE ASSEMBLY. ^f duty of this* House, in order to preserve the liglits of all to conforn. to the vote of censure hefore passed, which is a ius- tico the Mouse owes to itself. "* " INIr. Demeks enquired whether the loanv 5 '^entlenian who spoke last meant to say that Mr. Christie would be deprived lusri^'ht ol ciMzenship by being excluded frouj this House. He would possess those rights as uuich when he was outside he bar as w.tlun it. He nught when outside of the bar have us HaOeas Corpus, as well as inside. He may come here Ike othei citizens, and hear oui proceedings. 'Jo say so was to say that all who arc not inside oiu- bar are deprived of th- rights ot citi/ens-yet no one dare say that those respectable citizens then at the bar were deprived of their rights of citizens. Mr. J.. Lagueux said, J do not pretend that we are bound to go by the decisions of the last Parliament, but I say that the same reasons and the same dangers exist now as then ; though we may not be bound by the same resolutions, we arc- bound by the same motives of prudence, policy, and justice. Ihe representatives of the people are the same here as there --jealous of our hberties-and cannot but come to the same decision. 1 he same people who decided by their reprcs i. a- tives then, are here present by their representatives. It has been said, a punishment cannot be twice inflicted for the same ottence— but this is not a punishment, it is a censure-and the consequences are that future confidence is withdrawn. Mention has been made both of expunging the entries, and of absolution from the offence; but neither can be done. It re- niains the same as in 1829. The corps dc delit remains. We do not want to be convinced of it, to see all the particuli)--, of the progress ; all we have to do with ^s the record of the iudji- ^^"c:;;'''^ conviction is sufficient. Had any one shown that in 1829 we were wrong, it might be otherwise ; but as lonj; as that conviction is recorded, we have no occasion for other proofs. _ "Mr. QuK,-NEL said, that if any one could produce but one similar instance o' the political crime for which Mr. Christie had been expelled, .e would submit. But all the precedents were for different matters. This was a delit unique, and could not but be visited as such. He wondered at the honourable member for the Lower Town taking the present course, as on the tormer occasion he had expressed himself very differently." 1 have thus, so far as in me lay, put before the public all the materials necessary to enable them to come to a correct con- clusion ,• and I have been more particular, not only by reason ■p' " t"! I Ilii m. 48 INTERNAL ORGANIZATION AND ECONOMY h\] '! of tlie intrinsic importance of the subject, but also because the district of Gaspe having, with a very becoming spirit, (and 1 say so without any reference to the merits or demerits of the object of their choice, but solely in reference to the maintenance of their own elective franchise, and in that, the liberties of all the electors of the Province,) re-elected Mr. Christie ; and as the question may thus be anew brought un- der the consideration of the Assembly, it is of the last degree of importance that a right and sound judgment should be come to thereupon. Division on the Expulsion of Mr. Christie. YiAs — ArchambauU, Beaudet, Blanchard, Boissonnault, L. Bour- dages, R. S. Bourdages, Brooks, Bureau, Cazeau, Corneau, Courteau, Uemers, Deschamps, Dessaulles, Dewitt, P. A. Dorion, Dumoulin, For- tin, Guillet, Heney, Joliette, Knowltoo, Lafontaine, Lagueux, Malhiot, Methot, Morin, Mousseau, NeiJsnn, Nod, Panel, Proulx, Rochon, Scott. Thibaudeau, Trudel, Turgeon, Valois, Viger, Wurtcle, Quesnel— 41 Nays.— Baker, Baxter, Bedard, Caldwell. Casjrrain, Clouet, Cuvilller Dehgny, De Montenach, De St. Ours, Duval, Dionne, Fisher, (ioodhue, Heriot, Hoyle, Huot, Larue, I.aterriire. Lee, Leslie. Letourneau, Peck. Stuart, A. C. Taschereau. Taylor, Wright, Young— 28. Division on the motion that the Committee should be named in th: ordinary way. Ykas — Boissonnault, R. S. Bourdages, Caldwell, Christie, Corneau, Courteau, Dehgny. De Montenach, Dior,. , Dumoulin, Fisher, Heriot, Huot, I-aterriere, Letourneau, Stuart, A. C, Taschereau, P. E. Tascho- reau, Wurtele— 19. Nats — Archambault, Baker, Baxter, Beaudet. Bedard, Blanchard, Louis Bourdages, Brooks, Bureau, Casgrain, Cawau, C-^viliier, Des. champs, De St. Ours, Dessaulles, Dewitt, P. A. Dorion, Fortin, Good- hue, Guillet, Heney, lloylo, Joliette, Knowlton, Lafontaine, Larup. Lee Leslie, Malhiot, Methot, Morin, Mousseau, Neilson. Panet, Peck, Ques. nei, Quirouet, Rochon, Taylor, Thibaudeau, Trudel, Turgeon, Vicer. Wright and Young— 45. & ' ;= . OF THE ASSEMBLY. 49 NO. V. LNTTERNAL ORGANIZATION AND ECONOMY OF THE ASSEMBLY. Hoc voJo, sic jiibeo, sit pro ratione voluntas. Car TEL EST NOTRE FLAI8IR. JtnrBWAt. Ordonnancea dea Ruia de France. THE SUBJECT RESUMED AND CONCLUDED. Th^ most general division of governments, and of the most anaent too is into governments of Ja,. ani governments of Will. That form of government known by the name of a tv- ranny ,s but one species of the latter descripiior of govern- anents. History affords us many examples of aristocracies not restramed by la^v, and subsisting for considerable periods of time-.so also of democracies ; but the duration of these last has, from obvious and permanent causes, been so short, that hey have been looked upon as transitions from one to ano- ther settled form of government, rather than as being them- selves entitled to the name of a government. In governments of law, the assumption, by any body in the tate, of power not given to it by the law, is evidently sub- versive of the prmciple of the government. In a Constitution like our own, composed of three separate and mdependent branches, the assumption of such power! ^angerous-m any of the component branches, but in none so dangerou. as m the popular branch. The irresponsibility be- 'ongmg to large majorities, the passion to which all popular bodies are liable, the confidence which thp ....u ITu^ place m men selected from among themselves, and by them, H ^m 50 INTERNAL ORGANIZATION AND ECONOMY 11 U' li Mil selves, as the guar'^'^'ns of their rights, joined to the difficulty of restraining any abuse committed by them, all contribute to render encroachments of this body upon the Law and Con- stitution particularly alarming. In the previous numbers I have pointed out some of what I deemed encroachments of this character, and have now to add to them a plain, open and undisguised assumption of le- gislative power, to the exclusion of the powers vested by the Law and the Constitution in the King's Majesty. The Constitutional Act of these Provinces, .Slst Geo. IIL, c. 31, declares who shall be qualified to sit as Members of the Assembly in the following three clauses : — XXI. — Provided always, and be it enacted by the authority aforesaid, that no person shall be capable of being elected a Member to serve in either of the said Assemblies, or of sitting or voting therein, who shall be a Member of either of the said Legislative Councils to be established as afore- said in the said two Provinces, or who shall be a Minister of the Church of England, Priest, or Ecclesiastic, or Teach- er, either according to the rites of the Church of Rome, or under any other form or profession of religious faith or worship. XXII. — Provided also, and be it further enacted by the au- thority aforesaid, that no person shall be capable of voting at any election of a Member to serve in such Assembly, in either of the said Provinces, or of being elected at any such election, who shall not be of the full age of 21 years, and a natural born subject of His Majesty, or a subject of His Majesty naturalized by Act of the British Parliament, or a subject of His Majesty, having become such by the con- quest and cession of the Province of Canada. XXIII. — And be it also enacted by the authority aforesaid, that no person shall be capable of voting at any election of a Member to serve in such Assembly, in either of the said Provinces, or of being elected at any such election, who shall have been attainted for Treason or Velony, in any Court of Law within any of His Majesty's Dominions, or who shall be within any description of persons disquali- fied by any Act of the Legislative Council and Assembly of the Province, assented to by His Majesty, his Heirs, or Successors. OK THE ASSEMBLY. 51 It will be seen that the above provisions of the Statute do not create any disqualification to sit and vote, in persons ac" cepting offices of trust and profit after their election. Under the Statute 6th Anne, c. 7, and 1st Geo. I., c. 56, no per- son having a pension under the Crown, during pleasure, for any term of years, is capable of being elected or sitting as a Member of the British House of Commons. So, too, by the former of these Statutes, if any member accepts an office of profit under the Crown, which was in existence prior to 1705, except an Officer in the Army or Navy accepting a new commission, his seat is void, though such member is capable of being re-elected. These provisions, it is well known to those in the slightest degree conversant with constitutional history, were introduced to limit the great and increasing influence of the Crown in the Commons of Great Britain, derived from its enormous patron- age. The situation of the Crown in its Colonial possessions is, as we all know, very widely different from this. I «m not aware that, in the British Colonies adjoining to us, or in the old British Colonies, it vras ever found necessary to extend to them the provisions of the above Statute of Anne. This at all events was quite clear, that if the provisions of that Statute were to be extended to this Colony, it could only be done here as it had been originally done in England, by an Act of the Legislature ; and such, at the outset, was the understand- ing of the majority of the House who favoured this measure, and of the Member who introduced it. The first mention we find of the subject is in the Journals of the Assembly of the 17th March, 1825. The Resolution of the House is to the following effect :— Resolved,— That it is expedient that it should be enacted, that if any person being chosen a Member of the House of As- sembly shall accept of any office of profit from the Crown, or accept as a Commissioner, or otherwise, any appoint- ment from the Crown, whereby he shall become accounta- ble for any public money during such time as he shall con- tmue a Member, his election shall be void, and a new writ 32 INTERNAL ORGANI^JATION AND KCONOMI :ll 1 was naturally dead ; provided, nevertheless, that such pmon shall be capable of being again elected, a if his place lad not become vacant as aforesaid. ^ , . A Bill framed upon the principle of the foregoing Resolu- tion was introduced into the House on the 8th day of Febru- ary, 1826, passed in the same Session, and carried up to the Legislative Council, where it appears to have been rejected • and I must say I think rightly rejected. A similar Bill was introduced and passed in 1827, and met with the same fate m the Legislative Council. It was in the summer of the fol- lowmg year that the Report of a Committee of the House of Commons upon the affairs of Canada was published ; and one of the grounds of complaint against the Legislative Council was the repeated rejection of, or the refusal or neglect to pro- ceed upon, certain specified Bills, and upon other Bills quali- fied as necessary, sent up by the Assembly to the Legislative Council. The course which the Legislative Council pursued upon the occasion of this complaint is not perfectly intelligi- ble to plain unlettered common sense, and deserves particu- ar attention hereafter when we come to consider the consti- ution of that body. In 1828, a similar Bill being sent up to the Legislative Council, was, in pursuance of the new course adopted there, passed by that body ; although they had twice previously rejected its pHnciples, as dontaining an important innovation in the Constitution of the Colony. It was re- served for the signification of the Royal pleasure. The Con- stitutional Act allows two years for the expression of that pleasure. The words of the clause relating to this matter are as follow : " That no such Bill, which shall be so reserved as aforesaid, shall have any force or authority within either of the said Provinces respectively, unless His Majesty's assent there- to shall be so signified as aforesaid, within the space of two years from the day on which such Bill shall have been pre- sented for His Majesty's assent to the Governor, Lieutenant Uuvcrnor, or person administering the Government of such OP THE ASSEMBLY. 53 Province." Yet, in the session of 1829, a new Bill, of a si- milar purport, was introduced and passed by the Assembly. It does not appear to have been acted upon with effect in the Legislative Council ; the Members of that body probably felt the indecorum of passing anew a Bill actually under the con- sideration of His Majesty within the time which the law had allowed for the expression of his assent or dissent. However that may be, various proceedings were had in the Assembly respecting the Bill after it had been sent up to the Legislative Council, and respecting the proceedings there had upon it. I give the entries of the Journal of the Assembly, in 1829, upon the last head, without comment. "On the 16th January, Mr. Neilson, from the Special Com- mittee appomted to search the Journals of the Legislative Council as to what proceedings are therein with relation to a Bill sent from this House to the honourable the Legislative hr!?V"r''\;''^"'^'^'^"''^'"^^^'"S the seats olMem' beis of the Assembly accepting offices of profit, and becominir accountable for public money," and to ma»:e report thereof S this House--rsported that the Committee had searched the said Journals accordingly, and had taken copies of what pro cecdmgs are therein in relation to the said Bill, and he read nlvThV" ^"f '^''''' '"^ afterwards delivered it in at the i s table, where it was again read as followeth : " Wed- Tt^' 3fi? Dccrm/;.;-, 1 82S. A Message from the Assembly by Mr. Ne. son, with a Bill, intituled, '' An Act for vaS the seats of Members of the Assembly accepting oltices ^t' profit, and becoming accountable for public Lnfy '^Zxhl Bill was read for the first time. ^ "Friday, 5th December. lS2S.-Hodie Id vice lecta est Bdla, intituled " An Act for vacating the seats of Members of the Assembly accepting offices of profit, and becomfng ac countable for public money."_It was moved. That the^sa.d Bil be committed, and referred to a Committee of the whole merVV'' '"'^^-y -^'Au^^n^i next-Moved in amend! S <'fifrrnf'^ ""''''' "^.P^^^yo^" August," and to affirnnfve •• ^ '^ "''''' ^' ^"^ ^^^"^^^^ "^ the «;■ In 1 830, the Bill was anew sent up to the Legislative Conn- cil, and was passed by that body, and again reserved for the m\ ■ J! i 1 1 ■ iii I 1 i! m 54 INTRRNAL ORGANIZATION AND ECONOMY Itoyal Assent — This brings mc to tlie proceedings in 1831, which I have no hesitation in qualifying as an illegal usurpation of authority on the part of the Assembly, to the exclusion of the constitutional rights of His Majesty. Let the following Resolutions be read, which will be found in the Journals, un- der date of 1 5th February, 1831 : "The order of the day for the House in Committee on tljc entries in the journals of tliis House, relating to Members ac- cepting offices of profit, and becoming accountable for |)ublic money, being read :— The House accordingly resolved itself into the said Committee ; Mr. Quillet took the chair of the Committee, and after some time spent therein, Mr. Speaker resumed the chair, and Mr. Guillet reported that the Com- mittes had come to several Resolutions, which Resolutions were again read at the Clerk's table, and agreed to by the House, and are as followeth ; — Resolved, — That until such time as tub Royal Assent SHALL BE GIVEN to a Bill Conformable to a Resolution of this House of the 17th March, 182.5, for vacating the seats of Members accepting offices, and similar to the Bills pass- ed by this House in the years 1826, 1827, 1828 and 1830, the second and fourth of which were uesehveu fop, the signification of Hrs Majesty's pleasure, the seat of any Member of this House who shall accept of any office or place of profit under the Crown in this Province, or be- come accountable for any public money hereafter appropri- ated within this Province, s//all, by this acceptance, he deem- ed by this House to be vacant, and a ncxv xvrit shall be issued for a 7ietv election, as if stick person so accepting n-as natu- rally dead ; nevertheless, such person shall be capable of being again re-elected, and of sitting and voting in this House, as if his seat had not been vacated as aforesaid. llcsohed,— -That a7iy Member of this House sifting and vot- ing therein ajler such acceptance, he expelled this House.* * It may not be amiss here to insert the Resolutions of the Assembly for the nomination of Mr, Viper, as Agent, &c , wliith liave been advert- ed to in a previous number, and which proceed upon the same principle, though not upon the face of them, carried to the same extent as those ia the text. Monday, 28th March, 1831 — Resolved, that in the present state of the publicalFairsof this Province, it is indispensably licctssary that some person, having tl.e confidence of this House, should proceed forthwith to England, to represent to His Majesty's Government the interests and sentiments of the inhabitants of the Province, and support the Petitions of this House to His Majesty and both Hous< s of rarli.iment. OF THE ASSEMBLY. 56 If the fact heretofore adverted to left any doubt of the as- sumption of legislative power by the Assembly in the shape of votes, 1 apprehend that these Resolutions will remove that doubt from the minds of the most incredulous. In one respect, the framer of thepo Resolutions was wise ; he has not put his name to them, but leaves them as a report of the House in Committee, generally, without taking to him- self the responsibility of a measure in its principle subversive of the Constitution and of all law. The history of the old British Colonies, agitated as they were, contained, so lor.g as they acknowledged their Colonial dependence, no act like this. We find a parallel to it—and where shall we find it ? we must go back to the Long Parliament, and we all know what the course there pursued ended in. Let it be observed, too, that these Resolutions were passed without a division ; and purport to be, therefore, the unanimous sentiment of the House. Was it then, one naturally asks, the intention of that body to divest the Crown of its just rights ?— I should be wanting in justice if I did not say, that no such intention did exist in a very large majority of the House. It is not the less true, how- ever, that such is the direct consequence of their act Whence then, may it be asked, did it proceed ? The answer is plain —from an overweening confidence in a few individuals, who, neither from their knowledge or their discretion, are entitled to it. If I am correct in the view which I take of this vote, there remains a problem of much more difficult solution.l-How came it that the Nobleman who is at the head of this Go- Resolved,— That in tho event of the Bill sent up bv this House fn th„ t j,slative Council, on the 5th instant, not rec'eiving th :rcurrete ^f that House in the present Session, the Honourable Denis B. Vice" Es r:^' -^uZ ° "" ^^«'^'^''^« •^'^""'="' "«™-'l Age" of the Provii?; m the sa.d B.ll, be requested to proceed to England without delay for the purposes nienuo,..d in the foregoing Resolution. ^' Rcsolved,-.That it is txpedient that the necessary and unavoidahJo 1U burscmentsof thesaid Denis Benjamin Viger. for cfll-ct^th. n ■f- 56 INTERNAL ORGANIZATION AND ECONOMY ! r vernment, and who is especially charged with the maintenance of the King's power and dignity, should have felt himself call- ed upon to express his admiration at the conduct of a body who had committed this aggression upon both. I leave it to those to whom are divulged the arcana imperii, to explain this difficulty. There remains one other branch of the general subject at the head ofthis paper, upon which it is very desirable that information should be had; but which, from the want of that information, it is not in my power to enlarge upon. The annual expenditures of the two Houses of the Provin- cial Legislature are very considerable. The public opinion can exercise no controul over them, from the circumstance of the accounts not being published. Of late years, the expen- d.tures have been considerably augmented by allowances to witnesses on Petitions of Grievances. In one instance as much as £120 was allowed to one witness ; and the costs so mcurred during the Session of, I think, 1828-9, upon a single Petition of Grievances, amounted to between £600 and £700. Some witnesses one sees as regularly about a fortnight after the opening of the Session, as stoallom in the spring; and al- though they do not last quite so long, yet they hardly leave Quebec before either the House or the roads break up. This IS a great evil, and the public ought to be enabled to judge of Its extent by having not.only this, but all the other Items of expenditure of the one and the other House rendered public by means of the press. It is altogether ridi-' culous that bodies, whose duty it is to check all other public expenses, should be left uncontrolled by public opinion in their own. I have now to enquire, by what steps, on other matters, the House was gradually led, during the last Session, to the cli- max of the foregoing Resolutions of the 15th February, 1831 This is partly explained by facts already referred to.-I shall try to continue the explanation in my next numbers. OI' THE ASSEMBLY. 57 NO. vr. ON THE FIRST REPORT OF THE COMMITTEE OF GRIEVANCES. Qiiibus in controversiis cum s.Tpe a mc'ndacio contra verum homines stare rm,. uPscerent, d.cend, assiduitas aluit audaciarn. „t necessario superb^^^^^^^^ juna c,vm„, res.stere audncibus, et opitulari m\s quisque necess7rii"Lceren- .r. rtnque c.,n, ... dicendo smpe par, no„„unqua,n ctiam superior visufosset ut et mult.tnd.nis, et suojud.oo, dtgnus, qui rempublicam cereret. viderctur Hinc ...m.ru.n non injuria, cum ad Rubernacula roipuhlica>, temerarii atm.P audaces hommes accssserant, maxima ac m.serrima TiL/ragiaM^^t! ^ CiC. DE Iwv. I AM far from judging so hai.hly of the political character of lawyers as the great master of Roman eloquence. In the governments of law of modern days, those men who make of the law their peculiar study, must and ought to have great influence in the public deliberations of their country. But the study of the law is proverbially of great extent, difficulty and complexity, even when that science is applied to the controversies of private individuals. Its difficulty and im- portance grow proportionably when we use it as a standard of public rights, and seek therein those great conservative principles of social order whereby the political fabric is kept together and maintained. The knowledge of these, and a just application of them, require more study than youth can have afforded, and an experience which age only can confer. It is not the least of the evils arising from the novel and unprecedented mode in which the committees generally of the Assembly were nominated in the last session^ that, in conse- quence of it, the senior members of the profession belonging 58 INTEHNAI, ORGANIZATION ANU ECONOMY mmm. if m to the House were, with one solitary exception, excluded from the Committee of Grievances— a committee where their ser- vices, knowledge, and discretion were so much called for— and their places supplied by young gentlemen who had at a comparatively very recent period entered into the profession ; and who, whatever might be their individual merits, had not yet gone through the ordeal of a long practice. The Chair- man of the Committee himself had but very shortly before come out of an Advocate's office, and had not yet had time to make himself known in the courts. Under such auspices, it required no peculiar sagacity to anticipate that the proceed- ings of the committee would be distinguished rather for youth- ful violence than for sober judgment ; and when these antici- pations came to be realized, one could not but feel that if the vouth of these parties might be considered as an alleviation of their errors, it constituted no apology for the honourable mem- bet who, uncalled, had volunteered to guide the choice of the House in the selection of the members of all the standing committees. An examination of the first report is calculated to afford a salutary lesson of care and deliberation to the youthful mem- bers of the committee, and an useful warning to them against passion and precipitation, whilst it may at the same time sei e to show to the House itself the great dangers incident to the neglect of their own rules, and to the delegation to one or to a few individuals of powers which those rules reserved to the House itself. The first report of the Committee of Grievances relates ex- clusively, to the notice from the Provincial Secretary's Office of the 15th day of December, 1830, whereby "Persons in this Province holding commissions during pleasure under his Majesty's Provincial Government, which, at the time of the demise of his late Majesty George the Fourth, were in force, and will continue to be so under the statute in this behalf provided, till the 26th instant, are notified, that their new commissions, rendered necessary thenceforward by his late or THB ASSEMBLY. 59 Majesty's demise, will be delivered to them on application at this ofHce," and to the proceedings of the public authorities in relation thereto. Before entering into the considerations of public laiv appli- cable to the case, it will be well to put our readers into pos- session of the whole of the proceedings of the Assembly, and at the Castle, down to the making of the report. On the '2Sth day of January, 1831, Isidore Bedard, Esquire, one of the members of the Assembly, presented a petition to the House on the behalf of Edward Glackmeyer, Esquire, a No- tary Public, and one of the copying Clerks of the House, complaining of his being required to cjue out a new commis- sion as a Notary Public* In consequence of a message from the House relating to the subject of the new commissions, his Excellency was pleased to send down to the House the following message, bearing date the 9th February, 1831 :— " In compliance with the request of the House of Assem- bly expressed in their address of yesterday, the Governor in Chief transmits herewith a certified copy of his Majesty's proclamation, bearing date at St. James's, the 27th day of June last ; and being desirous of making the House of Assem- bly acquainted with the whole of the circumstances connected with the recent renewal of commissions held under his Ma- jesty's GovernHjent in this Province during pleasure, he in- forms the House, that about the middle of the month of De- cember last, it was suggested to him, (not officially, or by any one connected with this Colony) that it behoved him to con- sider whether a renewal of such commissions might not be- come necessary by the non-arrival of renewed commissions from England, previous to the expiration of six months, dating from the demise of his late Majesty. In consequence of this suggestion, the Governor in Chief directed the Executive Council to assemble ; when it was resolved, (his Excellency being present) to refer the question to the judges and law of- * The Committee has omitted to publish this petition in the appendix to their report, and also to state what the prayer of It was in the body of the report ; so that I am only enabled to give a general description of it— which, upon the motion of Mr. Bedard, was referred to the Committee of GrisTanco«s of which he then was, or seen after bscsme 'hs chsirfnan. 60 INTERNAL ORGANIZATION AND ECONOMY ficers of the crown for their opinion. With th*. Pv^«n»:« . neccssKy ofi.ui.g the ne. com^isZ: r X Cc^lo^ Ke is ue of thf nl^V^""'^ ""'^ *'^'^ °P'"''>"«. d-"""d ne issue ot tl e new commissions accordingly. The view of this subject taken by the judges and law cffic^ers of the crown oft I'r r'"'"' "^'P'"^f «o be fully borne out by the teno" of the following extract fl-om a letter addressed to tZ rZ cZ • ". n ''■'' '^ ^'' "«>'' U"^- Secret 'rH^ S^te fo^the" Colonial Department, dated the 8th December l«^0„ni received on the 7th ultimo :-..! u.. d.Sd h^Lord Gode' rich to transmit to your Lordship herewith renewed comlu sionsfor the judicial establishmentofyou goveTm^f^^ ns Majesty's accession to the throne\asV;Stct ^^^^ ry. The renewed commissions for the civil estnhl.ImM* .he subj^e, of ,he renewal oLZSLlddld "/ir C »'h.ch they have m view, and whether the production of" thi documents in question is necessary to the aEn^ Toft at object ; and the Governor in Chief having put the House of duTn \'n P"'?'''"" °^^'^ s^ntimehts, in regard to the pro The concluding paragraph of this message cannot escape notice ; his Excellency is therein pleased to say that tie House of Assembly alone can form a judgment of the magni- tude and importance of the subject which they had in view Now, with all possible deference to his Excellency, I apprc' hend that the House of Assen^bly has no exclusive power to form judgments upon public objects. I apprehend that no Of THE ANSKMBLY. (J| Other objects could be presumed tliun thoue which appeared upon the public proceedings of thy House ; and that, with respect to these, the House neither had or ever claimed any exclusive power of judging ; and that circumstancci might arise, and in point of fact did arise, wherein his Excellency, in the exercise of the high trust confided in him, was called upon to judge, and to judge for himself, and upon his own responsibility. I advert to this now, not for the sake of mak- ing a captious objection, but as being the first indication of an erroneous view of his own constitutional duties and pow- ers on the parf of his Excellency, which I shall hereafler be required to enlarge upon. His Excellency, in the last para- graph but one of this message, 'nforms the House that he en- tertams strong objections to the production of the opinions of the judges and law officers of the crown, unless required for some object of great public interest; and concludes the whole message by saying, that having put the House of As- sembly in possession of his sentiments in regard to the pro- duction of those documents, he has only to add, that if the House of Assembly should think proper to apply for them they should be produced.-The second day after the receipt of this message, (the 11th February, 1831) the followin.. re- solution was come to by the House :— "Resolved,-That an humble address be presented to his Excellency the Governor in Chief, praying that hfs Exce lency w.U be pleased to cause to be laid d!fore th s Hout copies ofanyopnuons in the possession of hfs Ma^^^^ Government ,n this Province, relating to tht renewa^o <^m.. ons held from his Majesty's Governme^^tTthi sai. „nce dunng pleasure, which his Excellency mv deem proper to be communicated, and also of" al other pr'd^ fa the propriety of this resolution all must concur. The opminns of public officers given officially upon public affairs are pubhc property; and, howe-er much in the ordinnrv :.M V r 1: ■,• 1 jflH G'J INTEUNAl. OnUANIZATJON AND ECONOMY ^ir- 3 -'!! course of life we may be disposed to yield to the private in- clinations of those about us, no discretion, founded upon the Mere personal inclination of an individual, however exalted in rank, can or ought to influence men in the discharge of a public duty. — One does not very well see the motives of his Excellency in expressing his disinclination to communicate these documents to the House ; and one may be permitted to regret the expression of them, as being calculated to produce an impression that there were reasons for concealing these documents, when in truth no such reasons could possibly t • ist. His Excellency, anxious, no doubt, to make i>p for the delay which his scruples to transmit these public papers had occasioned, condescended, on the very day after the b ;ond message was sent up to him, to step out of the ordinary rou- tine in the transmission of public documents to the other two branches of the Legislature, by sending down to the Assem- bly the original documents in his own possession, instead of sending to them c> iified copies. His message, taken in con- junction with the previous one, affords abundant subject for reflection, which I do not feel myself at liberty here to enter upon. The words are as follows : — "Aylmer, Governor in Chief. — The Governor in Chief, willing to obviate the delay which must necessarily take place in copying, for the use of the House of Assembly, the opinions of the judges and law officers of the crown, regarding the re- newal of commissions held from his Majesty's Government in this Province during pleasure, with which, in their message of this day, the House of Assembly have requested to be fur- nished ; his Excellency now transmits those documents, in original, and requests that they may be returned to him when no longer required by the House of Assembly. The Gover- nor in Chief also transmits a copy of a letter addressed by his order to the Attorney General, by the Civii Secretary, direct- ing him to piC'pare the necessary draught of such commissions as ceased to be of legal effect after the expiration of six months from the demise of his Inte Majesty George the Fourth. The Governor in Chief is not aware of any further proceedings which have taken place in respect to the renewal of conimis- OF THE ASSKMBI.Y. 63 >rivatc in- upon tile exalted in arge of a ves of his iimunicate rmitted to produce ling these ssibly t • 'p for the ipers had le Is ;ond nary rou- Jther tHo e Asseni- nstead oi" !n in con- bject for '. to enter in Chief, ike place opinions g the re- 'ernment message be fur- lents, in ini when i! Gover- d by his T, direct- missions : months li. The :eedings connnis- sions, moic than the actual issue of the said renewed commis- sions, ill purniance of the directions communicated to the Attorney General by the Civil Secretary above referred to." Castle of St. Lewis, "| Quebec, 12th February, 1831./ With this last message were sent the following original do- cuments, viz: — The opinions of the Chief Justice of the Pro- vince, of the Chief Justice of the District of Montreal, of each of his Majesty's Justices of the King's Bench for the District of Quebec, of Mr. Justice Vallieres, resident Judge of the Court of King's Bench for the District of Three Rivers ; of Mr. Justice Fletcher, and of the Attorney, Solicitor and Ad- vocate General. All these gentlemen concurred in stating that commissions during pleasure determined by the demise of the Crown, at the expiration of the period fixed by the sta- tute of Anne. We come now to the proceedings had in relation to the particular case of the petitior. nf Mr. Glackmeyer. It will be observed, upon referring to the foregoing notice of the Pro- vincial Secretary, that its terms are general, applying to per- sons holding commissions which would determine six months after the demise of his late Majesty, and notifying these that their commissions would be delivered to them on application at the Secretary's office. If, then, no new commission was necessary for the petitioner, the notice did not embrace his case, still less was it compulsory on him to take out a new- commission. In taking out a new commission, or not taking out a new commission, he exercised his own free judgment, and in the latter case he acted sua periculo, and so also would those who might choose to employ him. The only competent tribunal to determine the question of the validity v.v invalidity of his acts, involving, as that question would do, the question of his obligation to take out a new conunission, was the judi- ciary of the country. The petitioner seems to have been de- sirous to obtain the opinion of another public body upon this point prospectively, and of a body, too, which constitutional- 64 INTERNAL ORGANIZATION AND ECONOMY 't ! ly could not determine it—l mean the Governor in Council For tb''s purpose, he demanded at the Provincial Secretary's office a certificate of legalization, in the usual form, of an in- strument executed by him as a Notary Public after the expi- ration of the six months from the king's demise. The Pro- vincial Secretary, very properly not choosing to take upon himself the responsibility of determining the question of the effect of the demise of the crown upon the commissions of No- taries in this Province, wrote the following letter to the Civil Secretary : — " Secretary's Office, Quebec, Dec. 30, 1830. Sir,— Having been applied to for a certificate under the hand and seal of the Governor to a document signed by two Public Notaries who have not tak-^iu out new commissions, I consider it my duty to bring the circumstance under Lord Aylmer's notice ; as from the tc;ms of such certificate (the form of which I have the honour to subjoin for his Excellen- cy's information) I do not consider myself justified in deter- mining the extent to which Notaries' commissions have been affected by the demise of the crown, by preparing such an in- strument for his Excellency's signature without further in- structiors. I have, &c. (Signed) D. Daly, Secretary." The subject appears to have been referred to the Executive Council, and the following is an extract of their report: " Extract of a report made by a committee of the whole Council, dated the 4th January, isgi, on the Provincial Se- cretary's letter of the ^Oth December, 1830, requesting in- structions as to preparing certificates to be attached to docu- ments signed by notaries who have not taken out new commis- sions—approved by His Excellency the Administrator of the Government :— " The committee cannot presume to give any opinion on the question submitted by this officer, as to the ex- tent to which the commissions of notaries are affected by the demise of the crown, that being a question which can only be properly determined by the King's Courts ; but under existing circumstances they think it advisable that the certificates for legalizing or authenticating the instruments passed by notaries who have not renewed their commissions, should set out the special matter according to the truth of the fact. (Signed) George H. IIyland." I OP THE ASSEMBLY. 65 The order in Council is manifestly in consonance with law and reason. The grave consequences which might have flow- ed from the Council adopting a different course will be point- ed out when we come fn the sequel to consider the proceed- ings had in relation to the same subject by the Committee of Grievances, who took upon themselves to determine this ques- tion, and in a manner which I fear will be found contrary to law. At the instance of the Provincial Secretary, the Attor- ney General was directed to prepare the draught of a certifi- cate for authenticating documents executed before notaries who had not renewed their commissions ; and, in strict confor- mity with the aforesaid report of the committee of the Execu- tive Council, he prepared and transmitted to the Provincial Se- cretary for his guidance, the following draught of such certi- ficate : — " His Excellency, &c. &c., to all to whom these presents may come :— I do hereby certify that A. B., previous to the de- mise of Ins late Majesty King George the Fourth, to wit, on the , ^-^f^", '" *''^ y^^'' of our Lord one thousand .........hundred and was in due form of law com- missioned to be and act as a Public Notary in and for the Province of Lower Canada, and that full faith and entire ere- dit are and ought to be given to his signature in that capaci- ty, in so ftir as the same may be warranted by law, under the said appointment." The petitioner seems further to have complained of some change in the form of the commissions granted to the Nota- ries. From the time of the passing of the provincial ordinance regulating the admission of Notaries, their commissions have always been during pleasure; and the new commissions are of course in the same terms. The changes made in them are purely of a technical character, not at all touching their rights or powers, and merely concerning the form in which those powers were to be conferred. To judge from the questions which were put by the committee, they seem to have been entirely unacquainted with the technical rules which lictatcd, and, as I think, rendered fitting these changes. The nature ■ M ^H ml ii ^^^H ^^^^^. * ^^^^k' li ^H |PPSF> 1 IWWM 1 ] 11 'II G6 iJii INTERNAL ORGANIZATION ANB ECONOMY iliW* =?! i "■ i I of the changes, and tlic propriety of them, will be perfectly understood by lawyers, after perusal of the following answers given by the Attorney General to questions put to him by the committee respecting them : — For what reason did you think proper to change the form of the commissions for Notaries since the demise of his late Majesty George the Fourth, whilst you did not think pro- per to change that of the commissions for Barristers (Attor- nies) ?— Whatever changes may have been adopted in fram- ing the commissions of Notaries, subsequently to the demise of his late Majesty George the Fourth, were adopted in con- sideration of legal fitness and propriety. In such new com- niissions as may have been required for Attorneis, no altera- tion was deemed necessary or expedient. What law, or what part of any law, authorised you to change the form of the old commissions for Notaries, and to insert therein the following words :— « Williavi the Fourth, by the Grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of th1 Of THE ASSEMBLY. 69 Ist. Are the officers of the Government within the Colony holding commissions from the crown during pleasure, general- \y, bound to renew their commissions upon each new demise of the crown ? 2d. Do tiic Advocates and Notaries Public commissioned within the Province fall under the operation of this rule, or are they an exception to it ? 3d. Have the Advocates and Notaries any just ground of complaint for the course pursued by the Government in rela- tion to the renewal of commissions upon the late demise of the crown ? Upon the first head we apprehend that it is not easy to give any thing more distinct than that which the opinion of the Attorney General affords. The question submitted to him was not of peculiar difficulty, but expede Herculem. Short and easy as this production is, one can readily believe that it comes from the pen of a man who is confessedly the first law- yer of Lower Canada. "Quebec, 8th December, 1830. n.if ""'"".V'^?,^^.^" honoured with the commands of his Ex- cellency the Administrator of the Government, signified in your letter of the 7th instant, requiring me to reporfv^th aH practjcable d.spatch, for his Lordshipl infbrmation, whit e" feet, m my opmion, the demise of his late Maies v p!. the Fourth will have on commissions of pubhc Sst Z Provmce, after the lapse of six months ffom thareven f'd whether a renewal of such commissions will be of indisL" ble^necessuy before the expiration of the said periodtf "x" In obedience to his Excellency's commands, I have the hn nour to state, that, according to the first rule of tirco^^^^^^^^ law, the commissions of public officers in this Prov nee wS were m force at the time of the demise of hTrior^V Geo .h F„u„h, would have LeXer™ „ \'; Lf W But th,s rule of the common law has been modified l,vT' s atute 6tl, Anne. 7, aeoordingto the provLns „? vhicj I . J» de.c.rmuing rhc commissions of pubhc officers which , 1 % n f) If 70 INTERNAL OROANIZATION AND ECONOMY - il i i in It would have had at his late Majesty's demise, if the legisla- tive enactment now referred to had not been made. I am, therefore, humbly of opinion, that, in the absence of any legis- lative provision for a further or permanent continuance of of- ficers in their respective offices, the commissions of public of. ficers in this Province, by the demise of his late Majesty, will be determined at the expiration of six months from that event ; and that the renewal of them before this period elapses will be of indispensable necessity, to prevent any interruption, or supposed interruption, in the continued legal exercise of their functions. I have, &c. J. Stuart, Attorney General. Lt. Col. Glegg, Secretary, &c." The principles stated in it are not to be controverted. There is a wide latitude to be allowed for error, humouum est errare ; but this indulgence is not to be extended to ignorance. A man who professes to be a lawyer s])07idci peritiam artis, and these juvenile lawyers who either controverted or misun- derstood, or who had never read, the primary principles which ought to have guided them in the report to which we shall by and by come, are not to be excused on the score of ignorance ; to them, at least, the maxini, ignorantia juris iieminem excu- sat, is peculiarly applicable. The opinion thus given by the Attorney General requires on the part of men in the slightest degree conversant with the law, no confirmation or authority. If that authority were re- quired, and we were to seek it beyond the bounds of the whole of the repositories of tlie common l£tw of England, we should find it in the concurrent opinions of the Chief Justice of the Province, and the Chief Justice of Montreal, supported by those of the Judges of Quebec, and not contradicted except by the young chairman and young lawyers of the Commit- tee of Grievances, the grounds of whose opinion, so far as they are to be detected, we will hereafter examine. Considering, then, that all commissions from the crown du- ring pleasure, determined at the expiration of six months from the demise of the crown as a matter not susceptible of con- troversy, the remaining question upon this branch of the sub- -i 1,1 OP THE ASSEMBLY. 71 ject 's, wlicti.er the Advocates and Notaries Public, commit sioned within the Province, fall under the operation of this ride, or arc they an exception to it. It is pro{,er to premise, that whatever conclusion we may come to in this inquiry, wc have not ijie benefit of the li-^hts of any of the foregoing opinions ; those opinions cover an\h •straet question. The inquiry rhat we are now to enter into is, whether Advocates and Notaries fall within the general thesis stated. ° There are very many consideration, to distinguish the pro- fession of an Advocate from the office of a Notary and it i. somewlmt surprising that the chairman of the Committee of Grievances should not, even in the short period which he had devoted to his profession, have had time to learn the difference between the profession and the office. Nothing is better es- tabhshed than that the Notary is an officer of government It may be well, for the instruction of the younger members of the committee, to put before them some authorities from the elementary books on this point :— " Notaire se peut dCfinir un officier public institue Ti leftV>f de red.ger par 6crit, dans la forme prcicrite parle loix efdp rendre authentujues par sa signatu/e, les convent on 'nS so passent entre les hommes, et les dispositions qu>nrent faire soit entre vifs, soit a cause de mort. ^ ^ ^ Ainsi, les Notaires sont des nersonnes nnhh'nnoc /-foi t ecrire et arreter ce dont les P 'rtiesrm^m- S^ ^''^ti^^^^^ consideres comme de fideles temoins de la verite deVlrs qui se passent devant eux, auxquels ils donnen une autorS pubhque. distmguce de celle qu3 peuvent avoir non seulemen es promesses verbales faites devant temoins, mrencore de Personne ne doute qu'un Notaire redigeant un acte surd,, ■■ ] i 1 ill! Ml; f * ' 'i 72 INTERNAL ORGANIZATION AND ECONOMY Bifflit Hi'iitt est revelu de toutes les formes ct qui est atteste par dcs per- sonnes publiqucs — CEuv. dc M. Cochin, torn, 2, p. 564t. Les fonctions ties Greffiers et des Procureurs, et celles des Iluissiers, et des Sergens, s'exercent ou pour radministration de la justice dans les tribunaux, ou ailleurs, pour en ex6cuter les ordres ; et sont par la distinguees dc celles des Notaircs, qui s'exercent hors des tribunaux, et sans qu'il soit necessaire qu'ils aient un ordre particulier u exccuier.— Do/wa/, Droit Pub., torn. 2,;;. 181. Un Notaire est parmi nous un officier public, dont la fonc- tion est de rediger par ecrit, et dans la forme prescritepar les loix, les actes, conventions, et dernieres dispositions des hommes — Diet, de Droit, torn, 2. p. 267. Ces officiers sont des temoins choisis li qui le public se rap- porte de la verity des actes qui ont ute faits en leur presence, et qu'ils ont attestes veritables — Les actes qui se passent chez cux font fui en justice, et sont regardes comme des loix que les parties se sont imposees elles-meraes dans una pleine li- berte — Ibid., p. 268. Celui qui recoit un acte probibu par les loix, comme de si- monie, usnre, doit etre puni — Leg. 3, Cod. de Sacrosanct. Eccles. II en faut dire de meme du Notaire qui recevroit une obligation, le nom du creancier en blanc lb., p. 270. Notaire — C'est un officier public etabli pour recevoir les actes dont les particuliers conviennent volontairement entre eux et pour donner a ces actes la forme et I'autorite, neces- saires pour les faire executer — Rep. de Jur., torn. 12, p. 197. II n'est pas permis aux Notaires de recevoir des actes con- traires aux bonnes mceurs ou a 1 interet public; tels sont les contrats usuraires. Les ordonnances de Join, 1510, et d'Oc- tobre, 1535, veulent que les contrevenans en pareil cas, soient interdits de leurs fonctions et condamnes a une amende, ou memos prives de leurs offices. Tels sont aussi les contrats si- moniaques et ceux oii il s'agit de quelque assemblee defendue. II eA pareillement defendu aux notaires de passer aucun acte qui contienne des declarations injurieuses et calomnieuses. Un Notaire qui avoit re^u un acte de cette espece a ete con- damne par arret du Parlement de Bordeaux du 5 Fevrier, 1734, a c'omparoitre a I'audience le meme jour que les calom- niateurs y subiroient la peine prononcee centre eux, et la, de- bout et nue tete, declarer, qii inconsiderevient et mal h propos il avoit refu le dit acte, qiiil sen repentoit et en demandoit par- don a la part ic offensee. L'arret I'a en outre interdit des fonctions de son office pendant un an, et I'a condamne a une amende do 500 livrps — Ibid., p. 204. Of THB ASSEMBLY. 7S Lei nctes Notarica sont re9ug|)arce.. officiers publicg nn\m no.n„e Nolaue.et par ceux qu'on nom.nait autVefo s Vabe," lions — 1 iiulher, lorn. H, p. 111. Qunnticequi concerno Ics lois pnrliculiirra, c'esl-l..i;r» e. convention, ,«l,iennen, Uende toi ,} cc,,, J ksZl ^t, le .om .10 lc» rendre oxocutoires par la prom„lg"„°„" -f' (S Ro,aax.i°^^t'.;L'j^„E;;Tz;:/r.?,,'n:.^rcr &e"ioZuo''r'r° '''"'""'■""^" "- ™ f« « lion' at immeXrL°"at/.rrrVa.er'°''°' """ "^ ""'«•«»' OS. pwif parf" -1? '".T'"^ '»»»«'"-= J" NotaiVo We apprehend .hat .hese leave no doubt .ha. a Notary is a p blio officer, and lot .e be permitted to add, an officer re. quiring „„eh more severe superintendance on .ho par. of the Lgislature than has yet been applied; and an officer, too ho. .vhe.her m the shape of copying clorhs, or in any othe subjects vbich cannot las.. So far as the Advocate is col -ned, bis duties are of a very different cbaractcr-his ^ „. fcssiona. services are in broad daylight, and liis labours viv . ^:li\Tisr::^r;r- ^-; -^ ^"'■.-aence ,- jression ot an Advocate, and you destroy all that f^: :■ ml ■ ; .;-, 1 1 r—J ; ■ ■ ''' :h ■ 'i '.-'1 , ■ i ' i J-ii ORGANIZATION AND ECONOMY OF THE ASflEMULY. is honourable. I am speaking feebly of these things ; but men's minds will supply the feebleness of my expression. I cannot enter into the nobleness of thn dulies v the profession of an Advocate — I could not do jus, ice tc '-em at any time, and I am here merely looking at th : u ' "Identully ; I wish only to mark that th"s profession anu li a*^ o lice are separated by an immense interval.* One of the errors in the report under r xamination is the confounding of the profession of a lawyer with the office of a Notary. Such are my sentiments in relation to the profession of the law ; yet I see no reason to complain of the noticf^ from the office of the Provincial Secretary above given, nor of the re- ports of the different law officers of the crown and of the judges upon this head. The grounds of complaint contained in the first Report of Grievances we now reach, and they shall be considered in our next number. * Quoique les Avocats nc soicnt pas du nombrc dcs officiers comme le sont tous ceux qui exercent d^ns I'ordre de radministration de la justice les fonctions dont on a parlc jusqu'ici ; commo on doit trailer dans ce li- vre, non seulement des officieTs, mais aussi dcs autres personues qui pn whereby those public functionaries must in England 80 CONDUCT OP THE ASSEMBLY. ■Ill:"-, be continued in those offices which they cannot fill except by the will of the reigning sovereign. 3d — That the application of this statute, or of this princi- ple, to the Notaries and other persons exercising professions in this Province, by requiring the renewal of their commis- sions, is an encroachment upon their independence, and dan- gerous as te'iding to render them subservient to the executive power. -ith — That the Notaries hold their power from the law, and not from the will of Government. We will begin by granting all these propositions hypotheti- cally, and ask any gentleman to put them into the form of a regular argument. They are insulated propositions, right or wrong, having no one common bond, and not linked together by any ratiocinative process ; but this is not all— there is not one of these propositions, with the exception of the first, which is not radically erroneous. Let us proceed to the examina- tion of them consecutively ; and as to the first, if we look at it as a truncated member of a syllogism, and supply the mem- bers of the syllogism elliptically passed over, we may state that syllogism in full, thus : — The powers held by officers holding commissions from the crown during pleasure are determined, by the demise of the crown, within a given period from such demise. Notaries Public in Lower Canada are public officers of the crown, holding commission from the crown during pleasure. Er^o— Notaries Public in Lower Canada are not, upon the demise of the crown, bound to renew their commissions. The 2d proposition is stated rather in the way that the committee meant it, than that in which they have expressed it. If the above extract be u jked ra, it will be seen that the continuance of public officers fi- a certain period, subsequent to the demise of the crown, was deri/ed from the common law ; whereas they must have meant to say, that the exten- sion of the powers of the public officers, subsequent to the . r>v THE COMMITTEE OF GRIEVANCES. 81 demise of the crown, was due to the statute of Anne ; but putting it any way, the above proposition of the committee secondly stated, is substantially and fundamentally erroneous. The general principle referred to in this extract is not, as the committee seem to surmise, a rule of law of the municipal common law of England, confined in its operation like that law to England itself_it is a rule of the public constitutional law of the British empire, commensurate in its operation with the limits of that empirr • is it true, as the committee also seem to surmise, th statute of Anne is confined in its operation to the pubu. . cers in England; that limiting act IS m like manner commensurate with the limits of the British empire. Let the words of it be looked at ; they are, that Keepe Neither the office or place of Lord Chancellor, or Lord eeper of the Great Seal of Great Britain, or of Lord High Treasurer of Great Britain, Lord President of the Council for Great Britain, i.ord Privy Seal of Great Britain, Lord High Admiral of Great Bntaii), or of any of the great officers of the Queen or King's household for the time beinl, nor shall any of! hccs place or employment, civil or military, within the kingdoms of Great Bntcun or Ireland, dominion of Wales, town ofZ. rvick-upon.Trveej, Isles o^ Jersej,; Guernsey, Alderney and Sarkeor amy of her Majcsttj\s Plantations, become void by rea- son of the demise or death of her present Majesty, her heirs or successors. Queens or Kings of this realm ; but Ihe said Lord Chancellor, 6:c. , and every other person and persons in an; of he offices, places and employments aforesaid, shall cun^nue in their respective offices, places and employment., for the space ot SIX months next after such death or demise, unless sooner re' moved and discharged by the next in succession as aforesaid/' The 3d proposition states considerations altogether foreign from this inquiry in its present form. Some persons may think that in the absence of the discipline and superintendence ex- ercised over Notaries in France, a power of this nature to be used towards unworthy members of the body (and no profes- sion or condition in life can boast of entire exemption from such) IS essentially necessary for the public security; but this »s a question for the Legislature. The ' AI duty ol the king's sub- m\ 83 CONDUCT OF THE ASSEMBLY. > h! ' jects generally, and more particularly of the officers of govern- ment connected with the administration of justice, is to obey the law, not to substitute their own ideas of expediency in its place : — I think, then, I have not gone too far ir saying that the third proposition is entirely irrelevant to the subject mat- ter of enquiry. The 4th proposition implies a want of knowledge of consti- tutional principle, which, after the lapse of forty years since the constitutional act has gone into operation, is truly surpris- ing. Is it possible that the gentlemen of the committee should not know that the British government is a government of law, and that all officers, from the king himself to the low- est officer, he immediately, all the others mediately, derive their powers from the law ? The distinction of a legal power de- rived from the law, and one derived from the will of Govern- ment, is one to be found no where. It is not necessary to en- large upon a principle like this, elementary in constitutional law. — The Committee proceed : — " Your Committee now return to a detail of the principal facts which have appeared in the course of the enquiry they have made on the subject of the renewal of commissions : "After the publication of the notice of the 15th Decem- ber, the Provincial Secretary, who had been ordered to com- municate immediately with the Attorney General, for the purpose of preparing the new commissions, become necessary by the demise of the king, did prepare commissions for the Notaries and Attoniics. The public then became alarmed by the opinion of the law officers of the crown. The Notaries of Quebec assembled in a body to protest against what they, with reason, considered as an unjustifiable oppression. The bar of Quebec, that of Montreal, and that of Three Kivers, declared that they were not bound to take out new commis- sions. Nothing of this had, however, the effect of preventing such measures being resorted to as could be found, to cause the putting into execution of the pretensions which had been set up. Several Notaries who had not renewed their com- missions could not obtain the usual certificate which is ap- pended to such instruments as have to be sent into foreign parts. The Provincial Secretary gave them a new certificate agreed to by the Executive Council, and which rendered THE COMMITTEE OF GRIEVANCES. 85 doubtful the authenticity of these instruments. Other Nota- ries, who would not take out new commissions, had to suffer under the doubts which were entertained as to the validity of their acts. At last eleven Attornies and thirty-one Nota- ries took out those new commissions, for each of which the sum of three pounds five shillings was exacted, out of which James Stuart, Esq., the Attorney General of this Province, received two pounds." The facts stated in this extract do not appear to be of the very highest importance. The public, it seems, became alarmed by the opinions of the law officers of the crown. Supposing the fact to be as here stated, and there is no other evidence of it than that which the assertion of the committee affords— had they a right to be so alarmed ? Their opinions are before the public, and educated men, both here and else- where, can and will judge of them ; but " the bar of Quebec, that of Montreal, and that of Three Rivers, declared that they were not bound to take out new commissions !" What may have been done by that profession at M( itreal or Three Ri- vers I know not ; the assertion here made respecting the bar at Quebec is incorrect in point of fact — no such declaration was ever made by the bar of Quebec — but forsooth the Nota- ries also called a general meeting, and they, too, came to a determination to protest agaunst what they consider as an un- justifiable oppression. Could any of these declarations, if made, modify or alter the law ; and what was the oppression that these protesting Notaries complained of? it was that an opportunity was afforded to such Notaries as thought fit to renew their commissions, to do so upon paying the usual legal fees ; but the form of the certificate was altered ; it has been already shown that the certificate given was according to truth, without prejudicing the question, and that any prejudi- cation of it lay not within the competency of the Governor in Council— would not have been binding — and if erroneous might have led to very grave consequences. The paragraph concludes with stating that for each of the new commissions £4 CONDUCT OF THE ASSEMBLY. 'V taken out by certain Attornies and Notaries, the sum of three pounds five shillings was exacted, out of which James Stuart, Esquire, the Attorney General of this Province received two pounds. I think that I have satisfactorily shewn that there was no peculiar hardship in the persons suing out the new commissions being called upon to pay for them ; the word exacted here used is one more of the many inaccurate expres- sions with which this rrport abounds : but it seems that the Attorney General for the Province received two pounds upon each of these commissions ; and what then if the Attorney General is entitled to two pounds upon the issuing of each new commission? The committee must have known, and ought not to have omitted to state, that that fee was establish- ed many years ago, and has been, from the period of its esta- blishment, received by the present Attorney General and his predecessors in office. The Committee proceed : — " Your Committee cannot pass over in silence the extraor- dinary alteration which the Attorney General thought neces- sary to introduce :a the commissions of Notaries on the demise of his late Majesty George the Fourth. Those alterations are contrary to the spirit of the ordinance of the 25th of George III., ch. 4, and assimilate these commissions to those of the public officers whose appointment depends upon his Majesty. " Your Committee think it right to observe, that the At- torney General has not been able to give your committee any satisfactory explanatibn of those 'alterations, and that the words " during pleasure," which, before the time, were in- serted m the commissions of Notaries, could not justify those alterations, because it was by an abuse, unauthorised by law, that those words were inserted in those commissions, and that It was the duty of the Attorney Genera^ to have left them out m the forms which he has prepared." We find in this extract the same indistinctness and vague- ness which we have had occasion to observe in the previous parts of this report, and it seems almost to defy all logical ana- lysis. We will try, however, again to ascertain tlie proposi- THK COMMITTEIi OP GRIEVANCES. 85 tions whicli the committee seem to wish to have enunciated. 1st— The Attorney General introduced in the commissions of Notaries, on the demise of his late Majesty George the Fourth, alterations contrary to the spirit of the ordinance of the 2d George III., ch. 4, and assimilated these commissions to those of public officers whose appointment depends upon his Majesty. 2d_That the Attorney General omitted to leave out in the forms which he has prepared the words «* durim^ pi- usure," inserted in the previous commissions of Notaries," and whiJh ought not to have been done. It has been already shewn, that the only alterations made m the commissions in question were of a merely technical cha- racter ; and, at the same time, they gave a superior technical accuracy to the instrument, which did not touch its substance. Now, so far as the mere technical form of an instrument is concerned, it lies within the peculiar province of the law offi- cer of the crown to take care that it be accurate; his re- putation for professional skill and learning, if there were no other and higher obligation, rendered this imperative upon hm ; but in what concerns the substance of the commis- sion, he is not justifiable, when ordered to renew it, to change its substance and alter its nature. Now, the words " during pleasure" constitute a substantial part of the com- nnss.on ; yet it is because he did not omit or change these words, and substitute in their place others, not sanctioned by law or usage, and depending for their introduction upon his own mere arbitrary will and choice, that the committee have passed their censure upon him. Having thus gone over the various grounds stated by the commutee, and to avoid all possibility of misrepresentation ot them, having given them in their own words. I come, in conclusion, to the consideration of the resolutions which are predicated upon them by the committee. These are, in sub- stance :— 8G CONDUCT OF rut: ASSJiMULY. m 1st — That the renewal of the commissions of Attornies and Notaries was not necessary. 2cl — That the Attorney General had no right to the fees received by him upon the new commissions. 3d — That he has introduced alterations by which these commissions are assimilated to those of public officers, whose appointment depends upon his Majesty, and has therefore been forgetful of his duty, and rendered himself guilty of a con- tempt of the law, which did not allow of the introduction of I he said alteration. 4-th — That the words " during pleasure " were introduced in the commissions of Attornies and Notaries, contrary to law, and ought to be omitted. Having said all that I think material upon these deductions of the committee, it remains for me only to state such reflec- tions as occur upon the propriety of the course of proceeding taken by them generally, without reference to the question of the correctness or incorrectness of those conclusions. The first resolution is a resolution declaratory of the law proposed to be adopted by one single branch of the Legislature. I apprehend that this is of dangerous precedent : where the law is doubtful, it is the province of the King's Courts to de- termine it. No one branch of the Legislature can do so by resolution, nor can, nor ought any Court of Justice to take notice of such resolution. A contrary doctrine would involve a subversion of all law. Resolutions of this nature can serve only to mislead the public ; they have about them a semblance of public authority, calculated to give them an extensive weight, which does not belong to them. It is still more exceptionable to try the private rights of a subject of the king incidentally, and punish him by censure ; for censure is a punishment, and a very severe one, without having jurisdiction of the question of right. — A fee of office is a right of property ; a title to it is to be tried in two ways, either by a civil action, or by an indictment for extortion. THE COMMITTKE OF (iUIEVANCES. 87 These romedics are available as well against the highest as against the lowest oHicer of government. These proceedings being of a public character, regulated by the known and es- tablislied rules of law, are manifestly most conducive to the ends of light and justice ; whereas, on the other hand, a course of the nature of that pursued by the committee subjects the individual complained of to inconveniences which he ought not to be made liable to — The following observations of a distinguished writer have so direct a bearing upon this branch of the subject, that I cannot refrain from here inserting them. They relate to the proceedings had by the House of Com-' mons against Lord Melville. « Of all the privileges enjoyed under the British Constitu- tion, tiie most valuable is the security which it affords to eve ry individual, of whatever rank or station, that he shall not be found guilty of any charge without a hearing. That is xvilhout a fair and impartial trial, ' '/This privilege is even more valuable than the protection which the constitution affords to all who li.c" under it a^ qv 4^ ^ \ Wk\ tx^ " ^^ ^^ "'y r\. VJ f/ rf> ^ iV 88 CONDUCT OF THE ASkSEMBLY. iin.M., • hi' ''■ ^' wm^ !:»! .^ ^ ^.^_,,ll ■ ,;: i the first riuiiments of universal justice, that any judicial code which should fail to recognize it would be radically defective. But it is peculiar to the British Constitution to give full effect to this principle, which it professes to hold sacred and invio- lable. It is, however, undeniable, that in the case of Lord Melville the above principle was violated. In that case an accused individual was condemned unheard. Lord Melville was pronounced by the House of Commons to be guilty of a gross violation of the law, and a high breach of duty, without a hearing, without a trial, without being called upon, in any way, to answer the charges on which so severe a sentence was founded, without being informed that such charges were pre- pared against him. " It will hardly be pretended that the operation of the prin- ciple m question is confined to the ordinary administration of justice, and that the House of Commons has a constitutional right to dispense with it, by proceeding to condemnation without a hearing of the party accused, or without affording him any opportunity of self defence. If this be the case, then is the principle Jtself a mere cypher. For its value depends upon the universality of its operation, in the security which it affords to all persons, under all possible circumstances, and against every possible species of power, whether regal, aris- tocratical, democratical, or judicial. If, in any -ase, it be inadequate to afford protection, then is there no effectual bul- wark secured to the dearest liberties, to the most sacred rights of the subject. "But of all the powers and authorities in the state, there IS no one in which an exemption from the obligation of this principle would involve so gross a violation of the constitu- tion, or be fraught with so much danger to the rights and li- berties of the subject, as the House of Commons. That House which superintends all inferior jurisdiction is itself amenable to no jurisdiction whatever. It is the sole judge of Its own proceedings, which are, therefore, superior to con- troul, and against which, though productive of the grossest injustice, there is no redress. It is also a democratical body, a popular assembly, and, consequently, liable to that sudden effervescence of passion, to which such bodies and assemblies are particularly exposed, and which, indeed, is one of their characteristic qualities. It is, further, the great scene of par- ty contention ; and party feelings are apt to mix themselves, more or less, with its proceedings But the influeice to which the House of Commons is subject from without, particularly disqualifies it for an absolute and unqualified exercise of judi- cial powers. Its members, such of them at least as are re- THE COMMITTEE OP GRIEVANCES. 39 turned by means of popular election, are certainly looking jor«.ard to the period when they shall again soh-cit^he 3 hage of then- constituents. To ensure those suffrages rhev w,l even feel a strong inducement to gratify popularSint^ and every one who is at all acquainted with human nSe' must know that the readiest way ^o produce tha"^ffect L to display an eagerness to detect auuses, and to hold forth the persons who are but even suspected of them to pubhc fndit ZTl^'^'cVv''' ^^^'•^^°'-^' an individual is cCrgedwth any species o<-dehnquency, which is calculated to ajat tie public mind-ever ready to condemn without Zof^ 1 ! House of Commons is the very last olace in 7h« ,„ m and so exposed I ^l-cXlol'^'U'o^tCnTS^^^ oath to the conscience of any individual Tnn ^?t^ "^ ^" ;^se of^hich is the main spi^^g or:l:rl;5:iS^^o^:;^^^ precisely analogous to that of a grand ju y Sori:.:''"' /^ to enquire and accuse, but not to condemn aTu ' °"'^ anstead of confining itself to inqdry with a vietlt'"'T' ment, it proceeds, as in the case of V Tr i m V-v '"T^^ch- or, which is in effec the same t£.n "'^''' •' '°"^'^*' us province, and violatesX ctl^on^'To 'r^^'j Commons has also the power of inqt^^ngTn'to aluL n'' "^ er which seems rather to havo „ ^""'"8 'ntoaouses; apow- founded in a"y set led or nZ' f -"^ -T "''^" '^^"^ *« ^^ F"»ver ,s the controul and correction of abuses, and N ' f III ^n ".JHi •■1. m lite! 90 CONDUCT Of THE ASSEMBLY. fl f O'llrf Mii! the redress of grievances, ft by no means authorizes the assump- tion of judicial functions, and it should never be allowed to treat upon the administration of justice, criminal or civil. It is of the utmost importance that all authorities, of whatsoever nature, should, in practice, keep within the bounds prescribed to them by the constitution. No despotism is so hostile to liberty as that of indefinite power. And such power is infi- nitely more to be dreaded in a popular assembly than in a monarch. The Commons should, therefore, take care lest they be tempted, by their freedom from restraint, and their exemption from responsibility, to consider themselves as judges in cases which may come before them in their inquisitorial character. The^ should remember that they cannot constitu- tionally pronounce either upon the guilt or the civil rights of arty individual. And if they suffer themselves to assume ju- dicial functions, they will not only violate the constitution, but also invite so many applications to them under the pre- text of inquiry, that a function which was given them only to be exercised in extraordinary occasions will, by its perversion and abuse, encroach upon the ordinary duties which are the main object of their institution ; and, as has been said by a writer too well known to be named — The medecine of the constitution mil become its daily bread. " But It has been said, that the sacred maxim of justice, so dear to the British Constitution, was not violated in the case of Lord Melville ; that his lordship was not condemned un- heard ; that, on the contrary, he had a full hearing, a fair op- portunity of self defence, before the commissioners of naval inquiry, whose report was the ground work of the censure passed upon him by the resolutions of the House of Commons. Is then this grand and fundamental maxim of universal jus- tice, that no one should be condemned unheard, satisfied, if the party be heard before one tribunal and condemned by another ? Rather is it not a mockery of justice so to com- bine that maxim, or to suppose it capable of any other mean- ing than that the party must have a fair opportunity of meet- ing the charge, and those by whom it is preferred, in the very tribunal in which it is to be decided ; that he must there have every facility afforded him of convincing those who are to be his judges, that he ought not to be found guilty of what is alleged against him ? In this sense, certainly. Lord Melville had not a hearing. *' The Romans seem to have had far more correct notions upon this subject than appear to prevail in our House of Commons. We are told by high authority, that " it 'was not the manner of the Romans to deliver any man to die before that THE COMMITTEE OF OI.IEVANCES. 91 he ivhich tvas accused had the accuser/ace to face, andhadlicence to answer for himself, concerning the crime laid aminst him ^Acts XXV 16.-This was the nature of a heariL de Tre Romavo. But Lord Melville was consigned to the most cru cl pangs of reproach and obloquy, far more painful than death Itself, without being allowed to ./ace an accuser, without ha'v- ing licence to answer for himself in the assembly by which he was pronounced to be guilty, nay, without being apprized that ami crime was laid against him" « When commissioners, or committees, nominated with a view to reform or economy, become the accusers of the person whom; for the sake of obtaining these objects, they are obliged to examine, they not only step out of their province, but are gnilty of the most unconstitutional ubuse of the powers vest- ed m them. Their censure is swallowed with such extreme avidity by the public, that it is scarcely possible to remote the prejudice thereby excited ; even an in urious insinuation coming from such a quarter, and following what is fallacious- y supposed to be a regular investigation, is sufficient to open the floodgates of calumny upon the best characters, and to overwhelm the reputation of tK 2 who have not beei legal v proved to have done any thing deserving of reproach. It is therefore, much to be feared lest such commissioners and committees, perceiving how much their own popularity d«nend«s upon the quantum of abuse with which they can gratify some of the worst passions of the public, may be tempted, by the pursuit of so fascinating an object, incautiously to sacrifice the credit and character of the individuals whose conduct and transactions are submitted to their investigation ; and lest, in he ardour of such a pursmt, overlooking not only candour but even truth and justK^e, they may, however pu?e theirTn: entions be insensibly drawn on from error to misrepresenta- jon, and at length be guilty both of the suppressio^eT^nA the suggesttofalsu^To preserve them from the temptalon of ac ing in such a manner, they should confine themsilves to the objects for the sake of which they are instituted. When such bodies employ the powers with which they are entrusted in an inquisitorial manner-when they conve?t the answers which they themselves have drawn from the in dividua Is examined before them into grounds of inculpation -and thereby expose those individuals to public indigLntion -they are the occasion of far greater abuses than any which ftioVnf ff °'"''^ '' TT' ^^'y ^h^" become an inqui- SI ion of the very worst kmd-one which extorts from persont, whom he law presumes to be innocent, (and who. prSy if regularly put ,ipon their trial, would,' like Lo d Melvil e !'•( ^^B^^i^ i ;■ ^^ '. ■ ' 1 ( ■ |'-.li "' M|'r" J ||^S",t .: 1| :' : ' '■ ' ' .1 92 CONDUCT OF IHB ASSEMBLY. prove to be so,) not proofs but presumptions of guilt, presunip> tions, too, whicli, by such a course of proceeding, are made to have all the eftects of proofs. Practices of this nature lead, also, to frustrate the very objects for which such bodies are instituted, and the attainment of which is of incalculable im- portance. Those objects, indeed, involve the best modes of reform. Tliey secure the ends of government without its ri- gour. They operate by means of prevention, without the se- verity of example. But they can be attained only by a calm, patient, undeviating pursuit. If, however, instead of steadily adhering to such a course — the only one which affords a cause of success — boards of inquiry assume the character of inquisi- tors and accusers, they will render themselves odious and in- tolerable, they will forfeit the public confidence, and they will close those channels of information, through which alone they can hope to render any effectual service to the state. Such boards, acting in such a manner, may terrify, but they will not reform. They may harrass, but they will not correct. And they will deprive the public of the service of men of real respectability, who would not choose to be subjected to an investigation, before which the best character has no security, and innocence itself an ineffectual protection. " How far the foregoing observations are exemplified in the case of Lord Melville, is a question which must be left to the decision of the intelligent reader. Certain it is, that, in that case, the resolution of the House of Commons of the time, pronouncing his lordship guilty of a gross violation of the law, and a high breach of duty, was a violation of the first princi- ples of justice, and of the most sacred maxims of the constitu- tion. Happily, may it not be said providentially, the result displays, in the most striking and impressive manner, the dan- ger of a departure from established f'^-ms. The nobleman in whose instance thos^ forms were jsa need, and who was, in consequence, most deeply wounded in those feelings which are ever most acute in minds that are most susceptible of vir- tue and honour — feelings, the anguish of which, in such minds, renders even martyrdom an enviable lot. This nobleman, upon a full and regular investigation of his case, was acquitted of all the charges preferred against him, and in particular, of that very charge of which the House of Commons had assumed him to be guilty, and which that House made the foundation of a vote of censure, alike unjust, cruel, and unmerited. " Let it not, however, be supposed, that the mischief of such proceedings is confined to the individuals who immediately suffer from them. They are inexpressibly injurious to the best interests of the state, and they tend ultimately to its THE COAfMlTTKE OK (iHIKVANCES. 9'3 subversion. AI constituted authorities, however hid, the Commons as well as the Lords and the King/are n oW ' bound to respect the principles of the constituU^n and ^ nwral obligation is particularly binding upon the House of Commons, on account of its peculiar character and functions a the grand bulwark of freedom, and defender of the Sts « the subject, to which those principles are inseparably a Ued -so 'eS ; "it?: t^^e^' ^^'"^ -d -Portance'of tSout so essential is it to the secure existence of genuine freedom -so necessary IS It as a restraint upon pout, and a check ectonru?mosf %"."■?"" "^ ^'^''^^'^ should be an ot But if fW H '"''".';"^^. t« every lover of the constitution. powers'td o°Tt:^ ^"^ uncontrolaWe powers, and o. its irresponsible situation, should act arbitrirHv and oppressively, and invade those rights of which t^rS to be the vigilant defender, then it would give a mortal 1..!;? ituaTlr "" "';T' '' "^^ '"^-^^ ' ^« P--V Ind to perpetuate ; then would it prove, not the guardian hn thl subverter-not the sanctuary, but the tomb oJireSv/' Having thus disposed ol" the first report of the Committee of Grievances, I shall next proceed to consider the general messages sent to the Assembly by his Excellency the Governor m Chief, respecting the regulation of the Currency of the Pro vince, and shall attempt an examination of the proceedings had in relation to that important subject. a ; M ■ j , :;j^tt WiU; •■-, 'mU R-M •1 , ' ! ' ; i i: B ' 1 ^H.^ : Lit - 1 1 1 1 m 'V 'i ■• ' ■ ■. i ■•ill ' 1 iH NO. IX. CURRENCY. Money is the measure of Commerce, and of the rate of every tliinp ; and, tliorofore, ouplit to be kept (as all other measures) as steady and invariable as may he — Locke's considerations of the Inwerin'^ ofinterat and raisifig the value of monexf. % ;!■ . ':i This important subject having been brought under the consi- deration of the two branches of the Provincial Legislature, in the speech of his Excellency Sir James Kempt, the late Ad- ministrator of the Government, at the opening of the Legisla- ture on the 22d day of January, 1830— was considered in special committee of each of the Houses, whose reports are now before the public — Very shortly before the close of the session of the Legislature, a bill was introduced, and passed both Houses, and received the sanction of the then Adminis- trator of the Government, regulating the value at which cer- tain coins were to pass within the Province. The measure was understood, however, to be only a partial one. The main subject was renewed the last session of the Provincial Legis- lature, and the following message transmitted by his Excel- lency to the Assembly : — *• In compliance with the request of the House of Assem- bly, conveyed to his Excellency by their committee appointed for that purpose, he transmits to them a copy of a communi- cation which he has received from Mr. Commissary General Routh on the subject of the Currency. The Governor in Chief takes this opportunity of informing the House of As- CURHKNCY, 95 seinbly tlmt Mr. Commissary General Houth is at present absent from the province on public duty ; but bis Excellency conceivmg that the House of Assembly may be desirous of exammmg Mr. Routh on the subject of 'the Currency, he will take care to give to the House the earliest information of the return of that officer to Quebec. _ . .„. . ^ , Aylmeh, Governor-in-Chief. Castle ot St. Lewis, Quebec, Feb. 9, 1831." The document referred to in this message is as foil OWS! Commissariat— Canada, { Quebec, Dec. 4, 1830. J " Sin,— Adverting to the correspondence which took place m January last, and the measure which was before the Le- gislature in regard to the Currency, though too lafe in the session to produce a result, I think it my duty to lay before his Lordship the Commander of the Forces the enclosed re- ports, which detail the progress then made in it in both Hou- ses. One of the obstacles which retarded the settlement of the question vvas the difficulty of determining the new sterling rate of the dollar, the present sterling rate being 4s. 6d., on which the exchange is computed. This rate is acknowledged by all parties to be incorrect, for the dollar intrinsically never possessed that value ; but there is not the same concurrence of opinion m regard to the true value which should be assign! ed to It. It is an essential point to establish— for, unless it be justly ascertained, the British silver and gold coins can never impartially compete with it n circulation. I do not recommend the exclusion of any coin, nor of bank notes, but there should be a ratio and a par established for all, so a& to give to each a fair competition, and on the experiment now made, the wisdom of the Legislature may hereafter deter- mine. "My own opinion remains unaltered as to the true sterlin- value of the dollar, which I consider to be 4s. 2d. ; and I can''- not avoid submitting to his Lordship an extract of the report of a committee of the Senate of the United States, in which this subject IS considered. Its reasoning appears to me to be just and cone usive. The French crowns aJe likewise over- yalued, and their rate requires revision ; but, in fact, the sum in this coin IS so inadequate to the encreasing wants of the province, and the coin itself so old, with no means of addin<. to It, that if a convenient and advantageous arrangement could be made, it would be better to call it in altogether. f» / ' ' . I {i:i! kK » t' In- 1 ■ 'il \ : ; u I' II 9G (•UHRENTY. ^IgHgK " The peculiar inconvenience under which this province labours, is the want of a metallic colonial currency. The banks meet this inconvenience by a supply of notes—for in a comtnercial country there must be some means of barter ; but this facility, if it continues to be exclusive, is dangerous ; for it must encrease with the encrease of trade, and, therefore, though a valuable resource, it should be subject to controul. No national paper can keep pace with coin, however pure or solid it may be— whether free or forced, it is only the sign, not of riches but of credit ! It never can have the exact value of its model ; and its encreasing circulation only proves the want of that specie it represents. Paper money may be dispensed with, coin cannot ; and the danger is inevitable, if the former is made the exclusive intermediate between all articles of ex- change. It is, therefore, essential that there should be some colonial circulating medium, that both being current together, both may become a saleable commodity, and the real value of coin operate as a check on the accommodation of bank notes. If nothing is done, a case may arrive hereafter, in which an institution maintained by private individuals, but holding u place in every transaction of interest, may acquire an influence as extended as that of the Legislature itself. " The banks are obliged to keep up a deposit of coin ; but does it follow that its circulation is the consequence ? It is unnecessary here to enquire into the cause— the fact is un- derstood that it does not circulate. " The British government transactions (being real transac- tions without accommodation) are all in coin, which generally makes a difference in exchange of one or more per cent to its disadvantage. If a sudden large demand for specie arises, the banks are the most ready competitors, having the money at command. A merchant requires time to import it. Fre- quently there is no importation at 'all. The Contractors on the Rideau Canal and elsewhere, instead of receiving cash, take a draft on Montreal, which they dispose of at a premium for bank notes, the draft being payable in dollars on pre- sentation, ^ " The balances in the military chests in Lower Canada, including Bytown, average from ^^150,000 to ^200,000 sterhng, but this sum does not circulate ; for specie, in con- sequence of its scarcity, bearing a premium, is bought up im- mediately for duties, treasury bills or other commercial pur- poses. This effect might be obviated in part by importing specie direct by this department, which generally can be done on better terms than by negociation in the province. As the " t' CURHENCY. y? iiuestfon now stands, the end of- the Commissaiiut cash „qv inputs 18 to circulate hank notes. ' "^ .0 udopj sterling J .he cu.en";'"'!':^? .tut bo'"uS as facilim ing the intercourse with Great Britain whirh T,l lawful to make bargains and to sue in court in sterling "Under these considerations, I think it right to ask th. England. " ^°° '°"' '' "'" "'^^^ ^^"'^^^'^ «"^ Kay bacHo " In conclusion, I beg to advert to an opinion which nm va.lsw.th many who consider a further circSrng med um tJ be unnecessary, and refer to the United States a! aTexamne of the success of paper currency. The case is not paSl 1 e Urn ed States have a national metallic currency and 1' national bank The banks, on which this opinion ?s founded hrdsf[n'sm!:fl''-f ' ^'' -/isttheclearingaSdsettlingof net' lands) in small villages, and with a limited circle of credT They were then indispensible, and reDresentP.l K,. 1 consent, the industry 'of the cimln^y ; Tndeed ^heseZu are the joint property of the community which suVports them They were no. applied to commerce-their numbeXs JeatTv* increased-but that very number prevents any one from bi coming powerful or dangerous. The notes of theseTlia J." banks are scarcely known out of their immediate vicinUv In a modified sense, they would probablv be apSe fo an^ot^rr- r^,«^!^"<^^ ^^-- devebpemen' Stm t cannot be demed, that in encouraging every descriotion nf enterprise, they have substituted in the room of an honoumh?. nommal. It « the foundation of credit. It is the advantage i 98 CONMUCT OF THE ASSF..MBLY. M' pusfvcsucd by the United States (ruin whence these opinion* are cxoniplificd. — I have the honour, Ac. U. J. RouTH, C. G." Extract from a report of the United States Senate to which had been *efcrred an eiujuiry into the expediency of esta- blishing an uniform national currency, which has been pre- sented and pubhshed, referred to in the foregoing letter of the Commissary General. " Exchange on England, it is asserted, is now more than one per cent in favour of the United States, although the real fact is entirely disguised in the common forms of quotation. " It would lead the committee too far from its present pur« pose to explain that the original estimate of the American dollar ar> being worth 4s 6d, that therefore the English pound sterling is worth 4 dollars and 44' cents, is wholly | erroneous, and occasions a constant misapprehension of the real state of our intercourse with Great Ih itain. The Spanish loUar has not for a century been worth 4s. (id, the American dollar never was ; and whatever artificial value we may assign to our coins, is wholly unavailing to them in the crucibles of London or Paris. According to the latest accounts from London, at the close of December last, the Spanish dollar instead of being worth 4s 6d, 54 pence, was worth only 4.9^ pence. The American dollar at least ^th per cent less, so that to produce 100 times 4s Gd, it would be necessary to send to England, not 100 dollars, but 109 1-16 Spanish dollars, or 109:f^ of the United States dollars. " If to this be added the expense and charges of sending the money and converting it into English gold, it will cost 111 ; so that 111 is at this moment the real par of exchange between the United States and England. If, therefore, a bill at sight can be procqred for less than this sum, or a bill at sixty days for one per cent less, say 1 10 per cent, it is cheaper than sending silver, that is to say, he who has silver to send to EnglfJiid, can purchase a bill on London for a greater amount than he would get if he shipped the silver itself; and of course exchange would be in favour of the United States against England. Now such bills can be bought at a less rate by more than one per cent in every city of the United States." This message and the accompanying documents are so inti- mately connected with the proceedings had in the previous ses- sion, that any subject wherein these are omitted must necessa- rily be incomplete. f UHRENCY. 99 V^at^m^, then, ofthe.pcech of his Excellency the Ad- nunistrator of th. Govcrn.ncnt which had reference to the •tate o the currency, was, a.s early as the 2fith January. 1SS« rca.rred to a committee of five members, to report thereon by' bill or othcrwiae. ' The «rst proceeding of the committee was to order that the I cceiver General of the province, the Commissary General on.. Majesty's forces in Canada, and the CashiL of Quebec and Montreal Banks, .hould be requested to trans- nut, w,th all convenient speed, a statement of the number of P'eces ot each of the gold and silver coins n.entioned in the '.«t accompanying the order, which may have been in their possesion on the firs, days c >ach .onth in the years 182«. .:ilei;p:::r"^''"'^''""^^'"" - ''- -'^-^ --•^- To this request the Com.nissary General returned a written answer, wherein he states that no coins are received into the m ua.y chest except dollars, half dollars and English money. That the French money passing at a small fraction higher than at t e rate at which it is issued in army payments! and a wh.eh rate only .t should be received, was never tendered to that department. That the only gold coins which were ever offered to the commissariat were sovereigns, but the amount .vas mconsiderable, and they found their way into the military chest only because they were received as English money, and admitted to the same advantage with the British silver co'n m exchange for bills on the Treasury ; and that the aggre^aie amount of the specie in his charge at che different posts in Upper Canada, averaged about ^200,000 sterling, taking one period indiscriminately with another. The Cashiers of the Quebec and Montreal Banks transmit- ted the statements required, as also did the Receiver General of the province. The committee also were put in possession of two several otters from the Commissary General, addressed to Lieutenant tolonel Couper, Military Secretary, dated 1st October, 1829, ^ i !'■■ ■ t, f-l ['■ ! :f|jfj I r 100 CONDUCT OF THE ASSFMBLY. !?.■;;■ . 27th January, 1830, and a memorandum dated 6th Februa. ry, 1830. The communications from the Commissary General, trans- mitted by his Excellency* above message, being manifestly supplementary to the documents, it is proper that they should be inserted here. '< COiMMISSARlAT — CANADA, ) Quebec, Oct. 1, 1829. j «< Sir, I liitvtj ilie Honour to solicit the interposition of his Excellency the Commander of the Forces to bring under the consideration of the Provincial Legislature the measure of the British silver coinage, so as to promote its gradual introduc- tion into these provinces, and ultimately to establish it as the circulating medium of the colony. " The disadvantage under which this colony labours in the absence of a circulating medium of its own, is obvious, being dependent upon a neighbouring power, not only for the specie necessary for the common barter of its commodities, but its exchange subject to and ruled by the commercial rates of that power, and the chief part of its negotiations and remit- tances effected by means of that channel through foreign in- terests. In granting a wholesome coinage, possessing the va- lue which it represents, his Majesty's government offer to this colony the means of resuming their independence, and with it all the advantage and security of the government negotia- tions. " To explain this subject, it is necessary to enter into some previous remarks on the state of the currency. " The French crown, which is current in Canada at six li- vres, passes in France for five livres and twelve sols only ; the half crowns are defaceu, and the impression scarcely to be distinguished, so that out of the province they are received at 2s. 6d. currency only. The pistareens, or shillings, pass for seventeen cents in the United States, and here are current at twenty-four sols. In New Brunswick, latterly, a resolution has been agreed to amongst the inhabitants to receive them at twenty sols, and not more than one dollar in change. Thus all these coins find their way into Canada, and these provin- ces must ultimately sustain the loss. The dollar of the Uni- ted States is a good coin, but rarely seen here, the American coin current in this colony being chiefly half dollars, which are inferior in value to the whole dollar. '• Many of the Canadian farmers ha\ ? a habit of hoai ding their money in coin, instead of employing it at interest or in CUKRENCY. 101 into some extending tlieir concerns, and if 'his coinage were suddenly cjlcd,n,.t would oblige such individuals to disclose the state pftheirafFairs, and therefore would be unpopular; but s impossible to continue indifferent to the progress of this evi and a measure might be adopted so as to obviate thisTncol' veniency, allowing time, and to fix a period for the reduction of Its present rate to its true value. «="ucuon "It is equally necessary to e'lclude dollars and foreign money as a legal tender, for there cannot be two circulauW mediums, or if there are, the worst and least Xb le will remain in Che province, and the best be applied to the pur chase of bills for exportation or other commercial purposes, but^with regard to the exclusion of these coins, of whkh tl e Commissariat are the importers, the circulation of the British prov n""to' T'"" T'"^ ''^ P"'"^ negociations within the SZr ' 1 'ts great mterest and advantage, and would of us f nearly, and with time, altogether produce the efrectf' in the settlement^- ''•"', '^'' ^"^ '''' ^^'^-'^^ ^-^n «"se n tne settlement of seigmoral rents or mortgages, bvchanmnLr n f.hrTT' ^^'^'' '^^ corresponding valuef a e fixed If Sebf stjd"^ ^"^^^^^ «"^^ objecfof calculation ^ouldte Brui^^itrs^;^ 1^:1^''-^'' ''^ ^^-^-- ^^ ^'- "In Itself being the currency of the realm, it opens a rP^dv means of remittance to England ; and in order rprevenTS shipment and to encourage trade, the Lords of L^Trlasurv have ordered it to be exchanged for ffovernmenrhill If ^ low ..emium, barely equal to the costTSt commissbn' insurance, &c. ; on its remittance, unfortunatdy, thTs facS recoils against the measure. The advantage of these Sl^ not t„ the co„™u„i.y who support the ball ' Mdciat.on than the cuculatins medium of the pruvincu 102 CONDUCT OF THE ASSEMBLY. ■■■i I '* We are in that state, that the colony has no currency of its own, but that, which is rated too high, and even this is so insufficient in amount, that value is chiefly represented by local bank notes. Out of this state of the currency, the obli- gation of the bank to pay their notes in coin is suspended, because there may be a physical impossibility to do so, from the want of specie, and the real capital of a bank may be em- ployed in its own speculation, whilst the public are trading on its paper. The general respectability of the banks is un- questionable, but each shareholder is only responsible for the amount registered in his name. " Thus, whilst these bank notes are spread in such small amounts they are employed to bring up the British silver money, which is excluded from the circulation by the very advantage of the very treasury bills granted to redeem it, and keep it in the colony, both being nominally current at the same rate, for the common purposes of life, but the money bearing a premium or the notes a discount, the least valuable of the two remain in circulation. "In order to give effect to the intentions of his Majesty's Government, I venture to propose tht following measures for his Excellency's consideration : " It is expedient to fix the corresponding values of the En- glish coins, and to make them a legal tender at these rates. " It is expedient to establish sterling money as the money of account, and exclusively recognizable in courts of law. " It is expedient to restrict the bank notes on the renewal of (he several charters to sums of five pounds sterling, and to prevent their issue under that amount. "It is expedient to repeal the provincial act of parliament which fixes the rate of the Spanish dollar at 4s. 6d. sterling, establishing it for the purpose of calculation at 4s. 4d. ster- ling, which is found ^tc be the intrinsic value of that coin, whilst such coins shall remain legally in circulation. " It is expedient to fix the rates at which the old French coins and pistareens are to pass, and to name a period from which that regulation shall commence. " It is expedient to name a period after which foreign coins shall not be considered a legal tender, or otherwise than bul- lion. "The three first measures appear to me to be indispensa- ble, in order to maintain the new coinage in circulation, though possibly that result might not be immediate. " If any flicility is lost to the public, which I cannot antici- pate, by restricting the issue of those small bank notes, it is surely more than counterbalanced by the certainty of govern- ment bills, accessible to all, at a known rate of exchange, CUIIRENCY. JOS .Vahvays in favour ^^The^Zf pllS f "'r^^ currency. """iry possessing the soundest "I am persuaded that his Excellency will give everv rnn sideraf on to th s subject so fmnnrfo,.f * *i ^ • ^ ^°"' and prosperity of theie trvinces 'nd to H,^"""^ '"^''•^^' those of the mother counfrvT« ■ *''^ protection of WI..C. give. ac.i„„" :rffi;„c'/.ore r^oplt. ^ilf colony; and I am .at/sfied that the opinioTwrcrh" eL^^T lency recommends will be the best adapted to prevaU 3rn3r,rs4r£^-^^^^^^^^^ don it. Hi he to in a 1 1^" ■'''""'''' '° '"^^"y o^ to aban- been usel" sirsacn^cS i^tr/^^T ^ ^'i?^* "^^^"^^^^ '^«« community dLved'benpfi ^^^^'^ange; for neither has the it should berbandont^d the hil.r " '"^^^^'i^.P^'o^Pered. If this money -uld ^c^V 1 e^^^^^^^^^^^^ -^^--^-^or in remittances, or be re-shinnpd tn 7? f T r* ^"'^ '*" '^''»y ciations. as formeriy! JsZfj bTS;d"o„rof I?, ""'"■ vince, and the nrp^Pni- of..f„ ^ .i ^'"'^^tea out ot the pro- contiine to et&"3aut J^Lt Ml'Zce."""^^"^ '^°'"" " Commissariat— Canada, ) Quebec, Jan. 27, 1830. J Legislature, I tlS t my dutylo b 'nt T'l'^T"'^" '^^ ^'^^ tion of his Excellency tL CnJ ?^ T^f' ^''^ considera- further reasonrwl icb n mv on ' '' nV'^" ^'''''''' '"^^ Spanish and Ami can doZ. ^n """i' ''? ^"'' '^'' ^^^«^'"^'"» °^ true value shall be betterl^^^^^^^^ a legal tender, until their ^vith sterling money. '^ '"^ regulated, as compared Tlie following is the vie. which I take of this question :- conside^ed'rt^Lr'Tt^rsLl""^'^-^^ ^^" ^'v be intrinsic value. I? may^' ',.1 ' •''•^"' ''^''''''' ^o its "Titten on silver. In lavv i 7 ,' '^^f '"''ated to a bank note as the bank of Eng and ^e ^ "e! tT if ^'" '' ''' °"^^' ^"^ as the public in England do .1 ^ '" -''"^ q^^^ntky, and asthenotesof the Sle, .«'"'' practically, it becomes as. they do, sterl^^'lZ'^^^^^^ price." *" ^^' "'^t IS " sovereigns at the IVIint H: H : ,1 j ■ ' i lot CONDUCT OF THE ASSEMBLY. II ^f "The Spanish ilollar, tliough actually containing more silver than is contained in 4s. Id. British money, (the latter heing subject to the seigniorage which reduces its value to 3s. lid.) has not in England the same conventional advantage. It does not represent sterling value, it is a mere marketable commodity, and, for many years past, the price has not exceed- ed 5s. an ounce, or 4s. 2d. the dollar. Indeed 5s. an ounce may be considered the ordinary English market price of silver of the same quality as that which the mint regulation fixed at 5s. 2d. " In the colonies the dollar has not averaged more than its. •id. i)robably from the course of remittance having been generally towards England, as the difference (£2 per cent.) is about the cost of freight. " Be this latter point as it may, practically any man in the colonies having a debt of £20 to pay in England, may dis- charge it in full by sending home twenty pounds in British silver; but should he send dollars they will only sell at 4s. 2d. each, and instead of 92 dollars at 4s. 4d. he must forward 96 dollars at 4s. 2d, making an annual loss on the remittance of dollars of 4 per cent., or 16s. on the single transaction. " On the same principle, if an individual in the colony owe £20, and has that sum in British money, he can exchange it with any one wishing to remit to England for dollars at 4s. 2d, and without a breach of the order in council, pay his debt, rating the dollars at 4s. 4d, and thus make a like gain of 4 per cent. " The current value of the Spanish dollar in the colonies, having been rated at the English mint price of silver, and that price being 2d. per ounce more than the market price, had been obviously overvalued at 4 per cent. : what is really worth only 4s. 2d. in England, pays 4s. 4d. in the colonies, equally as well as 4s. 4d. Britis^i money, which conventionally passes for and in point of fact, can only be had in England in exchange, for a value equivalent to 4s. 4d. ** A merchant in the colonies requiring to make a remittance of £100 to England, is precisely in the same situation whether he receive dollars at 4s. 2d. or British coin at 4s. I'd., he has the same freight to pay in either case, and both will yield the same value on their arrival ; but if he had a debt to pay in the colony, the dollars will pay £104, and the British silver only £100. "Under these circumstances, it is necessary to enquire whether British coin will not be sent to England, and dollars be retained in the colonies. Whether in point of fact, the importing merchant cannot aubrd to sell to the shop^keepe'" CURRENCY. 105 jrom three to four per cent cheaper when paid in British coin than when paid ui dollars at 4s. 4d. Whether the shon keeper will not, m consequence, hoard the British money for the purpose of such payment ; and whether the merchant will not^return it to England or pay it into the military chest for "Is not the same cause equally operating to prevent thp return of British silver to the colonies ? Surely every indi! vidua going from England and taking moneyf will provide lumself with Spanish dollars, which he can buy at Ss^d and pass in the colonies at 4s. 4d., whereby he obtains a' profit of four per cent., rather than English silver coin, whicli wHl only pass current for what it actually costs him - lo conclude, I infor from this reasoning, that in adopting English money as the circulating medium in Canada, Spanish and American dollars must be excluded as a legal tender unless their value be reduced to the par of English money to 4s Id. or 4s. 2d. per dollar, and this is evidenUy a TtLT're^ gulation than to give a legal circulation to the British coin tnZ 'V^P'""'""' "''".'' ''^''?^' ""''S^' ^^^P"«« this colony to an influx of base money from the United States. "I have reason to believe that the Lords of the Treasury are now aware that the Spanish dollar has been overrated nnd that this part of the subject either is now undei con- sideration, or wdl speedily be re-considered." A MEMORANDUM ON THE CURRENCy QUESTION. • !'/• ^JV^"^"'''^! of their charters, the banks have no claim m their behalf against sound policy or the general good. Banks are obliged to redeem their own notes, and a good and sufficient circulating medium would enable the country enforce It. If they cannot be redeemed at the will of the holder the institution is bad ; for on their issue the banks have already received value for their notes. "J think that it is clear, that ihe issue of the one dollar bank notes, must have a great influence in keeping English or any other coin out of circulation. I believe, however the chief profits of the bank to arise out of the issue of these notes ; and that comparatively speaking, there are scarcely any notes m circulation above ten dollars. I should apprehen/ tl S any sudden law suspending the issue of tiJi smaTl notes would distress the banks, and perhaps the public ; but a law of Al'ihf "f ^' '"'" ^"'''' ^"^J^^^ ^° '•^ ''^'«» ^y tl>e House of Assembly, to commence with the abolition of tho onn Uoiiar notes, and year by year to extend to Jie exclusion" of (■ I '"' f I : ' M i : 1 h'ff: ' I i* ■' ' i I ■ : ' i ■' ! ■ il i 1 |Hi|K; ',' -j' ■'■''1 ; itag .»>^':f^B-^ . i".;; J !' 1 1 ' ■ " i''' ^ '^ - ipl': ■1 106 CONDUCT OF THE ASSEMBLY. lf|!tniiitiJ all notes under five dollars or one pound sterling, or there- abouts, would be a wise and necessary regulation in the new bank charters. Experience would then shew the value of such law, and the expediency of curtailing or extending its provisions. As respects money advanced on mortgages, the following reflections occur to me. The advance is made in a deteriorated coin, rated above its value, but which is now to be paid in a sound currency, commanding the actual value it represents. Probably the sum so advanced may have been impressed at its real value also, that is, its deteriorated value may have been taken into consideration, and that the pay- ment in sterling will meet the case. But suppose it other- wise, the dollar, or any other given coin, will serve as a pivot for calculation. If a hundred dollars have been lent on mort- gage, the creditor can only fairly claim the same number of dollars in payment, or what will procure that number of dol- lars. It is of no importance that the sterling sum is altered in name, if the real amount is the same. To explain my meaning — 100 dollars, now called £25 currency, are lent on mortgage ; the nominal value of the dollar is reduced by the change from currency to sterling, and the 100 dollars which represented £25 currency, at 5s. per dollar, being now rated at 4s. 4d. sterling, (or any other given sum) represent £21 13s. 4d. sterling; but, in paying this last sum, it will be evident that the original debt of £25 currency is liquidated thereby, for the payment is made in the same number of dol- lars, or in coins equal to the value of these dollars. Paley extends this principle farther : " where the relative value of coin is altered by an act of the state, if the alteration would have extended to the identical pieces which were lent, it is enough to return an equal number of pieces of the same de- nomination, or their present value in any other ; as if guineas were reduced by act^ of parliament to 20s. — so many 20s. as I borrowed, guineas would be a just repayment. " The British government have in view the political tenden« cy of this introduction of English money into ihe colonies. A similarity of coinage produces reciprocal habits and feelings, and is a new chain and attachment in the intercourse of two nations. " The Romans, and all ancient and modern nations, have acted on this principle, particularly the French in the late war. The French coins pass throughout the Mediterranean and great part of Germany, and it certainly had the effect of encreasing the intercourse of those countries with France." The Commissary General was also examined before the committee upon some details connected with the plan pro- - A CURRENCY. 107 posed by him. «ot sufficiently material, however, to render necessary the insertion of his answer here ; and the docu- ments above referred to, with the examination of the chair- man of the committee, constitute absolutely the whole in- formation that the committee felt it necessary to lay before the House upon thi. extensive and important subject. That no part of these materials may be wanting, we insert here 1 answers of the chairman of the committee; thev are as roJlow : — "By the proclamation ofQueen Anne on the 18th JunP 1704, It was decared that oP ' I 114 CONDUCT OV THE ASSEMBLY. " Tile following facts were obtained from parliamentary documents, to wit : that the pound Troy of the old British silver standard consists of eleven ounces two pennyweights, or 5328 grains of pure silver, and 18 pennyweights, or 432 grains of alloy, making 5760 grains in the said pound ; conse- quently, an ounce Troy oi" standard silver contains 444 grains of pure silver, and 36 grains of alloy. "This pound weight was coined into crowns, half crowns, shillings and sixpenny pieces, together equal to sixty-two shillings sterling, which is equal to 5s. 2d. sterling per ounce. " A new silver coinage was made under the 36th Geo. III., cap. 68, whereby, without altering the standard, as to the proportion of pure silver and alloy in the pound Troy, it was divided into 66 shillings, or 5s. 6d. the ounce, instead of 5s, 2d., as before, consisting also of crown, half crown, shilling and sixpenny pieces ; and thus making an intrinsic difference of value between the old and new silver coinage, of about six and a half per centum. " The standard of British gold coin is 22 carats fine — th-^.t is to say, any quantity of gold is divided into 24 parts, 22 whereof are of pure gold, and two of alloy. Portugal and United States gold coins are of the like purity, or nearly so ; Spanish and French gold coins have a greater proportion of alloy. *' An old British crown contains 430 grains of pure silver. "A new ditto ditto, 404 ditto. " A Spanish and a United States dollar, as found by as- says at the British mint, contain each 370 grains and a small fraction of a grain of pure silver. " Republican and Imperial Mexican dollars are about two ounces per one thousand dollars heavier, and Current Valce. Real Value. "• "• ^ oz. dtst grs. grs. s. n. 5 1000 Spanish dollars, in- Averaging eluding alloy, were found to weigh, «.. 865 1 8 415 each, 5 2 G 2000 United States half dollars 863 18 2 207 16.20ths ea. 2 (J 1 3 4000 Spanish qr. dollars, 82!} 19 6 99^ each, 1 2.f 1 'J 5000 Spanish pistareens, 804 1 2 77 9-50ths each, ll'S-jO 5 t> 1000 French crowns, coin- ed before 1793 928 4 445 4.10ths ea. 5 4\ a 9 2000 French Half Crowns, coined before 1793 863 4 6 207 l-6th ea. 2 5.{ " The weights of the coins, as above, were ascertained by actually weighing the quantity thereof so specified, respect- ively taken at hazard. " From those assavs and UfPIorhfc. it ic fnnrjfl that at flip old standard of Ss. 2d. sterling per ounce, an old crown is CURRENCY. 115 worth 5s. sterling. a„d a dollar only 4s. 3d. sterling ; so that InSc woT'"' ''"" '"''°"' H per cent. L'yond i?s " By the new standard, or coinage, of 5s. 6d. sterling per ounce, a new crown ,s made 5s. sterling, whilst it is intrinsi- cally worth, according to the old standard of 5s. 2d. per ounce, only 4s. 8fd. sterling, being 3^d. under its nominal dnh.' iT'' •" ^'^l P''«P°'-»'«n of that nominal value a dollar would require to be 4s. 7d. sterling, or 3^d. beyond Is. 3fd. s erhng, its mtnnsic worth by the said old'standard. If the dollar was established at 4s. 2d. sterling a new British crown would intnnsically be worth only 4s. 6d 3-5 sterling which m the ratu) of 4s. 2d. to 4s. 6d. (he present par vS of a do lar would be equal to a premium of eight per^centum! n. . f "'"^ f'"' ""'""S" ^^'"S' «« above'said, about 6i pe centum inferior to the old standard, and 2^ per centum being, as.after mentioned, the expense of the sflver coinag^ It IS mat er well worthy of consideration whether the d^ffi: ence be beyond a fur premium or inducement, to give pre- ference to a national over a foreign coin, and thereby contri- bute to Its remaining in the country. "Mr. Muschet, an officer of the British mint, in a pam- phlet written by him about the time of the Bullion ComCt- tee, states that the expense of the British gold coinages one and a half per centum, and of the new silver coinage,^two and a half per centum. ^ ' ° "If the money of account and circulation were changed to sterling the rule of conversion from the present currency would be. If the dollar were reduced to 4s. 4d. sterling, a dZ duction from the present value thereof of 2.15ths, or m addi- tion of the new value of 2.13ths, or if the dollar ^as made 4 . 2d then the deduction would be I-Gth or addition l-Sth par It IS an admitted principle that the real par of exchange between different countries, whatsoever the denomination of heir coins may be, IS the relative proportion of pure ^old and silver contained in the coins of those countries" resjec- tively compared with each other, and according to theoretic reasoning the premium or discount upon bills of exchange should only be what would cover the expense of conveyance portions of the precious metals from one country to^ano! omowhT"'' r ''""' "f '^ ^«"^'"i««'o» inclusive, and adding on ewhat more, for avoidance of trouble. Theory also says! ha the rate of exchange will be regulated by the^lispropor- wS TT '"^P"'*' "n"'^ ^'^P^^^^' ^' «>«« by the drain occa- r"n«thtr '"''"' '^"""^ '-•"' countr/boing expended ,!;. i I hi * 1 M6 CONDUCT OF THE ASSEMBLY. " All tills, however, is contradicted or rendered doubtful' by facts. During the long and eventful war consequent up- on the French revolution, Great Britain furnished heavy sub- sidies to other nations, whereby very large sums of money, raised in the United Kingdom, were sent and expended abroad ; and the exchange being then almost uniformly greatly against us, the Bullion Committee ascribed the very unfavourable state of the exchange to those subsidies. " Since the general peace the exchange has almost uni- formly been in favour of the United Kingdom, whilst it is notorious that inhabitants thereof, residing or travelling in foreign countries, have expended there, from British sources, according to well grounded estimates, ten millions sterling annually, being above threefold the amount of monies sent abroad for subsidies in any one year. « This, indeed, is inexplicable, and has confounded the most extensive and acute money dealers who are unable to assign any good reason for a fact which overturns all previous theoretical calculation upon the subject " All this proves that it is impossible to regulate exchange by statute, or by affixing a specific value to coins, permanent- ly to control the rate of exchange. Such specific value may have a temporary effect, but the exchange must, and will in the end, regulate and find its level, by a combination of cir- cumstances btyond calculation, and not susceptible of previ- ous ascertainment.. " In all countries, however, there must be some fixed standard of reference, as to value, vi^hether it be in the shape of a guinea, a sovereign, a crown or a dollar, or under any other denomination. In Great Britain, the fjeneral standard is gold ; in some other countries silver. " In the United Kingdom, there is no seigniorage upon gold coin, the nation defraying the expense of the coinage thereof; so that an individual carrying to the mint a quantity of standard gold bullion, will receive an equal weight in coin, bi'*. it is not so in most other countries. The British mint price of gold is stationary at ^^3 17s. lO^d. sterling per ounce Troy of the standard above mentioned, of 22 carat;: tine. A guinea from the mint weighs five pennyweights nine and one-third grains ; and a sovereign, five pennyweights three and one fourth grains. This, however, does not always regulate the price of gold bullion — at least it did not so — whilst the prohibition of export of British gold coin existed- — When the price of gold bullion exceeded the mint price CUUUENCY. ir ©f gold, the coin was melted down and cxpoiitd as bullion Botwithstanding an oath was required, that it did not ansa from British coin ; no penalty, even that of death will prevent exportation of specie, when such is profitabh' exisTed ^''''''''''^ '" ^''^ '''''^ °^ ^^^'"' ""'''''" '"'^'^ ''^"^'^3^' ;« The nation being put to a very heavy expense for L'old coinage, by reason of its being so often melted down, and the prevention thereof being found impossible, it was iud;mg a more ac- curate relative value between gold and silver than now exists. The former at present being by the mint regulations consi- dered, in relation to the latter, as 15 7 to 1, whereas silver jjavin"^ o-encrally decreased in value in respect to gold; the real ratio is probably now about \H to 1. ni i ■If CUKHENCY. Hi "And further it will be advisable, beeausc the inoiietiirv *ysteniofthe United States is now under the consideration of Congress, and useful information may be had from all (juarters before our next session. "Such valuable information respecting wear and tear of coin, occasioned by its circulation, is contained in the report of a committee of the senate of that body, that your commit- tee consider it proper to insert an extract Irom the same in the appendix hereto." An appendix, containing much valuable information, ac- companies this report. Amongst the documents therein are the above letters of the Commissary General, of the 10th No* vember, 1829, and of the 27th January, 1830; and to the former of these letters is subjoined some remarks upon the representation by the Commissary General respecting the currency of Canada, by the chairman of the committee, which, from its date, appear to have been written previous to* the opening of the Legislature. These remarks will merit investigation, and are here given : — " I entirely agree in the propriety of introducing a British circulating medium into every colony, and that an attempt should be made in this to overcome the difficulties which such a measure may seem to present ; being persuaded that the advantages thereof would outweigh the apparent inconvenien- ces. I, however, am of opinion, that the whole effect con- templated would not be produced in respect to relieving Ca- nada from a dependence upon the United States for specie, and the exchange from being in certain cases ruled by the rates of that country. " The proximity of Canada to those States must continue to render it indispensable for the commercial body to procure specie from thence, when necessary : as the distance from Great Britain renders a supply from thence by individuals quite impracticable, it being impossible to foresee the neces- sity in time to admit thereof— whereas intercourse with the said States is always accessible upon the spur of the occasion, and the risque and expense of conveyance little. " Supplies of specie from the States are had by the banks or individuals, through the medium of bills of exchange upon -'reat Britain ; and tne rate of exchange thereon will necessa- rily be governed in such cases by the rate in the States. In ■■ '■' ' 1 ■ ii.i .» ' 1 M 1 120 CONDUCT OF THK ASSEMBLY. m U'^, . » Tio country can exchange be bgislatively regulated. It tle- j)ends upon unforeseen and contingent circumstances, perpe- tually varying. It is a commodity ivliich must regulate itself according to the demand and supply, and, like other commo- dities, « :\n have no fixed value attached thereto. " If government introduced a quantity of British silver coin sufficient for the circulating medium of the country, and al- ways kept up that quantity, it would in a certain degree give them the command of the exchange, if they always drew bills ; but still their rate and that of individuals would necessarily differ according to circumstances, as the latter, to procure a vent for their bills, would have to dispose of them at a lower rate. '* Individuals must draw for much of their shipments to the United Kingdom, and bills would still be sent to the United States for sale, when such a course should be found advan- tageous or necessary. *' French half crowns and the lower denomination of French silver coins, and Spanish quarters and eighths of dollars, and particularly pistareens, are greatly deteriorated, aivd their cur- rent value should be reduced. But 1 consider it impractica- ble and inexpedient to confine the circulation to British coin only. That should be made the legal tender, but it should be left optional to take foreign coins in payment, under some rule indicative of its not being compulsive, but at the same time to compel a capricious exercise of that option. " Bank of England notes were never under legal tender, but at one time, their tender in payment, if refused, was made to stop interest to the extent of such tender. Something of that kind may be advisable, respecting payments here, when offered in foreign coins, if refused. " Few Bank notes circulate in Lower Canada beyond the towns, and British ^silver is hardly ever seen in private hands. The issue of small notes, cannot, therefore, produce the effect stated in the representation. The paper circulation in Lower Canada is essentially different from that in Great Britain. It never did or will supersede specie circulation here, as when a Habitant from the country gets Bank notes, he generally goes with them to the Bank and gets silver in Exchange. That he possibly hoards, but as circulation should be encouraged, not impeded, there need be no scruple about calling in worn and defaced coins in order to the adoption of a measure for pre- venting an influx thereof from other countries. The loss at- tendant thereon ought in justice to be borne by the public, and when called in-, those coins could be melted down and sold as Bullion or reissued at their real value. CURRENCY. 121 1. It (le- es, perpe- ilate itself r commo- silver coin ^, and al- igree give Irevv bills ; ecessarily procure a Jt a lower nts to the lie United id advan- ofFrench tllars, and their cur- tipractica- ritish coin it should ider some the same il tender, was made ething of ere, when ;yond the ite hands, the effect in Lower itain. It 15 when a •ally goes That he iged, not worn and e for pre- j loss at- 16 public, Jnwn flnd " There has been no instance of the Banks in this province refusing to pay their notes in specie. Such would occasion an immediate stoppage of their business, and is not to be as- sumed as possible to happen ; for such is the repugnance of the bulk of the population of Lower Canada to paper, that the Banks never venture to issue more notes than they have a certainty of redeeming in specie. This is the reason why Banking m Lower-Canada is not so profitable as in other countries, and why superabundant issues of paper cannot be risked or made. " It may be matter for consideration when the present Charters of the Bank expire, whether, on the renewal or ex- tension thereof, it would be advisable to prohibit the issue of small notes ; but I greatly doubt of its propriety. " The question of policy presents itself as worthy of favour- able consideration, whether the introduction of British money ot account and the circulation of national coin, besides other beneficial effects, would not tend to assimilate the general parts of the Empire. "I have made various calculations of the intrinsic value of the several coins reduced to the standard of 4s. and 4d. Ster- ling per dollar, and have put the whole into the shape of an act of the Provincial Legislature, which was a work of some labour, and is open to consideration, and to verification of the calculations ; a copy thereof accompanies the Bill. " Ihe principle I have gone upon in introducing the new money of account and circulating medium, is, that the same number of dollars or the equivalent thereof, sliould be paya- ble as before, for any specific amount of debt, so that vested interests and existing contracts will not be injured or altered. Montreal, 2d November, 1829." Questions prepared with much care and implying an inti- mate knowledge of the subject under inquiry, both in its leading principles and in its minute details were submitted, as well to the Commissary General as to the other Gentlemen mentioned in the above Report, i le information obtained from these gentlemen is important ; and I shall freely avail myself of it in further prosecution of the subject. The proceedings of the Legislature in 1830 upon the sub- ject terminated in the passing of the bill already adverted to ; the heads whereof are as follow : 11 : ■ • 1 " ,v <'• |M t'- m r ■ 5 ! ■ ■ . i ■1.' ■' ■ ■' '"A 1 w ■ -M " 12^ CONDUCT OF THE ASSEMBLY. it' Tlie first clause after declaring that it is expedient to es- tablish and ascertain by law the rates at which certain coins shall hereafter pass current in this province, and to prohibit the circulation of certain notes and other negotiable securities, enacts, that from and after the passing of this act, the silver coins commonly known by the name of pistareens, shall pass current at the rate of ten pence currency each, and no more, and the silver coins commonly known by the name of half pistareens or sixpences, shall pass current at the rate of five pence currency and no more. The 2d clause enacts that after the expiration of three months from and after the passing of this act, no bank note or other note whatsoever made payable to " bearer," nor any note under the nominal value of five dollars, issued by any bank or joint stock company, or persons trading as bank- ers, save and except only such bank notes as may be issued by any bank incorporated by law in this province, shall be offered or given in payment on pain of forfeiting the nominal amount of such note, which amounic shall be recovered on in- formation and conviction in any court of competent jurisdic- tion in this province. On the 2?d Feb., 1831, his Excellency was pleased to send a message to the House of Assembly to the following effect : " AYLMER, Governor in Chief. " With reference to the answer of the Governor in Chief to the address of the House of Assembly of the 5th instant, re- garding the currency, his Excellency now informs the House of Assembly that Mr. Commissary General Routh has re- turned to Quebec. Neither the Legislative Council or the Assembly sctm to have further occupied themselves with the matter. Having thus brought together the leading principles had by the Le- gislature upon the subject, I shall proceed in the next num- ber to examine the nature and effect of the above mentioned law relative to the currency passed in 1830, and state some considerations which induce me to think that the time of the Legislature would have been advantageously employed in its last session in regulating the currency, and shall enquire into the principles upon which it ought to be regulated. m ; 123 NO. XI. CURRENCY. C'lI.UlAC'ER 1'ECUNI.E EST EX JURE GENTILM. Molin. Tract, cojit. Vsur. de Mat. Monet. Quast. THE SUBJECT RESUMED. In the whole of tlie internal policy of a state, there is no one subject which calls for more vigilant and unremitting atten- tion on th(; part of the first Executive Magistrate and the Council of State, than the matter of coin and currency. It is an imperious duty upon them to devise such measures as may secure its purity, and render it an exact standard of va- lue in the mutual transactions of the members of the commu- nity, and in t\e liquidation of dues to the state. The Executi^^e Council of Lower Canada being, by the Co- lonial Constitution, the Council of State of the province, this matter ought regularly to have been first referred to them ; and there might have advantageously been submitted to them, for their consideration, any communication upon the subject, received by the Captain General and Commander in Chief, from the officer at the head of the military money department, who, as is well known, is the Commissary General of Bri- tish North America. That officer was called upon, by his duty, to consider the subject, solely in relation to the interests and wants of his department. The Executive Council, as a Council of State, were bound to embrace and look at it, in i; [ : p - :A... : . ' r, - ■■■■" 124 CONDUCT OP THE A.S.SEMBLY. iv MV'li-'-i connection with the particular interests of the province, so far as its trade and public impositions were concerned, and the relation which the province bears to its parent state. It is, therefore, perhaps to be lamented, that instead of making this measure a purely military one, so as even to be influenced by the occasional absence of the gentleman at the head of the military money department, it had not been regularly brought under the consideration of his Majesty's Executive Council for theProvmce, who are, as high civil officers of the Govern- ment, responsible to the civil authorities for the due exercise of the civil powers confided to them. Besides that proper regard which such a course of proceeding would have shewn to these high depositaries of civil state authority, and which belongs to them of right, we should have been entitled to ex^ pect a mature plan to be subjected to the useful ordeal of a scrutinizing examination of it in the several branches of the Legislature. According to the course which has been pursued, this subject of infinite difficulty, nicety and complexity, has been thrown afloat without chart or compass upon two deliberative bodies, to be guided by whomsoever should choose to volun- teer to take the helm, and without any one public officer or public body being responsible for the measures proposed. Thus making those separate bodies or casual individuals in them, to perform the functions of a Council of State, and de- priving the public of ihe benefit which it ought to have had, of having the subject in the first instance examined by one res- ponsible public body, and the result of the labours of that public body, checked and revised by the two several branch- es of the Legislature. From che unfortunate course thus pursued it was hardly to be expected that any beneficial ef- fects could follow, still no one could have foreseen the extent of the errors to which it gave birth. There are some general principles which now assume the rank of axioms in that hranrh nf thp nnli'tiVai * v'Viitriiijr rirrkrtf-krv«vr ■■; CURH£NCY. 125 relates to the coin and tho currency, and which were cither unknown or entirely overlooked by the gentlemen composing the Committee of the Assembly of 1830. All admit that money can, under no circumstances, be made to circulate beyond its intrinsic value. Where the no- minal value is increased beyond the intrinsic value, a corres- ponding increase takes place in the prices of all commodities, and amongst those of Bills of Exchange. On the other hand, where the nominal rate is less than the real rate of va- lue, there also a corresponding change takes place in the price of commodities, and amongst these of Bills of Exchange also. It is further to be observed, that if there be two or more coins forming a part of the legal currency of the coun- try, and the nominal value of the one be higher than the no- minal value of the other, tlie latter will be displaced by the former, and entirely disappeai-, or be obtainable only by the payment of a premium. These principles admitted, it is manifest that the holders of any given coins are not affected by any change in the curren- cy, although the relation of creditor and debtor may be af- fected by the augmentation or diminution of the non.inal rates of the coin, the holders of them with the solitary excep- tion of the Fisc, are not affected thereby i—The Legislature assuming that the intrinsic value of the Pistareen was lOd. whilst its nominal value was 12d. took away not one iota of the intrinsic value of that piece. If eggs had been selling at 12d. previous to the passing of the law, they would ceteris paribus have sold ' r lOd. after its passing, but they would m both instances n ,ve been paid by the same identical quan- tity of sUver or other precious metal, and it might have been of the same identical form. So also supposing no other cir- cumstance to influence the rate of wages, or the rate of rent, or the price of commodities, the same quantity of labour, the same use of land and the same quantity of commodities could have been obtained for any given number of these •)ieces of silver called Pistareens, before as after the passingTf this •" . • i iii \'Z.s k,nd .s calculated to inflict upon the people, and the ut- ter impossibility of regulating the just rights of debtoi-s and creditors, where the state itself is guilty of the crime of ren- tiering the standard of value fluctuating and uncertain. The first of the feudist lawyers and second amongst the ci- v'lians to Cujas only, .as Dumou.in. who rendei^d in h s day the same service to his country and tn .ho ..,,... /^ ^l^nvri'^^f'^^r'^''^" ^° """^^' whicl. W^ long ^'teiuardsdid to England. None of the economists of his day !*'■'■ 1 1 ■ { ■ i ' MM!; ii s. . m 1 ' ) ■. ■ ■ ■ r. ■'":\' ' ' ".'■-■*. .) 128 CONDUCT OF THF ASSEMBLY. i ■m understood better than he did, the necessity of making the intrinsic value of money its sole standard, and no one could express more energetically or fearlessly the crime of taking any other.* So sensible was he of the importance of this truth, that after inculcating it in the Latin work from which the epigraph of this paper is taken, he condescended (and at that day it was an act of great condescension) to give the outline of his work in his own vernacular tongue, and dedicat- ed it at its close to his countrymen in the following remarka- ble and affecting address : — " L'auteur au peuple de France — Vous avez en votre langue ce gage et temoignage du zele que j'ay pour la verite, pour la justice, et pour le bien public : et du labeur que j'ay pris et continue longtems a mes depens sans I'apport ny fa- veur d'aucun grand ou petit, laissant les moyens (que j'avois en main) par lesquels Ton va aux richesses et honneurs de ce siecle." I cannot forbear, though it may perhaps be deemed a di- gression, to advert to i remarkable passage in this work, stri- kingly illustrative of the effects of trifling with coin ; it ap- pears from it that our Edwards and Henrys, our Talbots and Bedfords, lost all the fruits of the victories of Cressy, Poitiers and Agincourt, by this offence : — « Je n'ay point leu de telles plus grandes illusions que celles qui avindrent les Anglois estarts en ce lloyaume de France, tenans cette ville de Paris ; car lorsque furtivement, par le moyen des Bourguignons, ils y entrerent I'an mil quatre cens dix huit, le marc d'argent ne valoit que neuf livres tournois, tant la monnoye estoit forte Mais des lors fut la monnoye que Ton forgea cependant a Bourges, tellement et si precipi- tamment deterioree, qu'en moins de quatre ans que fut I'an mil quatre cens vingt deux, le marc d'argent valut quatre yingt livres tournois, qui est la plus precipitee et la plus prodigieuse depravation qui fut ongues ; car combien qu'environ cent dix huit ans auparavant, Philippe le Bel Tait grandcment deterio- ree, dont les autheurs et historiens exclament fort, toutefois il ne I'empira que des deux parts ; mais cette cy fut de plus • See Aiipendix, No. i, page 3, CUKRENCY. 129 aking the cne could of taking ice of this om which ;d (and at give the d dedicat- : remarka- en votre • la verite, ir que j'ay ort ny fa- ]ue j'avois !urs de ce med a di- ivork, stri- lin ; it ap- albots and y, Poitiers 1 que celles ie France, jnt, par le uatre cens tournois, I monnoye si precipi- le fut I'an latre vingt irodigieuse n cent dix nt deterio- t, toutefois lit de plus dehuitfois, et aussi calamite et misere du Koyaunie estoft trop plus grande sans comparaison, que du temps du dit Phi- lippe. * - Je trouve aussi parplusieurs ^>dits du dit terns des Anglois ecrits au livre no,r estant en la Chambre du Procureur du Roy au Chattelet de Paris, que les dits Anglois, par edit qu lis pubherent au riom du Hoy Charles Sixieme,qu'ils te- noient quasi prisonnier en leurs mains, hebete, et e.i leur puissance, mirent au mois de Juin, Fan 1420, I'escu a soix- ante sols tournois, le mouton d or a quarante sols tournois et Ics nobles dAngleterre a sept livres tournois. Et l'ann6c en- siuvante 1421, apres que cependant ils avoient employe, les dites monnoyes a tel haut prix qu'il leur auroit plu, les rava- leren t, pour les reprendre ^ plus vil prix, tellement que le gros tournois qui yaloit i'an mil quatre cent vingt, seize de- niers tournois, fut I'an ensuivant ti quatre deniers tournois qui estoit au quart et le dit escu a trente sols tournois, et le dit mouton d or a vingt sols tournois, qui estoit la moitie moins : Ce qui fut cause qu lis encoururent, la haine ec meprisement du peuple, au moyen de quoi petit a petit ils furent facilement e en bref tems du tout dechassez : ce qui ne leur fust ainsi et si tost avenu, s .Is eussent bien policg, et s'ils se fussent fait aimer du peuple. ' The throne, then, of our Edwards and our Henrys in fm France was undermined by injustice eating into the sword of Talbot, and rendering vain the wisdom of Bedford. So true is it, by an eternal law of nature, that the abuse of power shall destroy it. The fact is not noticed, as far as I recollect, by our historians ; but the authority of this great lawyer is not to be controverted. To return from this digression, Dumoulin establishes that the intrinsic value of coin in the time when the contract was made, is to be looked to, and that any variations in the deno- mination, though made by public authorities subsequent Uiereto, ought not to affect the rights and obligations of the parties. The law of 1830, containing no provision upon this head, the obligations of debtors came to be unjustly en- Iianced. And it is to be observed, in aggravation of this injustice, that, so far as the particular coin of pistareens is con- cerned, this relation was unnecessarily disturbed by this law, !: I I II K ISO CONDUCT OF THE ASSEMBLY. and I may add too improperly, tor the nominal value of it vvat fixed at a rate below its real value, the consequence of which has been the entire disappearance of pistareens in Lower Ca- nada. To make up for the error committed by the Legislature in fixing the value of the pistareen at a lower nominal rate than its intrinsic value, the French half crown and the American half dollar were rated at a higher value than their intrinsic value. The French half crown being rated at 2s. 9d., and the American half dollar being rated at so high a nominal value as to have nearly driven out of the market every other coin. It is well known that a fortnight had hardly elapsed af- ter the passing of this act before four or five thousand pounds in half crowns were paid in one sum by a mercar tile house in Up- per Canada to the Bank of Montreal, and since that time Lower Canada has been absorbing this debased currency. This act being confined to pistareens and half pistareens, and leaving the other coin without any adequate provision, the consequence has been that the pistareens, crowns and half pistareens have disappeared from the market, and the most debased coin un- der the provisions of the old act have supplied their place, ex- cluding all the coin which, under the provisions of the old act, were rated at their intrinsic value, or even near their intrin- sic value. It was to have been expected in the Report of the Committee of 1§30, that materials would have been fur- nished to the House and the Country to enable them to as- certain the grounds upon which the respective values stated in the Bill recommended by that Committee, had been adopted by them. Upon this branch of the subject the Committee observe an extraordinary silence. In this particular perhaps they have not been wanting in discretion, for I apprehend that no one moderately conversant with this subject can agree in the values stated by them in the Bill ; for my own part, being utterly at a loss to conjecture the grounds upon wb.ich those values are stated, I must abstain from entering into the consideration of them. I"- CURRENCY. 131 mo « he proposed establishment of a monetarv par of of tht e f'"'"' "'"""""'^ '" "" ^""' «eHi„g, „ :;; The lamentable ignorance exhibited by the committee in the elementary matter of this enquiry, may well dispense with the exan.mat.on of a measure lite this, requiring Lt on^a !l knowledge of the subject in its general bearings, but i" m.e. .te knowledge Of it in it, ,.,,,.1,^^,,:: The only pecuhar feature of the report of the committee of h Leg,slat.ve Council, is the view whicl. it takes of the estabhahment of sterling money as the money of account of ^"■^^''Ta '^^''--"f "- I"-"-' of *e Committee of Trade of Quebec seems to me to embrace all that is ne- cessary to say upon this subject. We have thus embraced the leading considerations respect- ■ng .be com and currency of the province, so far as the 'ant actmns between private indiv.duals are concerned. e. ma,ned for the committee of the House to ccsider it i„ re ! lion to fiscal regulations. "'*" By the change made under the authority of the Lords of the Treasury .n the nominal denomination of the Spanish dollar il .T;" '^rTT' ''"' -""^-"""'on -m!S ■n 1825 of more than 8 per cent of the whole amount. This 2°«»nt branch of the subject is entirely neglected by •he committee of the Assembly. It evidently had no. es^ caped the attention of the committee of the Legislative Couu- '■■ ; as appears by the examination o.the Collector and Comnt roller of the Customs at Quebec.» ■"' At 5s. 6d. per ounce, or 4s. dM. per dollar. *• — At what rata nro ♦}."" --or • «- At 4!. 4d. per dollar. If iliii i. ' 'd 132 CONDUCT OF THE ASSEMBLY. Whether the proceedings of the Committee of Grievances, as contained in their first report, which we have attempted some few numbers back to analyse, form any portion of those la- bours of the House which have called forth the expression of his Excellency's admiration, I have few and slender means of judging ; but I think that I may venture to say, that if what was done by the House in the last session relative to the cur- rency excited this emotion in the heart of the nobleman at the head of the government, it must have been that kind of admiration said to have been expressed by a witty Frenchman, to one of our own countrymen — Vraiment f admire le talent quent vos compatrtotes pour le silence. 3._-'Wtiat has been the cause of that alteration ? An order from the Honourable Commissioners of his Majesty's Customs, dated 20th December, 1627, founded on an order of the Lords Commis- aioners of his Majesty's Treasury, dated 27th November, 1827. 4. — Are you aware that there has been any alteration in the law since 1825? We are not aware of any alteration in the law since 1825. 3. — Have you any records which can afford evidence as to the manner in which these duties were received for the first 22 years after the passing of the act in 1774i, imposing the same ? The records merely shew the amount of duties collected, without any re- ference to the manner in which they were received ; but it would appear, from various correspondence, had relating to the duties in question, that they were received at the rate of ^s. 6d. sterling per dollar. 6. — At what rate is it now the custom to receive British silver in pay- ment of duties? British silver has not yet been tendered in payment of duties ; but it is receivable here at the san;ie rate as in Creat Britain, being 20s. to the pound sterling. |:| J . . ■ . . . ' ' 'if,. m m ■ ill- i J 33 NO. XII. FUNCTIONS AND DUTIES OF THE GOVERNOR OF A BRITISH PROVINCE. qu.n possint multi esse Provinciales v ri bon?" «<.,iT ^'''"'" ''' ^''''^; "o" penculosum est. Multis enim s' mula onum involucrls TT ""' ' J"'^'''^^" qu.busdam obtenditur uniuscujusque Zum frtl^. f-^""' /' '1"^^' ^^''^ an.mo, ao non sui commodicaGsa simulnt ' m ^0 ntl '^"""•"-'m ament ex prasertim si iidem homines privatum non ^Iri^"" P^™«P"""^ videtur: SEMPER OMNES AMANt! queniquam. PR^TORES Cic. AD Quint. Fhat.* 1'; The .nternal government of the British colonies resembles in some respects, that of metropolitan states. Me form of ' than we have yet been able to find in these hy- ..* ;, 1 S, 138 FUNCTIONS AND DUTIES OK A \ I m llfR perborean regions. Again, the Lieutenant Governor in point of practice, has always been a cypher, whether he opposed the Governor in Chief as General Hope did Lord Dorchester, or did nothing at all, as all General Hope's successors in of- fice have done. The Lieutenant Governor thus withdrawn, his place in the Executive Council came to be occupied by the Chief Justice for the time being. I need not say, that by these means, this last mentioned public otficer, came to be too intimately mixed up with the local politics of the Pro- vince, and there then came into his hands, a concentration of power not merely adverse to, but subversive of, all public free- dom. The manner in which the patronage of the Governor has been exercised has been highly injurious to the government. The power of the Governor ought to be controlled in some shape or other in the exercise of this patronage. It is not here as it is in England, where a ministry comes in and goes out ; and the mischiefs of this colonial abuse are, therefore, perpetuated from governor to governor. The new governor is obliged to use the instruments which his predecessor has left him, and these, sometimes bad enough, selected perhaps by a governor, who with the best intentions in the world, has converted his patronage into an eleemosynary fund for decayed widows, and for men whose only claim to be provided for, is, that they cannot provide for themselves. Another circumstance wlich has very materially affected the complexion of the colonial administration, is, that our go- vernors ever since Sir Robert Shore Milne's administration, have been military men. No man entertains a higher respect for military men than I do ; but who is there so stupid as not to know that military men, generally speaking, are altogether unequal to the discharge of civil duties of any kind, still less of duties of so delicate and important a character as those of Governor in Chief of British North Anierica. Lord Brougham and Lord Tenterden are confessedly men of high talents; but what would be said if the command of the channel fleet were ciii ;i ncct were «OVER»oi. or A .«,T,S„ P,ov.NC., IJg give., u. one of .l,„,e noblemen. „nd .ho other «.ere reoue., 0.1 o ™pp,, „o place "f Lord Hill ,. Comn,»„der ."ch ^ of the Forces, or ceneraIis«Jmn ^r - t ■.• ;;.H.r..e..Kipe::T7.i:r;«rrhtt of I..S l,fe ,„ the enmp, ,o civil command ? The autocratic tendency ha. been from thia cause much augmented ; and at this m„„ent tl« government of l7 Canada may be defined t„ l,„ , ■ , »°'""'"™' »f Lower „f ,h„ . r , " " '""'^'^ government composed «f he two d,scorda„. elements of autocracy and demorcv I cannot close this paper without making some ob,er™ Z' jn an expression which provincial baseness has bZh ge„e..a use, and which i, calculated to convey ve y r o neous nottons of the nowpr« nf „„ . " toothers ^^,^ '"" ''7""'f S'"''™" to themselves and ' '■ ^"^ ""J- •"»>■ ''oar the governor calhd rt- Ki„^; ye^entau^e. Nothing is more inaccurate than thi 0^^ K „.'" h' ;™" • " ""■■"" '■' ■■' "-"-Constitutiona ly ; olteer of the government deriving bis authority from the h^g, represents the king in .he exercise of his 410-0/ Th.s ,s true as well of the highest as of the lowest officersl u ^ngland. In no other sense can it be rightly annlied to ,h. Governor of a Colony. None of the particular' .rblfo ::^orLrrr"'^7^"*'-'''-"''^^^ mat omcer. The K.ng can do no wrong. Is that ™e of a provincial Governor? His powers are ortinal „ herentandperpctual-tha. of a Governor is deriva'e fern" porary and dependent upon the will „f him who e„ f^edT ac Cg f "^ ^"" ' ^"^"^^^"^ '» «»'• ■"^^ acts. The Governor is answerable to his Royal Master The Kmg,s amenable tone human tribunal fof the IcJon exercses m displacing public officers. The Gover- " " """'"""^ ■» '"^ King's Courts a. Westminster for tie ,h. r '; j ■f:'v 't- \' 1 ■ ■ ' IP' 1 llHi fflHH i fhlHHj II HO FUNCTIONS AND DU I US OF A OOVERNOIl, &C. suBpcnsion or removal of any subject of the King holding an office of emolument within the Colony.* That an expression such as this should have obtained cur- rency, is of itself pregnant evidence of the servility of that class of the colonial society where it has long been anJ still continues to be in daily use. « Mu«r«s Canadian Frc«holcler— Appendix No. 3, page 4.. i Hill i li' lUlliilii 4 6 I' Ul NO. XIII. ON THE THIRD IlEPORT OF THE COMMITTEE OF GRIEVANCES. Cic. AD QfiNT. Fhat. In all civilised countries the legislative and judicial powers however variously regulated, arc kept distinct and apart' For wrongs done to the person or the property of the subject, recourse must be had to the judicial authority, from which th(. proper remedy is to be obtained in the Civil Courts, and sometimes punishment in the Ciiminal Courts. In this man- nor the parties have the benefit of being able to refer to known established rules, whereby their rights are measured, and the forms of the proceedings for their preservation established; so, likewise, as a further protection for the subject and for maintaining unvaried the common standard or rule by which all his rights are to be measured, the constitution of Courts Chemselves carefully provided for, and a regular ju- dicial hierarchy established to correct any of the errors lo which human infirmity may give occasion, in the judgements of the Courts of original jurisdiction, which errors might otherwise affect the sincerity and integrity of the standard nile, and contaminate the body of the law. In the report to which I am now to solicit attention, the committee has erected itself into a court of justice, and has T\ 142 CONDUCT OF THE ASSEMBLY. im: m determined various questions actually pending in the Courts* of the province, and in progress of trial and adjudication therein. It is quite true that the conclusions or judgments of the gentlemen composing the committee, are altogether nugatory, whether they be right or whether they be wrong. It is equally true, that these conclusions or judgments are of the most hasty and incorrect character, as I shall soon have an opportunity of shewing ; but we are not thence to infer that these proceedings of the Committee are harmless ; any interference by any body of men with the judicial power, an assumption of the slightest portion of that power by men not vested with it, is dangerous to true freedom ; so too, the character of more than one individual not before the Commit- tee is implicated by this report. Although there may be extraordinary circumstances in which such a power may be exercised, in which, in the progress of inquiry, such an effect may be produced without affording grounds of legitimate complaint, yet this is by no means a matter of course, as the Committee would seem to have thought it. "Reputation, indeed, is not only cr.c of our perfect rights, but that which alone gives a value to all our other rights ; the integrity of our honour and character, being one of the chief instruments of temporal prosperity and success."* Before proceeding to the examination of the report, I will give it in the words of the Committee itself. " Being required to examine into the divers allegations contained in the petition which has occasioned the present reference, your Committe have, In the ^rst place, endeavour- ed to ascertain the rights which the petitioner is entitled to claim, as lessee under the Crown, of that part of the country known by the name of * the King's Posts.' They have found those rights clearly defined in the original lease granted in 1822, in favour of the late John Goudie, who in 1823 trans- ferred two thirds of his right therein, to Mr. James M'Douall. (a) In the month of October of the following year, the lat- * Holt on Libel. t'a,J It is surprising that the jinmittee did not perceive ht Jhis i!ie tlireehold oT their inquiry, that »o enquire into the rights of individuals. ♦ ■ i ter transferred i^squire Lapij) son, COMMITTEE OF aHIEVANCES. his claims and rights th -."A US year 1827, the remaind and on the 21 st of er erein to William November, in the was transferred to him. TIio ise deeds, and the topographical ;ra„;'rd„™ elaTe .he 1 18.^3, she. .ha he .ffi°" pLS'T"" T 'f'"'^ '" Co™„™„. which appears'.:' in'c", ZL"ttn 95 if""'' :"K-^7rh;ir£rr:£'"'^^ of their trade with the Indts P™*'""'"" "■''l security Lelt- °rf ""' '" ,'"'"'■" ""= '"'''' ■^"■•■•ied o„ b. the Lessee., Oovernment have never »h=f™«„j c ■ ^ . territory any part of it, unleT t be e li^^^^^ Vaehes,whieh his most Christian Majesty frntedl ffi^i' (or the purposes of cultivation, and to establ h jfo "^-^ ^rawn fan ufe-^^nclslrnleT: thTtiX^^ .SIT" be«e^bS?v'wr'^™'^ " ''"^ nevertheless Hdjudica ion upon the rii„„'' ^"ncUon, preliminary to an party prosecuti'n g or maiml n« i 2 ,1 " '''"^'''''"" ^'" '"'•''" «'" '»>« .helawprovidc^orthepSicasr.^^^^^ "" '^""^^^ -'''''»• (6.) It does not soem tn havo j .. ,, V : - t i - 144 CUNUDCT OV TllK ASSEMBLY. •i'' the said seigniory, far from forming any agricultural settle- ments there, have, on the contrary, established there a new place of trade, in contradiction to the condition of the conces- sion deed of the said seigniory, (c) and to the great injury of the government lessee, whose profits have been thereby greatly reduced, and who, if these encroachments are allowed to be long continued, may ere long be rendered unable to pay the rent stipulated in his lease. Fully convinced of the injury which this trading establishment caused to his interest, the lessee early complained thereof to the Governor in Chief, Lord Dalhousie, who referred the matter to the consideration of the crown officers, (d) These gave it as their opinion that Portneuf constituted a part of the domain of his Majesty, leased out under the appellation of « the King's Posts.' Pre- viously to the expression of this opinion, the Governor in Chief, Lord Dalhousie, had issued a proclamation tor the purpose of placing the lessee in full possession of all his vested rights, and of preventing every one whomsoever from disturb- ing him in the possession and enjoyment thereof. " It has not appeared to your committee that the aforesaid proclamation has had the effect desired of putting a stop to the encroachments of the Hudson's Bay Company ; and Mr. William Lampson, who has succeeded to the rights ot the original lessee, has been exposed to the same evils ; his clerks and his servants have been assaulted, have been driven from their trading posts on the River Portneuf, and after witness- ing the destruction of the huts they dwelt in, have at last themselves been arrested and carried prisoners to Quebec ; after having thus got rid of the persons in charge of the con- cerns and the servants of Mr. Lampson, the said partners and servants of the Hudson's Bay Company did treat and intoxi- cate the Indians who had placed their furs en cache, and hav- beliind tlieir backs, without any notice to them, either actual or construe tive, without the witnesses whom the connmittee examined being sworn, without any observance of the forms prescribed by law for the investigation of and adjudication upon controverted rights of prooerty. (c) The inaccuracy of this statement, though unimportant when com- pared with the more flagrant irregularities with which the report abounds, ought not to escape notice. Tha. title deed to Mille Vaches contains no prohibition of trade with the Indians, as may be seen upon reference to the lopy of that title deed contained in the appendix subjoined to this report. ((/.) These opinions will be subsequently inserted, and our readers will have an opportunity of judging of the weight that is due to them. If that were much greater than I can bring myself to think, who ever conceived that the opinion of an advocate, private or public, should be considered as the committee seem to have taken it, a ns judicata quct pro veritate ac- cipiturt COMWITTiSE OF OBIEVANCIis. US ,V. ll,u* debauched ihcm, made ti.era shew the plaee where .las was what the losX^l7^:it |^? ^^^ ^ -f ami mort.ficat,on, he learned that the ehief of tCe eZeers VIZ. James Stuart, Esquire, the Attorney Genera", had bee^' dy to Mr. Lampsan, if they'sl.outl bS,S to S^ rl'l^f • ^'"^; .cspcctiSg the Icga Uy o the xSoiopo,^^^^^^^^^^^ '"'"'.^'^^'^ ""^ '^""'''^ ti.ere were no monopdy no ^^Ti^ Sne tS' M^'^^r'' '""^''^^ ' ^°'- "' .vronR doers were the Governmem andMr T ^'■' J-^^P^""- ^'hc .he Hudson's Bay CoSZZX:^?.',^^^^^ enforced against them an illegal monopoly to the nreSp S' I? • r"^ trade. This point is here merely adverted to for thp-'n cT ^'^^ how little fitted the commfttL »!«/•• ^^ purpose of shewing which they had usurped ' ^" ""'^'""S « Judicial authority fe.) The Committee are under a very straniTB rrrnr h„,„ •* • duty of the King's Government to inSe K'lt/over^^^^^^^ " private parties. To the King all subiects are enir hl^". '"''^" complaint for the violation of their cSl r eh? inTrT..,? '!?' '° "'"'' dse. It is not true that the King, Is l"for of th.T '.""i"° ^'^"^ bound more than any other lessor fodeflnThU. ^'"^ ' ^°'''' ^'^^ ^:: 1' h 1- ■;v :!:(.;, F ■ • -li 1 46 CONDUCT OF THE ASSEMBLY. to another attorney, to institute an action de revendica- tion, against the parties who had committed those illegal and forcible aggressions, by which he had been deprived of peltries to the value of nearly £2000 currency. It was the same in another action de reintegrande, {i) which the said Attorney General, for and in the name of the lessees of the seigniory of Mille Vaches, instituted against him, (the said William Lamp- son) to compel him to remove from the banks of the river Portneuf, as forming a part of the land conceded to them. On this occasion, the support given by the said James Stu- art, Esquire, Attorney General, as aforesaid, and which he does still give to the said company, has appeared to your com- mittee to be a direct and positive violation of his duty towards the Crown, the interests whereof he has culpably abandoned, either from an inordinate love of lucre, or from (what would be as bad) a strong desire to render service to his clients, even to the prejudice of the Crown, which is eminently interested in the success of its lessee, in his disputes with his adversaries (the partners and servants of the Hudson's Bay Company.) {k) "The riVer Portneuf, which is the scene of the encroach, ments of which the said William Lampson complains, appears to constitute a rich and important part of the King's posts, not only as regards the fur trade, but also as regards the procurement of timber and the cultivation of the soil. The soil and the forest on the banks of the said river, and in its neighbourhood, being of an excellent description, it would, session by the King, acting through his proper responsible officer, to wit, the Attorney General ; but as to any squabbles between the servants of two rival Fur Companies, the crown neither could nor ought to interfere ; and the law officers of the Crown are at perfect liberty to aet for either the one or the other of the parties as they continually do in all parts of the Empire, as private advocates in tl^e privata controversies of private in- dividuals. ^ (i.) Does it not appear here from the shewing of the Committee thera. selves, that the matter which they took upon themselves to investigate was in legal course of inquiry before the only competent tribunal, to wit, the Court of King's Bench, for the District of Quebec ; and where did I he Committee find any concurrent jurisdiction with that tribunal over the matters in controversy ? and if there was no pretext for their having any such jurisdiction, how could they justify to themselves their proceedings thereupon ? {k.) The Committee down to this passage have exhibited only a lament, able want of knowledge of the subject submitted to their enquiry. This passage calls forth and justifies sentiments in relation to those gentlemen, of which the respect I owe to the body whose delegated powers they exercised interdict the expression. It is but justice, however, to that body to say that their concurrence in the Report in question was never asked, nor of M' COMMITTEE OP GRIEVANCES. j^. therefore, be a sacrifice ofth^ • . of the government, to su£ltlTrT "^^'^'^ P'-^vince, and and, ,n the humble opin on oJ t '"n ' *" >^ ^"^^oached on' General could not l/nd hisalZLT'^Tt' '^' Attorned possesses over the Courts of Zf""^^ and the influence he domains of his Majesty withou?';^?. ''•'^' 'P'^'^^'^on of the as It is seldom tha one fauh^ ^'^'"^ ^" ^'« ^'"tJ- (D Yet often greater, this usual tnsea?en"°'HP'\^ ^^h-'-^.and case wuh respect to the Attorney Ge?'', ^"^^^"^^ '" this "Havmg once involved him?!??- . ^''^'' versanes of the crown im) h! r i '" *.'''' concerns of the ad defend his clients b^Ttle'i^eat"- ' u''''^'' ^'" persisting!" ^vherem a partner id two Tu '" P°"''''' ""'^ '"'^ «"i « Bay Company were sentenced o/^'"*^ °/ ^^^^ Hudson's hours, mprisonment, for Sg r 1111." ', 1*° *"^"^^-^-"r to the Indians, and made them Tf-^ f"'"^ '^''^ng liquors General constituted himself as their" «^"~''^' ^^^'^ ^"^'rney mself to procure them to be exemoted f'''^ '"^ ^^^^^^^ r ^"fs imposed, although he .vt Tf 'T *^^ P^^^^ent of be.Jf of those persons »S'w,> ■"'i''"" of pleading ?„ *d so much /brgot hSa" ^^ i? ''"'>' "> '""'^ P™se° »h.oh „ere indecorous, and eve^" ^^ ■"'<' »f expressions ™g.s.rates who had P™«oun''oeT.h„;e1e"r„c::i:r'' '"- CO The Committee fiPm ^„4 • ^ ^— aaltum, without am- ;„„ • • "^'^'^une a nuestion of m 1 or the Title of W.lLvSJs'"'° '' ^"^ '"^''"S rel'SjTT'' ^'^ actual proprietors of th^^ ' " '"'° "•" "specting the nn 1^ ^^ '°'''*'°" - the/wo'uld have found thST '' '" ^'^'^'^ ^^tTZZf^ "'^ dowMo Jis Jr^ ^^ ---"«aa„duni„terrup?eC^3sr^^^^^^^^^^ ''ave hazarded an n«n.":""..f 'J'^ ^^ect, and the comm.-**^ not argue the case before the 148 CONbUCT OF THE ASSEMBLY. ;■ i ii i *< Your committee feel leas hesitation in pointing out these derelictions from his duty by the said public functionary, since the evidence on which the same is for the most part founded is corroborated by authentic documents ; these make it ap- pear that when it was in agitation to proceed on the question of boundaries e» homage against the parties in possession of the seigniory of Mille Vaches, in order to adopt proceedings for ejecting them from their encroachments on the King's Posts, the natural desire he entertained to shield them made him delay for a long time in instituting an action en homage ; and it required nothing less than the repeated and positive orders of the Governor-in-Chief to make him undertake that proceeding, a culpable negligence which he would probably not have been guilty of if he had not contracted the improper custom of practising as a private attorney, which places him in contact with the interests of Government, and exposes him to the inducement of either neglecting or opposing them, as has been the case with respect to the disputes between the lessee of the King's Posts and the aforesaid Hudson's Bay Company. When, in contempt of the King's Peace, and without any sufficient cause, the servants of tht fcmer were torn from their residence at their Posts, and dragged to Quebec as prisoners, the said Attorney General brought bills of in- dictment against them which were frivolous, and not justifiable by the circumstances attending them, whilst by a still more culpable neglect of his duty, and of the impartiality which ought at all times to be his guide, he favoured his own clients, and granted to them an impunity which is clearly demon- strated by the following facts. " The Attornies who were employed by the lessee of the King's Posts to maintain his rights with respect to the charges brought against a number of the servants or agents of the Hudson's Bay Cbmpany, for 'having robbed the Indians of the Interior, and having fired with guns and pieces of artil- lery upon the servants and clerks of the said William Lampson, and being desirous of ascertaining whether the sjud Attorney General intended to proceed against them in the Criminal term of September last, wrote officially to him, in order that, in case he had determined to proceed, they might send for the witnesses required from the Indian country. That gentleman magistrates, or upon the Certiorari which was afterwards brought, on cither side : the case was argued before the magistrates by the Advocate General and Mr. Gugy for the prosecutors, and for the defendants by thi. Hon. Mr. Primrose; and upon the Certiorari by Mr. Advocate General and Mr. Gugy, and for the Uufendants by Mr, Frinsrosr- and Mr. A^idre- Stuart. COMAJITXEE OF GRIEVANCES. 149 howrever, not having thought fit to give them any answer thov as they ought to do, considered hif silence to indlcare hi i7 tention of not proceeding in those suits Rnf hL, 1 partner, and servam. of U,e HuJ-son'/Bt/^tp^^^^li't Attorney General of corrupt ^isfeasaSrH Office aTden.f""^^'' '''' nouncng judgment against him for corrup mU fLa^l ?„ .ffl '''^■ carry the.r sentence into effect by punishin, him soTr « ,u "'' "J!"^ that man is to be pitied who doe J not know thaT censure is ^^ "." ' ^"' and to a man of honourable character and L inl mn" k P""'«'>T"*' most severe kind fi.r <.„.... .T*."" f^*""gs, punishment too of the 150 CONDUCT OF THE ASSEMBLY. Ejl „ , ill r effect influence the opinions which he gave to His Majesty's government on several occasions, and in particular the answer which he gave to the questions which wpre submitted to him in November last respecting a petition presented in behalf of the Hudson's Bay Company, praying to be authorised to sell strong liquors to the Indians, and soliciting pardons for those of their servants who had so done. *< In this answer he pretended that the provisions of the Provincial Ordinance of the 17th of Geo. III. ch. 7, pro- hibiting the sale of strong liquors to the Indians, was lepeal- ed by the 31st Geo. III. c. 1, and that the Hudson's Bay Company, trading in the Seigniory of Mille Vaches, did not require either a pardon for having sold strong liquors to the Indians, or a license for selling them in future, {q) " Yet it is in proof before your committee, that the Courts of Justice have contradicted those opinions by sentencing to fine and imprisonment such of the agents and servants of that Company as had sold strong liquors to the said Indians, (r) " It appears, therefore, to your committee, that the opinion so given by the Attorney General could only have been instigated by the desire to be of service thereby to his clients, whose interests were opposed to those of the Lessee of the King's Posts, and by a necessary consequence to those of the crown itself, (s) fq.) And such is undoubtedly the law. After the fundamental error, already pointed out in our remarks upon this and upon the first report of the Committee of Grievances, it is not calculated to excite much surprise that the Committee did not learn raucli legal wisdom from the mouths of the juvenile lawyers of the committee, who were slill reposing im primis le"um incunabulis, and who seem not to have listened to the adhortation of their master which we read in the first elementary treatise in the foU lowing words. Summa ilaque ope, alacn studio has leges nostras accipile et vosmelipsos sic erudit^ oslendile, ul spes vos pulcherrimajbveat, toto legi- timo opere perfeclo posse eliam noslram rempublicc.m in parlibus ejus vobis credendis guhernare.'—D. C. P. XI. Kalend. Decemb, D, Justiniano PP. A. III. Cos. (r.) To enable our readers to judge of the sufficiency of the grounds upon which the Court of King's Bench at Quebec did hold that the ordi- nance imposing this penalty was not repealed, we subjoin a report of the case and argument as given at the time ; but it is proper to be observed that this judgment was a judgment of two out of four of the Judges, and is not a judgment in dernier resort, so far that there are now pending seve- ral actions in the Court of King's Bench at Quebec, wherem that point is directly in issue, and upon which the judgment of the whole court will be taken, with the exception of the Chief Justice of the province, who is a party to one of these actions, and the judgment thereupon of the Provin- cial Court of Appeals and of His Majesty in his Privy Council, may and probably will be had. (5,) Admirably logical ! I <..«. - COMMITTEE or OIIIEVANCES. ,5, E.,o,ro, in hu ,,„olity of Attorney General ilZ '"""' encharged with thedutl'f ■ -''•' ""^"^ '« especially crown,^as wd L ufose of tt nlln-''^'^*'^^ •'^^'^^^ ^^^'^^ ney General, James StuirF^"^-'^' "' ^^^ P'"^«^"t Attor- the 24th December 183o" ^^^"''^tary, and dated on 2. Resolved,-That the At'tor^ey General ofthtcP • ought not to practise as a nrivafn aT ^^ Provmce where he migKt be liable toKaeed n"!"- "^^ 'T complaints rnade by the pet tioner Z'T 'r'''"^ '' ^^e come Counsel and Vttorney b^the^' ^r^'^''^"' ^^■ ^ agents of the Hudson's Ba/clpany ' ''''''"*^' '' EsqS o^llT^ e^ s^^^^^^^^^ ""P'^l ^^'^ J-- Stuart, the Hudson's Bay Compafv and hT? ^'"^'"^ ^'-'^^'^^» for the King's pLs K .{. ^'"'^ ^.^'^^^ "^ the Crown _^ *^°'''' ''"' ^^en exceedingly unjust, vex.- 'ered, and with the touch of rwandtbtb!c„l^ 7 '"^8"'"'^ «hey had en. of h.gh crimes and misdemeanors of a puWrf. ?"" " •"""^ ^°'- '^« '"='' '.^ar.try. and determine, to judge con vtn J""^''°""y' «nd proceed to ;^:7. as Win he seen in thi reSS^ii-SrS^S^Si: [Zt \r:w 1 ' 1 152 CONUUCr OF THE ASSEMBLY. atious and equally injurious to the rightti and intcicsls of the Crown, and those of its Lessee, in the enjoyment of the Posts known by the name of the King's Posts. 7. Resolved,— That this House perceive, in this conduct of the said James Stuart, Esquire, a new motive to solicit his Majesty's Government to dismiss him from his situation of Attorney General of this province." I shall proceed in the next number to the examination of this document. 'fill '*t. ^ I! ; I t i ^ 155 NO. XIV. ON THE THIRD KEPORT OF THE COMMITTEE GRIEVANCES. OP t^IC. AD QciNT. FaAT. THE SUBJECT RESUMED AND CONCLUDED i«. .he p™w„c,-.. gov JL rf trr; ';;":,'"'" ".only called .he K.Ws Post, „Uh T. , "f'"""""^ '-ding with the IndiL „*;„ * f.;""'""™ "g"" «f £'^00 . ,ear. That thrtdl. "C cL ' ".' "' obtained a lease at .he re„. of £soTa !a^ ofT""^, ""^ of ground lying „i,hio the aftejd f i « IT! """ gniory of Mille Vaches wh,VI. .iT • ' ""' '"'• onginaiiy granted, :^1,t:\^ rr" "''''' ^'^ tlement, but had been used Z ,, ^°V 7"''°'*' °''^"- v-ourc 01 Kings Bench, under the No. 1212, Ill 154 CONDUCT OF THK ASSEMBLY. II Ml '1 v' i: :' ^fr( li aeainst a partner and an agent ot the said Company, who took and converted to their own use a lot of furs to the va uc of ;ei500, belonging to your petitioner, the said Honourable James Stuart has appeared as the private attorney for the de- ^ " That in another uction de reintegrande under the No. 64.2, brought before the said court by the Hudson's Bay Company against your petitioner, the said Attorney General appears as attorney for the said Hudson's Bay Company, the plaintiffs. And that inasmuch as the said action de retnte- srandc relates to the above named valuable tract ot land be- longing to the Crown, the said Attorney General has there lent his ministry to persons whose interests were and are ad- verse to the King's government, n- r . « That actuated by a natural bias m favour of his clients, the said Attorney General has perverted the administration of lustice by preferring numerous frivolous indictments against the agents and servants of your petitioner, by repeatedly causing them to be hurried away in custody from the general places at which they were stationed, and by lending himself to facilitate the escape of his clients (the aggressors) when complaints were preferred against them, on which he, as At- torney General, ought to have prosecuted them criminally with effect. , , « That the said Attorney General has even gone the length of appearing for the defendants, a partner and two agents of the Hudson's Bay Company, in three several cases in which our Sovereign Lord the King is Plaintiff, wherein the said partner and two agents or servants had been condemned to pay three several fines for distributing liquors to Indians, and that he so appeared, knowing that the Crown was interested in recovering a i^oiety of the ^aid several penalties which the said several parties were condemned to pay. "That the Attorney General has abused his power as At- torney General, to favour the said Hudson's Bay Company his clients, the Provincial rivals of your petitioner, to the great damage of your petitioner, and has deprived your petitioner ot that support from the Crown which your petitioner had a right to expect, and that the Attorney General has acted in direct opposition to the interests of the government. " That your petitioner having found it necessary to apply for relief on certain subjects growing out of the contest be- tween your petitioner and the said Hudson's Bay Company, to his Excellency, the Governor-in-Chief, your petitioner has found his Excellency disposed to do him justice to the full extent of his Excellency's power, a disposition of winch your COMMITTEE OF GRrBVAwoji,,. |-- of .1,0 benefit .l,ich „e ^ulffi dt veTfro™ Jh" "r'-") opinion and authority of Hi.. lUn;„ * " a ™ *"^ unbiassed tlie circumstances above rolatfd^^^ ' ^"^'""^ ^^"^''"^ """"^ himselfwithrespecttotheSln in?'^ ^u'""''^^ has placed able members of thr^ecuZ rr"-?''; f'''^'^' honour- advise.^ of his E.r,UencY)Zll^^^^^^ (^'^e constitutional honourable House to ffranf fn ,, ^ • ""^-^ P'^^^e your , ■he wisdom of .hi, honourable iLZ may ^reforibe/™"''' "" In the Appendix to the report will bo found, beside, the ftregoing petition and the lease of the K;„„' ' ° "'' "" We John Goudie, the opinion „n;E,|!°'e '" '"'^ la.e Attorney Genera, and of George Va^: s^' ^ Advocate General, dated X 8th April, 182^ # „,k > /-squire. r»..ofan investigation whieh /Jl'Tp: Tr fl'^ of .h.s documen. to have been very severe .h„„ ,, conciude from all the .•nforn.a.io'n eo, e'te 't'th ™" the subjeet, that the post of Portneuf be oted Z . ! °" of hi. Majesty, domain which was leased t^l , r' Ooudi, underthe denomination of :,:e Kiir;^^^'^^"'- The gentlemen examined before the commitlel we .- A vocate General and Mr. Gugy, who were bTeoI ,e, f Hudson., b:zi:^z:vzz '^"'-^^ ^" "-= captain Bayfield who was exlfnldTtor ^ >♦ C__ Appendix, No. page |:l! 156 CONDUCT OF THE ASSSMBLY. 1'^%: graphical position and extent of the Bay of Mille Vaches, was the onlv remaining gentleman examined before the commitee. The correspondence between the law officers of the crown, and the civil secretary, joined to copies of documents as well in the civil as in the criminal prosecutions, constitute the re- mainder of the appendix. From these various materials we shall try to extract as suc- cinct an account as is in our power of the transactions refer- red to by the petitioner, sufficiently extensive however, we hope to enable our readers to judge at once of the reasonable- ness or unreasonaWe"ess of these complaints of the petitioner, and of the corre«-.: ....^ of the deductions of the committee. A letter from the Civil Secretary to the Attorney General, dated the 23d December, 1830, informs the Attorney General that the Civil Secretary had received the commands of His Excellency the Administrator of the Government, to acquaint him that he had received a petition from Mr. Lampson, "stating that he was engaged in a law suit respecting the boundary of the seigniory of Mille Vaches, adjoining the terri- tory of the King's Posts, of which he is the lessee, in which law suit he stated the interest of the Crown to be identified with his own. " That his lordship would naturally have referred the peti- tion to the Attorney General ip regard to certain questions of law which it involved, but that Mr. Lampson having stated that the Attorney General was retained as Counsel for the party opposed to him, his lordship before referring the petition in question, required to be informed whether the assertion of Mr. Lampson was correct, and whether in his opinion the in- terests of the Crown were identified with those of Mr. Lamp- son as stated in the petition." Tlie petition referred to in the letter, it appears was not communicated to the Attorney General ; its contents touched the Attorney General both personally and officially ; and we must be permitted to express our regret that such an opinion COMMITTBE OF ORIEVANCES. 157 le crown, should have taken place in the high quarter to v^hich the petition was addressed. The petition, then, which for the first time saw the public light after the presentment of Mr. Lampson's petition to the Assembly, and upon an address of that body to his Excellt cy, relates the following heads :— len* " That the petitioner was the sub lessee of the territory known by the name of the King's Posts. ^ "That the petitioner has been isturbed in the monopoly ofThim ^ ''"^'"^^ ^'^'^ ''''^ ^^^ ass>gnment there- ;< The necessity of establishing the metes and bounds of the inTon7hff^'"-' T'^'l'^ ""''' ™°"^^^' of three leagues in fiont by four m depth, granted originally as the petitioner alledges for he purposes of cultivatioS ; under which gvanTiJ s further alledged that the proprietors and lessees enlarged their possession to five leagues in front, and thereby embrac- ing the trading post of Portneuf at the mouth of the river runmng from the interior, where they carry on a trade with he Indians of the King's Posts, to the prejudice of the pett t.oner, and that in consequence of the uncertainty oftheli- Srvthr'^Ki-l'^'P'r ^"'"'■'•^^' ^vhich rendered neces- ^^ThLT ' TVl'^'i'^ ""^ ^°""^^ °f that seigniory. That the lease to John Goudie having been executed hv an ordinary deed before Notaries, conveyed in law no leiS estate, and the petitioner prayed in consequence, that lettf rs patent under the great seal might be directed to issue, and at the same time that a proclamation similar to that of 1823 should also issue. "That an action had been lately instituted by the Hud- frv nf .h^ r^^"^ ^^ '"''"f °^'^'"^ V^^he^' b/the minis- try of the Attorney General against the petitioner and his servants for trespasses near the rivur Portneuf, (the site in dispute) to which both the Hudson's Bay Comp'aiy and the e^n Inffh^'r '^'''"' *^P^'it'«»er praying for the inter er! ^,r,M ?.k'''"^" *° .*^'^'"^ '^''' ««ion.lThat the result Tp trnt. n' utmost importance to the Crown, for an exten- hP lla ' P^Yrn'^°."r^^^' '''^''^^ ^'•°"' '^^ Crown should the lessees of Mille Vaches succeed in this action. If they retain possession of the river Portneuf and the post establish- ed on the bank of that river there would be an end to the .«!-,* V ~.r~r " . F'^""""cr, uic nver Portneut bem^ an 'niet to the interior through which all the Indians of the :t 158 CONDUCT OP THE ASSEMBLY. i 1 i M] i, King's domain could be enticed from the lessee, and that the sum by him paid annually to the government, and the advan- ces and comforts of the Indians which the petitioner was also bound to provide, could no longer under these circumstances be expected. " That the petitioner must be permitted to express his regret, that the leading crown officer, (the Attorney General) should be found zealously engaged in advocating an interest so ad- verse to that of the true interests of the Crown, as that set up by the owners and lessees of Mille Vaches, and to ex- press his hopes that his Excellency, upon mature considera- tion, will afford such relief and impartial justice as 'the peti- tioner is so fully entitled to." And concludes with the following prayer: "That his Excellency would be pleased to take the premi- ses into his immediate and most serious consideration, and thereupon grant to the petitioner the relief prayed for." The day after the receipt of the abpvementioned letter of the 23d December, the Attorney General addressed a letter to the Civil Secretary, wherein, after acknowledging the re- ceipt of it, he proceeds as follows : — "In obedience to his Lordship's commands, I have the ho- nour to state that the duty of tne office of Attorney General, which I have the honour of holding, necessarily precludes me from taking any retainer to support the interests of individu^ als, in opposition to or inconsistent with those of the crown ; and I have not, therefore, become, nor could be retained, by any party adverse to Mr. Lampson, to oppose or question interests in him, whifth are identified with those of the crown. The case to which Mr. Lampson, I presume, refers, and which, it has erroneously been supposed by him, furnishes ground for his assertion, is a possessory action, (called in the French law an action «' de Reintegrande," being the " Inter dictum unde vi" of the Roman law) recently brought by"me for the Hudson's Bay Company, against Mr. Lampson and his servants, for having, with force and arms, entered upon a piece of land which then was, and during a long period pre- viously had been, in the peaceable possession of the Hudson's Bay Company, as lessees of the seigniory of * Mille Vaches — for having expelled therefrom the servants of the Compa- ny — for having continued the erection of, and erected, a noiISP- llllllflJnnra nnrl foi-iop fl-ioKonp pn'' *>■>" Ko.rI~»» <-.;.«^^ fV.~ COMMITTSE OF GRIEVANCES. 159 cjbly retained possession thereof, &c. This action turns ex- dusively on the aJIedgec fact of possession in the Hudson^s Bay Company, at the time of the trespass complained of uihoMt reference to boundaries or right of property. In th^ action the boundaries between 'Mille Vaihes' and the ad! joining waste lands of the crown, of which Mr. Lampson is lessre, cannot come m question, or be litigated ; nor can anv right or interest of the crown be in the sLlles degree n"o^ moted, injured or affected by the proceedings to bf had^ o the decision to be given in tb-'s action. The ground on which his action rests IS that of u;yW.;,c,Mon by force and va- lence ; and the rule of law applicable to it is, spoliatutante omnia restUuendus est. If, as alledged by th^ Hudson's Bay Company, they have been by fo?ce dispossessed by mT Lampson of land which was in their peaceable possessbn t ey must recover judgment against hin. in this action! even though he were the lawful proprietor of the land. 1 he law m such case requires that the despoiled party be reinstated m possession, before the question of righrcan be •tigated, and this can only be done in a <' PetitoJTJZ to be brought by the party which claims the right^f ^ rertv It IS rnamfest, therefore, that Mr. Lampson could deTve/o benefit m this action, from aright of property in his MaS"y rnf ??h -^^^ '^•^'^' «"d it is eqially manifest Xrt fore, that the interests of the Crown are in no respect identl fied with those of Mr. Lampson ia this matter. He has cho. sen to incur the high responsibility of taking the law in o" his own hands and he must abide the result. The Crown i a stranger to the illegal acts complained of by the Hudson's Bay Company, and cannot and ought not to be implicated in the consequences of them. ^ "I will only beg leave further to observe that if it be suppos- ed hat any part of the waste lands of the Crown are included within limits improperly ascribed to tJie seigniory of " Me Vaches, the remedy for the recovery of it would be found not in any interference on the part of the Crown in the differ ences between Mr. Lampson and the Hudson's Bay Com. pany (as Mr. Lampson would seem to desire) nor in any ac- K)n against that Company, but in an action against the lessors of the Hudson's Bay Company, proprietors of 1 e se.gn.ory of *' Mille Vaches," for th^ eSabUmet of boin! daries^between that seigniory and the adjoining lands of the This explanation could not be otherwise than satisfactory *-^- 1^- Excellency the Administrator of the Government and - H ♦:4 '^i* 160 CONDUCT OP THE ASSEMBLY. m m ■' i,' . > m 'lA : -«i 'BB!!lt;,i according to the directions of his Excellency, the Civil Secre- tary writes a letter to the Attorney General dated the 29th of the same month of December, in which he says in reply to the foregoing letter, that the mind of his Excellency was much relieved by the assurance which that letter conveyed, that the interests of the crown were not involved in the case of Mr. Lampson, and more especially as this assurance en- abled his Excellency to call without scruple for his profes- sional services as Attorney General in a matter arising out of of the statements contained in the petition of Mr. Lampson ; that it appeared by the petition of Mr. Lampson, that he was sub lessee of the King's Posts, which he held under the Crown, in the enjoyment of which he complained of being incommoded, owing to the circumstance of the boundary of the seigniory of Mille Vaches, (which touches upon the lands called the King's Posts) not being accurately defined, and the petitioner appealed to the justice of the Crown as possessor of the King's Posts to put an end to this state of uncertainty, by causing the metes and bounds of the seigniory of Mille Vaches to be accurately surveyed and defined. That His Excellency was clearly of opinion that this appeal of Mr. Lampson to the Crown was founded on justice and equity, and that it was incumbent on the crown as possessor, and not upon Mr. Lampson, as sub lessee, to establish the boundary in question, and that his Excellency had therefore come to the decision to comply with the prayer of Mr. Lampson's pe- tition, by directing the necessary legal steps to be taken to- wards establishing the boundaries and metes of the seigniory of Mille Vaches. Measures appear to have been forthwith taken to obtain the requisite documents for the institution of this suit, and this, together with the counter petition to his Excellency, of the Seigniors of Mille Vaches, having occasioned some short delay, the action for settling the metes and bounds of that seigniory was instituted and returned in the Court of King's Bench for the District of Quebec. If the fourth resolution of I iiii COMMITTUE OP CRrEVANCBS. 161 the Comnmtee 1ms any applicafcn at all, it must apply prin- cipally,.f not solely, to the proceedings above adverted to, and It .s apprehended that in these nothing will be found to justify the inference that the Attorney General, by becoming counsel for the Hudson's Bay, had placed himself in opposit t.on to the interests of the lessee, and by a necessary conse- quence also, to the interests of the Crown itself. These proceedings constitute the sole subject of complaint .n the first petition of Mr. Lampson to his Excellency the Go- vernor m Chief; the utter absence of foundation is plain and manifest to all. ' I come next to the consideration of the additional matters contamed m the petition to the three branches of the Legis lature, which were referred to the Committee of Grievances of the Assembly, and whose report forms the subject matter of the present enquiry. These may all be reducible to the complaint, that the law officer of the crown acted as a private advocate for one of the parties, m certain private suits pending between the Hudson's Bay Company and Mr. Lampson, the lessee of the King's Posts. It IS not pretended that, in these suits, (as was erro- neously set up in the seigniory of Mills Vaches) any public interests were involved. If these complaints could be sup. ported at all, they could only be so upon the ground that the Attorney General ought not to act as a private advocate in private suits ; and, accordingly, it is upon this ground that the committee, in their first, second and third reports, pro- ceed ; yet nothing is more clear than that the law officers of the crown are not interdicted from private practice, either in Great Bntain or in any other parts of the colonies or posses- sjonsofhis Majesty. There seem to be many reasons why their services should be open in private causes to the public at large. It is sufficient here to say, the established rule is that they shall be so, and that rule subsisting, no blame can attach to the public officer acting in orivatn «,nt3 W i: 1 162 CONDUCT OF THE ASSEMBLY. The committee, then, seem to have been in an error when they saw in this conduct of the Attorney General a new mo- tive to solicit his Majesty to remove him from his situation of Attorney General of this province, upon grounds so slender as these ; and which, slender as they are, no opportunity of answering them had been afforded to the party whose conduct was thus vainly attempted to be implicated. I* ^^■f" ifiiii ^ ■ 1 ||hi. 16$ NO. XV. ON THE SECOND REPOHT OF THE COMMITTEE OF GRIEVANCES. Don puo gia essere accusato, avendn !» l!; ^?* Puoessere calunniato. ma The firs, of „„dern philo«,phicaI politician,, the Floren- me Seoremry, treats in this chapter of the danget. and t- «h the advantages proceeding ftom the legal and regular accusatton and trial of all offences of whatsoever JZl Deeply ™bued with the sound ethical principles of Ari .«U ad maturely trained in U,e nse of the seve'e .or^T,;: SIS ot hiB great master, he herp nn^ oi u , ^ -Ms noble U establ,h:,t;;ean »;;! t" ' ""^'""" -al political f„r„u,. ha^ 'u:r d" n' t uTC "L : • dence by any of the most splendid discoveries of pLe geoZ try or of mixed mathematics. "^ ^ '' and^'l'l""''''' I" *' *"' ■■^''^" "'' "'»»» »f »" nature • ad, analysing and combining these, he reaches moral results as' universal and as enduring ».,h. „.:...•.... ,.. ""^''""sas ".e Pnsm separates the rays of light, aid they agaLbLme 164 CONDUCT OF THE ASSEMBLY. ( l< ! I; [ confounded in one common colour by an unerring law, the same yesterday as to-day and so henceforth for ever, the na- ture of light remaining unchanged ; so we are led by this wri- ter, by the aid of an analysis, similar in its elements, and dif- fering only in its objects, to the conclusions stated at the head of this text ; conclusions as true in the frozen regions of Quebec, and as applicable to the humble affairs of a colony, as they were under the bright sun of Italy, and in the great em- pire which once overshadowed the whole earth. The charac- ter of calumny, as contradistinguished from accusation by Ma- chiavelli, is, that the one is sanctioned and regulated by the law, whilst the other depends upon the mere caprice of indivi- duals ; that the one requires, on the part of the accuser, evi- dence of his charges, thereby checking unfounded aspersions on private or public character, whilst the other is subject to no such restraint. In the one the party accused may have the benefit of a full and fair defence, whilst in the other he is condemned and mulcted in his fair fame, without being heard, lie adds, as a further check upon unfounded accusations, that, in the event of failure in maintaining the accusation, the ac- cuser should suffer severe and condign punishment. One other effect of regular accusations which he also points out is, that they create a salutary fear throughout the society at large, and prevent offences from being committed, thereby steadying social institutions, deterring from crime and encou- raging to virtue, wliilst calumnies serve only to excite angry passions in those who are the subject of them, and those who publish them, thereby disturbing the equability of social life, without producing any beneficial effects whatever. And here it may not be amiss to point out some of the mischiefs arising from proceedings like those under considera- tion—mischiefs which Machiavelli seems to have had in his mind when he wrote the chapter from which the extract at the head of this paper is taken, but which, following the method of the true Aristotelian philosophy, of touching only the apices re- rum, ns connected with the subject immediately in hand, he ■ COMMIllEE or OniBVANCES. lyj ha, rather l,i„,=d at than fully dudoscd. I will ,ry ,„ .„„„,„ this part of the subject in the best way I can The desire of the esteem of our fellow men is an instinctive elemeotary principle of our nature ; like the law of self preser^ vat,on, s,raple. inhereut, and independent of all ratioeinative processes: .t exhibits itself in the infant at the dawn of per cepuon and waits not the developement of reason; i. does (or c,v,l -cety what the law of self preservation does for the mdmdual. W.thou. the latter, man could not live-without the former, he could not live as a gregarious and social animal I. .s the cement of all human society, both natural and artifi- c^l, weoweto it many of ... pleasures: imagination can c nceive no h.gher misery than .hat of an individual deprived of al consulerafon with each, every and the whole of his specie. The captam of banditti, for this reward, surpasses his fell wt ■ncourage and daring : and, in thedivision of the spoil amongst to fellows .„ c„me, mamtains honour even among ,hieves.L The legislature cannot, and ought not, to lose sight of this pr,nc,ple, .n accusations agai'nst any private Individuals but particularly against public officers of the state. Le J accusations and regular trials maintain this principle i„ Its efficacy, by at once protecting, defending and securing to the innocent and virtuous the esteem of their fellow men whilst, on the other hand, the guilty are deprived of this' inesumable boon: and all the citizens of the state come to be incited ..virtue by the hope of praise, and deterred from crime by the fear of blame: thus rendering .he two grea" movers of .nan hope and fear, subservient to .he advancement oftruth and of right. Let us no^v see ho^v calumny (I use the word in the philo- sophical sense assigned to it by Machiavelli) operates It obviously annihilates the motive of action here referred to. Let calumny be admitted, and then the esteem of our feU ow men cannot be maintained by good actions, nor lost by ad ones. The hope of that esteem which legal accusations sustam, and the fear of the loss of it which they inspire at (i. J (I K ,1 I; 166 CONDUCT OF THE ASSEMBLY. once disappear, and have their places supplied by the rancorous passions which calumnies imply in the framers of them, and often also by the hate which is too apt to be naturally en- gendered in the breasts of those who suffer from them. But if this be true as to the citizens generally, it is eminently true as to the officers of government. Their character is public- property, not in the sense in which some short sighted dema- goguPH s J ircat if,, to be pillaged, wasted, and cast into the dust and mud of their pleasure or caprice ; but, on the con- trary, to be sustained when good, to be exposed when bad, to the admiration in the one instance, and to the contempt in the other, of their fellow subjects. For this purpose, the shield of public accusation and public trial is placed before the innocent, and the sword of public justice cuts down the guilty. Again, all government rests on public opinion ; des- troy the confidence of a large majority of any given country, in the public officers of that country, and you destroy the government of the country. Let the accused officers be tried, convicted, removed, and, if their offences require it, punished, and you reform that government ; the first course of proceeding, then, produces anarchy— the last, reformation. How far the proceedings which it has been our duty here to bring under the public eye, and subject to the public judg- ment, have the character of the former or of the latter course, I leave to my readers to determine. It is upon this report only (for the other two reports of the Committee of Grievances had never been concurred in by the House) that were founded the resolutions already given, recommended by the Committee of Grievances, and adopted by the House, and embodied in their address to his Excellency the Governor in Chief. To complete my history of this part,^f the subject, it is only now necessary to give his Excellency's answer to the fiddress, which is in the form of a message to the Assembly> and 13 as follows : — COMMrrTKK OF OHI.VANCE.. jg^ " Ayxmeh, Governor in Chief; pend from the exercise of his off^r«. f ^''''"^'>'' *« ^us- ble James Stuart, AttorneyGen"^^^^^^^ "°^°"^- Knigs pleasure be known; touchL *7.^''''^'nce, until the plamt preferred against the akl Atforn'el'r ^^^f" °^"^-°'"- tion from the House of A*...mK -^""'^"^7 <^eneral, in a neti "ow informs the Hou^^hThetll'Tl '' '^'« ^"j'«'y^ f-Uorne, General f.m "^eZ^^^^ZZSk P^^^^^^^^^^ '^ -PHanee with the ^es upon the justice of thatHn.l\^7"9'>' '" Chief re- General with copies of the various do. """'^^ '^'^ Attorney charges agmnst him are founS '"^' "P°» '^hich the House :i2:::z; iglTaZT'zr^^^^^ ^^-^ ^^e ceedmg on this occasion, that hrhl ^h k ^"''^ ^''°'" ^""^ P^o- pronounced a judgment in Thl . ^'^^^ ^^^^^n a part or House of AsLm'bT;" 'nd /he Atorn? ^r"''"^ betwe'eT'the cause in which he cannot sufrthTSr?T''"' ' ^«'' '' ''« « e-ther judge or party. ^' ^""'^'^ ^^ be considered as "Castle of St. Lewis, ) ^' Quebec, 28th March, 1831."/ "orial of .he Attorney GenerrtoT .T'''"' """"=- «e under the pubhc eve ^ k '■'' ^'^'"''^ '«'""« "-papersanextraotfrom heTe2ri' "'"''^■"" "• ".ospondence, a, affording all theT ''=™" W»g --•-'• in relation to .he's ' n^or ^T": """ ™" "^ neral.* »"spension of the Attorney Qe- ;l '.li " See Appendix, No. » page 108 I NO. XVI. LEGISLATIVE COUNCIL. Factio hand aubio refiis, cujus beneflcio ih curiam Tenerunt. , i mi ' ' t i 1 The present political condition of the British Colonies can- not be fully understood without a reference to the history and political institutions of the old Colonies of Great Britain. In these the Executive Council possessed the power of a Council of advice and control, and also that of a Legisla- tive Council. The defects in the constitution of this body in the old system will best be understood by reference to a passage .n a work of Mr. Mazeres, the first Attorney General of Lower Canada, after the cession of the country.* The two great defects therein stated are the paucity of the numbers of these old Councils, and the members thereof not being absolutely independent of the Governor ; the con- sequence of which was that they had not sufficient weight to check the violence and aberrations of the popular assemblies. —The first innovation in the old Colonial system is to be found in the Statute 14 Geo. Ill, chap. 83, commonly called the Quebec Act.— The provisions of the Act relating to this subject, are to be found in the 12th, 13th, 14th, 15tl', and 16th clauses of it.— By the first of these clauses it is provided, • See Appendix No. , page onies can- I-SOUtATlVK COUNCIL. i-- -h and f;Z ;^tr r^^ '' -S^ilt^;- necessary to supply the^acmJZT ^^ ^'""^""^ «« «hall bl c I so appointed and nonifnateZ n/f.''^"'"'' vv^ich Coun' shall havepou'er and autW tv to ^ '"^Jor part thereof peace, welfare and ^oodTv^rnLn^^ ordinances for ?he the consent of His MaiestvTr ^'"'^ '"'^ Province with the lieutenant Governor ^orP '"'""'*' °''' '" ^'s abseL • tinje being." ''"''''> ^'^ Commander in Clnef for 'the llie yd provides " fh f ine dd requires everv ni..?;.,™ , "^^^ '* or district " '^.^fo'e His Wajesty. Iv'^i^t-x "'^ ^ ''^^ C«""C'*1 to be 1^^ I The 4th provides « f i, * jes^s approbation. "'^" ^^^^ received His Ma "«nce hall K> '^^^ ,^°J°nies, provided °Th'.""'"^''' °*' InVlvi. ""-^ °f^«y. unless UDoL '^'"^ of January- ' I- X r^ "^'^^^ ^'^^'•^°f. shall be n.r '" n'' ^"^^^^' «^ ''^^ Governor, or in his absenL'r "f,!'/ -— ed X '' "-^ """ lieutenant I' ?-.•.> ^'^l- • J, f !'>■ V f gfc"^ lit JYO LEGISLATIVE CeUNCIL. Governor or Coinmander in Chief for the time being, to attend the same.* Apart from this Legislative Council, was appointed an Exe- cuti e Council, bj the mere exercise ef the royal preroga„v. From a work published in London in 1789. and, though „,on,mous, evidently coming from a man of informat, on, the following is an extract :— .. The Chamber of '--e Let'^^-J^-^^^^f «r:;i:!! a, close and raperv.ous as *\°'™/„„„3iaer themselves ^^1' ro'V'c^arwtrpat es™n th:L:gislature, yet th. obhged to conceal wnai p ^ Chamber is still shut •■ttost them%anonyle:m"htho i.ferfec, «&» in the Legislature.''^ The work in question contain, numerous anecdotes, shewinj the misgovernment of -he Colony under this systeml-Tj. brings us down to the passing of the Consftufonal Act of 1 The framers of that act seem to have been perfectly sens,bl the insufficiency of the correction of the old system attempted by the foregoing Act of 1774. Besides providmg for the -■ vocation of an assembly, in which, in conjunction w.th fc Governor and Legislative Council, .H whole leg.slatwe po. i. vested, they retained some provisions manifestly framed ..t a view to give^ additional *eight to the Legislative Cou.c,l. The power of selecting them is given to his Majesty_thcy« not to be fewer than 15-they must be of the full age ot J . See in th. Appendii, No. , P«ee / "" "~""' v','''£m ,-,.„, toV. Gov„n« of the Colon, ot Georgia, e. gi.en by *r. M« ilitud to him."- Voted and resolved in the Negauvk. | t See Appendix, No. , page « iiii LEGISLATIVE COUNCIL. 171 years, natural born subjects of his Majesty, or subjects of his Majesty, naturah'zed by acts of the British Parliament, or subjects of His Majesty, having become such by the conquest and cession of the province of Canada. They shall hold their seats for the term of their lives, with only two exceptions, re- sidence out of the province for the space of four years conti- nually, without the permission of the person administering the government, or taking an oath of allegiance or obedience to any foreign prince or power. A further clause in this statute enables his Majesty to annex to hereditary titles of honour, the right of being summoned to the Legislative Council. The power of nominating and removing ihe Spesiker is given to the Governor. So far as the Executive Council is concerned, it seems to have been intended to be kept a body apart from the Legisla- tive Council, and it is therein constituted a Court of Civil Ju- risdiction, within each of the said provinces, respectively, " foi hearing and determining appeals within the same, in the like cases, and in the like manner and form, and subject to such appeal therefrom, as such appeals might, before the pass- ing of this act, have been heard and determined by the Go- vernor and Council of the province of Quebec ; but subject, nevertheless, to such further or other provisions, as may be made in this behalf, by any act of the Legislative Council and Assembly of ither of the said provinces respectively, assented to by his Majesty, his heirs or successors."— This Council is made a Council of Control, as to the erection of parsonages, and the endowment thereof. In the act of 1774, nothing was said respecting the Execu- tive Council, but under the common constitutional law of the colonies it was appointed by the King, as a council of advice in all cases, and of controul in some. By the King's instructions, they are also a council of con- trol, so far as the granting of lands is concerned. It is much to be lamented, that they were not also made a council of controul, as to the nomination to public oiTices, and us to * r no. having passed useful bills sent up to them by the Assembly, was. if not in all, at least in very niany^m^tances, entirely withon' foundation.* To ejr liji i':- f. 174 LEGISLATIVE COUNCIL. into the grounds of this opinion, would much exceed the limits of ihis paper, inasmuch as it would necessarily involve an investigation and examination of the various public mea- sures, the rejection of which is complained of by the Assem- bly.— ^6 uno disce omnes.—A bill for a new organization of the courts of justice, was introduced by the Honorable Denis Benjamin Viger, then a member of the Assenbly, and passed for several successive years by that body, and sent up to the Legislative Council, where it was rejected. Seeing the temper of mind in which the Legislative Council then was, the Assembly became afraid, that, although the Council had oftentimes rejected it, (and I believe that no man can read it without saying they rightly rejected it) they would now adopt it, and that the whole judicial system would be thrown into absolute and irretrievable confusion ; they, there- fore, found themselves constrained to reject the bill in ques- tion, by a large majority, in the session immediately after the publication of the Canada Report. Under present circumstances, one may say, (and it is a subject of congratulation to the country) that the power of the official classes in the Legislative Council is utterly and for ever annihilated. Whether the proposed changes, which would have the effect of vesting the whole of the authority of that body in the large Umdholders, to the exclusion of all other classes of the society, would be beneficial, is a question not ly- ing within the scope of the present enquiry, which has much exceeded what 1 had originally contemplated, and which I am anxious to bring to as speedy a conclusion as I can. •f= nnlirv according to the views taken by each successive Governor of the iubli policy t^be'pursued in a colony. Let the course of the pol.cy o public PO «=y * p J^ ., jj its tone under the adramistru Jon of the Earl ''i-'TlXt be cSmpa^ed^^^^^^^ the same under Sir James Kempt an it ought to have. 1V5 NO. XVII. COUILT HOUSES AND GAOLS. FIAT JUSTITlA. On the 22d of February last, tlie following message from his Excellency the 'Governor in Chief was delivered to the As- sembly : — "The Governor in Chief desires to bring under the notice of the House of Assembly the subject of the message of his predecessor, dated the 1st of February, 1830, recommending to the House of Assembly the expediency of providing for the erection of Court Houses and Gaols in the most populous counties of the province. The Governor in Chief fully non- curs with his predecessor, in the view taken by him in his message above referred to ; and he considers it, therefore, un- necessary to say more at present regarding the contemplated measure, further than to recommend it to the considerr.tion of the House of Assembly, as calculated, in his opinion, to produce the most beneficial consequences to the province at large." Upon this message being taken into consideration by the House, it was resolved as TToUows : — T'l It it is the opinion of this Committee, that it would be ex- pedient to build Court Houses and Gaols in the Counties of this Province, so soon as the inhabitants sh;dl think fit. That it is the opinion of this Committee, that, in order to pro- vide for the erection of a Court House and a Gaol, a pub- lic meeting of the freeholders and landholders thereof shall be convened; and that the expediency and necessity of 176 COUHT HOUSES AND GAOLS. E T.BH' :u,j. building the said Court House and Gaol shall he decided by a majority of the said freeholders and landholders then present ; and that the said decision shall bind the whole of the inhabitants of the said county to contribute their quota to the said buildings. That it is the opinion of this Committee, that the majority of freeholders and landholders present at such meeting shall decide equally as regards the place where such Court House and Gaol as aforesaid shall be erected. That it is the opinion of this Committee, that one half of the expenses incurred in building the said Court Houses and Gaols be paid by the province ; provided the said half do not exceed six hundred pounds currency, and that the other half be paid by the inhabitants of the said counties. That it is the opinion of this Committee, that the half of the aforesaid expenses to be paid by the freeholders and land- holders, be apportioned to each of them in proportion to the superficial extent of ground which each possesses— the pro- prietors of emplacements only paying as proprietors of one half or a third of a piece of land of sixty to ninety arpents in superficies. That it is the opinion of this Committee, that when a court- house and a gaol shall have been erected in a county, the Magistrates residing in such County shall have the power to hold Sessions of the Peace therein, at least four times a year. That it is the opinion of this Committee, that the said Magis- trates in Session shall have criminal jurisdiction in all mat- ters commonly cognizable in Courts of Quarter Sessions. Resolved— That it is the opinion of this Committee, that the said Magistrates in Session shall also have a limited civil jurisdiction therein. That it is the opinion »f this Committee, that it would be ex- pedient to appoint a Clerk of the Peace to keep the register of the said Court, and a gaoler to take charge of such per- sons as may be committed to his custody. That it is the opinion of this Committee, that the inhabitants of the counties, and not the Province, ought to support the costs of repairing and keeping in repair such said court- houses and gaols. One of the most striking features in these resolutions, is that it delegates to the town meeting the power of determining whether there shall he a court-house and gaol, or not, also where it shall be placed. The last of these powers is essen- COURT HOUSLS AND GAOLS. 177 '■■''It'- ■ tially legislative, and this with some -^ther parts of the mea. sure has a democratic hue, which does not well become this country. The transition produced by the adoption of the mea- sures predicated upon ' „se resolutions would be too abrupt, violent and general. I avail myself of the permission given to me by a friend to insert here some observations of his, in which I concur, except as to the whole of the expense of erecting the court-houses and gaols being, in the first instance, defrayed out of the pub- lic chest. Of the necessity of organising county courts in this Pro- vince, there seems to be but one opinion. But when we come to the details of this measure, we do not find the same unanimity to prevail. The two main opinions relate to the re- sidence or non-residence within the body of the county of the individual or individuals to be charged with the judicial func- tions therein.— To my mind, I own, that the objections to the Judge being a resident Judge, seem to be insuperable— com- bining, as he necessarily would, in the majority of cases, the powers of a judge of fact as well as of law, and thus perform- ing the functions of judge and jury, he ought to have as little connection with the society as possible. Living in the society itself; it would be almost impossible for him to avoid being mixed up with the little dissensions for which small societies are proverbial. So, too, if it were required, that the Judge should reside within the county, it could hardly be expected that men of competent qualifications at the bar could be found who would be willing to make the sacrifice for any remuneration which the public could afford for this service. Whilst, on the other hand, if the attendance of the county judge were only occa- sional, during the assigned terms, and in the vacations of the Superior Court of King's Bench, it would not interfere with the Barrister's practice in any of the three principal Courts of the Province ; und the remuneration afforded by the public for this temporary service hews not more than em-ol *« ♦ to De 178 COURT HOUSES AND OA0L8. given for a personal residence, the government and the pub- lie might command the best talents of the whole bar. It is considered that the county courts might take cogni- zance of personal actions to an amount not exceeding j^25 or £30, with the right of appeal to the Court of King's Bench, in each district, in all cases above £10. It might be expe- client also that the county Judge should preside for two or three years in the Court of Quarter Sessions, to be establish- ed within the county, to exercise the general powers of criminal jurisdiction, vested in the general Courts of Quarter Sessions now in existence. It is worthy of consideration also, whether it might not be expedient to vest in the Court of Quarter Sessions all these powers of local administration, as to roads, &c., which are given to Courts of a similar jurisdiction in the adjoining Colo- nies. The Court of Quarter Sessions, one of the important branches of the institutions of this Province, would thus be most beneficially assimilated to the Constitution of Lower Canada. However much one must feel convinced with His Excellen- cy, of the necessity of the measure proposed, it cannot be de- nied that there would be some risk in suddenly making so im- poi tant a change in the institutions of this country, as to es- tablish a court in each county, with the power of the Quarter Sessions. It would not be ^asy to find in every part of the Province, a sufficient number of persons fit to discharge the new duties, thus to be assigned to them. And if these were ill performed, the whole system might fall into unmerited dis- credit, from which it would not be easy afterwards to raise it. Such a disappointment might be productive of great and irre- parable inconvenience and injustice. To meet this last diffi- culty, it is suggested that the erection of two or three county courts in the first instance, in places where they have been desired for a long time— such as Kamouraska, the river Chambly, Hull, Missiskoui Bay, and wherever there is a con- siderable number of wealthy inhabitants, would be the safest COURT HOUSES AND GAOLS. J79 course that could be pursued. As to any other county juris, dictions, they might be erected from time to time,' in a ratio proportioned to the pubh'c wants of the different sections of the Province. The expense of the erection of the court-house and the gaol should, in the first instance, be borne by the Province at large, but should ultimately fall upon the county in this man- ner ; the expense should be reimbursed by the county, by a tax upon every process issuing out of the county court. This is not without precedent — To the system of county courts must be added, as a very important appendage, the tri» al of criminal offences, not cognizable before th« Court of Quarter Sessions, as at present constituted. The country parts of the Province would thus be relieved from the burdens to which they are subjected by their attendance upon the cri- itiinal courts in the cities, and from the anomaly whereby they are excluded from the functions of jurors in criminal cases— which functions are now discharged by the inhabitants of the cities and the country parts immediately contiguous. I J 80 '■■■11 ]■ i * '! * '1 1 NO. XVIII. FINANCES. If what has already been observed be generally true, that it is hardly possible for any one to form a right judgment upon the public questions now in controversy in this Province, with- out a more minute knowledge of the old colonial controversies than generally obtains, it is eminently so as to the subject at the head of this paper. The ancestors as well of the inhabitants of this Province as of the adjoining states, were not reared as we have been in the lap of ease ; they were disturbed by continual wars, and wars too of a peculiarly ferocious character. The husbandman felled the forest trees, while his rifle leaned against some neighbouring stump. They grew up amongst continual alarms, and the blood and treasure expended by the respective colonies, were, considering the smallness of their means, enor- mous. Each resorted to the aid of savage allies, and an hostility embittered by the religious prejudices which then obtained on both sides, was further aggravated by the occasional horrors of savage warfare. Their respective parent States, England and France, were also prodigal of blood and treasure in these contests. No inconsiderable portion of the national debt which now oppresses Great Britain, is refcrrible to this cause ; and the derangement of the finances of France, which was one of the main causes of the great catastrophe we have in our time witnessed, was in a great degree derived from the same source. Mr. Chalmers, I think, estimates the expenses incur- red by Great Britain in these wars, at one hundred millions riNANCKS. 181 sterl.ng.* As far ns the French government was concerned, an •dca may be forn.ecl of the astonishing efforts n.ade within the colony at that tin.c, from some facts stated by M. Bigot, then Intendant General of Canada, in his defence upon an accusa- t.on ot peculation preferred against him, after his return to France, on the conquest of this country in 1759. According to him, and he could have no interest in augmenting the amount, the stores sent to Lewisburg and the island of St. John m 1750, amounted to 333,600 livres 15 sols and 8 de- n.ers and the expense for the posts at the river St. John and Uiediak, for the same year was 297,389 livres 19 sols and 4, cleniers. It appears .n the same memorial, that there were sent to the rn.r St. John in 1751. 800 barrels of flour and 100 barrels ot pork by the French government. The estimate by M. Bigot for the expenses of the frontier posts of Acadia for theyear 1751 amounts to 826,503 liv. 9 deniers. The expense •n that year at the post of the point of Beau Sejour alone, for provisions distributed, amounts to 60,000 livres. The ex- penses of 1752 exceeded those of 1751. In 1753 the Marquis Du Quesne attempted to take anev^ possession of the river Ohio, and built several forts there.^ The Sieur Marin, whom he sent thither with a numerous body of men bu.lt several forts in that country, and among the resi a fort to which the name of the Governor in Chief was given. Mr B,got states the expenses incurred for that expedition, up to the first Oct. 1753, at 2,658,230 liv. 9 sols and 4 deniers He stated in his despatch of that month, to the French Minis- ter, that he had informed the Marquis Du Quesne, that, from he manner in which the expedition was carried on, it lould OS a, , , , ree millions, to which the General had answered, cirrti" ; I ru"" ''"^'^' '' ^"'°" "^ p--^ «'- h? Vn ' ^•^•'"••^^--^^ f- tbe operations ending on the 1st of October 1 753, as stated by M. Bigot, is not included Sta^r in ZS]:?."^^'' ''"'^ °^ ^^^ ^""-^ Published i„ .he QuebTc ■ ^a IMAGE EVALUATION TEST TARGET (MT-3) /. h i^ i/.A i.O I.I IS 14,0 2.5 2.0 1.8 L25 U|,.6 1 .4 6" ► »:.^ ''^i/ ^^ ''/ '/ Hiotographic Sciences Corporation ru^ <^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 i^ i/.i I'.*-.' 182 FINANCES. the expense of a detachment of five hundred and forty men, who were to proceed under the command of the confidential friend of M. Bigot, M. Pean, to the Belle Riviere, nor the wages of the workmen in digging the foundations of, and in building the forts, nor the expenses of the trajisport of eighteen or twenty thousand quintals of merchandize from Presqu'isle to the River-aux-Bceufs, a distance of eight leagues, which was effected on men's backs. In 1753 the same efforts v/ere con- tinued; and, besides a large issue of paper currency which was depreciated thirty per cent, M. Bigot drew Bills of Exchange o« the French Treasury, to the amount of three millions and a half. The expenses in the years 1754* and 1755, of the French Government, in carrying on iheir project of aggran- dizement in North America, were enormous. The Intendant's estimate for the French posts, on the Ohio alone, in the year 1756, amounted to between two and three millions of livres. The estimate of the same officer, transmitted from Canada to France, on the 29th August, 1758, for the following year of 1759, amounted to from thirty one to thirty thi»;e millions of livres. It appears that twenty four millions were actually drawn for, before the taking of Quebec, in September 1759. The sacrifices made by the old English Colonists, it has al- ready been said, were great ; the taking and securing to the crown of Great Britain the island of Cape Breton and its de- pendencies, by the several provinces of Massachusetts Bay, New Hampshire, C<^nnecticut, aqd Rhode Island, cost those Provinces above £200,000 sterling, which had been raised and advanced on their public credit ; and, on the 14th April, 1748, a Committee of the House of Commons came to the Resolution, that it was just and reasonable they should be reimbursed, f f Vide Burke's Works— Speech on Conciliation with America, Vol. 3, p. 99.*~Wheu Mr. Grenville began to form bis system of American Re- venue, he stated that the Colonies were then in debt ^2,600,0U0 sterling money, and was of opinion they would discharge that debt in four years. — !b. p. 101 ; but it appears tli a this calculation was too sanguine. The redaction was not completed till some years after, and at different times in difl'erent colonics. if FINANCES. 183 The whole pecuniary expemliture of the BritW, r„, ■ dunng s,x years preceding the peace of 17«^ ^ FranfeKn at ten milhons JriiZ TTf ' " "°"-"'' ''^ ^'■ iwenty five thousantJ men It .•"".,/ "■"'f"' « "ray of every fi,ecanable„fh '' ""' ""' ">«" ""' "f nies'had bZ th /en "' """,■" '"^ ^'" ^"Sland colo- ■eced that «:.: e ace /n^rth '"^ '' "" "' "-■• nies hardly reached three 12 ''°'""''"'"" °'"''''"»- eou'Stet '„?: """" '"; '"'""'- "^ '--" - «"•» ...join^p LL "7' '° "r'--™ - .hose in the "oh fe«r in numbe/r 1 u . '^™"'^''"»- They were ■ouU; a.mosta,l he :;„"ff'' »"'--'' ""-OOO all who were not „r.v» ,,'7 '"""^ a™s, probably "p.oyed : uSre^rs^r ™''^- '" ^"" regulated by no law i, L P, ""'"'• The conscription was .Wrmilitary suplX 1"" l' °"'^ "" '"^ ='"'""-J- -" of of.heir„ilLr7rru 3 Tr,! "''■""" '''"™^''''- regular and of thopfotd ■ , "'' P"™'" "' ""= between these two bT r """" '''■'^'"'^"'- The ill will ..onesi„gi:vrat;:::;.b::;-t^^^ senior captain in the militia Th«- ^ '^"'^ °^ "'-"CK greater than tte o ' 'hrhr^rrr "T- ne ghbours nof m fK u . ^"""^'^ Amer can prices much below their val„. '"f ™ '""^^ """lom.es, at e"rency, and by a a" alol'o'f , " '" '''""'"'' P"?- ".^ughout the provinc'I nZ a 1 K "T' """''""■' equal gallantry on boti, '.™™7'"""S ""^n fedeeraed. With .;' I I 'i P !:•? 184 FINANCES. and political oppression, {preserved them at least to a very large extent) against the efforts made to renew the same on this side of the Atlantic. The ardent spirits, who would have disturbed the peace of the parent state if left at home, enlarg- ed her and their dominions here. That benefit, which the patriotic and virtuous Admiral de Coligny thought he had secured to his dissenting brethren in France, by obtaining permission to transfer to the French North American colonies, with free liberty of worship, French Huguenots, was actually possessed by the British colonists ; and there can be but little doubt, that if the convention of the Admiral de Coligny had been preserved, a very large portion of the wealth, enterprize and industry, which the revocation of the edict of Nantes threw into the hands of the enemies of France, would have fructified her North American possessions, and that the French language would, at this day, have been the dominant Ian- guage from the gulf of St. Lawrence to the gulf of Mexico. Another cause subordinate to this was, the difference of ma- nagement of the Finances of the two countries in North Ame- rica ; but as this is somewhat of a digression, I return to my main subject. The peace of 1763 annexed Canada to the British Empire. Soon after that event Great Britain, for the first time, set up the pretension of raising a revenue in her Noi th American colonies for imperial purposes, and this by the authority of the Imperial Parliataent. It seemed reasonable that the co- lonies should contribute to the expenditure thus incurred for their defence, nor does this appear to have ever been denied by the old colonists. The difficulty was as to the quantum, and as to the authority by which as well that as the mode of levying the money, should be regulated. Pretensions were then set up on the part of the parent state, precisely similar to those which Athens, between two and three thousand years before, immediately after the battle of Salamis, had made and successfully enforced, to the great prejudice of her colonies and to the ultimate ruin of herself. FINANCES. 185 It will be seen that the Act of the Imperial Parliament, 7 Geo. Ill, commonly called Mr. Grenville's Act, imposing du- tics within the colonies to be applied to imperial purposes hj the Imperial Legislature, is here referred to. It is quite plain, that if the principle of this act had been submitted to by the old coL.nes. they would literally have become predial olavcs. If one set ol men have a right to impose at pleasure pecuniary burthens on another set of men, and apply these resources as they like, then all property is extinguished or rather becomes vested exclusively in those who exercise such rights; and the nominal owners hold a precarious possession, dependent on the will of their Lords. It was this claim which excited, and rightly excited, so violent a ferment in the old colonies, and in the end produced their dismemberment from the empire. Mr. Burke informs us, that the news of these troubles did not arrive in England until the end of the following October. Lord North and his friends were driven from power, and the' new ministry under the Marquis of Rockingham, entered into office the 10th July, 1766. The principal measures in the short administration of the Marquis of Rockingham, were the repeal of the Stamp Act and the enactment of the Declaratory Act. With these two acts the second period of the history of colo- nial policy ended, and the third commenced ; but the Marquis of Rockingham did not remain long in power, and the following year (1767) a new act was passed, imposing duties on glas?, tea, paper and painter's colours imported from Great Britain into America, the object of which was rather to enforce the right of taxing the colonies than immediately to raise any revenue from the exercise of it. The next acts of the British Parliament relating to this subject are, the 14th and 18th of the late King, and to them we shall solicit the attention of our readers in the following number. WW' 186 No. XIX. FINANCES. THE SUBJECT CONTINUED. Statutes of the l^th and 18th of the King. The statutes known in the colony by these names, are the 14th, Geo. III. c. 88, intituled "An Act to establish a fund towards further defraying the charges of the administration of justice and support of the civil government, within the Pro- vince of Quebec, in America;" and the 18th Geo. III. c. \% intituled "An Act for removing all doubts and apprehen- sions concerning taxation by the Parliament of Great Britain, in any of the colonies, provinces and plantations in North America and the West Indies ; and for repealing so much of an Act made in the 7th year of the reign of his present Ma- jesty, as imposes a duty on tea imported fron Great Britain into any colony or plantation in America, ' relates thereto." So much has been said respecting these statutes, that it may be proper here to give a short history of them before proceeding to examine into what is their legal construction. At the time of the cession of Canada to Great Britain, there were legally existing in the Province of Quebec the following duties upon wine, brandy and rum, imported into it from old France, and the other dominions of the French King, to wit, 7s. 6d. sterling per hogshead upon wine ; 4-^d. per gallon upon brandy; and 12s. 6d. per hogshead upon rum. These, by an edict of the King of France, passed in January, 174-7, FINANCES. 187 »ycrc increased to the following rates, to wit. to 10s. ster- ling per hogsliead upon wine. 6d. per gallon upon brandy and £1 per hogshead upon rum. This augmentation ofthese duties was made fo. a special and temporary purpose, namely, to defray the expenses of the fortifications of Quebec, and was appomted to continue only for three years, or till the year 1751. These augmented duties, notwithstanding this limita- tion of time appointed by the edict that augmented them, did yet continue to be levied and paid by the Canadians after »he expiration ofthe said three years, and down to the time of the annexation of Canada to the British Empire. But there was no authority for this continuation of them by any edict ofthe King of France, except doubtful exoressions ii. the edict of February, 1 748. Therefore, these augmented duties were raised illegally from 1751 to 1759, and during that period the French officers of government in Canada ought only to have raised the old duties upon those commodities above mentioned. It is now proper to mention what had been done with respect to them after the years 1759 and iTfiO, down to the year I764.-In the year 1761, Major General Murray, who was left in Canada, in the chief com- mand ofthe King's troops there, imposed, by his own au- thority, arising from that military command, the following duties on strong liquors imported into that country, viz • 5s Halifax currency upon the importation of every hogshead of wine, 6d. ofthe like currency upon every gallon of rum or brandy imported into Quebec, except British brandy or corn spirits made in Great Britain, which, in favour of the trade with Great Britain, he exempted from this duty, and 4d. of the same money upon every gallon of shrub. These duties were regularly paid from the year 1761 to the year 1765, when the military authority by which General Murray had imposed them was at an end, and the country was governed by him as Civil Governor, in virtue of his Ma- jesty's commission of Captain General and Governor-in-Chief ofthe Province of Quebec, which had been received and p« ,- ;-;f. •• W^ ^ip 188 FINANCES. 'k lished there in August, 1764, and then they ceased to be col- lected. The whole amount of such duties levied during those four years was £12,223 currency, as is to be collected from an account of these duties drawn up by the direction of the said Ge-< neral Murray, and delivered by the commissioners of his Majes- ty's Treasury in 1768, to the Receiver General of the Province of Quebec. These duties, it will be observed, were not precise- ly the same with those which had been paid in the time of the French government. Although the merchants of Quebec paid those duties, they were considered by many of them to have been illegally im- posed ; and, in consequence of this opinion, when General Murray returned to England in the year 1766, five English merchants, who had imported French brandy and New Eng- land rum into Quebec, and had paid these duties to the General's collector at Quebec, resolved to bring actions ogainst him to recover back the amount of these duties, which they con- sidered to have been illegally exacted. Accordingly, four actions were instituted against General Murray in 1768, in the Court of Common Pleas in England, for the reco- very of the sums thus paid as duties upon the said commo- dities to the General's collector, as being money had and re- ceived to the use of the merchants. To these actions, the general plea that General Murray did not undertake to pay the said suras of money, being in no wise indebted for them, was pleaded. On the ^1 0th February, 1768, his Majesty's Attorney General and the Solicitor General (Mr. Dunning) gave their opi- nion that the French duties might legally have been collected, but that the excess of the duties collected by General Murray above the French duties, ought to be refunded, and that the plaintiffs would not be able to recover more than that surplus or excess in their actions. This opinion afterwards proved to be correct, as the jury before which their actions were tried, gave verdicts for the excess of the duty on rum imposed by the defendant, above the duty upon the same commodity in the time of the French government. In consequence of FINANCES. 189 the event of those actions, by which it seemed to be generalJv admitted by the judge, jury and counsel concerned in then, that the King had a legal right to collect the French duties upon rum and other liquors imported into Quebec, the Lords of the Treasury resolved once more to demand payment of these from the merchants of Quebec, although they had failed ,n an action instituted for the same purpose in 1766 when the jury, contrary to the instructions of Mr Chief Justice Hey, found a verdict for the defendant. They ima gmed that the authority of the Chief Justice of the Com men Pleas and of the Special Jury of London merchants and of the Plamtiffs' Counsel who had consented to the verdicts above mentioned, might prevail upon the Quebec merchants to acknowledge the King's right to these duties In this hope, they directed Thomas Mills, Esquire, the Re-' ceiver General at Quebec, to institute a new suit for the re covery of the duties which were claimed by his Majesty as having theretofore belonged to the French King, and gave lum the following instructions : « That in case a verdict should be obtained in favour nF,h crown, he should collect all the duties that appeared to h been collected by the French governmen inTv/v V ^^ that on all British brandies ani other ^^il's ' plVted S Great Britain, and being the manufacturi thereorhe should collect no more than one-half the duty levied by the French government m 1757, on brandies and spirits of tClike au«I ity imported into Canada. That he should forbear ocoU^ll any part of the duties which were levied by the French l^f' ml757, upon dry goods imported and exported e^epth^ duties upon tobacco and snufF imported ; his Maiestv^L gracious^ pleased to remit one mo'iety of I dutt i^. B u! ish brandies and spirits, and the whole of the duties on drl goods imported and exported, except as before a? w^H -^ tenderness to his subjects in the Pr':)vince of Quebec a n favour of the manufacturers of Great Britain." These instructions were received at Quebec about the end of October, 1768, and in consequence of them, public notice was given in the Quebec Gazette in February following that ''il mm 190 FINANCR8. m ' ;f| ! ■ * f® » l||i|i|M: ^mi' i •! U»|^»p ,|| |B|^P'"! lo'l-ii these duties on rum, hrnndy nnd wine, would he demanded upon all (juuntities oftlicni imported in tlic ensuiufj; spring and summer, according to the rates appointed by the hist instruc- tions from the Lords of the Treasury. None of the importers would consent to pay them, in conse(iuence of which an information was fyled by the Attorney General of the Pro- vince (Mr. Mazeres,) against two of the principal importcra, in which the defendants were charged with wickedly and craftily intending to deprive and defraud his Majesty ol" tlie duties aforesaid, and to diminish the revenue by importiuff into the port of Quebec, from certain of his Majesty's colo- nies in North America, twelve large casks of rum, &c.> upon which n duty of f(j2 lOs. sterling, was due to the King, and by causing the said rum to be landed without paying, or se- curing to be paid, to the use of his Majesty, the said duty, to the danutge rtf the revenue of f.'JOO. To this information the general plea of not guilt ij was pleaded, and issue joined upon it. This cause was tried in July, 1769, at Quebec, by a special jury, before the Chief Justice. The facts of the case were clearly proved, and the only remaining doubt in the cause was concerning the above mentioned point of law— - xvhd/ier or not, in consequence oj the cession of the conntrij, nnd lite transfer of the sovereignty over it, from the French King to the King of Great Britain, these duties tvere become legally due to the King of Great Britain. The Chief Justice summed up the evidence, and exhorted the jury (as he had done the former one in October. 1766,) to bring in a special verdict, that the matter of law might be I'ully examined by himself and the other higher tribunals to which it might be removed by writ of error, and in the end rightly decided. But the jury (though they consisted of sone of the most respectable inhabitants of Quebec) could not be persuaded, cither by the exhortation of the Chief Justice of the province, or by the example of the jury of London mer- chants, who tried the actions against General Murray in Feb- ruary, 1768, and the concurrent opinions of the Chief Justice I'l NANCES. 191 of the t;ommon I'Joas in Kngla.ul, and the counsel for tl.c l.laintin. in those actions, in favour of the King's right to the IVench duties, to find either n verdict for the Crown or a spcaal verdict, bt,t without much deliberation they found the (lelendants not guilty of the charges. In this posture of things, Mr. Ma/ercs, the then Attorney (.oneral, concludes a paper, which would appear to have been sabnutted by him to the IJritish Government, and of which the forego.ng is an abstract, with the following judicious ob- servation and reconmiendation: — « I will venture to observe that in a claim of this kind, made y the Crown to an ancient duty, good policy requires tW .ejust.ce and legality of it should not only be disce nTble to tl.e acutest and most learned lawyer, but should reZarei^ and n,amfest to the understandings of common men, so I'a every body may immediately perceive and acknowledge it am the Crown take possession of the duty, which isThe obiec; the clann with a general consent and approbation. Wl ero 1..S .s not the case, as it evidently is not with respe;t to tl e clu.es above nientioned, it is better to resort to theWiltivo authority the nation for a new law, either to ev ive the duties which are the objects of such disputed claim7or t^ .pose such other duties and taxes as the people upon whom tbcy are to be levied are easily able to beir, and the"xteT ces Government make it necessary to levy upon t fern" And the only .authority by which this can be do^ne i Te' province of Quebec, where no assembly of the neoDle h- . !l^ been assembled seems to be that of ti Bri irfiam/n, The authority of this supreme legislature and genen re mJ' sentative body of the whole British empire, has^ not 1 been chsputed m this province; and from the loyal deportment of hat every act of government that should be founded on that li.gh authority will meet with a ready obediencfo" tS It will be recollected by our professional readers that a question bearing a strong analogy to the question in the pre- vious case, arose in relation to the island of Grenada, one of the French ceded islands, and was very elaborately argued tour several times before the King's Bench, after the above 192 FINANCES. w\ 1^ proceedings v hich were had against General Murray ; and tliot in March term, 1774, Lord Mansfield stated the case, and delivered the unanimous opinion of the court. The difference hetwcm the two cases lay in this, that in the case of General Murray t'le old duties, as well as certain new duties, imposed by i is own authority, were levied, whereas in Grenada, duties equal in amount to the old French duties, levied in that island, were so levied under the authority of a proclamation of the King, under the great seal, previous, to the convocation of any assembly, bearing date the 20th July, nG-t. The Court of King's Bench held in this last case (Hall vs. Campbell, Co-vper, 204.) that the King had the power to legislf te by proclamation for a conquered country, and that the duties in question were therefore rightly leviaDlc under the aforesaid proclamation. There is reason to believe that this decision of the King's Bench did not meet with the approbation of the v.hoK; of Westminster Hall. Mr. Mazckcs, about that time, in the Canadian Freeholder, examines with respectful freedom, the grounds of this decision ; and the ob- jections which he offers to the course of reasoning of Lord Mansfield, are sufficiently strong to have induced the editor of the last edition of the State Trials to subjoin them in a note to this case.* — But Mr. Mazeres had previously stated strong reasons of doubt as to the continuation of the French duties in Canada, in the before mentioned paper, which was probably submitted* to the Brittsh Government in 1768 or i7G9, but was certainly in their possession in 1772, as we find it in a collection of public papers relating to the colony, in- tituled " Quebec Commissions," and published by him in London in the last mentioned year. The latter of the above aliernatives, above recommended by Mr. Mazeres, was adopt- ed in the statute under consideration. That statute discontinues from and after the 5th day of Howell's State Trials— .Vol. 20, p. 333. UNANres. 19S April, 1775, all the unties which were imposed upon rum, brandy, eau de vi^ de liqueur within the said Province, and also of i>3 per centum ad valorem on dry goods imported into or exported from the said Province, under the authority of His Most Christian Majesty, and enacts that in lieu ar d stead thereof there shall from and after the said 5th day of April, 1775, be raised, levied and collected and paid unto His Ma- jesty for and upon the goods therein after mentioned, which should be imported or brought into any part of the said Provmce, over and above all other duties then payable in the said Province, the several rates and duties in the said act specified. It is provided in the second section of this statute, "That all the monies that shall ari.^.> by the sud duties except the necessary charges of raising, collecting, levy ni recovenng, answering, paying and accounting for he same the han7""f 'f^T-''^1{^°"^'^.*^'*o"'"'^ ^^"J^^V « Customs into Prnl. r .if- ^T-'^' ^'"''^"'' CJeneral in the said Province for the time being, nnd shall be applied in the first place in making a more certain and adequate provision to- wards defraying the expenses of the administration of justice, and of the support of civil government in the said Province • and that the Lord High Treasurer, or Commissioners of His' Majesty s Treasury, or any three or more of then- for the time being, shall be, and is or are hereby empowered from time to time, by any warrant or warrants under his or their hand or hands, to cause such money to be applied out of the said produce of the said duties towards defraying the said ex- penses ; and that the residu. of the said dutief shall remain and be reserved in the hands of the said Receiver General tor the future disposition of Parliament." We will next direct our attention to the 18th of the King, Which has been considered by some as repealing or modifying the above statute of the 14th of the King. It has already been stated that the controversy between the parent State and the old British Colonies related to the claim set up by the British Parliament to impose such taxes, and to such amount as they thought fit, under their sole di' rection, within the Colonies, to be applied to Imperial purposes. AA '•" H 194 FINANCES. '} '< II ii :* II 1 1 1 in II 1 LI In the progress of this controversy, and to allay the well founded fears of the old Colonies, the English Parliament by the 18th Geo. III. enacted, " That from and after the passj. g of that act, the King and Parliament of Great Britain would not impose any duty, tax, or assessment v/hatever, payable in any of His Majesty's Colonies, Provinces and Plantations in North America, and the West Indies, except only such duties as it might be ex- pedient to impose for the regulation of commerce ; the net produce of such duties to be always paid and applied to and for the use of the Colony. Pr—i-^^ and Plantation in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective General Courts, or General Assemblies of such Colonies, Provinces or Plantations are ordinarily paid and applied. The pream- h-e of this statute states the ends and objects of it in language intelligible to the meanest capacities. It is in the following words :— Whereas taxation by the Parliament of Great Bri- tain for the purpose of raising a revenue in His Majesty's Colonies, Provinces and Plantations in North America, has been found by experience to occasion great uneasiness and disorders among His Majesty's faithful subjects, who may nevertheless be disposed to acknowledge the justice of con- tributing to the common defence of the Empire, provided such contribrtion should be raised under the authority of the General Court or General Assembly of each respective Colony, Province or Plantation ; and whereas H order as well to re- move the said uneasiness, and to quiet the minds of His Ma- jesty's subjects who may be disposed to return to their al- legiance as to restore the peace and welfare of all His Ma- jesty's dominions, it is expedient to declare that the King and Parliament of Great Britain will not impose any duty, tax or assessment for the purpose of r-^fsing a revenue in any of the Colonies, Provinces or Plantations." With this statute every man at all conversant with the history of the period in which it was passed is well acquaint- ed, and at first sight I may have subjected myself to blame for the minuteness of this account of transactions so notori- ous, were it not that this statute has been confidently referred to, by men who ought to have known better, as operating a repeal of the general appropriation contained in tlie Uth Geo. III. c. 88, to the consideratinn nf ^htfh T »7;n »^o^o<>/] ■■)''■•; FINANCES. 195 Ife.te.hestat„w,t,elf„r,heelauaem it which contain, nappr,pnat.„„ of these duties for dcto.ying the chaT^ .he adm,n,stra.ion of j„«ice, and the ,„pp„,t of *fci^ government of thU Province, he .pealedf the re^^Z ve been operated by the 18th or else by the statute of tt 31.. of the late K.ng, ccm„„„,y called the constitutional ao! From .he ^ope and view of the 18th of the King, and its -ords as above given, it is manifest that no repeal was ope ra.ed by ,t, and if a, contended on the other side, such r ped were ad™,tted to have been operated, it must, upon the pnncple these rea«,„s, have been a repeal in Jo, a„d the du.,es would not be legally leviable. But the dutie in po nt f feet have been received and applied to the pu^ose, m" a ..oaed .n the act without any one having dreamed that Z «« .llegah All the statutes and p^ceedings of the ProriZ cal Assembly from its first establishment downward., relating .0 finance and revenue, as well in Upper as in Lower Canada proceed upon the basis of the 14th of the King, being a sub «ng law. And those who within these few years last past tavefoundedcertain pretensions inrelation to the monies levied' .nder the Uth of the late King, or the I8lh of the late Kin7 ^™ not to have gone the length of asserting a full and ab Scnon of some kmd or other, not very inteUigible, of the general appropriation contained in the Uth of the K.W Neither the text or the spirit of the 18th of the King Jus'tifi^' .taassumption. The imposition and the appropri^fon of the ta.e, are contained in the same statute, and cannot by any legitimate process of reasoning be severed.* The question W -^ ] coBKosrea as Aboiisiied by tha i8th Geo. III. c. 12, the m 196 FINANCES. what the law is upon any given point, and the question whe- ther it may be expedient or not to repeal or amend it, are questions manifestly of different import ; and although the right determination of the latter requires a preliminary, full and accurate knowledge of the subject of the former, yet the converse of this proposition is not true. We must know what the law is before we can attempt to alter it ; but the knowledge of what the law ought to be, does not in the slightest degree aid us in the enquiry into the fact of its existence. The one is theoretical and tentative ; the other is historical, and apper- tains to the conduct of life and just practice. It might ap- pear hardly necessary to state distinctions so obvious as these. But it is from confounding these two classes of questions that much obscurity has been thrown over the enquiry into the 14.th of the King, which has so long been made a stalking horse to agitate the public mind. The next head of enquiry is, whether the Hth of the King was repealed by the Constitutional Act in whole or in part. It is not pretended that the 31st of the King contains any express words of repeal. If a repeal then has been effected, power to levy them must alsoba held to have been abrogated, and it would follow that all that has been collected since 1778, must, in bucIi case, have been unlawfully taken ; but the Legislative Council have uniformly held, that it is legally beyond the power of the Provincial Legislature to alter or apply these duties by any vote of theirs, nor can they be touched but by the same authority that imposed the:ii ; ihey have always proceeded upon that principle! "* A further argument In confirmation of this principle is derived from a grant of jESOOO sterling a year, having been permanently appropriated by the Provincial Act, 35th Geo. III. c. 9, towards furiher de/rai/ing the ex- fences ef the administration of justice, and of the support of the Civil Gov- ernment in this Province. The terms of this Provincial Act furnibU addi- tional proof of the continued and present existence of the revenue and appropriation under the 14th Geo. III. and of the propriety of the con- struction for which the Legislative Council contend, since the Provincial Act uses the very words of the appropriation contained in the other and designates the grant as a further appropriation, or in addition to that made by the British Statute, for there was no other Provincial Act at that period for raising and applying revenue for these purposes, to which the further grant could be taken to refier. J t;~ J- r— .s-,-/. ~T T '"•'''•'ifi' /V-'n"'"' "' lfl97_R_0. riNANX£S. 197 it must have been by necessary implication. In other words, because the provisos of the two statutes are so inconsistent! that they cannot, by any means, be made to stand together. —No such contradiction can be seen to exist between these two statutes, nor indeed any contradiction at all. It is noto- rious as a matter of fact, that they have stood together, and been acted upon from the time of the passing of the former statute down to this day. But it may be said that the gene- ral spirit of the Constitutional Act is contrary to the 14th of the King, and the general appropriation it contains. And this idea seems to be at the bottom of the vague and declama- tory observations and resolutions of the individuals who have hazarded the assertion, that there is no subsisting appropria^ tion of those monies. It would be easy to shew how little entitled to weight these notions are ; the Constitutional Act has anticipated and determined this point in the 33d clause of that statute in these words : '♦And be it further enacted, That all laws, statutes and ordmances which shall be in force on the day to be fixed in the manner heremafter directed for the commencement of this Act, withm the said Provinces, or either of them, or in any part thereof respectively, shall remain and continue to be of the same force, authority and effect, in each of the said Pro- vinces respectively, as if this act had not been made, and as It the said Provmce of Quebec had not been divided, except in so tar as the same are expressly repealed or varied by this act, or in so far as the same shall or may be hereafter, by vir- tue of and under the authority of this act, be repealed or va- ried by his Majesty, his heirs or successors, by and with the advice and consent of the Legislative Councils and Assemblies ot the said Provinces respectively, or in so far as the same may be repealed or varied by such temporary laws or ordi- nances as may be made in the manner hereinafter specified." Here then the 14th of the King (being one of those con- tained in the above general words) forms an integral part of the constitution, as settled by that statute, or a condition ac companying the grant of the constitution. Thus we see that " ■" ""- ^^'"B " « F«ii oi ine subsisting law of (Jana- I f *.i?r 198 FINANCES. da, and as sucH like every other law bindii^ upon the three branches c^' the Legislature, in common with the rest of the King's subjects, until it shall be by competent authority re- pealed. 199 No. XX. "ji FINANCES. ■TOE TOBJECT RESOMED. Statutes of the nth and ISth of the King. Although much ha. been spoken and written .expecting the o.nd„«ne Finance, of thbftovinoe. there h..Llleh J of declamat,™,, on .he one ,ido and on the other. th«, lac. are to be ascertained with the rao,t minute accuracv and there seem, Httle room for the caggeration of ;:: T; he ebullmon of party feeling. The con.rover.i^ „„ .hi, e.d may be.„„«dered « having .heir date from ,8,8. U . »eces.ary for „., however, to ca.. a rapid glance over the r t f ^'°«' "'"°'' """" f"™''' ">' »4ect o^ li « a?r , " '° *' ^"" "''• *^ """' — "he z; d^^" " '"'°'' ""^ """^ ""' '"-""'^ ''»™ '0 t-e It i. .0 be observed, .hen, that in the whole of this tract of ™e th,. colony ha. been abated with „ne«.mp,ed li ^^ .y ^ the paren. ...,e , .„„ .b,-, ,;„ ^ f„„ ,^„ [ '^ ^titoTb""'": '"""" '"^ "■"""« "f »*- EuropI The Spam,h and Por»«g«e« aettkHnen.,, after p,yi,« .11 'lilt ,i li i; II 200 FINANCES. their internal expences, afforded a large revenue to the crown. The administration of the French islands was all provided for by taxes in the colonies ; which, without falling heavy on the planters, left a considerable free revenue ; and the duties le- vivd upon imported produce, (and altogether founded on the colonial monopoly) yielded a great balance, after defraying all the expences of collection. The whole expences of their American colonies in the time of peace did not exceed the revenue ; and a great part of the colonial surplus was expend- ed in public works of mere ornament or magnificence. Tlie Exchequer of G.eat Britain, after paying out of the colonial fund all that part of the civil administration in the West In- dies, which the colonies themselves are not obliged to pay directly, derives a considerable clear income; and part of the expences of the army are also defrayed by the islands. Those settlements are, many of them, in their infancy— all of them susceptible ot great improvement— and likely, withoiU any increase of expence to Great Britain, to afford her an addi- tional revenue. They have already raised and paid a large force, from the great bulk of the population, the negroes; and in no part of the empire does the militia fall so generally up. on the subjects, at so little expense to Government ; every man fit to bear arms is attached to that body ; and even in times of actual service, no pay whatever is received. The settlements both of England and Holland, in the East Indies, subject to the government of exclusive companies, cost no- thing to the mother country, either for the civil or military supplies. On the contrary, those companies pay a premium from time to time for the renewal of their exclusive charters; this is, strictly speaking, a clear revenue to the state. The same remark extends to the Dutch colonies in the West In- dies and South America. The old colonies of North America, besides defraying the whole expenses of their internal administration, were enabled, from their situation, to render very active assistance to the mother country, upon several occasions not peculiarly mtef VINANCI3. 201 «t.ng to themselves. They uniformly asserted that they would never refuse contributions, even for the purposes strict^ iy imperml, provided these ^^ere constitutionally demanded. Nor did they stop at these professions of zeal. During the seven years war, they raised and paid twenty-five thousand men, who upon more than one occasion, saved the British army. They assisted fn the conquest of Nova Scotia, and effected the capture of Louisbu.^. I„^the war 1739, whea their population and resources were very trifling, they sent three thousand men to join the expedition to Carthagena, and a detachment of New England troops in the same war, took Cape Breton, under the command of General Pepperel. The privateers fitted out in the different ports of America, and belongmg to the colonies, were, even at that time, both in numbers of men and guns, more powerful than the whole Bri- tish navy, at the era of its victory over the Spanish armada.* Many parts of the colonies have, at all times, furnished large supphes to the naval force that was destined to protect them. The fisheries of New England, in particular, used to coatri- bute a vast number of excellent seamen to the BWtish navy At the beginning of the troubles in 1775. the united colonics" besides maintaining their whole internal policy, were willing to offer a clear contribution of a hundred thousand pounds stermg;,,, annum, for one hundred years, towards a sinking fund, for extmguishing the national debt of the moth«>r coun- try, on condition of being treated like the other parts of the Bntish empire. The treatment of the colonial agents by the English Government, prevented this memorable proposal from being formally made, b«t a state paper is still on record, drawn up by congress, and distinctly expressive of their sentiraent-^ to the above effect.f I-et us now turn to the Financial History of this colony ^^*.Brough.m, Colonial Policy, vol. ], p. 1 36- S.e also the work cited J .^!™"'''.'"' Thoughts on the peoplinj? of npwrn..nf.s°- -'.' on • ^ra««iia, i.u misceiianeous pieces, p. 357. ' ''"■ **-'^'«' BB 203 riNANCBS. II Iff during the aforesaid period. The civil expenditure of Lower Canada, from the cession of the country down to the year 1818, was partially at ti«e charge, and exclusively under the controul of the Government of Great Britain, and its officers in the province. A portion of the supplies was raised within the province, under permanent acts of the Parliament of Great Britain, and since the year 1793, under permanent and tem- porary acts of the Legislature of the province. To these were added his Majesty's casual and territorial revenue, and the deficiency was supplied out of his Majesty's military chest. In 1793, Lord Dorchester, then Governor -in-Chief, in his speech delivered at the opening of the session on the J 1th November, states as follows :— " The general expenditure is very great, but it cannot all be placed to the Provincial account ; such parts of it as more particularly relate to that head, I am not at this time enabled to bring forward ; I can only say it greatly exceeds the pro- vincial fund ; yet it is not my intention at present to apply to you for aid; that you may have more time to consider by what means the provincial revenue may be rendered more productive ; in hopes, nevertheless, that Great Britain will, in the mean while, continue her generous assistance to this co- lony, and defray such surplus expences as are absolutely ne- cessary to its prosperity." In 1794, when the first statement of the expenditure was laid before the House of Assembly, the total amount of war- rants issued by the Governor' or the Receiver General, was £23,169 currency. The receipt was 5^5,854; 7s. 5i]. On the 16th February, 1795, his Excellency Lord Dorchester, Governor-in-Chief, again laid before the Assembly the public accounts. It was in this year that the first appropriation, not exclusively for the expences of the Legislature, was made by the House of Assembly, consisting of several special appro- priations, and of a permanent appropriation of five thousand pounds per annum for the administration of justice, and the sup- port of the civil government. In the following year the expen- diture was .^^ 27,225 currency, and Lord Dorchester, in Ins ■ i"i« 7INANCES. SOS message to the Assembly of the 8th March, 1796, after stat- ing that the balance of the expenditure exceeded the provin- cial revenue to the amount of £12,718 68. 7d., and referring to the British acts 25th Ch. 2d c. 7-6th Geo. II. c. lS-4th Geo. III. c. 15, and 6th Geo. III. 52, observes, "But supposing these, as well as the other revenues col- lected withm the province, had been in the first instance ap- propria ed to defraying the expences thereof, the expenditure cur'renc ^n^^^^^ ^^^ '^^^'P^' '" *^^ »»™ of £11,585 Ss. 6d. The total of the general expenditure and of the receipts, from the year 1794 to the year 1818, both inclusive, accord- mg to a statement drawn up from the annual accounts in the journals of the Assembly, by order of the House, was— Expenditure, Receipts, Balance, 'y- £1,756,860 12 4 1,474,527 1 10 £282,333 10 6 The highest expenditure throughout the same period, ac cording to the above mentioned statement, was in 1813, when a large proportion of the provincial fund was applied in sup- port of the war, under the appropriations, made by the Provin. cial Legislature, viz: Expenditure, £206,800 5 9 The highest receipt was in the following y^^^'^'^= ^ 203,656 8 11 In 1810, according to the same statement, the expenditure was 58,564 14 3 The Receipts, 70,398 13 7 Surplus of revenue beyond the expenditure £11,833 19 4 It was on the 10th February, in the year 1810, that the As- r%i\Xp ir' r ■•*' '" ■\ .., II -^i4 m »l ll I H '^1 iKH fINANCBS. That this province is fit present able to |)ay aU tbe civil expences of its Government. 2dly. — That this House ought to vote during this Session, the necessary sums for defraying the civil expences of the Oovemnnenv of this province. Sdly. — That this House wiH vote in this session the neces- sary sums for defraying the civil expences of the Government of this province. And on the ISth of the same month an hiimtxle address was voted by the Assembly to his Majesty and both Houses of Parliament, stating, That this House had engaged, in the course of the present session of the Legislature, to pay the civil expenditure of the provincial government, which has hitherto been cliiefly de- frayed by his Majesty. On the 7th January, 1818, his Excellency Sir John Coapc Sherbrooke, iii his speech at the opening of the session, com- municated to both Houses " the commands of his Royal Highness the -Prince Regent, to call upon the Provincial Le- gislature to vote the sums necessary for the ordinary annual expenditure of the province ;" and at the same time addres- sing the Hou3e of Assembly, he added : " In pursuance of these directions whicli I have received from his Majesty's Go- vernment, I shall order to be laid before you an estimate of the sums which will be required to defray the expences of the civil Government of the province, during the year 1818, and I dwwre yoft, in his Maijesty's name, to provide, in a constitu- tional manner, the supplies which wiH he necessary for (he purpose;" and his Excellency added, "I anticipate with confidence a continuance of that loyalty and zeal ^rhis Ma- jesty's service on your part, which I have blthetto experien- ced, and a i^ady execution of the offer which yon made on a former occasion, to defray the expences of his Majesty's Pro- vinct^ Governtnent, -widi a liberality vhait did yoa honor."* * Tills sUtetnent is taken from the Journals of the Assembly, Vol. 29- 30, Appendix R.— being the first Report on tbe Civil Lifet. IIHAIICU, 205 Wc .h.II next proceed to complete .he whole of the .ubicci .tated ■„ the open.„g „f .hi.p.p„ ^^ „„„;„, „,^ J2 ...gs h.d by the Imperial Government, and bylhe pLindal L gislature, ,„ relation to the revenue and expenditure of e olony, fron. the day that the above n,es„^ .a, received down to the cb.e of the «„io„ of ,„c Pr„,il-., i.,^^^^^ now under revienr. ^K'^'^iiurc 'It 206 No. XXI. FINANCES. Utrum Chimera bombinaus in vacuo posiit comedere Beciindni intentlonw. Utrum. la froidure liybernale des Antipodes, pauanten ligiis orthogonale par rhomoffeni'.e goliditu du centre, pourroit par une douce antipe<''*t««ie eschaufFcr la auperficielle coiinexitt! de nos taloni.— Rabel*18. 14.//* and IBth of the King. ill THE SUBJECT RESUMED AND CONCLUDED. I pass over the proceedings had in the Assembly from the delivery of the Message adverted to in the preceding num- ber, for the present, to come to the consideration of the Re- port of the Committee of Public Accounts, in the Session of 1823. The intermediate proceedings will find a more proper place in the following number, — and I shall here confine my- self exclusively to that part of the report in question which relates to the statuses at the he^d of this number. In the preceding number I have submitted the reasons which induced me to believe that the 14««^J « -,.„„_i._ui_ i .. fe I. a» 1 F 212 FINANCES. annals of the Provincial Legislature, and more especially in the House of Assembly, for " That in thaf. session the house began to possess in their full extent the rights which they might exercise." Euje ! This is a remarkable epoch indeed to be inscribed inter fasta, the house came to be vested with the rights which they might exercise. What rights were these which they might exercise? does not the idea of a right in- volve always in it the power of exercising it ? — This is a bad omen — stumbling at the threshold. — The chairman of the committee proceeds : — In that year his Majesty's representa- tive in this province — Did he not know that his Majesty has no representative per eminentiam here ; and why was it that an expression fitted only for the adulators to be found in the anti-chambers of the Castle of St. Lewis appeared in a docu- ment like this ? The second paragraph is altogether unexceptionablfe, it being exclusively occupied by an extract from a speech of Sir John Coape Sherbrooke. In the 3d paragraph the writer perceives two things, one in each of the sentences whereof it is composed. The first i? the ofiisr in 1810, and the 2d is the acceptance of that offer in the speech of Sir John Sherbrooke, of which he has given us the extract : the subject before him was not one of per- ception but of re&boning and judgment. The 4th clause it will be seen is confined to a reference to the speech of his Grace the Dufce of Richmond at the open- ing of the Session in 1819 — The worthy Chairman next accounts for his entering into these details, and we are now informed that "It has been pretended that the Provincial Legislature, charged with all the expenses of the Civil Go- vernment of this province, had not at its disposal the whole revenue of the province to mee^ those expenses, and especially that the revenue arising fVom the act of the 14 Geo, III. c. 88, remained at the disposal of his Majesty's Executive Go- vernment in this province as well as the casual and territorial revenuefi."— Pretehded ! Accuracy of Isngusge h desixable— FINANCES. 213 accuracy as to fact is indispensable ; it never was pretended that those monies levied under the 14th of the King were otherwise disposable than by hia Majesty. We here at last seem to approach the knot, and let us see how he untwists it. " Your committee" quoth he - will rather examine than refute this opmion against which argument and facts equally mili- tate." Bonum facile dixeris the rest of the sentence, I fear wilKnot apply. He will not refute, kind soul ! he will only examme forsooth, and what is he going to examine ? why the aforesaid opinion. But if it be not for the purpose either of establishing it, or of refuting it, what is the end and object of his examination? If it be an opinion against which argu- ment and tacts equally militate, the duty of the committee u^as to shew that argument and those facts ; and if the state- ment of the committee as to these last were correct, then that argument and those facts would amount to a refutation of such opinion ; but why proceed with this. The writer of this paper had, in the course of his reading, met with some anti- thesis or other, and not being particularly abundant or re- dundant of words or ideas either, had evidently made his first great effort at composition in this paper. I vainly look for any argument in the five following clauses -The sixth is to this effect, <« Thus the opinion that the Provincial Legislature alone has the right of disposing of all the revenues raised in this province rests upon public law upon the unvarying and uniform interpretation of this House' upon the private and public acts of the Governors of this provmce since 1818, and lastly upon a final judgment in the iast resort, a solemn act of Parliament." The remaining dauses relate exclusively to the Message of his Excellency the Earl of Daihousie, bearing date the 6th February, 1822 distinguishing the expenses of the Civil Government of the provmce generally, from the expenses of local establishments, and the resolutions of the house upon that Message ; but the report very modestly abstain from offering any argument or 'acts whicli « militate" against his Message. I entreat excuse f ' 1 f 214 FINANCES. for the homeliness of the expression ; but it is quite impossible to argue that doton which has never been argued up ; it is im- possible to apply the standard of reason to that which has none. No man in his senses would attempt to measure any given interval of time with a foot rule ; but the facts adverted to in this rsport being a part of those which I have already said I Vfuuld examine in my next number, I will take occasion to make such observations upon them in their order as they arise, closing here the subject of the report of 1823, upon the 14th of the King. '215 No. XXII. FINANCES. THE SUBJECT CONTINUED. 2a — 3a= — a- — Simple Egiiations. Between the interval of time which elapsed from the ces- sion of Canada in 1763 to the year 1818, Great Britain be- sides supporting the Military Establishments within the Colo- ny, and the Protestant Clergy, expended large sums of money in aid of the civil expenditure of the province. The Colony relieved from all the expenditures incident to external defence and security from foreign violence and ag- gression, which press so heavily upon independent states, had advanced so rapidly in wealth, as to be able in 1810, to pay the whole of the expenditures of its Civil Government. The official men, who in Colonies constitute a peculiar class, having been entirely uncontrolled, had obtained a degree of power which overshadowed all the other classes of socie- ty; and the main object of the highly patriotic individual who introduced this measure originally in 1810, the late Honourable Mr. Justice Bedard, then advocate at .ne Bar of Quebec, was to obtain a check upon the official class. As a reward for this patriotic effort, this man distinguished as he was for ability, for singleness of heart, and for a devoted at- tachment to constitutional principle., was, with some of his supporters, lodged in the common gaol for the District nf Quebec, under the authority of an act for which he himself f w h « ■■'i#, ,.! * - ll II '. 216 FINANCES. had voted, granting extraordinary power to the Executive, for the purpose of repressing sedition ; an act introduced in the first instance, amidst the terrors of the French Revolution, and continued as it were by routine after its necessity had ceased. I would willingly weave a garland to place upon the stone which presses upon the mortal remains of one whom alive I loved, and whose memory I shall ever revere ; but it would not be fitting to cast it amidst the thorns and brambles of controversy ; I must leave the theme and return to my subject. The proposal lay dormant till 1817, when the attention of His Majesty's Government was particularly directed to re- trenchment, and it was in consequence of orders then given, that his Excellency Sir John Coape Sherbrooke made the communication to the Legislature contained in my last num- ber. The words " in 2 ccnstitutional manner" used in the Message of His Excellency have afforded an abundant source of controversy, and the opinion on this subject may be divid- ed into four heads. First — That the appropriations as well for the officers of Government, and the contingent expenses thereof, as the ap- propriation for local objects and establishments should be permanent. 2d. — That they should be voted during the life of the King. • 3d — That they should be voted annually. 4th — That a distinction should be made between the above two classes of expenditure, and that the salaries of the officers, &c. should be voted ^permanently or during the life of the King, and that objects of mere local interest should be cover- ed by annual votes. It is not my intention to go through the details of all the squabbling and controversy upon this point, between 1818 and the opening of the Session of 1831. I will try to examine the subject without any reference to parties, as far as I am myself sensible of any partiality or bias on either side. An abundant source of error as to all Colonial affairs, is FINANCES. 817 too servile a reference to tlie proceedings of the Government in England, as a model, without bearing in mind the marked difference which exists between the society there and here. vVe do so in England say many people, iind thence infer, ^er saltum, that the same thing ought to be done in this remote Colony. Now, there are so many points of difference be- tween the condition of a Colony and that of a Metropolitan State, that the legitimate inference is exactly the other way, if it be made per saltum at all. They do so in England, it is then probable that the same thing will liot answer here. Let us come somewhat doser to the subject in hand. England is a metropolitan and independent State. Canada is a Colony dependent upon England. There are then, certain conditions growing out of that relation, the non-existence whereof would imply the destruction of the relation. One of these is, that it shall not be in the power of the Colony, so long as she re- mains a Colony, legally to break the link that binds her to the parent State, nor, which is the same proposition in another form, can the Metropolitan State put herself or be put into such a position that she cannot maintain her supremacy with- out violating the law. The officers of the Civil Government of the Colony are, at once, officers of the Empire and officers of the Colony ; they require, therefore, to be placed in a degree of independence of the Colohi^l authorities, which is not requi- site or advisable in a Metropolitan State. Their dependence should be alone on the Metropolitan State, subject, however, to trial and judgment within the Colony for any offences there committed by them in the discharge of their public duties. If their salaries depended upon annual votes within the Colo-* ny, they would cease to be officers of the Empire, and become exclusively, officers of the Colony. Thus the Provincial Legis- lature comes to have the power of withholding some or all of these salaries, that is, of depriving the Metropolitan State, of all officers within its Colony, indeed of legitimately annihilating supremacy. It may be said that this would never be done= in considering political rights we should measure the pow- f'.-i: fli 218 PINANCCS. er, not weigh future contingencies of facts. Again, aup- posing the contingency to happen, the parent State is driv- en to one of three measures ; either to pay its public Colo- nial officers out of the general coffers of the Empire, or to apply the public revenues of the Colony to the purpose, without any law to sanction it, or to pass a law in the Imperial Legislature making the required appropriation. And as to this contingency never happening, let it be recol- lected that the Colonial Legislature pursued a measure of a still more outrageous character when they refused to renew any of the temporary acts imposing duties within the Colony, and drove the Imperial Parliament to the necessity of con- tinuing the then and now subsisting duties by passing the act commonly called the Canada Trade Act (3 Geo. IV. c. 119.) Is it not manifest, that granting an exclusive power to the Colonial Legislature of appropriating all the sums necessary for the Civil expenditure of the Colony gives them absolute control over the officers of the Empire and of the Colony, makes the latter, exclusively, officers of the Colony, and an- nihilates potentially if not actually, the imperium of Great Britain over her Colony ? The error into which men on this and on the other side of the water have fallen upon this subject, has arisen from their looking at the benefits (not unmixed) which have ari- sen from the power of the Commons over the public purse ; but observe the violence of this check ; see the convulsions it produced before it was established. In a Colony this is a contradiction in terms; a checking pow- er must always be greater than the power checked ; it involves nothing less than the absurdity, that a smaller power should counteract a greater one ; then besides, it is supported by no reasons of expediency if it were possible. There is nothing in a colony to prevent or restrain the violence of popular fac- tion. In independent States, the fear of external violence ope- rates as a check : men feel that, without contributing some por- tion of their property to the support of armies and navies, the FINANCES. 219 whole might be taken from them by foreign invaders. So too in old countries, such is the distinction of ranks and inequality of fortune, that the paralysis of the powers of government for one day, would in most of them create vast destruction of life and of property: that neither of these conditions obtain in Colonies, is any proof in point of fact wanting? When the Legislature refused to renew temporary acts of subsidy, were there any apprehensions felt in any quarter, or was any deep sensation excited in any breasts, save perhaps, in those of the persons holding office, who saw their means of subsistence jeopardized by this measure? What would be the effect in England or in France, of a refusal on the part of the represen- tative body to continue the subsisting subsidies, and of its being known that the government would at a given period be left naked and without resources? Again, the controul in these old countries is expedient, because the persons to be controlled are the highest administrative officers of the Empire who may be interested in levying and in spending larger sums' of money than are necessary or supportable, and in screen- ing members of their own body from punishment for abuses But the high administrative officers of the Metropolitan Go- vernraent never can have an interest in screening a public officer from punishment in the Colonies ; all that they could failm would be the want of knowledge of the delinquency but this could not exist if the proper tribunal were provided within the Colony for the trial of public delinquents. It is further to be observed that, in the small societies whereof Colonies are composed, men in cial power come into more close contact than with their fellow subjects in the large States of Europe. The interests are smaller it is true, but the acrimony is not less. A village society when compared with that of a metropolis, forms the exact counterpart of a Colony and of a raetropol'-tan state. I apprehend, therefore, that the necessary expenses for the payment of all the officers or government, should be nrnviVlp^ fnr -..* ^f tund, and their allowances should be fixed and settled to be If- ■' ■»•. m 2t0 VINAMCBS. " ;^t i II H ^ ■ u i reduced only, causa cognita, upon an address of the two branches of the Legislature, and to be augmented only by nn act of the Provincial Legislature. The following passage from a very enlightened and judicious writer, shews that this policy is well understood and prac- tised even in the Republics of Norlh America : — « -"^ 1IIV1ITC3, ucuausc liicv vfcro inc ino> tives that were assigned,) a grant of the moderate sum of' three thousand 'lilf ! :^. I '( I m^- ^ 222 FINANCES. this is only one of the presses employed, and does not com- prise the expense of printing the laws, or of the printing for the Legislative Council, nor indeed the whole of the expences of the Assembly, another press being occasionally, though rarely employed by that body. Since 1814, inclusive, there has been expended within the colony for internal communications, a sum exceeding nearly haT' a million of money. Besides this, in 1817, the sum of ^45,000 was appropriated for the relief of certain parishes, and for the purchase of seed wheat for such of them as were in distress. The Speaker of each of the Houses has £1000 a year al- lowed him. No measures have ever been taken to examine these ac- counts by cither branches of the Legislature, though, if pro- per measures for this purpose had been proposed they could not have met with obstructions in either of the other branches of the Legislature. What interest could either of the branches of the Legislature have in screening the commis- sioners selected in different parts of the province ? but this would have been a work of some labour, and would not have approxiu.ated the labourers to office. For where your trea- sure is, there w'!ll your heart be also. The hearts of patriots lie in the civil list; if any one doubts it, let him observe the almost exclusive attention which has been given to this Ot)ject. I ou^ht to have given Lord Dal- housie credit in its proper place, for having been the first to see the distinction between the expenditure for the civil list, and the expenditure for local objects. Passing over the squabblings respecting the civil list from two hundred and some pounds for internal communications of such great urgency that t'le standing committee of internal communications had recom- mended them after a patient and laborious investigation, occupying nearly the whole of the session, and requiring on their part the examination and consideration of the official reports of all the commissioners for all the roads ^nd cthi?F internal comnmnii.a'i'^ns H'^'^oin'ed to ^(^ffv inf/\ '^fFsct the Isr'^c appropriations of 1830, Finances. 223 I 1817 to 1831, and referring such of my readers as are fond of dry reading, to the Journals of the Assembly from year to year, I, at once, come down to the proceedings of this session. On the 14th March, 1831, the House of Assembly after the entries of the Journals of the 10th Feb. 1 829, on the order of the day for the House in Committee of the whole House on the estimate for the current year had been read, came to the following resolution : — "That this House adheres to and repeats the declarations m the said entry and in the entries above mentioned, and proceeds only on the report of the Committee of the whole House to whom was referred the estimate of the expenccs of the current year, under the said declarations and resolves and more particularly that no votes for the payment of any expenses of the government during the past or present year, be drawn mto precedent, as acknowledging the legality of any expenditure heretofore made, or which may heretofore have been made without the consent of this house, or as determining for any future year the necessary quantum of any salary, con- tingent expenses or allowances whatsoever, and in conf^douL^ that the grievances and abuses of which this House 'and his Majesty's subjects in this province complain, will be speedily redressed." '^ •' On the 23d February, previous to the passing of this resolution, the following communication from his Majesty's Government through the Secretary of State for the Colo- nial Department, was by Message from the Governor in Chieflaid before the Assembly with a view to the final ad- justment of the question of Finance which has so long en- gaged the attention of this province. "His Majesty taking into consideration the best mode oi contributing to the prosperity and contentment of his faithful subjects of the Province of Lower Canada, places at the disposal of the Legislature all his Majesty's inter- est m those taxes which are now levied in ihe province by virtue of different acts of the British Parliamenf, and which are appropriated by the treasury, under his Majesty's com- mands, together with all fines and forfeitures levied un- der the fmihority of such af^ts. His Majesty r.ilying on the liberality and justice of the Legislature of Lower Ca- 4? 22+ FINANCES. ' . » !i^«i I I ; ill ;ii nada, invites them to consider the propriety of making some settled provision for such portion of the expenses of the Civil Government of the province as may, upon examination, ap- pear to require an arrangement of a more permanent nature than those supplies which it belongs to the Legislature to determine by annual votes. " His Majesty has directed to be prepared and laid before the House of Assembly, an estimate of the sums required for the purpose ; and in directing the preparation of that esti- mate, his Majesty has been guided by a wish never absent from his heart, to call upon his faithful subjects for no other supply than such as may appear to be required for the due execution of those services which it is proper to charge upon the civil list. " His Majesty concedes the disposal of these revenues with cordial good will, and cannot doubt it will be met with a re- ciprocal feeling by the representatives of an attached and loyal people. " 'J'he revenue given up, taken upc the average of the last two years, amounts to ^38,125 currency; and the amount of the Civil List according to the estimate therewith transmitted amounts to j^-" 19,500. It is not, however, neces- sary to call upon the Legislature to grant the whole sum of £19,500, in as much as by the Provincial Act of the 35th Geo. III. the sum of £5000 is permanently granted towards the maintenance of the civil government, the moderate sum of j§ 14,500 is therefore all that is deemed necessary to ask for the completion of the proposed arrangement. *' It is proposed that the duration of the civil list should be for the life of his Majesty. " It is hoped that the arrangements thus detailed will be received in the spirit in which they are dictated, — a spirit of conciliation and coi^fidence. " His Majesty is prepared to surrender a large and increas- ing revenue ; he asks in return a fixed and moderate Civil List, much less in amount than the revenue given up, and the settlement of this agitated question, will be deemed by His Majesty one of the happiest events of his reign, the glory of which (the people of Canada may be assured) will be the pro- motion of the happiness and content of ail classes of his sub- jects in every quarter of the globe." " The Governor in Chief having thus obeyed the commands he has received, in making the foregoing communication to the House of Assembly, desires to add that if in the course of proceedings on this important question, they should deem it expedient to require explanation from him on the subject ofit, FINANCES. 225 he will at all times be ready to afford such explanations • and AYLM£R, GovKRNOB- IN- Chief. nmno. which i,i,dMmid".„°dS»i;.lltfr"' '"?"*'' "f preposed .rr.„gment. "''«"™' " """P' '"■» lie operaUon of the The Revenues to which the Governor in rhioP »ii..j l ^ • 1 — Rents of the Jesuits' Estates. 2 — Rent of the King's Posts. 3 — Forges of St. Maurice. 4— Rent of King's Wharf. 5. — Droit de Quint. 6.— Lods et Ventes. 7.— .Land Fund. 8.— Timber Fund. If the Funds derived from these sources operated in any dee.ee as a t.r npon the people, or tended either in their nature, or In the moS o? Jheir collection, to impede or impair the prosperitv of thn pJvJno ».^ L .y-s Governmen? would hav'c hesitafeS 7oposii« tfreZ-n 1'^ ■sposal Of the Crown. They stand, howe'ver^ up?n a St y diff r St ground from taxes, properly so called. Thev are eniovpH hL ;i,» T y virtue of the Royal pU'gative. and are neS TrTSor iJs 'thanTh2 Ijoceedso landed property, which legally and constitutionally belong to t truo;r T '"' ^"""^ ' "^ "' '""« '' '"^y "« -ppi'ed. no to*;.^? It "'\P"''^ '"terests of the Province, it is not easy to conceive uoon catT^h" °' *'''"'' P™P"^'y' "' of constitutional jLou°;;t;eapE S.l't"!mrr« " ""' ^"^^^'^'^ comma„d„^nder Von£ " " " A. Castle of St. Lewit, Quebec, 25th Februari/, 1831. ^ilr" 226 FINANCES. With all possible respect for his intentions and abilities, the foregoing despatch evidently proceeds upon erroneous views in relation to the matter in question, and which are quite inex- cusable in the Colonial Minister, but common to all English Statesmen, who uniformly confound the existing differences with those which subsisted between the old colonies and the parent state. The difference between the two cases we have already attempted to shew. They confound too the present condition of this Colony with the condition of the old British Colonies, when their revolution broke out. The difference here we have also attempted to point out. They evidently suppose that we would be glad to join the United States. This is not so : the mann. rs and habits of the majority of the people of this Province are essentially different from those of the adjoining countries. The Canadians well know that they would be merged and lost in such an union, and we all know that, according to a fundamental law of the United States, all imposts upon goods imported from abroad, are pay- able into the National Treasury ; that we should be charged with duties greater than we could bear, as appears by their Tariff, and that we should be obliged to obtain supplies for the civil expenditure of the country by direct taxation, a thing that we have not been accustomed to and which we do not like. The less blame attached to Lord Goderich for this recommendation, as it was but calculated to carry into effect the following clause of the report of the Canada Committee of 1827 :— " Although from the opinion given by the Law Officers of the Crown, your Committee must conclude that the legal right of appropriating the revenues arising from the act of 1774. is vested in the Crown, they are prepared to say that the real interests of the province, would be best promoted by pla- cing the receipt and expenditure of the whole public revenue under the superintendance and controul of the House of As- sembly." In accordance with this view of the subject, the Imperial Parliament passed an act in the 1st and 2d year of his Majes- FINANCES. 227 .y»re.g„ auth„ns,„g .ho Legislature, of .his Province and of Upper Canada, ,o appropriate at their discre.io„. all .he „„h.ch „ay arise from the duties imposed by .he Ac. Although no blame for these measures and .heir ccse- quences a..aehes .„ Lord Goderich, some does .o .he late Mr. Has hsson He was evidently unequal to the position of Co- la„,al Mm.ster; and, as men placed in situations above thdr ab,tes are too ap. .„ do, he shrunk from the responsibili.y .ncden. to h,s office, and, as a weak and timorous Gen ^ convokes h,s council of war, so did he move a commi.tee in .0 House of Commons to enquire in.„ .he Civil Government of Canada, and obtain from them sueh advice as would justify .s fnture proceedings, whatever effects they might have upoi^ the future colonial interests of the Empire. As matters now stand, it requires not a magician's ken to see that the British Parliament will be drive,, to the necessity of resuming the appropriation made by the Uth Geo. HI : " cl:""" '""""'"'■' "■"' ^"«"-'' ™^ ""=» w Quoties^olm congr.gare Jllios tuos quemadmodum avk m. faA . r>nmm\ttpe' rpnnrt : rPnnrt COmmitteUi S.—Do. Transmitting proceedings had by Trinity Board m CONCLUSION. 229 4 — Do. .5 Do. 6.--D0. 7 Do. 8.— Do. 9 — Do. IO.—D0. 11. —Do. I2.-.D0. 13 — Do. 14— Do. 15.— Do. 16.— Do. 17— Do. relation to the erection of a Light House on the Island of St. Paul, and an address praying for a remuneration to certain officers for extra services, together with an estimate of the expense to be incurred in completing the Light House at Anti- costi; Bill to provide for the estabhshing of light houses at Anticosti introduced and passed. With public accounts for 1830; referred. With copy of communication from the Commissary General on the subject of the Currency, and inform- mg the House that the Commissary General was then absent on public duty; address from the House for further information on the subject. Relating to the renewal of Commissions, acquaint- ing the House with the proceedings had upon that subject within the colony, with an extract from a letter of Mr. Hay, Under Secretary for the Colonial Department; referred to Committee of Grievances. Recommending the subject of the Chambly Canal to the consideration of the House; address to his Excellency upon the subject. Accompanied with opinions of Crown Officers relat- ing to renewal of Commissions. Recommending an advance for the payment of needy witnesses at Montreal; no proceedings taken by the House upon this Message. With public estimate ; referred. Relating to Boundary Line between Upper and Lower Canada ; bill to regulate introduced and passed. Recommending the House to provide for the ex- pense of remitting certain fines by the Collector at St. Johns to the Receiver General; referred. Relating to Emigrant Hospital ; bill for its support . introduced and passed. With an account of expences incurred in 1830; re- ferred. Relating to repairs of Court House at Quebec ; re- ferred. Respecting New Market at Montreal ; not referred. Relating to Court Houses and Gaols ; bill introdu- ced to authorize erection of; introduced and lost in Committee. 18.— Do. Recommendinf increasR of! officers; referred. 'i^tti-t J iij- vi-itttixi 230 i:ONCLUS>ION. i 19— Do. With copy of Imperial Act, I, Will. IV., c. 23, re- lating to actions ; bill introduced und passed in consequence thereof. 20. — Do. With copy of Imperial Act, 1, Will. IV., c. 4, relat- iog to renewal of commissions ; referred to Com- mittee of Grievances. 21. — Do. With a proposed Civil List; referred. 22. — Do. Informing the House that Mr. Routh, the Commis- sary General had returned to Quebec. 23. — Do. Relating to Gaol at Sherbrooke ; bill introduced 1 and passed for relief of Commissioners for its erection. 24<.~-Do. Recommending renewal of the act relating to the salary of Tidewaiters ; bill introduced and passed. 25.— Do. Relating to Hospitals ; referred and further proceed- ings had thereon. 26. — Do. Relating to Agriculture ; bill introduced and passed for encouragement of. 27. — Do. Relating to Royal Institution ; referred. 28. — Do. Recommending advance to needy Crown Witnesses at Quebec ; not referred. 29. — Do. Respecting qualification of Militia Officers ; bill in- troduced and passed. 30 Do. Relating to education of Deaf and Dumb Persons ; referred. 31. — Do. Education and Schools ; bill passed to encourage them. 32. — Do. Relating to Chaudiere Bridge; bill to appropriate a further sum to complete it, passed. 33. — Do. Recommending a further sum for exploration of country between St. Maurice and Ottawa ; not referred. 34. — Do. Relating to Montreal H^arbour, further proceedings had in relation to. 35.— Do. Relating to Customs at Nouvelle Beauce ; further proceedings had thereon. 36. — Do. Relating to Communication between Upper and Lower Canada; further proceedings had thereon. 37. — Do. With Widow Rolette's Petition ; Idem. 38. — Do. Relating to Judges' Circuits; not referred. 39 Do. Informing the House that his Excellency had sus- pended the Attorney General. Clerk of the House ordered to furnish that officer with copies of all documents relating to the complaints of the House against him. CONCLUSION. 231 The usual vote of thanks was made for none of those Mes- sages. It will be seen that the search for admiration has here again been in vain. I trust, however, my readers will be satisfied, at least with my diligence. When I entered upon this enquiry, I had no idea that )t would reach the present extent, or I would have shrunk from this addition to the other labours necessary for me to gain my livelihood. I have confined myself strictly, therefore, to what was abso- lutely necessary. It would have been satisfactory to me to have gone into the subject of colonies generally, and I do flatter myself, that with the advantages possessed by a native Colonist, I could have pointed out errors fallen ipto by very great names, and have thrown some light upon the colonial relation—a relation which has not hitherto been fully under- stood by any metropolitan statesman, arising from the disad- vantages incident to their metropolitan education and metro- politan habits. But I must deny myself the pleasure of ex- patiating in this field, to resume other and less agreeable la- bours. THE END. If'"' I -J- '1 Nfi i APPENDIX. No. }.—Page 70. OPINIONS ON THE RENEWAL OF COMMISSIONS. Sir, Quebec, 7tk December, 18S0. I have had the honour to receive your letter of this day, respecting the effect of the demise of His late Majesty u|)on the Commissions of Officers in the Colonies, and in an- swer, heg leave to state, for His Lordship's information, that in ray opinion, every Commission issued in this province in the name of the late King, will be determined at the expiration of mx months next his death, and that the 3«me rule must obtain m the instances of Commissions issued in the name of his royal predecessor George the Third. By the common law all Commissions were determined by the death of the King; and to remedy the inconveniences which tins principle produced in practice, it was enacted by the 8th t.ection of the Statute 9th Anne, cap. 7th, that every person and persons m any office, place, or employment, in any of Her Majesty's plantations, shall continue in their respective offices places, and employments '« for the space of six months next after the death or demise of Her Majesty, her heirs, or successors, unless sooner removed or discharged ; " and this is the law of Canada in consequence of the last clause of the 14th Geo. HI. cap. 83, and the 33d section of 31st Geo. HI. cap. 31. A statute (57th Geo. HI. cap. 45) was passed in'the year i«17, to contmue in the colonies all persone in their rrsnective .Upy gjjoujj i,g removed or discharged by His A offices « AI'PKVDIX. It i MAJ<>Hty Georpe the Fourth ; and hy this Act, upon his acces- nion to the throne, the operation of the statute of Anne was prevented ; but no provinion was made by the 57th Geo. III. C?.; . 45, as to the accesBion of any subsequent Sovereign, nor was any statute on this subject passed in the reign of George the Fourth. From the facts stated it must be obvious that the statute of Anne will take effect at the expiration of six months from the demise of His late Majesty, and as it must of course be obeyed, new commissions in the name of His present Majesty, will be of indispeusiblo necessity. — I have the honor to be. Sir, Your obedient servant, J. SEWELL. Col. Glegg, Secretary, &c. Ill Sir, Montreal, 11 /A December, 1830. In obedience to the reference made to me in your letter of the 7th inst. requesting that I would report, for the information of His Lordship, what effect, in my opinion, the demise of His late Majesty King George the Fourth will have on the commissions of public officers of this province, after the lapse of six months from that event, and whether a renewal of such commissions will be necessary from and after the expiration of that period of six months, I have the honor to report as my opinion in this respect -.—That by the common law of England, bU commissions issued in the ntirae of the King, ceased and determined by his death, and all writs and process in the courts of justice abated or discontinued. To remedy this inconveni- ence, the Statute 7tli and 8th William III. chap. 27, was passed by which these commissions, writs, and processes were con- tinued for six months after the death of the King. The provi- sions of this statute were afterwards extended to the colonies by Statute Ist Anne, chap. 8, rendering it thereby a general law throughout the several dominions of the empire. These commissions being from matter of convenience extended and continued for six months after the demise of the King, must, therefore, necessarily cease and determine from and after tha AP1>1£NDIX. I epilation of that period, as tl.« common law principle will then take effect. If any exception couhl be made to this principle, It would be in regard to the commisHions of the judges, u by the Statute Ist Geo. III. chap. 23, it i, enacted that their com- m.HHion« shall continue and remain in full force, notwithHtandinir the demise of His Majesty, or any of his heirs or successors ; but, m my opuuon, this statute iloes not extend to the colonies not only from the particular provisions it contains, which are applicable in England only, but also, from the similar necessity there appears, that to give effect to this statute in the colonies, .t ought to have been expressly extended thereto, on the same pnncph, that it was found necessary to extend the above statute of the 7th and 8th William III. to the colonies, by the statute Ist Anne, chap. 8. I am therefore of opinion, that six months after the demise of K.3 late Majesty King George the lourth, all the commis- s.ons of the public officers in this province will cease to have ettect, and ought to be renewed. All which is, however, humbly submitted to the considera- lion ot His Excellency Lord Aylmer, by, Sir, Your most obedient servant, JAMES llEID, Ch.J. Lt. Col. Glegg, Secy. &c. Quebec. K. B. Montreal. No. 2 — Page ON THE ALTERATION OF THE VALUE OF COINS. Tertio loco probatur etiftm de jure canonico idem esse, cum d^versum non reperiatur in eo statutum, per regulam. Cap. 1. rfe oper nov^ nunctat. Nonobstat, d. c. quanta. q,ia ,,«polio ^ promptu est, quod ibi non fuerat publico decreto co.stitutum elm r.T •'";'" """'"' '•"" "^"^^^^ -^'•'j-- i luisif T ' ""' """^ '' P^«t--^^^« ^o-a. et "•cquisuo popuh consensu, defraudata fuerat mon«t« l«.wL^ i'ond..c: et sic, in ertectu illogitima et fraudulenta mone7a;"ex. ' i ml 111 4, APPENDIX. cusa erat per avaritiam et tyrannidem principum proditorum ve Buorum, qui nil aliud agunt, quara ut sacrosanctam Regis majes- tatem, quam intemeratte fidei, veritatia, justitiae, et tot sacra- mentis dejuratse. populi charitatis radiis perpetub fulgere, et a cunctis suspici etatnari decebat, oinni geneie libidinum, scelerum, Bcmritatum, fraudem, et expitationum, populi deturpatum, infamem, et odibilem reddant. Unde, ut ibi dicit Innocentius III. magnum scandalum et detiimentum populi oriebatur. Quoniam marebat vetus norma et definitio monetae, a qua populuB discedere nolebat, et sic quse de novo contra id cude- batur, erat illegitima, et tamen per officiales seu magis prodi- tores Regis de facto spargebatur in vulgus incautum, et sparsa nou poterat, nee debebat habere cursum, ut pote illegitima: habentes autem veterem bonam monetam, nolebant expendere metu ne sibi periret, majori quemetudetrectabant novam recipere, simpliciores autem et incauti circumveniebantur. Quare, Rex Arragoniae, ad quem Rescriptum Innocentii III. dirigebatur, ilium abusum non solum correxit, sed tandem (ut scribit Petrus Bellegar, in Spec. Princip. rub. 36) de mutatione monetar, lege lata una cum proceribus Regni et Civitatum in Pragmatica forma, et per modum contractus a proceribus et civibus accep- tata Valentiae 18, Calendis Mali, anno 1265, diffinivit certam, perpetuam, et immutabilem formam, pondus et puritatem materiae, monetaj, Regalium Valentiae, ita quod de libra seu marca argenti definitae puritatis non possent fieri, nisi 68 Re- galia argenti. Subdit tameu postea arrosos modules, ita ut in singulas marcas fiercnt 72 Kooralia, bonitate aiateriae dimi- nuta contra formam^,dict8e sanctionis Molin Opera, de Mut. Monet. — Quaest. C. No. 3. — Page ON INSTRUCTIONS TO GOVERNORS. Instructions to Governors can convey to them no powers whatsoever, but are, or ought to be, considered as directions to tbem how to use the powers which are conveyed to them by commissions, and are iutiuiatioas of His Iv' 'obty's resolution to I I- ■f , . APPENDIX. J remove them from their government, and appoint other persons m the.r room, in case they shall use those powers in a different manner from that which is pointed out by their instructions. In short, they are instruments of a private nature; aud accord- jngly we are informed by Mr. Smith, in his excellent History of New York that in that province the Governor's instructions (though they are in number above an hundred, and regulate the Governors conduct on almost every common contingency) are never recorded. And the same thing may be said, I believe with respect to the instructions given to the Governors of other provinces. Now, no instrument can, as I conceive, convey powers of Government in any country, or according to any system of laws, except it be of a public nature, and the cr ^nts of It made known to the persons over whom those powers are to be exercised, and who are to be bound to pay obedience to the acts that are to be done in pursuance of them. For how else shall the subjects over whom the person intrusted with such powers is to preside, know that he is to be their Governor or in what respects, and to what degree, they are bound to obey "8 orders ? If a man of rank comes into a province, and telll the people of it, by word of mouth only, that the King has ap- pointed him the.r Governor, that surely will not be sulcient fo entitle him to their obedience; but they not only ^.a^, buto^^ to refuse to obey him tia he produces some regular instrument |n writing, properly authenticated, or proved to proceed from the King s authority, by which it appears that he is so appointed And the proper instrument for this purpose in the Endish Oovern-cnt is a commission under the Great Seal of Great Britain, the authority and importance of which seal is so nro tected by the Law of England, that it is the crime .f high trea" son and punishable with the loss of life and forfeitu- e of lands and goods to the Crown, to counterfeit it. It is only, therefore by the production of a Commission so authenticated that the Govern(,r of a province can entitle himself to the obedience of us inhabitants. And further, when such a Commission is nro (luced and published in a province, so as to give the people of It a satisfactory assurance that the person who produces it has I'een appointed by the Ki%g to be their Governor, they arc only 6 APPENDIX. jii liiiii bound to obey him in the exercise of «uth powers as are con- veyed to him by the Commission, and not in other matters that are not mentioned in it, or do not fall under the powers that are specified in it. I mention this because I have known some persons imagine a Governor of a province to be the full and general representative of the King's Majesty, and to be legally capable of exercising all the acts of authority in the province which the King himself might lawfully exercise if he were pre- sent there in his own person. But this is undoubtedly a very mistaken notion, because the King never delegates to any of his Governors of provinces the whole of his royal authority, but sjecifies in their Commissions the powers he intends they should exercise. It is true, indeed, that he might, if he pleased, make such a delegation of his whole royal authority, by express'y declaring in his Commissions to his Governors " that he gave them full power to act in their respective provinces in his place and stead, as His vice-roys and lieutenants, and to exercise every power of government in the same which he himself might law- fully exercise if he were there personally present : " at least, I know of nothing that could hinder him from so delegating his whole authority if he thought fit. But it is certain that he never does so delegate it in his Commissions to his Governors of pro- vinces, but, on the contrary, specifies at considerable length in these Commissions, the particular powers he intends they should exercise in their respective provinces, and with respect to some of those powers, expressly restrains his Governors from exercis- ing them in the same extent as he himself might do ; as, for instance, in the power of granting pardons to criminals, they being usually restrained by the words of their Commissions from granting pardon to persons guilty of treason or wilful murder. Since, therefore, the King usually thinks fit to delegate to his Governors of provinces some portions of his royal authority, and not others, there is no way of knowing what portions of it he has so delegated, and what he has not, but by examining the Commissions he has granted ; and those powers that are speci- fied in the Commissions must be allowed to belopg to the Governors to whom the Commissions are granted ; and the acts done by the Governors in the execution of those powers must APPENDIX. 7 be eubraitted to as legal: and all other branches of the royal authority, ^.sides those which are speciBed, must be supposed to have been reserved by His IV^ajesty to his own person, and not to have been delegated to his Governors. And, indeed, it is a most prudent and judicious practice thus to express in the commissions of the Governors of provinces, the particular powers which His Majesty intends to delegate to them, instead of delegating to them the whole royal authority, by such general and comprehensive words as are above-men- tioned, or making them the general representatives of their Sovereigns, (as I have known some people conceive them) with all the power which the King himself would lawfully possess if he were present there in his own person: because if this were done, it would give occasion to numberless disputes and diffi- culties concerning the limits of the power which the King himself might lawfully exercise in the provinces, if he were so personally present in them, which, it is probable, the Governors of provinces would often conceive to be more various and ex- tensive than the people under their government would be willing to allow; all which disputes are happily avoided by the prudent practice of specifying in the commissions themselves, the powers which are intended to be delegated to the Governors to whom the commissions are granted. It seems reasonable, therefore, to conclude, upon the whole, that a Governor of a province has a right to exercise just so much of his Sovereign's royal authority as is specifically dele- gated to him by the words of his Commission under the Great Seal, and no more; and that every other delegation of the royal authority to him, by any instrument not under the Great Seal, is illegal and void, even though the power so delegated should be such as the crown has indisputably a legal right to; and much more therefore in all other cases. The Canadian Freeholder, by Baron Mazeres. IJ i-i J a. 11^ 8 APPENDIX. No. 4. — Page COPY OF A PETITION FROM JAMES STUART, ESQUIRE, TO HIS MAJESTY. To the King's Most Excellent Majesty, The humble Petition of James Stuart, of the City of Quebec, in the Province of Lower Canada, Esquire, That Your Majesty's Petitioner, in pursuance of a Mandamus in this behalf, was appointed Attorney General of His late Majesty George the Fourth, for the Province of Lower Canada, by Commission under the Great Seal of the said Province, bearing date the Slst day of January, in the year of our Lord 1825, and since Your Majesty's accession, in pursuance of Your Majesty's Mandamus, hath been appointed Your Majesty's Attorney General for the said Province, by a like Commission, bearing date the 11 th day of December last. That Your Majesty's Petitioner, from the period of his first appointment to the said office hath discharged the duties thereof with unremitting assiduity, faithfully and honestly; and his official conduct, in all particulars, has been not only unexcep- tionable, but, he humbly presumes to believe, has been meritori- ous, and deserving of approbation. That Your Majesty's Petitioner has, notwithstanding, expe- rienced the mortificjttion of finding that his conduct has recently been misrepresented before a Committee of the Assembly of Lower Canada, and that upon certain ex-parte proceedings had in that Assembly, an Addresss was adopted in March last, to be laid at the foot of Your Majesty's throne, whereby the said Assembly prays that Your Majesty will be pleased to dismiss your Petitioner from the office of Attorney General of the said Province, which he now fills, and that Your Majesty will also be pleased henceforward not to grant to your Petitioner any place of trust whatever in the said Province, upon the ground tl.at vonr PfltJtioner hath been guilty of certain alledged offences set forth in the said Address. APPENDIX. e ;otnini8sion, While Your Majesty's Petitioner most respectfully en- treats permission humbly to represent to Your Majesty, that the alledged offences whereof in the said Address he is de- clared to have been guilty, have not been committed by him, and that he is alike guiltless of the said offences, and of every other offence ; he begs leave also humbly to state that he has been thus declared guilty of the said alledged offences, without ever having been made aware, except by the said Address, that such offences were imputed to him,— without having been afforded any opportunity of answering or disproving the imputation of such offences,— and without, previously to the said Address, having in any manner been privy to, or made acquainted with the proceedings of the Assembly of Lower Canada, on which the said Address has been grounded, or with any proceedings that could lead to such a result.— In a word, Your Majesty's Petitioner has been convicted, by the mere authority of the Assembly of Lower Canada, of the said alledged offences, of which he is wholly guiltless, upon ex parte proceed- ings, to which he has been an entire stranger, without any opportunity for defence or justification, or hearing of any kind, and upon this conviction, the punishment and disgrace of your Petitioner are by the said Address prayed for. Under the excellent constitution and laws of this country, of which Lower Canada, happily for its inhabitants, continues to be a dependence, no violation of the principles of natural justice in the exercise of authority is permitted, or can be ap- prehended. From this consideration, as well as from the well known justice of Your Majesty, your Petitioner is persuaded that the infliction of punishment for imputed offences, will never take place under Your Majesty's wise and just government, without allowing to the person accused an opportunity for self defence and justification. Being entirely guiltless of the alleged offences of which, by the Assembly of Lower Canada, he has been declared to be guilty as above mentioned, Your Majesty's Petitioner humbly, hut confidently, claims the protection of Your Majesty's justice, that he may not, for these imputed offences, be punished and ■'■ ; ! ■' tl (li^sraced. B 10 APPENDIX. Wherefore Yout Majesty's Petitioner prays, that your Ma- jesty will be graciously pleased to afford him an opportunity of establishing that the offences specified in the said Address of the Assembly of Lower Canada have been untruly imputed to him, and that he is guiltless thereof ; and that Your Majesty will also be graciously pleased to grant him such other relief in the premises as Your Majesty, in your wisdom and justice, may deem fit and proper ; and, as in duty bound, Your Majesty's Petitioner will ever pray, &c. (Signed) J. STUART. MEMOIR, Or Statement- in explanation and support of the Petition of James Stuart, Esquire, to His Majesty. The petitioner, by his petition, appeals to the justice of His Majesty for protection in the office of Attorney General for the Province of Lower Canada, and that he may not be punished and disgraced for offences imputed to him by the Assembly of that Province, without an opportunity previously afforded to him for self-defence and justification. In the upright and faithful discharge of the duties of his office, it became incumbent on the petitioner, in the years 1827 and 1828, to institute certain criminal prosecutions, which are to be considered as having furnished molives for, and as being the immediate cause of, the proceedings adopted against him by the Assembly of Lower Canada. These prosecutions, at the time they were instituted, were of urgent necessity to enforce respect for the laws and constituted authorities of the country, and to maintain peace and good order. They consisted in indictments for seditious libels; for aggravated riots, accompanied by acts of violence against persons in authority; and for perjury. Three of these indictments were brought to trial, at Montreal, in March Term, 1830. One of them being for a riot at an elec- tiouj held at that place, for the election of two members to serve ..'I. '11: APPENDIX. 11 .n the Provincial AsHembly, and for assaulting and beating the returning officer, while employed in the execution of his office, and the other t«ro for perjury. It was immediately after these 2v r . 7".^ the excitement they produced in the political paity to which the defendants belonged, that a petition to the House of Assembly was put in circulation for signatures, com- plammg of the conduct of the petitioner in relatfon to cr n.inal prosecutions. The petition was signed exclusively by the m d th« r^r.'^" P"""P^' offences which had been made the subject of indictments were committed; and the accused, and of their attornies, counsel, and friends. According Piovincial Parliament in which it was presented, which ex- las^ and early m the session General Committees were apl u levances. To this committee, composed entirely of persons belonging to the same political party, of which some ortTem were prominent members, and all of whom, from political anU nios. ty or personal resentment, were known to be hostile to the ment, without any renewal of complaint on the part of th. petjtioners, and without any complaint whatever to U exL „! made the foundation of the proceedings which are now brought under the consideration of His Maiestv Tn fh .. thp npfJtmno. . iviajesty. lo these proceedings ZnTrr ?" '"*"' '*'''"°"' "° ^"^''^^^i^" h--& been fiZ fni air"' "'"^" ^"^'"^ ^-» -^--d nom him and no participation in or privity to them ha.in^ been afforded. With the result only of these proceed in '7 pe moner was made acquainted, which he learn ^as rfddrf to the Governor of the Province to suspend him and T ,^ to His Majesty to dismiss him fi Jth Z " ^'^^^ !:::':. -^^-^o-<^ - to g.nt him an; pl^r,? •"" '" '"= P'ovince. To this l.ttcr addi™ ',h, r.".-'.'-'" i>;i .J- ■ ■ t 12 APPENDIX. ■..]:; iiii »lilf!ii:d;llrf| To avert tlie injustice which would be accomplished if the address of the Assembly were acceded to, and to rescuo his character from unmerited imputations, the petitioner has left the country of his abode, his business and pursuits, that he might in person present and sustain his petition for redress. He seeks justice on the facts of the case, without regard to a want of jurisdiction in the Assembly, to technical objections, or irregu- larity and insufficiency in the proceedings adopted against him; and if ho notices these particulars, it is that he may not appear to have been unaware of them, and of those considerations of law and public policy which they suggest. While he adverts briefly to the latter topics, he purposes, in support of his petition, most distinctly to establish that his conduct, in the matters referred to by the Assembly in their address, has been not only unexceptionable but meritorious, and that no cause whatever has been aflforded for the infliction of the punishment with which the Assembly has sought unjustly to visit him, un- defended and unheard. The punishment of the petitioner is prayed for by the Assembly on the ground of the following alledged or supposed offences, whereof they represent him to have been guilty. "1st. Because he has abused the power with which he has been invested, as such Attorney General, so as to betray the confidence and trust with which His Majesty has honoured him, and that he has, by the serious offences, which he has committed in his high office, rendered himself totally unworthy of His Majesty's future confidence. 2dly. Because the said James Stuart, Esquire, Attorney General of this province, by persisting m prosecuting, before the Superior Tribunals, persons accused of minor offences, which ought to have been prosecuted at the Quarter Sessions of the Peace, has been guilty of malversation in office, and this with the sordid view of increasing his emoluments. 3dly. Because the said James Stuart, Esquire, Attorney General of this province, in order to shew his attachment to the Executive Government of the day, has been guilty of partiality and persecution in the execution of the duties of his office, by instituting libel prosecutions, unjust and ill-founded, against APPENDIX. 18 (livers persons, and has thereby rendered himself unworthy of the confidence of His Majesty's subjects in this province. 4thly. Because the said James Stuart, Esquire, Attorney General of this province, by making, at the election of Sorel, or borough of William-Henry, in the year one thousand eight hundred and twenty-seven, where he was one of the candidates, use of threats and acts of violence to intimidate some of the electors of the place, and by promising impunity to others, displayed his contempt of the freedom of election, and has in- fringed the laws which protect it. 5thly. Because the said James Stuart, Esquire, Attorney General of this province, by prosecuting for perjury certain electors of Sorel aforesaid, who had voted aga:n8t him, and by refusing or neglecting to prosecute others who were no better qualified, but who had voted in his favour, was actuated by motives of personal revenge, which made him forget his duty and the oath he has taken as his Majesty's Attorney General in this province, and that it would be dangerous to continue to him powers of which he has made use in so arbitrary and un- justifiable a manner. 6thly. Because the said James Stuart, Esquire, Attorney General of this province, by inducing, at the said election of Sorel, certain electors who were not qualified to take oaths usual on such occasions, although he knew that those individuals were not qualified, has been guilty of subornation of perjury. Lastly. Because, by his conduct for several years past the said James Stuart, Esquire, Attorney General of this province, has brought the administration of Criminal Justice in this province, into dishonour and contempt; and that he has been guilty of high crimes and misdemeanors; that his conduct has utterly deprived him of the esteem aud confidence of the in- habitants of this province; and that his continuing to occupy any place of trust therein could not be otherwise than injurious to His Majesty's Government in this province." Before proceeding to give a distinct answer in detail to the imputation of each of these alledged offences in succession, the petitioner will beg leave succiuctly to notice considerations which appear to him of the highest importance, in relation to 14 Ain'KNUIX. I ■I . IE) i r^ the courae of proceeding thus adopted hy the AMembly of Lower Canada, to the nature of Home of the nlledged otfencen, and to the form in which all of them are charged upon the petitioner. By its address to His Majesty, the House of Assembly, it appears to the petitioner, has not exhibited charges of official misconduct against him, to which he is required to furnish an answer, and on which a determination, after the requisite in- vestigation, is sought. But assuming to itself, it would seem, the power, on the ex parte statements of individuals, made in the absence of the party accused, in secret, and not under oath, of convicting a public officer not only of acts of official mis- conduct, but even of criminal offences, within the exclusive jurisdiction of Courts of Law ; the Assembly, by its address, prays for the punishment of the petitioner, as on a conviction which has determined his guilt. Under this view of the Ad- dress, the Assembly has assumed the character and functions of judge, as well as accuser, in respect of the same accusations; it has converted itself into a Court of Justice for criminal offences, cognizable by Courts of Law only; it has exercised and blended in itself the functions of accuser and Court of Grand and Petit Jury, in respect of the same accusation, by declaring the petitioner guilty of the offence of subornation of perjury; and of all the alledged offences specified in the address, including the offence last mentioned, it has convicted the petitioner, in his absence, without defence or hearing of any kind on his part, upon the ex parte statements of individuals, examined in secret, nht under oath, without cross-examination or opportunity for cross-examination on his part, and entirely irresponsible for the falsehoods by which they have sought to injure him. That such a course of proceeding involves an as- sumption of unconstitutional and illegal powers on the part of the House of Assembly, and is, moreover, repugnant to reason and justice, is too evident to require observation,— It becomes, therefore, as it appears to the petitioner in his humble appre- hension, a most important preliminary point for consideration, whether the address from the Assembly does or does not possess the character now ascribed to it. If this character do belong to it, a conclusive reason would seem to be thence APPENDIX. 15 decided, that it shrf^ld not be acted upon, but that the House of Assembly should be left to exhibit against the petitioner, if 80 advised, any complaint or accusation which it may be within its competence to prefer, in such fornl and manner as may admit of an answer, investigation, and decision on it. This being, as the petitioner believes, the first instance of the assump- tion of such power by a colonial Assembly, it would seem to be most expedient, for the security of public officers throughout His Majesty's colonies, and for the faithful, upright, and effi- cient administration of the authority of government therein, that it should not be permitted to acquire the force of a prece- dent—Indeed, with the exercise of such powers in prospect, as have been assumed by the Assembly of Lower Canada, in this instance, honorable men, it could not be supposed, would enter into the public service; the faithful and honest discharge of official duties could not be expected, nor could colonial governments continue to subsist. If, however, the address of the Assembly is to be considered not as importing a conviction of alledged offences, which ap. pears to be its true character, but as the exhibition of charges which the petitioner is called upon to answer; the nature of the charges, as well as the form in which they are conveyed, necessarily demands attention. The charges, the petitioner apprehends, must be such as it is competent to the Assembly to prefer, and they ought to contain a sufficient spec c ion of facts to admit of an answer. Conceding to the Assembly the right of preferring complaints and accusations against public officers, who abuse the trust confided to them, these complaints and accusations, the petitioner also apprehends, must be le- stricted to acts of official misconduct, and cannot embrace offences cognizable by Courts of Law, in respect of which the Assembly can exercise no jurisdiction whatever. Two of the offences specified in the address are of the latter description- acts of violence at an election, amounting, it is to be presumed, to breaches of the peace and subornation of perjury. For charging the petitioner with these offences, the shadow of a cause, as will be presently shewn, was not afforded by him ; but if bo lia<1 Kaon >v.,:U.. „f *l. -O". I. t. . . '•-•-•• 5'*"")' "' uicBc uiiciiccs, 110 couia uniy be made amenable to justice for them, by indictment and trial in a I' ■ i m 16 APPENDIX. ill i \ 1 i ' 1 : ■m If' il 1 ,t ■ Court of Law, in like mnnnor bh all other His Majesty's subjects in Lower (Canada would he. Instead, not only of ontertBtnin(|; jurisdiction of these offences, hut actually convicting the peti- tioner of them, the fit cause to have been pursued by the Assembly, if sufficient cause for it had been laid before them, would have been, the petitioner apprehends, by address to the Governor, to have prayed that he would direct prosecutions for these offences to be instituted and carried on by one of the law officers of the Crown, in the c«mpetent tribunal, in due legal course. In the chari^es of the Assembly, as in those proceeding from individuals, it would seem to be indispensably necessary for the purposes of justice, that a sufficient degree of particularity should be used to convey information to the person accused, of the specific facts on which his criminality or culpability is pre- dicated. — Without such a specification, giving certainty to the charge, he cannot bo apprized of the facts to be proved on the one side, and disproved on the other, and cannot, therefore, be prepared to defend himself. In all the alledged or supposed offences imputed to the petitioner by the address of the As- sembly, he has reason to complain of the absence of any such specification from which the Tacts rendering him criminal or culpable could be known. This will be made apparent, by re- ference to the heads of offence, as stated in the address. The first and last heads of offence contained in the address being charged, it is to be presumed, merely as inferences from those of a more specific nature, need not be adverted to, as objection- able on the ground of generality. Under the second head of offence, the petitioner conceives it would hav^ ueen fit and proper that a specification should have been given of the par- ticular prosecutions which, it is alledged, ought to have been carried on in the Quarter Sessions, and were improperly made cognizable by the Court of King's Bench. Under the third head of offence, a specification of the several prosecutions which it is alledged were unjust and unfounded, would, the petitioner apprehends, have been necessary and proper to enable him to answer it. Under the fourth head of offence, the names and acta of violence, and also the names of individuals to whom APPKvnrx iij impunity, it is alledged, was offered, it ia presumed, ought to have been introduced. Under the fifth head of offence, the names of the individuals charged with perjury, whom the Attorney General, it in alledged, refused or neglected to prosecute, it is humbly conceived, ought to have been speciBed. Under the sixth head of offence, which is a disgraceful mis- demeanour, indictable at common law, and cognizable in His Majesty's Courts of Justice, it was of indispensible necessity, not only with a view to the adoption of any measures to be grounded on it, but ii. -common justice and fairness to the party accused, that the names of the persons who, it is sup- posed, were suborned to commit perjury, should have been specified. Upon this statement it is sufficiently plain, that, if the address of the Assembly is to be considered as containing charges which the petitioner is called upon to answer, there is an absence of the requisite specification of facts, to '^certaiu the precise offences with which he is charged, and to enable him to defend himself. But, however defective the address, viewed as an exhibition of charges, may be in this respect, and however considerable and unreasonable the disadvantages to which the petitioner is thereby subjected, it would, neverthe- less, ill comport with the consciousness of perfect innocence, on his part to abstain, on this ground, from entering into a full justification of his conduct, as to all the matters referred to by the Assembly. To enable him to do so, and for the purpose of supplying th<5 particulars which are not to be found in the address of the Assembly, he must necessarily advert to a docu- ment which, otherwise, he conceives it would be improper t notice, and ought to receive no consideration. He refers to a report of the Committee of Grievances, which, in an address of the Assembly to the Governor of the Province, on the 26th of March last, is called "A copy of the evidence received by the Committee of Grievances, on the subject of the matters of complaint set forth in the petition of divers inhabitants of the city of Montreal, complaining of the conduct of James Stuart, Esq. Attorney General," and which, by that address, the ■-.■ t — •• — — 6''" •"-• i'""="iiiicu ouu laiu uii mo root of Throne. This document contains the ex parte statements of C |.,, tt APPENDIX. individuals not under oath, examined as witnesses before the committee, in the absence of the petitioner, and without cross examination or opportunity for cross examination on his part— i and these statements are denominated evidence. From the description of persons examined before the committee, being, exclusively as to all the material points of evidence, individuals rendered inimical to the petitioner by the discharge of his public duties, and who were under feelings of resentment and revenge towards him, and other strong motives urging to mis. representation and falsehood, as well as from the partial and mutilated manner in which these statements, it would appear,* were received and reduced to wiyting, thie document is liable to objections peculiar to itself, ^v- the petitioner at this moment, is desirous of noticing i^, .^arely in its general cha- racter, as containing ex parte statements of witnesses, to ground an accusation against a public officer. In this character, its office, the petitioner apprehends, is limited to the purpose of accusation, it cannot constitute evidence for the purpose of con- viction, it stands on the same footing as evidence taken before ft Grand Jury, though inferior in degree to the latter, as not having been given on oath, but equally inadmissible to prove guilt, as having been given in an ex parte proceeding, in the absence of the party accused, and without any opportunity of cross examination on his part. In principle, therefore, the petitioner deems it an incumb" . duty to protest against this document, as containing no admissible evidence to establish the truth of the charges of the Assembly. At the same time, in the peculiar situatiob in which he is placed, and without any sufficient specification of the imputed offences in the address, to enable him to answer and disprove the charges of the As- sembly, he is unavoidably compelled to refer to this document, to supply the facts and circumstances that ascertain what the imputed offences really are, while, for the purpose of establish- ing his innocence, it is equally necessary to refer to it, in order to prove the falsehood and insufficiency of the statements on which the address of the Assembly has been grounded. ','; 5 1 • Vide affidavits of William Green, Esq. and A. Von Iffland, B»q. in ApiiencUx to this Memoir, B and P. pages APPENDIX. 19 Innil. Eao. ill Availing himself, therefore, of this document, for both these purposes, he will now proceed to show that the offences im- puted to him in the address of the Assembly have not been committed by him, and that no cause whatever has been aflForded for the imputation of them. On the first head of offences, no observation is necessary it being too general to admit of any answer. On the second head of offence, the petitioner will beg leave to remark, that it is singular, that even, upon the slightest enquiry, it should have been supposed by the Ho"se of As- sembly, that there was cause for imputing offence <. blame to the petitioner— "for persisting in prosecuting (as it is alledged) before the superior tribunals persons accused of minor offences, who ought to have been prosecuted at the Quar r Sessions of the Peace." Person? at all conversant with the constitutions and proceedings of the Criminal Courts in Lower Canada, are perfectly aware, that it has always been, and continues to be, the duty of the Attorney General to prosecute before the superior ^ribunal, as it is called by the Assembly, that is before the Coun of King's Bench, such persons as are in custody charged with the offences which by the Assembly are denomi- nated "minor offences." This duty is derived from the powers With which the Court of King's Bench is vested, and which it has alwaye exercised. Under the system of Judicature esta- blished in Lower Canada, a Court of King's Bench sits twice a year, in each of the districts of Quebec, Montreal, and Three Rivers, for the trial of all crimes and criminal offences what- soever. At these times, the Courts of King's Bench ' , the several districts execute the powers and perform the functions of Courts of General Gaol Delivery, in which all persons being in custody are entitled, ex debito justiticB, to be prosecuted and tried. The Attorney General of Lower Canada always baa been, and continues to be, charged with the duty of instituting and conducting criminal prosecutions before the Courts of King's Bench. Hence he becomes auxiliary to these courts in the execution of their office as Courts of General Gaol Delivery; and it is alike incumbent on him to prosecut'R, as it is on the courts themselves to entertain the nrosopntmna «f oil , in custody for c minal offences, whatever may be the nature of Il r l w so APPENDIX, these offences, from the highest to the lowest. It has been, therefore, in the execution of the law of the land, that thcr offences referred to by the Assembly have been prosecuted in the Courts of King's Bench, not only by the petitioner, but by all his predecessors in office, without exception; and, as well before as since the petitioner came into office, no term of these courts has passed over in which prosecutions for the offences termed by the Assembly << minor offences" have not been in- stituted and carried on by the Attorney General for the time being. The petitioner, therefore, has been convicted by the Assembly of alledged "malversation in office," for having done that which it was his bounden duty to do, and for the omission of which he would have been really culpable. And to this supposed offence, consisting in the riglit and proper discharge of public duty, it has pleased the Assembly, without any reason whatever, gratuitously, to ZvMi-'x the imputation of a "sordid" motive. The Petitioner will now beg leave briefly to advert to the evidence on which it would appear that the Assembly proceeded in thus erroneously converting the discharge of an important public duty into an offence. The principal witness examined on this head was a Mr. Jacques Viger, Roa'' Surveyor at Montreal. Among the number of criminal prosecutions insti- tuted by the petitioner, which the political party, whose enmity he thereby incurred, has made a subject of complaint, were indictments against a Mr. Stanley Bagg, for a nuisance, and against this Mr, Jacques Viger, as Road Surveyor, for non- feasance of duty, in hav^ing neglected to abate the same nuisance, which, by the provisions of a statute, as well as by the express orders of the Magistrates in Special Sessions, he was required to abate.* These prosecutions, than which none more legal could be instituted, were loudly clamoured against by Mr. Viger and his party, as an infringement of law and justice ; and the Court of Oyer and Terminer, in which the indictments were found, was represented to the country as having illegally and oppressively assumed a jurisdiction which did not belong to it, by entertaining those indictments. Mr. Viger, who, in making * Vide Appendix to Report of Committee of Grievances, No. 3, p. 54. AppRvtma. tt this unfounded elamour, was evidently very ill informed respect- ing the jurisdiction and powers of a Court of Oyer and Ter- miner, appears not to have been better informed respecting the duties of the Attorney General of LowerCanada, though equally disposed to 6nd fault with both ; and it is not uncharitable to suppose, that on this latter head, the feelings excited in his mind by the indictments against Mr. Bagg and himself may have contributed to blind his judgement. F's error in this instance, however, has become of much greater importance than the errors of a person moving in his sphere could be expected to acquire. In other countries, the errors of a Road Surveyor, in plain matters of law and government, it is not likely would be adopted as the determination of a Legislative Assemblv, In Lower Canada it is otherwise : Mr. Viger is connected with the leaders in the House of Assembly, and his error has become in effect, it would appear, through his representations, the error of the Committee of Grievances, and through that committee, the error of the House of Assembly itself. Being a member of the Grand Jury in March term, 183U, Mr. Viger, it seems, became impressed with the belief that a number of the indictments laid before the jury at that time were improperly brought before them, and ought to have been prosecuted in the Quarter Ses- sions ; he, therefore, in a spirit of zeal for the public interest as he would intimate, took notes of these indictments, that he might be better enabled afterwards to disclose what took place in the secrecy of the Grand Jury room. The benefit of these notes he afforded to the Committee of Grievances, and it is this supposed important disclosure of Mr. Viger (singular to men- tion I) which constitutes the principal evidence on this head of supposed offence. Now these notes of Mr. Viger, however valuable they may have been deemed by him, so far from estab- lishing that, in preferring the indictments in question, the peti- tioner acted improperly, lead to a directly contrary conclusion : they demonstrate that it was his imperative duty to prefer them. Mr. Viger furnishes a list and description of indictments, which he says ought to have been presented in the Quarter Sessions; and he thence infers that the Attorney General was culpable* Bench. in T»rAQ/I/»ii*in*T. *l\r n ^ -r jT-i •s> Mr. Viger, from ignorance or inadvertence, does not appear to have i n APPENDIX. been aware that the duty of the Attorney General to prosecute these indictments in the Court of King's Bench became more urgent from the omission of the Clerk of the Peace to prefer similar indictments in the Quarter Sessions ; and he seems also not to have perceived that the Attorney General could not be censurable for the neglect of that officer to do his duty. Ac- cording to the statement of Mr. Viger, two Quarter Sessions of the Peace (in October, 1829, and January, 1830) had inter- vened since the commitment of some, and one Quarter Session of the Peace since the commitment of others, of the persons accused, before indictments were prepared against them by the petitioner, in March, 1830. These persons, therefore, according to Mr. Vigor's own statement, had been detained in custody several months after the period at which they ought to have been tried; and at the opening of the March term of the Court of King's Benoh, had legitimate cause of complaint on this ground. This cause of complaint would, of course, have been greatly aggravated if this detention in custody had been further prolonged, without prosecution and trial, and they had not received from the Court of King's Bench the benefit of a Gaol Delivery; in which case, that Court, as well as the Attorney General, would have been liable to censure. It is most manifest, therefore, that, without a violation of the liberty of the subject, and a culpable neglect of duty, in which the Court of King's Bench itself would have been involved, the petitioner could not omit to prosecute, in that court, the several indict- ments of which Mr. Viger communicated a list and description to the Committee of Grievances. Besides these indictments, Mr. Viger, evincing certainly a very vigilant and minute, though unusual superintendance of the Attorney Geneial, in the dis- charge of his duties, adverts to three other indictments preferred in a former term, and disposed of in March term, 1830, which he says ought to have been prosecuted in the Quarter Sessions, viz.: those against Duncan M*Naughten, John Oliver, and William Covey. These indictments were for very grave offences; the first being for a gross libel on ths administration of justice, by certain commissioners for the trial of small causes; ->f iinivlinloasla mfiEt^ bv wbich the health of a number of pereons had been injured ; and the third APPENDIX. 23 for an offence which a few years since was of frequent occurrence jn Lower Canada, and of very injurious tendency: the defendant (an American) being charged with unlawfully having in his pos- session a large number of forged notes of different banks in the United States, amounting to fourteen hundred and sixty dollars, with intent to utter and dispose of them in fraud of the King's subjects. That these cases, from the nature of the offences were deserving of prosecution before the Court of King's Bench,' the petitioner conceives no doubt could be entertained- but if not prosecuted by the petitioner, the persons accused' would not have been made amenable to justice in any other court, la the first two cases, also, the defendants and witnesses had, m the first instance, been bound over to the Court of King's Bench, and in the last the defendant was in custody. In pro- secutmg the three last-mentioned indictments, therefore, as well as those already mentioned, the petitioner discharged his duty, he presumes to think, meritoriously ; and as to all of them, the singular supervision to which he has been subjected without being aware of it, might have been dispensed with. The other witnesses examined before the Committee of Grievances on this head of offence, were Messrs. Green. Perrault and Delisle, Clerks of the Peace, and two of them also Clerks of the Crown. In the statements of these gentle- men, particular directions of the Executive Government are referred to, the object of which was to enforce and facilitate the prosecution of certain offences in the Quarter Sessions. These directions originated in a Report of a Committee of the whole Council of the 31st of May, 1822, in which were contained several recommendations, with a view to a reduction of the public expense in the administmtion of justice, in criminal cases; one of the objects of the Report was to compel Clerks of the Peace to prosecute in the Quarter Sessions, criminal ottences cognizable by that Court, which, for the want of prose, cutors there, were prosecuted at a greater expense in the Court of King s Bench. The recommendation of the Committee on tne last head, seems to have received execution in the District ot Quebec, but from circumstances which it is unnecessary to Particumme, was very imperfectly executed in the District of Montreal. ««««.-. ;» l, , . . ence it became, necessary in the latter District, Si 'ti .! I 24 APPENDIX. to carry on prosecutions in the Court of King's Bench for offences, for which prosecutions might and ought to have been instituted in the Quarter Sessions. But the remedy for this was not to be attained by an unfounded inculpation or the Attorney General, for having done his duty, but by compelling the Clerk of the Peace to discharge that which the law of the land, and the directions of the Government had imposed on him. To this subject the attention of His Excellency Sir James Kempt, while he administered the Government of Lower Canada was drawn ; and the petitioner will beg leave to refer to his report* to His Excellency, in relation to it, as late as the 13th August, 1830, from which it will appear evident that the remedy for the evil in question was to be found in the proper discharge of the duty of the Clerk of the Peace. Before quitting this head of imputed oflPence, the petitioner cannot, omit td notice, that Mr. Green, a gentleman of acknow- ledged character and probity, one of the witnesses last men- tioned, on his examination before the Committee, it appears, stated facts that might have rectified the erroneous view taken of the subject, by the House of Assembly, and which entirely disproved this charge, as to the District of Quebec ; yet these facts, it is to be regretted, were not reduced to writing. It appears by the affidavit of Mr. Green, that the material facts now referred to have been suppressed, in the report of evidence taken before the Committee ; and this was done by a member of the Committee, (Mr. Lafontaine,) who stated it was not necessary to reduce^ that part of JMr. Green's evidence to writ- ing. The petitioner has already adverted to the inadmissibility of such evidence as that contained in the report of the Com- mittee of Grievances, under any circumstances to establish guilt. But when such mutilation has occurred in the manner of taking it, its claim to credit for any purpose cannot but be considered most seriously affected. On the third head of offence, it is to be observed, that all the prosecutions for libels which have been rarried on by the petitioner, originated in bills of indictment found by the Grand Juries in tbe Districts of Quebec and Jloutreal, in no instance • Vide Jjipendix to this Memoir-, A. page APPENDIX 85 whatever haa the petitioner exercised the right of filing exqfficio informationa for libels. He is at a loss therefor, to conceive on what ground he can he held criminal or culpable, for having been merely auxiliary to Grand Jurit. in the institution of these prosecutions, which are not to be considered as pro- ceedmg from him, but from the country itself, through that organ by which it is constitutionally represented in such cases These prosecutions, it is alledged by the Assembly, were unjust and unfounded. Without enquiring into the constitutional right of the House of \ssemblyto sit in Judgment on the decision of Grand Juries in finding bills of indictment, or the expediency or fitness of su( ' an exercise of power by the Absembly, the petitioner will beg leave to remark, that it does not appear that either . , Committee of Grievances or the Assembly itself had before it any materials whatever by means of which it could be ascertained whether the prosecutions com- plained of were unjust and unfounded or not. Neither the in- dictment in question, nor any of the evidence on which the Grand Juries proceeded in finding them to be true, nor any evidence whatever respecting the chaiges contained in them, were laid before the Committee or the Assembly itself.— So that the determination of the Assembly, that these prosecutions were unjust and unfounded, appear to have no other foundation than the will of the Assemblyto declare them so: Sic volumus m juhemm; stet pro ratione voluntas. To this determination 18 opposed the legal and constitutional authority of Grand Junes, by which the prosecutions have been sanctioned and declared to be well founded; resting on such authority, these prosecutions, the petitioner apprehends, must be presumed to have had a legal, just, and sufficient cause, till the contrary mav be established, by the verdict of a jury. This mode (the only legal and satisfactory one) of determining whether the prosecu- tions complained of were or were not "unjust and unfounded," the House of Assembly does not desire should be pursued- and the defendants themselves have never signified or mani-' tested any wish for its adoption, nor are they likely to do so A conclusive and satisfactory answer to this head of offence tne petitioner, therefore, humblv nrfl«i.m». « f^.,„j :_ ,u_ • ' dictments themselves. But apprehending, as in all humility he M APPENDIX. riit?si!i!? (low, that his agency in these prosecutions was not only not criminal or culpable, but meritorious, he seeks not to shelter himself under the constitutional authority of Grand Juries;— he is ready to justify each and every of them, as having been urgently necessary when instituted, and as having largely con- tributed to arrest the progress of disorder, and maintain the authority of His Majesty's government and the tranquiJity of the province, when both were assailed and endangered. It would be easy for the petitioner to establish this assertion, by entering into particulars, and at the same time to shew the con- nexion which subsists between the defendants in these prosecu- tions, and the individuals whose labours and influence have been conspicuous in the proceedings adopted against the petitioner. But he does not deem it proper to give such an unnecessary extension to this statement; and will beg leave merely, on this head of olFence, to refer to his Report* on the subject of these prosecutions, which was made to his Excellency Sir James Kempt, soon after he assumed the administration of the govern- ment of Lower Canada, and of which a copy is hereunto annexed. In this Report, he humbly apprehends, will be found the true character of the prosecutions in question, and sufficient reason to justify his conduct in relation to them, as well as that of the Grand Juries by which the bills were found. On the fourth head of offence some explanations, the petitioner begs leave to submit, are necessary, i- order that a just opinion of it may be entertained. To represent the Borough of William-Henry, or any other part of the province, in the Assembly as^ now constituted, was not an object of the ambition of the petitioner ; pnl if inclination had been consulted, he would have been a stranger to the elections of that Borough. But, on his receiving the appointn^ent of Attorney General, it was intimated to him, that it was deemed proper that he should represent it, as his predecessors in office generally had done. At the first election, therefore, which occurred after his appoint- ment, he became a candidate for the Borough, and, at consider- able personal expense, was elected. The Borough constituting part of the seignory of So.el, which belongs to His Majesty, • Vide Jpjyendix to this Memoir, Q. page APPENDIX. «7 the King's Agent for that seigniory, on that as on other similar occasions, was relied on for the canvassing of the Borough. Wheu a new election was about to take place in July, 1827, the petitioner placed the same reliance on the exertions of the Agent, as he had done at the previous election, and arrived at the Botough only the day before the election. He then found that no communication had been had with any of the electors on hia behalf, while active measures, of which he had remained ignorant, had been used against him, and that all the influence and activity of a powerful political party, opposed to the then administration of the Colonial Government, and which is now dominant in the House of Assembly, would be exerted to prevent his election. This fact was verified at the opening of the election the next day, as a large ociicourse of persons from distant parts of the country, including officers of the militia, from colonels down to Serjeants, Justices of the Peace, and other persons of influence, wholly unconnected with the Borough, were found ready to sustain the interests of an adverse Candidate — Among these there were also individuals of inferior condition, whose physical powers had evidently been put in requisition to be used as circumstances might require. On the other hand, the petitioner, personally a stranger to the Borough, was absolutely alone and unsupported, except by some of the principal inhabitants of the place. It is not to be supposed, therefore, as alledged under this head of ofience, that acts of violence, in restraint of the freedom of election, could proceed from the petitioner, with the aid of four or five peace- ably disposed burgesses (the whole amount of the physical force on his side) in opposition to hundreds of individuals thus collected together, acting, besides, under the influence of strong political excitement, heightened by national and religious pre- judices, and exhibiting both power and inclination to effect their purposes, without being scrupulous as to the means on the other side — There is absolutely, therefore, and in the nature of things could not be, the slightest foundation or colour for the imputation of acts of violence to the petitioner; while, on hi« part, he certainly had reason to entertain well-founded appre- hensions on this head. Ah littln ormnnr] id tVyara oUo f,>.. :», puting to the petitioner the use of threats In endeavouring, Ill l\ II •i\ "' 1 ItlKill 18 APPENDIJC. in a very unequal contest as to numbers, physical strength, add the employment <" ' .', .ns, to sustain his interests as a candidate, the petit!on«»r cotilil hnve no reliance except on the execution of the laws.— In ihu exeicise of rights derived from these, he did object to the admission of illegal votes ; — when such votes were insisted U|io», he did require the oath of qualification to be ad- ministered ; — and, when the want of right was evident, he did, as far as opposing violence womM permit, caution the individuals about to compromise themselves by taking the oath, against doing so ; — he did also represent to them (they being ignorant illiterate persons) the penalties they would incur, and did inform them they would be proaecuted for perjury, if they took the oath. — But all this was done by him, as would have been done by any other candidate, under like circumstances ; and, on his part, was the mere exercise of the essential rights of a candidate, -without which h^ must have immediately renounced the contest. The urgent occasion there was for the caution he thus attempted to administer to some of the voters, and the explanations he was desirous of affording them, may be sufficiently illustrated by re- ferring, by way of specimen, to three of the voters, viz. Antoine Aussant, Antoine Hus dit Cournoyer, and Franyois Vandal — The two former had executed deeds of gift of their property, in the Borough, to their children, without reserving any portion of the estate, in consideration of being lodged and fed by the donees, or enjoying in their houses what is vulgarly called in Lower Canada la fortune du pot, with the right also, in the case of Aussant, of insisting; on a life-rent or pension viagere, in case of disagreement between the parties ; and the latter claimed the right of voting under the will of a testator still living. The returning officer (Mr. Crebassa), who was also the notary of the place, and in that character had in his custody the original deeds of gift and the will, was requested to put these men on their guard, when brought up to vote.— It was on his refusal to do so, that the petitioner interposed, and endeavoured, but in- efiFectually, to save them from the oifence they were about to commit. He could with difficulty make himself heard amidst the loud vociferations of the adverse candidate and his partisans, UriTins^ lUeSc liicii lu insvc itJc -jalu, mUhv« »■•••- ■ — ^ now mentioned, of which they were well aware; and to APPENDIX. S9 vanquiBh ttieir scruples, the adverae cnmlldate gave them the strongest assurances that he would protect them against all consequences and stand between them and harm. False swearing, with such attendant circumstances in the very face of the public, must be of rare occurrence; and cases more deaerring of prosecution than these, it is presumed, could hardly occur:— Yet these are three of the cases, in which the petitioner is held culpable for indicting the individuals; and the explanations he attempted to give them respecting the offence they were about to commit, and the penalties annexed to it, have been called threats, in restraint of the freedom of election I-Under this head of offence, the petitioner is charged with having intimi- dated some of the electors, while he promised impunity to others. This allegation is altogether untrue, and destitute of any the slightest foundation. It is derived from misrepresenta- tion of facts which really occurred, intermixed with fHlsehood proceeding from individuals influenced by a strong (Jesire to injure the petitioner, and subject to no responsibility for the means thus employed to gratify their malice and resentment — By misrepresentation, the legal and proper conduct of the petitioner, in cautioning ignorant and deluded men against the commission of perjury, is converted into intimidation ; and by falsehood, in ascribing to the petitioner language which he never uttered, a colour is obtained for charging him with having held out an impunity to voters in his favour, which the most ignorant persons must have been aware it was not in his power to afford and which no person in his office, not actually deprived of his' reason, could possibly have even hinted at, as an inducement to perjury, in the face of the public. The falsehood in this malicious compound thus defeats its object by its very extrava gance. It would be easy for the petitioner to analyze the statements of the different witnesses from which this compound of misrepresentation and falsehood has proceeded, and establish as to each of them successively, their entire unworthiness of credit, even if their statements had been kgally made under oath, with the responsibility incident to evidence in that form But a great and, he thinks, unwarrantable extension of this „. „„„.„ „^ „,U3 occasioned unnecessarily, inasmuch as the misrepresentation and falsehood now referred to, besides the ao APPENDIX. M intrinsic evidence of it resulting from the facts which are stated, is distinctly proved by the affidavits on oath of the most re- spectable inhabitants of the borough, who were intimately con- versant with the proceedings of the election from first to last, and who have been under the influence of no motive that could affect their veracity. To these affidavitH,* as well as those of sevei-al other persons, the petitioner will beg leave to refer, as not only disproving in toto this allfdged head of offence, but as establishing the scrupulous fairness, and entire correctness of the conduct and deportment of the petitioner throughout the election. On the fifth head of imputed offence, the petitioner will observe, that he prosecuted no person for perjury whom he did not caution, at the time of taking the oath, against doing so, and whose wai^ti of qualification was not so evident, as to ex- clude all doubt as to the falsehood of the oath which had been taken. The number of cases in which this false swearing occurred was so great, compared with the entire nuirber of votes for the borough, which is only between one hundred and one hundred and twenty, that the legal right of voting must be rendered entirely illusory, if the false assumption of this right, by peijury, were not checked. The effect of this assumption, in the case alluded to, was evident, inasmuch as the majority of the adverse canditate was only two or three votes, and the number of his voters, against whom indictments for perjury were subsequently found, was not less than seven. For the suffi- ciency of the grounds on which qach of these prosecutions was instituted, the petitioner most willingly hold's himself respon- sible. The prosecutions which he is held culpable, under this head of offence, for not having instituted against persons who voted for him, he could not have instituted, without a gross breach of his duty, for two very conclusive reasons. In the first place, no private prosecutor ever requested him to institute such prosecutions, or ever said one syllable to him respecting them; and, in the second, no sufficient evidence ever reached his hands to warrant or justify him in laying any such accusa- tions as those referred to before a grand jury. The facts, with •^ Vide Ai^iKndix to this Mevwir, C, D, E, F, G, H, I, & P, pages APPENDIX. 81 rpspect to this 6fth head of oflTence, the petitioner begs leave to state are these:— In the term ni M Court of King's Bench, at Montreal, which succeed' J the (> .ction at Sorel, there were delivered to hirn, by the Clerl >'• ' Crown, to whom they had bi-en sent, several depo8it!o% , . ng ptirsons who had voted for the petitioner, with perjury; .,ut, from that period to the present, no private prosecutor ^vtt required that these deposi- tions should be acted upon, nor has any inquiry respecting them ever been made. Upon looking into the depositions, the petitioner found them to have been made by persons of very low condition of life, and to be wholly insufficient to admit of any prosecution being grounded on them. He like- wise found that one of the persons charged in these depositions with the commission of perjury, in having falsely sworn to a qualification, had indeed voted at the election, but his vote had been objected ♦o, anl»ENblX. inattended [n this in- i tendered tjected tu )lute right le right uf a usufruct could not to his son. onie alter- hiin, as to 5 objection returning Itercation, ite. But, life^estate )r doubted officer, or tion being didate and was going language, and of his petitioner 1. If any eservatioD I St. Ger- to remove r the most when the who is a be inhabi- (ficer, who ind was in e occasion ioned, the iken to St. nrould not facts that 35 W 1 the petitioner has been subjected by the House of Assembly of Lower Canada, to the extraordinary charge of subornation of perjury, in having, as it is alledged, induced St. Germain to swear to a qualification which, it is how said, he did not possess. That such a cliarge should oiiginate in such facts could not have been anticipated; the malicious misrepresenta- tion and falsehood, by which it has been sought to obtain a colour for it, are now to be explained. The individuals ex- amined before the Committee, consisting of the adverse candidate, his partisans and friends, two of whom are still under indict- ment for perjury, and subornation of perjury, on whose state- ments this charge has been founded, assert that St. Germain when he tendered his vote, stated that he had given away his property to his son, and that, notwithstanding this fact, he was assured by the petitioner, that he had a right to vote. The fact thus stated is inci-edible ; it cannot be supposed that the petitioner would assure St. Germain that he had a right to vote .f he had merely said, that he had given away hiJ property which would have been equivalent to a declaration on his part' that he had no right to vote; and no person in his senses could,' in such case, have ascribed to St. Germain the right of voting. It IS here the misrepresentation occurs, on the part of these witnesses, by stating only a part of the fact, or res gesta, and suppressing the rest. It is true that St. Germain did state that he had given away his property to his son, and it is also true that the petitioner assured him he had a right to vote- but It 18 equally true, that St. Germain added, that he had reserved a hfcestate in part of the property so given away, on which he claimed the right to votf^. and that it was, on this alledged re- servation, not denied a^, the time, that he was told by the petitioner that h., had a .ig.u to vote. The statement of the whole fact, as it occurred, wrald have excluded all pretence for attacJiing offence .> blame to the petitioner, a. his assurance to 55t. Germain, u>a' .. had a right to vote, would nave been predicrued on a i^m, acq iesced in as true at the time, and sufficient to conrer that ight. rience the suppressio veri in "e partioJar now mentioned; and still further to give a colour to the charge, falsehood has been added, by reprr.. .tinjr St -unam to Have been rei.ctant in ^Jdng the o«th, and to have M APPENDIX, been pressed by the petitioner to do so, who, it is even falsely said, laid his hand on the book. To disprove the statements of these witnesses in toto, and deprive them of all credit, it is sufficient to establish the fact which they have maliciously sup- pressed, viz that St. Germain claimed the right of voting, on the reservation of a life estate. This fact is ascertained by the Affidavits* of the most respectaole inhabitants of the Borough, to whom St. Germain, the day before and on the morning be voted, stated his intention to vote for the petitioner, and the ground on which he claimed the right of voting, viz. — the re- servation of a life-estate in part of the property he had given to his son, and to two of whomf he mentioned that he had spoken to the petitioner, as above mentioned, and had been told by him he had a right to vote on his life-estate. To these Affidavits the petitioner is enabled to add the Affidavits of St. Germain himself, and of his son,! the occasion and manner of taking which he begs leave to mention. Never anticipating that he could have become subject to such a charge as that in question, it was not, till after the addiess of the Assembly, and the publication of the document called " A Copy of Evidence, &c." that he deemed it necessary to ascertain the actual residence of St. Germain — He had removed, with his Bon, after the election, to another part of the country, where the petitioner caused him to be referred to, and his Affidavit taken of the facts as they really occurred, and also the Affidavit of his son, with whom he now lives. In this Affidavit, St. Germain confirms the fact established by the Affidavits already mentioned, that he claimed the right of voting and voted on the reservation of a life-estate — He also negatives the use of any influence whatever on the part of the petitioner to induce him to vote; he states, that having signified, at the poll, his inten- tion to vote for the petitioner, a discussion fdijficullej took place between the two candidates (referring no doubt to the discussion as to the admissibility of his vote on a life- estate, which, being in English, he did not understand) and he with- • Vide Airpendix to this Memoir, D, E, F, & P, pages t Vide Appendix to this Memoir, D. E. i Vide Appendix to this Memoir, N. O. APPJENDIX 37 drew ; that he soon after retuined, and of his own free-will and accord took the oath ; that the Holy Evangelists, on which he was sworn, were put into his hand by Mr. Crebassa, the Re- turning Officer, and that the petitionei: never touched his hand for the purpose of laying it on the book. He likewise states facts, of which the petitioner was not previously aware, viz that Mr. Nelson, the adverse candidate, the evening before he voted, called at his house to solicit his vote, and in answer to his inquiry how he had disposed of his property, he (St. Germain) told him that he had reserved to himself, by his deed, a life-estate in one or other of his two houses, at his option, and thereupon Mr. Nelson told him he had a right to vote, and that if any difficulty was made about it at the poll, he (Mr. Nelson) would soon put an end to it. He also swears that, on the same qualification, and at the solicitation of the same Mr. Nelson, he had previously voted for the two members for the county, in which the borough of William-Henry is situated. He likewise states, that the morning he voted, in order to be more secure as to his right of voting, he went to consult Mr. Crebassa, the Returning Officer, being the Notary before whom his deed of gift to his son had been executed, who refused to give him either information or advice on the subject, telling him at the same time to do as he pleased, by which he was the more confirmed in the belief that he had a right to vote. These last-mentioned facts, contrasted with the statements made before the Committee of Grievances, sufficiently exemplify the cha- racter, principles, and conduct of the persons with whom the proceedings in question against the petitioner originate. But they are not necessary for the petitioner's entire justification, which results trom the simple fact, that St. Germain claimed the right of voting on a life-estate, and that the assurances he received from the petitioner that he had this right, were pre- dicated on the supposed existence of such life estate, which at the time was not d..nirc! or called in question. The falsehood of vhe charge of subornation of perjury, of which he has been convicted by the Assembly, and the absence of any the slighter.t probable cause for it, is thus convincingly established ; and the petitioner might abstain from further ob- servations resnecting it. Rut tJiA tm" t'hntaMar r.e ^kj^ ^..^^^^a If ' ; 5: •■ I SB APPBNDI3(. ing aguinst him wuuhl be imperfectly uiiderotood, without some explanation also of the motives for the misrepresentation and falsehood which !iave been made manifest. St. Germain had voted early in the election, when a single vote was deemed of little importance ; and his vote, as already established, had been distinctly given on the ground of a reservation of a life estate in the deed of gift to his son. At a later period of the election, when it was drawing to a close, and the value of a vote was much enhansed, two persons, Aussant and Cournoyer, who had also given away their property in the borough to their children, but who, by their own confession, had made no reservation of a life estate in any part of it, were prevailed on by the adverse candidate and his partisans to swear, as above mentioned, to a qualification, without the semblance of a reason for doing so. These men, as they were forewarned by the petitioner when they took the oatji, were afterwards prosecuted for perjury. It then became an object with the persons by whose means and influence they had been got into this predicament, to extricate them from it, by falsifying the facts which had occurred, in rela- tion to the vote given by St. Germain. He had voted on a life estate, of which, it would appear, he bona Jide supposed the reservation to be contained in the deed of gift to his son, and which hib neighbours and other persons (including the adverse candidate, Mr. Nelson himself) supposed him to possess. But, after the election, it was ascertained (whether from the fault of the notary by whom the deed of gift was prepared, or other cause,) that the deed of gift did not in fact contain such a reser- vation as St. Germain ))ad supposed, and was believed, at the t'me he voted, to exist. With the aid of this circumstance, a defence and justification, or excuse for Aussant and Cournoyer, in having sworu falsely to a qualification which they did not possess, it was imagined, might be obtained, by converting St. Germain's vote into a precedent for the votes they had giverj, under very dissimilar circumstances. For this purpose, it was necessary to suppress the mention of the alledged title (a life estate) on which St. Germain voted, end represent him to have voted precisely under the same circumstances under which Aassant and Cournoyer voted. The persons who have concurred ill tZllD OUlfpa VC-JiUli tiz^^K -^ ' *..-. — ^ — APPENDIX. S9 there were few persons present when St. Germain vote \ and among these none of the persons who favoured the election of the petitioner, from whom contradiction could be apprehended This singular mode of justifying the penj- ,. for which Aussant' and Coumoyer were indicted, by endeavoi-ving to establish that another person had previously committed a similar penury was resorted to on the trial of Aussant ; and it was afterwards thought that the same misrepresentation and falsehood, which had been irregularly and irrelevantly introduced into that trial might be successfully directed against the petitioner in another quarter. The motives, therefore, for the misrepresentation and falsehood, which have been clearly establUhed as to what occurred when St. Germain gave his vote, are to be found in the desire to obtain, by these means, ju8ti6cation or excuse for Aussant and Cournoyer, and to injure the petitioner. So far as the justification of the petitioner is in question under this head of offence, it matters not whether the life estate on which St. Germain voted was really possessed by him or not ; It IS sufficient that ho claimed the right to vote on that title, and that it was with reference to it that the petitioner as- sured h.m he had a right to vote. It may, however, not be unfit to mention, that the petitioner was not aware, till the trial of Aussant, that the reservation of a life estate in favour of St Germain was not to be found in the deed of gift to his son* The fact of the reservation having been made was, at the elec^ tion, acquiesced in as above mentioned ; and it appears by the affidavits of both St. Germains, father and son,* that it was stipulated between them, and ought to have been included in IB the deed of gift. It appears, also, that the elder St. Germain who cannot read or write, still remains under the firm persuasion that the reservation is contained in the deed of gift ;— that his son continues to give effect to the reservation, as if it' were con^ tained in the deed,-and that the elder St. Germain, ever since' tla deed was executed, has enjoyed, and still enjoys the benefit or It* Under different circumstances, the petitioner might have deemed it proper to advert to facts which are of a nature to mvahdate the credit of the several witnesses examined before t Vide jlppendix to IhU Memoir, N, O. IHfpl) ii >V! m 40 APPENDIX. the Committee of Grievances, in support of this head of im- puted offence.— But, considering the falsehood of the charge to have been clearly and plainly established, he thinks he may, at least for the present, omit this disagreeable task; reserving, however, his right to do so, if it should hereafter be rendered necessary. As he has already done, under a preceding head of imputed offence, it is incumbent on the petitioner that he should, under this head also, notice an alledged irregularity and incorrectness in the taking of evidence by the Committee of Grievances, in support of it, which must excite extreme surprise. By the Affidavit of Dr. Von Iffland,* one of the witnesses examined before the Committee, it appears that, in the Report of the evidence taken before it, there has been a suppression of material facts and circumstances which made part of his answers to the questions put to him, and that the evidence contained in the Report, in a number of particulars, is incorrect and different from the evidence really given by him before the Comnrttee. In what relates to Fran9oi8 Gazaille dit St. Germain, it appears that Dr. Von Iffland stated before the Committee facts, from which it was to be inferred that the said St. Germain took the oath, of his own free will, upon an alledged reservation of a life-estate, the existence of which estate was not denied or doubted at the time he voted; and that these facts have been entirely suppressed in the evidence ascribed to Dr. Von Iffland. The facts which this witness thus stated before the Committee, and which have be^n suppressed in the Report of evidence, being the document above designated as "A Copy of Evidence, &c." are in his Affidavit proved to be the following, viz.:— « That St. Germain called upon Dr. Von Iffland the day before « he voted, and, after mentioning his intention to vote for James « Stuart, Esquire, one of the Candidates, stated also the nature " of his qualification, which he represented to consist in the «« usufruct for life, or life-estate, in part of the house in the <' Borough, which he had given to his son, by deed of gift, ex- " ecuted before Mr. Crebassa, Public Notary. The next morning, « the said St. Germain again called on Dr. Vott Iffland, and • \TiA^ j.yLXMjiix to this l^eifnoxT^ «• APP&KDIX. 41 '< informed him that he had just seen the said James Stuart, who " had tohl him, that if he (St. Germain) had reserved a life-estate, '* as he represented he had done, he would have a riglit te vote. " That Dr. Von Iffland, being desirous of assuring himself of the •' reservation stated by St. Germain to be contained in the deed " of gift to his son, immediately after went to the office of the " said Crebassa, for the purpose of seeing the said deed of gift, " and applied for the perusal of it to the said Mr. Crebassa, who " refused to let him see it. That soon after Dr. Von Iffland met " the said St. Germain, who persisted in thq confident assertion " that the said deed of gift contained such a reservation, as he " had stated, and that he would go and vote for the said James "Stuart: and, in the course of the morning, Dr. Von Iffland " heard that the said St. Germain had voted for the said Jamea " Stuart. That Dr. Von Iffland did not hear any doubts ex- " pressed of the truth of the fact stated by the said St. Germain, " as to the said reservation, until five or six days after the " election was over, when the said St. Germain, in conversation " with him, renewed his assertion, that he had reserved to " himself a life-estate, as above mentionetl." The evidence of Mr. Green, which he states on oath to have been suppressed, was of a nature to defeat the second charge, by disproving it. The material facts, making part of Dr. Von Iffland's evidence, which he states, on oath, to have been suppressed, were equally calculated to disprove and defeat tiie sixth charge against the petitioner. Under these two beads of accusation, then, according to the express Affidavits of Mr. Green and Dr. Von Iffland, the evidence to prove in- nocence has been suppressed, while evidence, from which culpability of some kind or other might be inferred, has alone be(?n reduced to writing. Upon such an extraordinary mode of investigating the conduct of a public officer, and establishing Ills guilt, by suppressing the evidence of his innocence, no observation can be deemed necessary. L is, however, strik- ingly illustrative of the spirit and manner in which the pro- ceedings against the petitioner have been promoted and carried on by the individuals with whom they originate, and of the means which have been perseveringly employed to injure him. U. riii u::;V susitici 1.:. 3c:s V 4« ArPRNDIX. the fnctn tlinn niipprnnniMl nIkmiIiI not iiilvn iinnn ro|inrtfl(l to tlwi IIouMo of ANNOtnhly, iin it iniulit ronHOMiilily Imi |iroNum(Hl tlmt, with thin pvi(h)iin*, of which it. np|>«ni'H to hiivo h(n iin|iro|)iu-ly (h«|)rivpriety of the these assurances, that the Pillory was one of the i)unishments annexed to the offence .,f iVrjury, and that Mr. Nelson could not and would not supply their places there. I hat the said James Stuart repeatedly represented to the Returning Officer, Mr. Crebassa, the necessity there was that he should explain to these individuals, they being illiterate and extremely ignorant, the nature of the oath to be taken, that they might not unguardedly become liable to the penalties of Perjury, but the said Returning Officer refused to do so, saying It was his duty to administer the oath and nothing more, without any explanations on his part, and he did accordingly administer the oath to them, amidst the clamorous outcries of Mr. Nelson and several of his partisans, urging them to take the oath, and the assurances of indemnity on the part of Mr. Nelson as aforesaid. That the said James Stuart did tell the' said persons, by whom the oath of qualification was taken as aforesaid, that if they swore falsely they would be prosecuted for peijury. and this was said by hira as it would have been said by any other candidate under like circumstances :-_but the said James Stuart did not say that he, as Attorney General would prosecute them for peijury, or that he, as Attorney Oeneral, had alone the right of prosecuting for perjury, or that those who voted for him had nothing to fear, while those who voted against him would be prosecuted for perjury, nor did the said James Stuart, on the occasion of admiuistertng the oath to the said persons, use any words of such import, or that could riii: u\ I i 54 APPENDIX. bear such an interpretation, nor did the deponent ever hear, either iito them tor ■?ay tlif.t he, as i\uonii'y ueneiai, ^Vv^x,^> i- — - -"'^- perjury, or that he, as Attorney General, had alone the right to APk'ENblX. 67 pfosecute for perjury, or that those who voted for him had nothing to fear, while those who voted against him would be prosecuted for perjury; nor did the said James Stuart, on the occasion of administenng the oath to the said persons, use any words of such import or that could bear such an interpretation- nor d,d the deponent ever hear, either during or subsequently' the saul e ectmn, that any such language had ever been used by he «a,d James Stuart; until, to his great surprise, he learnt hat the sa.d Mr. Nelson, on his examination as a witness on the tnal of said Antoine Aussant, for perjury, in f -h last, had declared that such language had been used by the said Jamos Stuart when the said Antoine Aussant took the oath of quanficatmn as aforesaid. That the deponent, having been long .den at the Borough of William.Henry, was frequently ferred to by the said James Stuart, for information respecting the qualification of persons about to vote, or who it was ex- pec ed would vote at the said election, and in every instance vvnhm the knowledge of the deponent, in which the right of a person desirou. of voting for the said James Stuart was deemed questionable, the particulars of his supposed qualification were inquued into by the said James Stuart, and if his right to vote was found defective, L. was told it was so and hfs vote w i^ranjo s St. Germam who voted for the said James Stuart at tne sa.d election. That, on the first day of the election be n ' the twenty-fifth day of July, the deponeJt met the said Fran;"! t. Germain, when he signified a desire to vote for the said James Stuart, and, upon the deponent's inquiring into the nature of is qualification, he told tL deponent that I he J^f which he had made to his son of his house in the Borough 'he ad reserved to himself the usufruct during his life of two partments ,n the said house, over and above a life-rent, and hi ^^ThtthT"" " u"'^"' -^""^^ '- ''' -^^^^^^ 'act^ Ihat the deponent thereupon advised the said Francois ci n!;'<;?r '" rr'- *''' "" '"'""^ ^^"«^*' - ^« *"« suV ZlJ ,^'^^"^'•^^.^''«" '' -^"'« him to vote; and, the next "•.ning, having again met the said Francois St. Germain ho told the deponent that he hnrl «««n tK. »„:) t_.. o. ' ."^ j , . "••'""'« "Values cscuart at his '-ig-ngs. and that the said James Stuart had told him, that H «T' 1 ' I -i 1 1 f ' i'^ sr •it Ml iM 58 APPENDIX. under the reservation he had made he could vote. That the deponent felt anxious to ascertain the precise terms of the re- servation which the said Fian5oi8 St. Germain alledged he had made, and went to the office of Mr. Crebassa, Public Notary, by whom it was understood that the deed of gift from the said St. Germain to his son had been passed, for the purpose of seeing the said deed, hut lie could not obtain access to it. That the conduct of the said James Stuart, throughout the said election, in evory instance in which it came within the knowledge of the deponent, was marked by fairness and a strict regard to propriety; and the deponent has a personal know- ledge, that several persons desirous of voting for the said James Stuart, and willing to take the oath of qualification, among whom were one Gingras and one Bellan, at the most critical period of the election, and when a single vote might determine the result of it, were sent to a distance from the Borough, by the desire and at the expense of the said James lituart, lest the partisans of the adverse candidate might induce them to vote for him ; it being well known, that some of them were not scrupulous as to the legal sufficiency of votes, or the means of obtaining them. And further the deponent saith not. (Signed) ANTHONY VON IFFLAND, M.D. Sworn at William-Henry this lOth day of June, 1830, before me, (Signed) R. JONES, J. P. True Copy, J. STUART. That further, the above-said deponent maketh oath, that at the election of a representative for the said Borough of William- Henry, held in the month of August, in the year one thousand eight hundred and twenty-four, one Catherine Lamfere took the oath of qualification to entitle her to vote at the said election, under an honest belief on her part, that she had the requisite legal estate, during the temporary absence of her husband, Paul Levalle, to qualify her as a voter, and she did after taking the said oath vote for Norman Fitzgerald Uniack, Esquire, then APPENDIX. 59 His Majesty's Attorney General for the Province of Lower Canada, and one of the Candidates at the said election. That at the election for a representative for the said Borough, held there in July, one thousand eight hundred and twenty-seven she the said Catherine Lan.6re signified to the said deponent her desire ot voting for the said James Stuart, Esquire, then one of the candidates, but, on explaining to the said James Stuart the particulars of her supposed qualification, her vote was declined as contrary to law, and therefore not given at the said election. (Signed) ANTHONY VON IFFLAND, M.D. Steorn at William- Henry, this IQth day of Juney 1830, before me, (Signed) R. JONES, J, P. True Copy, J. STUART. No. 6. Affidavit of Mr. Richard Burke. District op I Montreal. | RICHARD BURKE, of the Borough of William-Henry, in the District of Montreal, Gentleman, maketh oath, that he was particularly acquainted with the proceedings which took place at the election for the said Borough, in the month of July, one thousand eight hundred and twenty-seven, having attended the poll daily during the continuance of the said election. That he knows Franjois St. Germain, who at that time resided in the said Borough. That previous to the said Fran9oi8 St. Germain having voted at the said election, he told the deponent that he would explain the nature of his qualification to James Stuart, Esquire, one of the candidates at the said election, which qualification, he then also told the deponent, consisted in a iife-estate in two apartments, making part of a dwelling-house illi 60 APPENDIX. which he had given to his son, which said two apartments h«J had reserved to himself for his life, by the deed of gift which he had executed to his said son. That, to th6 deponent's knowledge, the said James Stuart was scrupulous in the examination of the qualification of persons desirous of voting for him, whose right to do so wfis thought in any way doubtful, and the deponent has a personal knowledge that several persons desirous of voting for the said James Stuart, and willing to take the oath, were prevented by him from doing so, after he had examined their papers, and had ascer- tained from them that they had not a legal right to vote. That the deponent has a perfect knowledge, that one Francois Thibault, who appeared willing to take the oath, and vote for the said James Stuart, having submitted the papers establishing his supposed qualification to the said James Stuart, on the day the election endejd, and a short time before the closing of the poll, was told by the said James Stuart, that he had no right to vote, and his vote was declined. That one Joseph Claprood, who voted at the said election for Mr. Nelson, and who has since been convicted of perjury, for having then falsely sworn to a qualification to enable him to vote, came to the deponent's house, during the election, and before he voted as aforesaid, and oflFered to the deponent to vote for the said James Stuart ; but the deponent, knowing that he had no right to vote, and that the said James Stuart constantly declined illegal votes, re- jected his offer, and the said Claprood then went away, and was afterwards induced to vote for the said Mr. Nelson. That the deponent was present when different individuals, offering their votes at the poll, were objected to by the said James Stuart, and also when some of the persons, who have since been pro- secuted for peijury at the said election, took the oath of qualification and voted for the said Mr. Nelson. That, neither on those occasions nor at any time during the said election, did this deponent hear the said James Stuart say, or in any manner intimate, that he, as Attorney General, had alone the power of prosecuting for perjury, and that he would prosecute those who voted against him for that offence, while those who voted for u:- Uo.i «^*i.;n«r trt fpjir- nor did he ever hear the said James Stuart utter any words of such import, or that could bear any .|.cl..„ interpretation , nor did he ever hear, ,„ hi. knowledge e,.h dnnng or ,ub,e,„ently „ the ..id election, that .th ..i. ; °'-"°"''»f»i""l«'-i".por.. h..l ever been ^ed by I wollred Nel.on, the candidate above mentioned had, on hi. exam.nat,on a.. «,it„e.. on the trial of Antoine Aulut^ perjury at the ..id election, declared that .uch Jd^Tad bll u.ed by the »id Ja^e. Stuart. Th.. .he depone', .1.1 .... .f .uch e,t,.„rdi„ary language had been u.ed bv t. „ "dd Jame. Stuart, i. w„„M have been made .he .object 'f conve h ."^dtnrr'^r''" ''''"'■ ■'■'-••'-on „ be .,d Jame. ituart, thoughou, the said election, wa. marked by .h greatct fairne..; and although intima.e y .cj. „ Jd vuh .l..eproceedmg.„f,he,aid election, from .he fir., .o.t. pa,, of the »,d Jame. Stuart, from .uch fairne., of conduct That the ^,d Jame. Stuart, in hi. attempt, to p„t voter, on he,r guard again,, taking .he oath, without a iega, 2 iZ ..on, „a. on .ever.1 occion., .o the knowledge of ^he deoont? .nte.T„pted by ,_,,e .aid Mr. Nel.on. .he adve^. c.ndM.,e | M 'kT'' ""■? "«'" '"'■■ ™'™ "• -'«' ••>« «».h, .he .aid Mr. Nelaon a. .he .ime ...uring ,hem .ha. he would ....j between .hem and h.rm. And further .hi. depone„5 Ih no, (Signed) EICHD. BUHKE. Sworn at WiUiam-Benry, this 6tk day of June, 1830, iefore me, (Signed) ANTHOi^Y VON IFFLAND, J.p. ill True Copy, J. STUART. ea APPENDIX. No. T. Affidavit of Mr. John Cartkr. :} District of Montreal JOHN CARTER, «f *« Bonrngl, „f WiUUm-Henry, in ,l,e Dirct of Montreal, m the Provinre of Lower Canada, 'g nUel ™Ue... oath, that at the election of . repre-er,.. we for the said Borough, heUl in the month of Angu» , m the year Tetlreighf hundred and twenty^our he. t e epone^ ,00k the oath of qualification to entitle h.n, to v„ e a. rt^e .»d election, under an honest belief on h,. part th. '» " requieite legal estate to qualiSyhim a. a voter, ""''^ •'j^;'^; t j^ing the .aid oath, vote for Norman F. Umacke, Esqu re, one Candidate, at the said election. That, at the e ec mn of repreaentative for the said Borough, held '•■"« - J-'?; J^' ..Land eight hundred and twenty-seven he, "^ -eponem. waadeeirous of voting forJan.es Stuart, Esqu.re, »"«»'''« Tdlte. at the said Jeetion, and «g»>«»-';° *; ^th'^M Stuart such his desire, at the same t,me explMmng to the »d James Stuart the particulars of his supposed qual.6cat.on. ThTthe sa d James S.ua.t, after learning these part.cuto, lid the deponent that he could, by reason of them, cla.n. no : tt ,o'«, and with civility declined the lepo^-- ^ which was therefore riot given at the mi elect.on. And fmtl.er the deponent saith not. (Signed) JOHN CARTER. Sworn at William- Henry, this mh^day of June, 1830, before me, (Signed) R. JONES, J. P. True Copy, J. STUART. APPENDIX in District of Montreal. No. 8. Affidavit of Mr. Michael Glackmeyer. -' i MICHAEL GLACKMEYER, of Berthier, in the Dis- trict of Montreal, Gentleman, maketb oath, that he acted aa Clerk of the Poll at an election held at the Borough of William- Henry, in July, one thousand eight hundred and twenty-seven, for the election of a representative to serve for the said Borough in the Provincial Parliament.— That ho was present when Antoine Aussant, Antoine Paul Hus dit Cournoyer, Nicholas Buckner, Franyois Vandal, and others, took the oath required by law as to their qualification to vote.-That, when the said persons last named oflered themselves as voters, they were oh- jected to by James Stuart, Esquire, one of the Candidates of the said Election, on the ground cf their not being qualified to vote—That the said James Stuart, as far as he had \i in his power to do, explained to the said persons their want of right to vote, and the penalties they would incur if they swore falsely ; but the said James Stuart did not. either on the occasions of the swearing of the said persons, and of the giving of their votes, nor at any other time, to the knowledge of the deponent, declare or say, that, as Attorney General, he alone had a right to prosecute persons guilty of perjury, and that those who voted for him bad nothing to fear, whilst those who voted against him would be j rosecuted, nor did he use any words of such import ; that the said James Stuart seemed desirous of putting the said persons above named on their guard, and explained to them the consequences they would incur by swearing falsely, and nothing more ; at the same time telling them, that if they did, notwithstanding, swear falsely, they would be prosecuted for it. (Signed) ML. GLACKMEYER. Sworn at Montreal, this Uth day of March, 1830, before me, (Signed) SAMUEL GALE. True Copy, JAMES STUART. i.ii mmm i Iff ll'' nil HI' H 1 ■ 1 84 APPRNUIX. No. 9. Affidavit of Mr. Louis Paul. District de) Montreal, j LOUIS PAUL, Habitant de la Paroisse de Sorel, ayant ^te assermente sur lea Saints Evangiles, depose et dit, qu'il s'est trouvg pr68ent a I'glection teniie au Bourg de William-Henry, Bu mois de Juillet, mil huit cent v'.ngt sept, pour y 61ire un representant pour le dit Bourg, dons le Parlement Provincial. Que le deposant 6toit present quand les nommes Antoine Aussant et Antoine Hus dit Cournoyer, depuis poursuivis pour parjure a la dite election, se sont presentes pour donner leur voix comme voteurs a la dite election. Que le deposant a entendu James Stuart, Ecuier, un des dits candidats, pr^vonir les dits Aussant et Cournoyer, qu'ils n'avoient pas droit de voter a la dite election, et que s'ils le faisoient, ils seroient sujets k 8tre poursuivis pour parjure. Que le dit James Stuart a prie rOflBcier Rapporteur d'expliquer aux ditea personnes leur defaut de droit, a fin d'empecher qu'ils ne s'exposaasent aux mauvaises suites du parjure, mais I'Officier Rapporteur a re- pondu que son devoir se bornoit a les faire preter serment, et en eflFet leur a administre le serment requis en tel cas. Que sur les tentatifs que le dit James Stuart a fait de faire com- prendre aux dits Aussant et Cournoyer qu'ils n'avoient pas droit de voter a la dite election, I'autre candidal, Mr. Nelson, les a assure qu'ils avoient droit de voter, et qu'il les garantiroit de toutes consequences qui pourroient s'ensuivre, et en meme tems le dit Mr. Nelson et ses partisans alors presents ont en- gage les dits Aussant et Cournoyer de preter le serment — Que le deposant §toit aussi present quand Nicholas Buckner, depuis poursuivi pour parjure, s'est present^ la premiere fois, pour voter a la dite election, et a entendu les explications qui ont 6te faites au dit Buckner, alors, pour le faire comprendre qu'il n'avoit pas droit de voter, lesquelles ont paru convaincre le dit Buckner, qu'il ne pouvoit pas voter, et il s'est retir6 sans donner •a voix. — Que ui dans les occasions ci dessus mentionnees, ni At>l>BNOtX. 65 en ancune autre, il n'a entendu Mr. James Stuart dire, que ceux qui voteraient contre lui sans en avoir le droit, seroient poursuivia pour parjure, tandis que ceux qui voteroient pour lui n'avoient rien k eraindre, et il n'a jamais entendu dire au dit James Stuart qu'^tant Procureur General il pourroit en agir ainsi:— II n'a jamais entendu dire non plus, au dit James Stuart, que sa charge de Procureur General donnoit a lui seul le droit de faire des poursuites pour parjure, et que ceux qui voteroient pour lui n'avoient rien k eraindre de ce c6te la. Et le deposant dit de plus qu'il n'a pas entendu proferer aucunes paroles par le dit James Stuart, a i'occasion des votes donnees par les dits Aussant et Cournoyer, et des explications faites au dit Buckner comme susdit, ni en aucun autre tems, uux quelles on pourroit donner un tels sens ou signiBcation — Que le dit James Stuart dans les occasions susdites, n'a fait que prevenir les dits Aussant, Cour- noyer, et Buckner, des mauvaises suites qui s'ensuivroient, s'ila faisoient un faux serment, et rien de plus, et c'etoit avef diffi- culte qu'il a pu se faire entendre, en voulant le faire, a cause de I'opposition violente que faisoit le parti oppose aux explications qu'il vouloit donner. Sa (Sign6) LOUIS X PAUL. Amrmentia Monti M, /e lie Mars, 1830, devant mot, (Signg) SAMUEL GALE, J. P. True Copy, J. STUART. Marque. No. 10. Affidavit of Mr. Benjamin John Schiller, of the City of Montreal, Gentleman, District de \ Montreal. J BENJAMIN JEAN SCHILLER, de Montreal, dit District. I'lin iIab Hniaaiora Aa \a Crxt,,. A.^ n«»» A.. r>.: .1 ' " »•» ■^'5^Mi \t\x ji^assxj uu XVUI, UiiUS et pour le dit District, ci-devant Capitaine dans le troisidma I 3w '■ * f ■- i Mi I' ill! " r J I 'I i( 06 APPENDTX, batftillon de la milice incorpor^e, pendant la dernifere guerrt Bvec les Etats de I'Ameiique, apr^s serment prete sur lea Sainta Evangiles, depose et dit, que dans le terme ciimhiel de la dite Couaire Uondv est m-riv^ ft I'Talo «♦ ;« ^ n. fi • " ' • " J^ '"»= iappuiiu q« il DJ a demands SI toutes les depowtions 6toient pretes. Mens. Marcoux lui a IJ't 72 APPEVDIX. iP' I repondu que non, maia que bieiitot elles seroient pr^tea. Au bout de quelque temps, j'ai ete appelle pour faire serment a la deposition, Mons. Kirabert s'est mis (a ce que j'ai cru) en devoir de la lire. Je ne me rappelle pas a present du contenu de ce qu'on me lisoit, mais je me rappelle d'avoir dit que " son nom n'6toit pas Joan Camerere; a quoi Mons. Marcoux a repondu, "C'est nous autres qui marquons cela." Dans le temps j'^tois bien pris de boisson, et ne comprenois pas que je faisois serment de la verit6 de ce qu'on me lisoit, et j'etois hors d'etat de pouvoir en juger. II y a a-peu-pres vingt jouts que le dit Marcoux m*a ren- contre sur le quai de Mons. Molson, et il m'a dit, « Tu feras bien de te sauver pour ce que t'a fait a Berthier" (voidant dire dans risle de Mons. Morrison, qui est a Berlhier.) J'ai re- pondu, "Si vous avez fait quelque vilaine affaire, je n'en suis pas I'auteur, et* je ne me sauverai pas." Dit de plus qu'il ne scait pas ^crire. Affirme devant moi, ce H Nov. 1827. (Sign^) SAMUEL GALE, J. P. True Copy, J. STUART. No. 12. Copy of an Indictment for Subornation of Perjury against Louis Marcoux. PROVINCE OF LOWER CANADA. ^l To wit: • ) District of Montreal Be it remembered, that at a Session of Oyer and Terminer and General Gaol Delivery of our Sovereign Lord the King, of and for the District of Montreal in the Province of Lower Canada, begun and holden at the Court House in the City of Montreal in the said District of Montreal on Friday the second APPENDIX 78 tidy of November in the eighth year of the reign of our Sove- reign Lord George the Fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, before the Honourable James Reid, Esquire, Chief Justice of Hia Majesty's Court of King's Bench for the District of Montreal, Louis Charles Foucher, George Pyke, and Nor- man Fitzgerald Uniacke, Esquires, Justices of the same last- mentioned Court, John Richardson, Toussaint Pothier, Samuel Gale, and Louis Guy, Esquires, and others their fellows, Jus- tices of our said Lord the King, assigned by Letters Patent of our said Lord the King under the Great Seal of the said Pro- vince, to the same Justices above named, and others their fel- lows. Justices of our said Lord the King, or any two or more of them, directed, of whom one of them the said James Reid, Louis Charles Foucher, George Pyke, and Norman Fitzgerald Uniacke, amongst others in the said Letters Patent named our said Lord the King willed to be one, to inquire more fully the truth by the oath of good and lawful men of the said District of Montreal, and by other ways, methods, and means, by which they should or might better know, as well within liberties as without, by whom the truth of the matter might be better known and inquired into, of all treasons, misprisions of treason, insurrections, rebellions, counterfei.'ngs, clippings, washings, false coinings, and other falsities of the money of the United Kingdom of Great Britain and Ireland, and all other kingdoms and dominions whatsoever, and of all murders, felonies, man- slaughters, killings, burglaries, rapes of women, unlawful meet- ings and conventicles, unlawful uttering of words, assemblies, misprisions, confederacies, false allegations, trespasses, riots, routs, retentions, escapes, contempts, falsities, negligences, con- cealments, maintenances, oppressions, champerty, deceits, and all other evil doings, offences, and injuries whatsoever, and also the accessaries of the same, within the district aforesaid as well within liberties as without, by whomsoever, and in what man- ner soever done, committed, or perpetrated, and by what person or persons, when, how, and after what manner, and of all articles and circumstances concerning the premises, and of every of them, or any one or more of them, in any manner whatsoever. 74 APPENDIX. ^1 I i and the said treasons and other the premises, according to the laws and customs of England, and of the said Province of Lower Canada for this time, to bear and determine, and also Justices of our said Lord the King, under his Great Seal of the said province to the same justices above named, and othera their fellows, or any two or raore of them directed, of whom one of them the said James Reid, Lous Charles Foucher, George Pyke, and Norman Fitzgerald Uniacke, amongst others in the said last-mentioned Letters Patent named our said Lord the King willed to be one, the gaol of our said Lord the King of his said District of Montreal of the prisoners therein being, to deliver, by the oath of Henry M'Kenzie, Alexander M'Kenzie, Jules Quesnel, Edward Martial Leprohon, Louis F. de Chambault, John Jaraieson, Thomas Barron, Charles Stuart, Louis Barbeau, Jacques L. de Martigny, John Yule, Arthur Webster, John Porteous, George D. Arnoldi, William Smith, Charles Morri- son, Isaac Valentine, Joseph Roy, Jacques P. S. de Beaujeu, William Molson, Samuel Gerrard, and George Gregory, Esquires, good and lawful men of the District of Montreal aforesaid, now here sworn, and charged to inquire for our said Lord the King for the body of the said district, touching and concerning the premises in the said two several Letters Patent mentioned, it is presented in manner and form as in the Bill of Indictment to this schedule annexed is contained. Montreal. To wit: The jurors for Our Lord the King upon their oath present, That heretofore, to wit, on the twenty-fifth day of July, in the eighth year of the reign of our Sovereign Lord George the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, at the Borough of William-Henry in the parish of St. Peter of Sorel, in the countv of Richelieu, in the district of Montreal, an election of one burgess of the said Borough to represent the said Borough in the Assembly of this Province, to be holden at the City of Quebec, on the twenty-fifth day of August then next ensuing, was duly had and held, by virtue of a certain writ of election of APPENDIX. 76 W:A our said Sovereign Lord the King before them duly issued, and directed to the returning officer of the said Borough, under and in pursuance of a certain Instrument of our said Sovereign Lord the King, under the Great Seal of the Province, bearing date at the Castle of St. Lewis, in the City of Quebec, the fifth day of July, in the year of our Lord one thousand eight hundred and twenty-seven, for summoning and calling together an assem* bly in and for this Province, at which said election James Stuart and Wolfred Nelson were candidates to represent the said Borough, as such Burgess as aforesaid, in the said Assembly, and a poll for taking the votes of the Electors wf the said Borough for the purpose of electing such Burgess as aforesaid, was then and there duly granted and held ; and while the said election was had and held as aforesaid, afterwards, to wii, on the said twenty-fifth day of July, in the eighth year aforesaid, one Jean Cameraire appeared as a Freeholder at the said elec- tion and poll, in the said Borough of William-Henry, and thea and there polled and gave his vote as such Freeholder, without any objection having been made to his right of voting, by or on the part of either of the said Candidates, and without any oath having been required from him, as to his qualification to vote as aforesaid. — And the Jurors aforesaid, upon their oath aforesaid, do further present that Louis Marcoux, late of the said Borough of William-Henry, in the parish aforesaid, in the county afore- said, in the district aforesaid, gentleman, being a person of an evil mind and wicked disposition, and not having the fear of God before his eyes, but being moved and seduced by the insti- gation of the devil, and wickedly and maliciously devising and intending unjustly to vex and aggrieve the said Jean Cameraire, and to subject him to the punishment, pains, and penalties by the laws of this Province provided for persons guilty of Perjury, on the twentieth day of August, in the eighth year aforesaid, at the parish of Berthier, in the County of Warwick, in the district of Montreal aforesaid, did falsely, corruptly, knowingly, and wilfully solicit, suborn, and procure one Joseph AUard, to go b('fore Joseph Douaire Bondy, Esquire, then and yet one of tlio Justices of the Peace of our said Lord the King, assigned to keep the peace of our said Lord the King in and for the said District of Montreal, and also to hear and determine divers [^ ■■ 76 APPENDIX. \U felonies, trespasses, and other misdemeanors in the said District committed, and charge the said Jean Cameraire with Perjury, and make oath that the said Jean Cameraire had then lately before at the said election, been guilty of Perjury. And the Jurors aforesaid, upon their oath aforesaid, do further present, that in consequence, and by the means, encouragement, and effect of the wicked and corrupt subornation and procurement of the said Louis Marcoux, he, the said Joseph Allard, after- wards to wit, on the said twentieth day of August, in the eighth year aforesaid, at the parish of Berthicr aforesaid, in the county aforesaid, in the district aforesaid, did go in his proper person before the said Joseph Dcuaire Bondy, being such Justice as aforesaid, and then and there having sufficient power and au- thority to administer an oath, and take the deposition of the said Joseph Allard hereinafter mentioned, and the said Joseph Allard was then and there sworn and took his corporal oath, before the said Joseph Douaire Bondy, on the Holy Gospel of God ; and the said Joseph Allard, being so sworn as aforesaid, by the means, and in consequence, of the said wicked solicita- tion, subornation, and procurement of the said Louis Marcoux, did then and there, upon his oath as aforesaid, in a written de- position then and there taken by and before the said Justice, touching the charge of Perjury by the said Joseph Allard, so as aforesaid made against the said Jean Cameraire, falsely, wick- edly, maliciously, and corruptly say, depose, and swear (amongst other things) in substance and to the effect following ; that is to say, that Jean Cameraire, of William-Henry and district aforesaid, invalid (meaning the said Jean Cameraire hereinbefore named) on the twenty-fifth day of the month of July, one thou- sand eight hundred and twenty-seven, did take his oath, and swear before Henry Crt Sassa, Esquire, Returning Officer of the said Borough of William-Henry, on the Royal Square (to wit, on a square called the Royal Square, at and in the said Borough) at an Election there, for electing a Member to represent the said Borough in the Assembly of Lower Canada, that he the said Jean Cameraire was qualified to vote at the said Election as proprietor, as being possessed for his own proper use and I fWI<2 5— j-lj- ~~'-A H ic 111 iiic tsaiu uuruugii, isr a L«0t of Ground and Dwelling-house thereon, joining on one side to APPENDIX* 7t John Hall, and on the other to Joseph Pierre Credit, and that the saul Lot of Ground and Dwelling-house thereon belondn^ to h.ra was of the yearly value of five pounds, sterling, that is to say, five pounds, eleven shillings, and one penny farthing, currency, or more, over and above all rents and charges payable upon or in respect of the same, and that the said Jean Cameraire (mean.ng the said Jean Cameraire first above named) had been really m possession of the said lot of ground and d«'elIing.house thereon, or of the receipt of the rentfe and pro%s thereof, for hi, own use, during nix calendar months and more, immediately precechng the said Election, and that the said Jean Cameraire (meanmg the said Jean Cameraire first above mentioned) i„ sweanng as aforesaid, had been and was gnilty of wilful Perjury V\ hereas, m truth and in fact, the said Jean Cameraire, herein^ before and m the said written deposition of the said Joseph Allard named, d.d not, on the twenty-fifth day of July, one hou«and eight hundred and twentyseven, or at any other time, ake his oath, or swear before the said Henry Crebassa, Re- turning Officer for the said Borough of William-Henry, on the Roy d Square, or elsewhere, at any Election for electing a Member to represent the said Borough of William-Henry in ' he Assembly of Lower Canada, or on any other occasion,, that h the said Jean Cameraire was qualified to vote at th; said Election or at any election whatever, as proprietor and being possessed for his own proper use and benefit or otherwise in virtue of a legal title or otherwise, in the said Borough, of a lot of giound and dwelling-house thereon, joining on L side to John Hall and on the other to Joseph Pierre Credit, or of any other lot of ground and dwelling-house, and that the said lot of ground and dwelling-house thereon belonging to him, was of e yearly value of five pounds sterling, that is to say, five pounds, Heven shillings, and one penny farthing currency, oi more over and above all rents and charges payable upon or in respec; of the same, and that the said Jean Cameraire had been really m possession of the said lot of ground and dwelling-house tliereon, oi- of the receipt of the rents and profits thereof for his ONvn use, during six calender months or more, nr «n„ .f^-r *=— •mmediateiy preceding the said Election:-And whereas"! 'mn- m 78 APPENDIX. truth and in fact, he the said Jean Cameraire, hereinbefore and in the said written deposition named, did not, on the twenty-fifth d^y of July, one thousand eight hundred and twenty- seven, or before or after that day, take any oath whatever, or swear in any manner whatever, before the said Henry Crebassa, Returning Officer for the said Borough of William-Henry, touching his qualification to vote at the said Election, or touching and concerning the matters and things in the said written deposition contained, or touching or concerning any other matter or thing whatsever; and whereas, in truth and in fact, he the said Jean Cameraire, hereinbefore and in the said deposition named, was not, by swearing as aforesuid, or in any manner or way, guilty of wilful perjury. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Louia Marcoux, on the said twentieth day of August, in the eighth year aforesaid, kt the parish of Berthier aforesaid, in the county aforesaid, in the district aforesaid, did falsely, corruptly, know- ingly, wilfully, and wickedly suborn and procure the said Joseph Allard to commit wilful and corrupt perjury, in and by his oath aforesaid, before the said Joseph Douaire Bondy so then and there having lawful and competent authority to administer the said oath, to the great displeasure of Almighty God, in contempt of our said Lord the King and his laws, to the evil and bad example of all others in the like case oflending, and against the peace of our said Lord the King hiff Crown and dignity. (Sign^sd) J. STUART, Attorney General. / (Signed) J. DELISLE, C. R. O. & T. & G. G. D. A True Copy, J. DELISLE, C. K. Crown. APPENDIX 7^ (Indorsed) COURT OF OYER AND TERMINER AND GENERAL GOAL DELIVERY, MONTREAL. * November Session, 1827. erning any ruth and in in the said THE KING V. LOUIS MARCOUX. INDICTMENT for SUBORNATION OF PERJURY. A True Bill, H. MACKENZIE, Foreman. Witnesses, Henry Crfbassa, Esq. Narcisse Crebassa. Michael Glackmeyer. Jean Cameraire. Joseph Douaire Bondy, Esq. Joseph Allard. Pierre Jos. Chevrefils, Esq. No. 13. Affidavit of Mr. Franjois Ga^aille dit St. Germain, iate of the Borough of WtUiam- Henry, now of the Parish of St. Remi, in the District of Montreal, Yeoman, District de Montreal :} FRANCOIS GAZAILLE dit St. Germain, ci-devant de Sorel, district de Montreal, province du Baa Canada" main- ii-xienry, en la Scigneurie ■'•' m lUtliJ 80 AM>EVmX. tenant de la paroisse de St. Remi, dit district, apr^s serment pr6te flur lea Saints Evan>t;me. Que ce fut le dl: Crebassa qui lui donna a baiser les Saints Evangiles. Qu'il n'liesita pas un instant a les baiser, parcequ'il ne sentit repugnance quelconque a prendre le serment, en autant qu'il etoit convaincu qu'il en avoit le droit, a cause de la dite reserve et clause du dit acte de donation, et qu'il avoit deja exerce le meme droit, a la solicita- tion du dit Wolfred Nelson, en faveur de deux members pour le Comte de Richelieu dans lequel est situe le dit Bour^. Que lui le dit deposant est positif a affirmer sous son dit serment que lui, le dit James Stuart, ne lui a jamais pris la main pour la mettre sur les Saints Evangiles. Qu'il croit que le nommg Burke etait la present alors, mais qu'il ne se rappelle pas les noms d'autres personnes. Le dit deposant dit de plus que des (i(^ux maisons ci-dessus mentionnees. I'une valait alors environ viiigt louis, cours actuel, de loyer par annee, et I'autre de trente B2 APPBNDIX. m six a quarante piastres. Le (lit depoHant dit de plua qu'il n'a jamais parl6 au dit JamcH Stuart dupuis qu'il lui a donnC' •» Toix, et qu'il ne se rappelle pas de lui avoir jamais parl6 au- paravant de h lui doiiner. Que lui, le dit James Stuart, lui dit au poll quVn vertu de la dite reserve et du dit UHufruit, il avait certaiiieii.ant droit de voter. Le deposant ajoute qu'il a soixante et dix neuf ans, mais qu'il jouit encore de toutes sea facuUes, et il se porte bi»'u; se rappelle hien tout ce qui s'ent paH«(6 a la dite election, en mil liuit cent vingt sept, lorsqu'il donna sa voix, et qu'il n'a donne cette depositicm que p«.ur rendre hommnge a la verit6 et a la justice. Lo deposant declare ue sjavoir higner. Assermeule devant moi, ce Ge jour de Mai, 18:n, cette deposition at/aut eti par moi-mime he et expliqude au dit deposant avant que de lui administier le serment. (Sign§) P. T. PINSONAUT, J. P. True Copy, J. STUART. No. 14. Affidavit of Francois Gazaille dit St. Germain, the younger, lute of the Borough of Witliam- Henry, now of the Parish of St. Rei^i, in the distract of Montreal, Shop-Keeper . District de) Montreal, j FRANCOIS GAZAILLE dit ST. GERMAIN, fiK de la paroisse de St. Remi, dit distvict, province du Bas Canada, Marchand, ayant prete serment sur les Saints Evan- giles, dit que Francois Gazaille dit St. Germain, et Charlotte Meneclier, parties a un certain acte de donation passe en sa faveur, le quinze de Mars, mil huit cent vingt deux, devant Crebassa et Rolland, Notaires Publics, sent see p^re et m^re. Que, depuis ia passatioD du dit acte, ses pere et mere out ha'oitw APPUNblX «8 long temps, seuls, avec leur domestique, une des maiRoni mentionn6«fl au (lit acte do donation. Que, d.-puis la pasHation d'ic«lui, 8on A. witllOUt the sHtchteSt its prOCeUUsnjjn, anU ililH'g,"-"D "^" J ' - reason. APPENDIX. 93 In order to make your Excellency acquainted with the libels selected for prosecution, I shall beg leave to mention the prose- cutions in the order in which they occurred ; and, for the libel- ous matter which has been made the subject of prosecution, will refer your Excellency to the annexed Appendix, in which a copy of it will be found. The 6r8t of these prosecutions is founded on an article con- tained in the Canadian Spectator, a newspaper published at Montreal, of the 7th November, 1827, for which an in.lirtment was found against Mr. Waller, the Editor, and Mr. Duvernay the Printer of that paper, in the Court of Oyer and Terminer and General Gaol Delivery, held there in Miat month ; and the matter charged as libellous in the indictment will be found in the Extract, (No. 1,) in the annexed Appendix. In explana- tion of this prosecution, it may be proper to observe, that the Editor of the paper now referred to, came hither from Ireland 8ori:e years since, and, being afterwards in distressed circum- stances, was hired to conduct that paper, which lias been, since its first establishment, the organ through which a party, acting in opposition to His Majesty's Government in the Provincial House of Assembly, has manifested its sentiments, and by which it has been supported. The Editor himself is without stake or interest in the country ; the language he holds would seem to be the language of his employers, by whom he i., paid ; and although published in English, the paper is intended to influ- ence the mass of the French Canadian population, through whom its pernicious contents are made to circulate, by infusion into French papers, and by oral communication The article was published a short time before the expected meetino- of the Pro- vincial Legislature. The " conciliation" made mention of, and treated with so much contempt, was the conciliation of the three branches of the Legislature, and it is in relation to this antici- pated conciliation, that the writer gives vent to the tirade of virulent abuse which follows, and which terminates in givino- the character of a " nuisance' to His Majesty's Colonial Govern^ ment; — a brief and concentrated form oi libel, it must be ad- mitted,— quite intelligible to the most ignorant of the persons for whose information it was intended-. andj as -inpHed to •- government still possessed of any efficacy, I believe to be almost 94 AFPUNDIX. without example. In UHing this diHgraceful term, the writer wouhl seem to have sought, in a Minglo expiesNion, to unite, in the most offensive libel, a direct incitement to insurrection ; for, if the Government were to be conHidered a nuisance, as repre- sented by him, that nuisance, like every other nuisance, it is fair to infer, was to be abated : and, as if to render his meaning unambiguous, he immediately adds, that if the country would co-operate with firm and decisive measures, it would be speedily extinguished. Among the vague and general charges conveyed in this article against His Majesty's Government, admitting of no an- swer, is one of a specific nature, which, in a variety of insulting forms, had been made in the same paper, ai.d could not fad to make a strong impression on an ignorant population. The Colonial Government is charged with reviving military ordin- ances, against the plainest rules of legal construction. To ren- der intelligible this gross libel on the Government, it is neces- sary to mention, that in the twenty-seventh and twenty-ninth years of His late Majesty's reign, two ordinances were passed by the Legislature of the country, at that period, one of which is intituled, " An Ordinance for better regulating the Militia of this Province, and rendering it of more general utility towards the preservation and security thereof;" and the other of which is intituled, « An Ordinance to explain and amend the first men- tioned Ordinance." These Ordinances were permanent laws, for regulating the Militia of the Province, the operation of which was suf^pended by several successive statutes, containing a temporary repeal of ^them, and substituting, during the period of such temporary repeal, other provisions in the place of those contained in the Ordinances. The first of these statutes was passed in the yea'- 1794, and the last in 1825, by which last statute the temporary repeal of these Ordinances was continued to the 1st May, 1827, and no longer. At this period, by the expiration of the temporary repealing statutes, the Ordinances revived, and again became the law by which the Militia was regulated. It was peculiarly fortunate, for the peace and tran- quility of the country, that, in the absence of any other provi- sions, this revival took place ; inasmuch as, besides the ordinary security conferred by Militia Law, there is this peculiar bcsiulit APPENDIX w derived from it in this Province, that it furnishes Peace Officers throughout the country Parishes, that ia, throughout the whole Province, with the exception of the towns of Quebec, Montreal, and Three- Rivers ; tliere being a special provision of law by which Captains of Militia and Officers of inferior grade are constituted Peace Officers, and there being no other Peace Officers except in these three towns. Without a Militia Law, therefore, the country at large would have been without the legal means of maintaining, effectually, its internal tranquillity. The Government having, as it was its luty to do, and as the public safety and interest required, enforced these Ordinances, as a part of the law of the land, a clamour against them was immediately raised by disaffected persons, who, aware of the salutary and neccessary power with which they permanently armed the Government, were anxious to prevent the execution of them. Among these persons, the Editor of the Canadian Spectator, a' the trgan of the party to which he belongs, ren- dered himself conspicuous ; and it is with reference to these Ordinances that he presumes to charge the government with reviving Military Ordinances, against the plainest rules of legal construction. It is proper to add, that, amidst the oppo- sition which the execution of the Ordinances experienced, some Militiamen having been fined for not attending the reviews re- quired by these laws, an action of trespass was brought against the Officers by whom the fines were levied, for the express purpose, as the public were informed by the Canadian Spectator and his associate papers, of trying the validity of these Ordin- ances. This action has been since brought to issue, and upon this question no gentleman could be found, who was willing to compromise his porfessional character, by maintaining the Or- dinances not to be in force. The consequence has been, that upon a hearing, at the instance of the defendants, these Ordin- ances have been solemnly adjudged, by His Majesty's Court of King's Bench, to have been in force from the Ist May, 1827, the period at which the last of the temporary repealing statutes expired ; and this decision it has not been attempted to impeach. — ' —■ •-" Kti^oc pujacvunuiio 13 ^luuiiuuu uii an article in the Canadian Spectator, of the 3rd November, 1827, for IW I 'I «n I 11 'f 96 APPENDIX. which an indictment wsn found ngainst the same individuals, Hi in the caRe of the former prosecution, in the Court of Oyer and Terminer and ^rfiicral Goal Delivery, held at Montreal in that month; and the matter charged as libellous will he found in the extract (No. 2) in thj annexed Appendix. The enforcing of the militia ordiniinces, in this, as in the articles already noticed i^ made the groiiiid of the imputations against the Government; and tho writer of this article introduces a libellous letter from Mr. Thomas Lee to the Governor-in-Chief, under the general head <' Militia." He prefaces this letter — by expressing his approbation of it, by stating tliat the doctrines propagated by His Majesty's Government should make all true British subjects boil with indignation, and by charging the Governor with having, l)y his proclamation or general order, made law and military law, and with defaming British subjects, because they declined obedience to orders *;liich were not law. These disgraceful charges have no other foundation than the execution of the laws of the land, which the editor and printer of the newspaper now referred to had the hardihood to assure the country were not laws. In the letter of Mr. Lee, which follows these prefatory remarks, this individual insults the person at the head of the Government, and the Government itself, by charging the Governor-in-Chief with issuing an illegal militia order, and by imputing to him tyranny and oppiCssion, and also falsehood; and iu is this letter which the Canadian Spectator, in the article in question, held up to the public in terms of high commendation, as a very interesting document. The third of thes^ prosecutions' was occasioned by an article proceeding from the same press, and contained in a newspaper called the Spectateur Canadien of the 14th of November, 1827; for which an indictment was also found by the grand jury in the same court against James Lane, the printer of the paper. Of this article a copy will be found in the extract (No. 3) in the annexed Api)endix. To convey an adequate idea of the malignity of this libel, and of the total absence of all ground for the criminal charge it conveys against the administration of justice, it is necessary to state a few facts. A new p*reet had been laid out at Montreal, under the authority of the magis- trates there, and in execution of the provisions of the Road APPKNOrX 97 Act, prov. Mat. 36 Geo. IH. c. 9. After th'w Rtreet had been laid out, a Mr. Stanley Bagg, deriving an alledged title from a convent of nuns called the Grey Sisters, thought proper to erect a wooden building on it. This being an obstruction of a high- way and a nuisance, it became the duty of the surveyor of the highways, which office is filled by a Mr. Viger, to remove it in the manner prescribed by the 68th section of the same Road Act. Mr. Viger, having neglected to perform this duty, one or more orders of the magistrates, assembled in special session, was made enjoining on him the performance of it. After one, certainly, and I believe, two orders to the same effect, three magistrates, of their own mere authority individually, and without any special session having been called to re-consider the subject, presumed to issue a supersedeas, as they called it, discharging Mr. Viger from th^t duty which the law had im- posed upon him, 'ind which the i.-agistrates acting collectively, in one or more special sessions, had required him to perform. For this non-feasance of a duty required by a statute, an indict- ment was found against Mr. Viger, in the Court of Oyer and Terminer and general Goal Delivery already mentioned ; and at the same time an indictment was found against Mr. Bagg for a NUISANCE. In the libellous article now referred to, this proceeding, than which none more legal and unexceptionable could be adopted, is held up to the public or father to the French Canadian part of it, as most unwarrantable, as involving an illegal assumption of jurisdiction by the Court of Oyer and Terminer, over a subject belonging exclusively to a civil judi- cature, and as being «* un insulte et un outrage aux loix." For having permitted this proceeding, the court is charged with forgetting and disregarding the best established principles of law and justice, the country is reprep^nted *j be in an alarming state, and it is said that the citizens ..ight to tremble for the consequences!! In order also to convey a charge of positive corniption, as one of the causes of this monstrous proceeding, the writer of the article adds — " Les Magistrals qui se trouvent blesses par ce supersedeas sont du nombre des grands juris, et h president de la police siege a cette cour!/" In a more en- lightened community, the writer of such an extravagant nrtiriA would incur by it universal ridicule and contempt, and tlie very N 98 APPENDIX. excess of its folly would preclude any public ill-consequence A'om it; but it is not so in this country, where such is the ignorance which prevails among the people for whose edification this article was intended, that the charge thus conveyed against the administration of justice would be gravely received, and a strong impression produced by it. This article, independently of its libellous character, it is proper also to observe, was deserving of the most serious consideration under another aspect, as being a manifestation of a principle on which the press from which it proceeds habitually acts, that of misrepre- senting and calumniating the administration of justice, when- ever persons belonging to the party, by which it is supported, are made obnoxious to punishment, for an infringement of the Jaws. Mr. Viger, the road-surveyor, is intimately connected by relationship and otherwise with the party by which the Spectateur Canadien is supported : hence, no doubt, the motive for misrepresenting the proceedings in question; with an ex- pectation also, it is not uncharitable to suppose, that the petit jury (composed of illiterate persons) by whom the case was to be tried, would not be uninfluenced by this libellous mis- representation. The fourth of these prosecutions is derived from an article contained in the Canadian Spectator of the 24th of November last, for which an indictment was found against J '^'', Waller, the Editor, and Mr. Duvernay, the Printer of that paper, in His Majesty's Court of King's Bench, held at Montreal in March last, aad of which a copy will be found in the Extract (No. 4) in the annexed App'indix. For the understanding of this libel, it is necessary to mention, that in the Court of King's Bench, held at Montreal in September, 1827, indictments had been preferred against several persons for perjury, committed by them at p.n Election held at William-Henry, in the preceuing month of July, by falsely swearing that they possessed the necessary qualification to entitle them to vote at that election. These indictments had been ignored by the Grand Jury of that Court, and new bills for the same offences were preferred before the Grand Jury of the Court of Oyer and Teruiner and general G--1 T-v-i: ,.. u_i,i _4. T\/r — i_.,»i :_ XT .— u-r loo7 !•-' «r.H!''l» UUI JL/Clivcry, IICIU UL irxuiItlOitl 111 i.~.uvcini3x:T, i'^if J uj rrlHv" latter Grand Jury these bills were found. In the article now I APPENDIX. .99 referred to, the not finding of the bills in September, is called An acqurttal by the country." and on this ground the Conrt at Oyer and Terminer is impeached before the public, for having, u IS said, thus overturned the well-known principle of the English law, according to which, an acqittal by a jury is a protection against any further prosecution for the same crime- and for havmg thereby determined that an individual is exposed to be prosecuted, to infinity, for an offence of which he has already been acquitted by the country. In addition to this hbellous charge against the court itself, the Grand Jury of the same court having exercised a legal and constitutional power Z '"t"'. " '?"'' " '''''''' "'^^ '-avingallowed themselves 111 "" T '";''"'"'"*• ^''^ '"^^'"^^ ^« -P^-ented as a p son ..worthy of confidence, and all the members of the jury, wuh the exception of five or six. are held up to obloquy; [ be-g stated that their chai.cters, private and public, ani the ceT n\r"" "^^' "'*^' ''"^y °PP«-^' ''^-^h withou success, all these proceedings, made an honourable exception This scandalous libel on the Court and Grand Jurv hv he pracce of every day, and by which the proceediugs of the ^.er rendered secret under the obli-atiou of a„ oath are dis! osed or professed to be disclosed, a„,l are made the ubj ct If d."gr«.e «1 remarks, must be referred .„ the same ,^2e cution of M.. Viger. The persons prosecuted for periure h»d voted for a candidate supported by the party byTh h ' Caua ,,„ Spectator itself is supported. On L grold they ...re to be screened from public justice; and fork purpose «.;.r.s and junes, through whose power it was attemptldt' n„g them to justice, were ,„ be calumniated, for haZ e„te aned prosecutions against them, and were to be oferawed " « t '° ''7™"'°"""' "''' °"'y »" »f 'he indictmems for peijuiy, which were tofwred hv a Gran*! Tn^., • o 18y7.m.df«„H»"-ar ■ /^^".^"*• J"'^y'" September, « r..j?„,! ^^. a Grarui Jmy ,„ November followintr ho l-cn tned, siuce the p„bl,ca.i„„ of this libellous artlHa'" .'« f li f p. i li 100 APPENDIX. on this indictment, the party accused, one Joseph Ckpreed, was found guilty by a common jury, on the clearest evidence. The fifth and sixth of these p. ecutions has been occa- sioned, by an article contained in the Quebec Gazette of the 28th February, 1820, being a newspaper published by Samuel Neilson, at Quebec. For this article, an indictment was found against Mr. Neilson, the Editor And Printer of the paper, and another indictment against Mr. Charles Mondelet, by the Grand Jury, in the Court of King's Bench, held at Quebec in March last, and a copy of it will be found in the Extract (No. 5) of the annexed Appendix. This prosecution diifers from those of which an account has been given in a very important particular, that is in what respects the means employed for the composition of the libel, and for giving weight and efFect to it. In the prosecutions already noticed, the libellous articles proceeded from insulated individuals, expressing their sentiments individually; in this prosecution, the libel proceeded from a number of individuals invested with public authority, as magistrates and officers of Militia, and associated under the imposing name of a Constitu- tional CommUlee. These persons, being officers of Militia, erect themselves into a tribunal for trying the validity of the public acts and orders of the Commander-in-chief of the Militia, and pass sentence on them as in their wisdom seemeth fit. They assume to themselves all the form of a legally-constituted body, and arraign the conduct of the Commander-in-chief in such terms as to imply in them a right of determining on it. It is fpr the publicatipn of a libel .proceeding from such a self- constituted body, and conveyed in the form of resolutions, of a letter, and of a speech, that this prosecution was instituted. Of the grounds on which the exercise of the power complained of took place, I am ignorant, nor would it seem at all necessary to be informed of them, inasmuch as, whether right or wrong, it could never be canvassed and determined on by such a self- constituted body, as a « Constitutional Committee," without a surrender of the powers incident to the established Government. In the resolutions and letter, the conduct of the Commander- jjj^(3hje,f ifi arraisnedj as being arbitrary and unjust ; and it is said by this body of militia officers, that in their opinion, " cet APPjajJDlX 101 allegu6 de la part de son Excellence (meaning th. fact alledged by the Commander-in-Chief, as the foundation of his general order) est entierement malfonder In the speech, the Com- mander.in-Chief is spoken of, in the most disrespectful and indecent terms ; he is charged, in offensive language, with being gmlty of a departure from truth, with being under the influence of absurd and tyrannical notions, and with making defamatory accusations, not deserving of refutation ; and the administration of the government by him is represented as being influenced and duected by persons " qui severtuent d le tromper, et qui sacrifient hontcusement leur honneur et kurs droits, pour en^ courager une oppression, dont il n'y a jamais en d example, dans les colonies Aighisesr Not satisfied with these terms of abuse, the orat>r immediately after, characterizes the persons ^«t spoken of, that is, the principal oflicers of His Majesty's Government, with whose advice the Governor is presumed to be assisted, as being a " horde denvahisseurs et de destructeuvs (de volonte au moinsj de nos droits," and represents two indi- viduals then recently dismissed from their rank in the militia as entuled to the glory « de voir leurs noms inscrits sur le catL hgue de victimes de leur devouement d la cause sacree de la patrze. I„ conclusion, he charges the Commander-in-Chief with a cnmmal and disgraceful abuse of the patronage of the Crown, by stating that the persons on whom he conferred the honours were those « qui ne se les font prodiguer, qu^en abjur. ant leur foi politique, qW en se declarant traitres a la patrie et enfletrissarUpour tovjours un mm qui ne leur d ete donne one pour y ajouter celui de vrai Canadien." The seventh of these prosecutions is grounded on an article contained m the same newspaper, the Quebec Gazette, of the 1 1th March, 1828, for which an indictment was found againit Mr. Neilson the printer and editor of that paper, in the same erm of the Court of King's Bench, held at Quebec in March, 1828, and of which a copy will be found in the Extract, (No 6 m the annexed Appendix. ' " In this prosecution, the libel is of the same character as that las mentioned. The example set by the Constitutional Com- mittee ot Ihree RivBrs. in nomo^^.v™ — ,j . n- . . , . ,. , . , - -' -1 . .,...,, ,,.~,ng oHu pubhsning the iibci ot which an account has been given, was too agreeable to the \h - ! > i t ^^B Tt ,?l!' UH r-. II 4? I 102 APPKNDIX. feelings of the turbulent and ill-disposed elsewhere, and too well calculated to answer their views, not to be followed : other meetings of simularly self-constituted bodies, called Constitu- tional Committees, were therefore held for a like purpose, and among these a meeting of the United Constitutional Committees of the parishes of St. Gregory, Becancour, Gentilly, and St. Pierre les Becquets, the proceedings of which gave occasion to the seveuth prosecution. At this meeting, the same assumption of the forms of a legally-constituted public body obtained, as in the case of its prototype at Three Rivers. In the 1st Resolu- tion, it was declared, that the meeting, being conipused of the majority of the officers of the 3rrf Batallion of the Coi'tity of Buckinghamshire, would immediately take into consideration the general order of militia which was complained of ; and in the ten following resolutions, this meeting of militia officers, assembled in that character, express, in various forms of lan- guage, their disapprobation of the conduct of the Commander- in-Chief, which they pronounce to be arbitrary and unjust. But the 6th and 7th of these Resolutions were particularly de- serving of attension. By the 6th they declared, Que les per- sonnes qui acceptent des commissions, en replacement de ceux qui ont ete destitutes, sans cause legitime, meritent I'improha- tion publique, et ne doivent etre considerees qv£ comme ennemis des droits du peuple. By the 7tb they declared. Que les membres de cette assemhlee, formant la majorite des officiers du dit 3me batallion du comte de BuckingJiamshire, ne pour- ront obeir quavec mortification, a la personne qui aura ordre de prendre le commandement du dit hataillon. The Constitutional Committee of Three Rivers had passed sentence on the Commander-in-Chief, in what related to the general order of which they had taken cognizance. These united Constitutional Committees go a step further : they not only pronounce judgment on the Commander-in-Chief, in rela- tion to the general order taken under their special consideration, but by their 6th Resolution, they denounce public odium against persons accepting commissions in the place of persons removed ; and, by their 7th Resolution, they sufficiently intimate a dis- position not to yield obedience to such persons. Of the dan- gerous nature of the associations, from which these libels pro- APPENDIX. 103 ceeded, no person could doubt. They were evidently calculated to bring the authority of the Government into discredit and contempt, and gradually to supplant it. But however criminal may have been the views of a few individuals, by whom this seditions machinery was put into motion, it is certainly due to the country at large to remark, that it was the work of a iaw persons only, and that the mass of the inhabitants was in no degree infected with the disloyalty that might be inferred from such proceedings, in other countries. The necessity, neverthe- less, of putting a stop to such associations, so pregnant with mischief, was urgent ; and this was effectually accomplished, in this instance, by restraining the publication of their proceedings in the newspapers. After the two last prosecutions, of which an account has been given, the agency of Constitutional Com- mittees, in opposing the Government, and in producing disorder, ceased. The eighth of these prosecutions is grounded on the publi- cation of a letter to the Governor-in-Chief, signed '« Charles Mondelet," inserted in the Quebec Gazette of 12th November, 1827, for which an indictment was found against " Mr. Charles Mondelet," in the terra of the Court of King's Bench, held at Quebec, in March, 1828, and of which a copy will be found in the Extract, (No. 7,) in the annexed Appendix. The example which had been set by Mr. Lee, in obtaining notoriety, by addressing an insulting letter to the person at the head of the Government, of which mention has been made, had already been followed in one or two instances, and as yet, with impunity, when Mr. Mondelet, it would appear, became ambi- tious of the same distinction. It was evident, that unless this disposition received some check, no act of the Government, disagreeable to an individual, could be adopted, without expos- ing the person at the head of it to be traduced and vilified, in the form of a libellous letter, and without, as a necessary con- sequence, subjecting the Government itself to disparagement and contempt. It seemed necessary, therefore, that this chtjck should be applied in the case of Mr. Mondelet, who, it was obvious, had taken Mr. Lee's letter for his model, and had im- proved on it, by rendering his own more offensively libellous. In it Mr. Mondelet, as Mr. Lee had previously done, charges 104 APPfiMDIX. the Commander-in-Chief of Militia, in the most disrespectful terms, with enforcing ordinances- as law, which were not law, and with issuing illegal orders of militia. In relation to Mr. Mondelet's removal from a particular division of the militia, on the ground of non-residence, as compared with the cases of some other officers, he accuses his Excellency of gross partiality, and observes, " Voire conseil na craint, ni pour lui meme, ni pour voire Excellence, la reprohaiion puhlique, ei le ridicule qxiune semhlable coniradiciion meriieraii a son auieur." In another part of his letter he observes, <' Si vous nieussiez taxe, quit plaise a voire Excellence, de m'etre refuse a Texecuiion de vos ordres generaux, qui me semhleni aussi illegaux que sont illegales, ei non lois, les ordonnances que Von assigne comme leur base, vous n'auriez pospu, a la verii^, enjusiice, me demetire, sans me donner V occasion d'etre entendu, mais, au moins, les formes de voire ordre general riauroient pas, en appareance, choque la raison, ei cei ordre nauroii pas ete aussi fortement Vchjet du ridicule. And towards the conclu- sion of his letter he imputes unheard-of tyranny to the Com- mander-in-chief, in the following terms : — ^^En derniere analyse, quil plaise a voire Excellence, je me permeiirai de vous dire, en vsani du droit d'un sujet Anglois, que voire conseil egare grandement voire Excellence, en le portani a commeitre des acies qui devroient eire inouis sous Vempire Briiannique, ei dont noire colonic settle offre des examples." The ninth of these prosecutions is grounded on the publi- cation of Mr. Lee's letter above mentioned, in the Quebec Gazette of 29th Oct\)ber, 1827, for which an indictment was found against Mr. Neilson, the Editor and Printer of that paper, by the Grand Jury, in the term of the Court of King's Bench, held at Quebec in March, 1828. In explanation of this prose- cution, it is sufficient to refer to what is above stated, in relation to the second of these prosecutions. The tenth of these prosecutions is grounded on an article contained in the Quebec Gazette of 29th November, 1827, for which an indictment was found against Mr. Neilson, the Editor and Printer of that paper, in the term of the Court of Kings Bench, held at Quebec in March, 1828, and of v.Iiich a copy will be found in the Extracts, (No. 8,) in the annexed APPENDIX 105 Appendix. Thi8 libel is an amplification of the two libels, which are the subjects of the third and fourth prosecutionB above mentioned, the two being blended and amplified in this. Upon this prosecution it is suflScient, therefore, to refer to the explanations above given in relation to the third and fourth prosecutions. "* On the part of the Crown, all due diligence, in bringing these several prosecutions to trial, has, I beg leave to state, been exerted. The indictments found at Montreal, in November last, were brought by certiorari into the Court of King's Bench, in the succeeding term of March, and the trial of them was then moved for, but the defendants represented that they were not ready to proceed to trial, and succeeded in obtaining a post- ponement of it till the next term, held in September last. On this last occasion, the trials did not take place on the days fixed for them, in consequence of a difference of opinion in th'e mem- bars of the Court, respecting the manner of preparing the lists, from which the special juries for these trials had been struck • they now stand over, therefore, to be had in the next term which will be held at Montreal, in the month of March. With respect to the indictments found in the Court of King's Bench at Quebec, in March last, they were found too late in the term to admit of the trials being had in it. In the last term, held at Quebec in September, the multitude of cases of felony, before the Court, precluded the trial of these misdemeanors, which were therefore permitted, on the part of the Crewn, to stand over, and no application was made for the trial of them, on the part of the defendants ; so these cases also remain for trial in the next term of the Court of King's Bench, which will be held at Quebec, in March next. In addition to what has been stated respecting these prose- cutions It would seem not to be foreign to the order of reference with which your Excellency has honoured me, to notice briefly «ome steps which have been taken by the persons indicted, or some of them, in conjunction with their friends, to render abor- tive and defeat them. By the Minutes of the Evidence taken before the CommW..- ot u.e House ot Commons, on the civil Government of Canada" •n the last session of the Imperial Pariiament, which have O 106 APPENDIX. reached this country, it appears that a set of Resolutions were produced liefore the Committee by Mr. John Neilaon, the father of one of tlie persons indicted, purporting to be Resolutions of a •< Meeting bf landholders of other proprietors composing the Committees appointed at the general meetings of proprietors, held for the purpo.se of petitioning His Majesty, and both Houses of Parliament, against the present administration of the Provin- cial Government, aud for furthering the said petitions, assembled at the house of Louis Roy Portelance, Esq. in the City of Montreal, 1 7th April, 1828," in which Resolutions these prose- cutions are made the subject of grievance and complaint. Among the names of the persons by whom these resolutions are alledged to have been adopted, is that of Mr. Waller, the per- son against whom the first, second, and fourth of the indictments above mentioned were found. Whether these Resolutions were or were not adppted, at a meeting composed of the persons whose names precede them, is a matter of some uncertainty. The names render it probable, however, that they were so adopted, being the names, generally, of the known supporters of the papers which are the subjects of indictment, and probably of the proprietors of em, whose acquiescence Mr. Waller would be likely to obtain, in any statements he would submit to them, on the subjects to which the Resolutions relate, and in particu- lar, to those declaring these papers to be void of oflFence. The Resolutions themselves contain convincing intrinsic evidence of their being the production of Mr. Waller himself, who has found it convenient to embody his sentiments and defence in these Resolutions. He ks evidently 'not neglected his own defence in them; for, in the lltb Resolution, this unauthorized meeting of individuals is made to contradict the indictments found by the Grand Inquest of the District, and to declare the publica- tions which the latter, on their oaths, pronounced to be seditious libels, to be " innocent and praiseworthy," and " entirely free from any thing prejudicial to the laws, or to public order. This mode of superseding the authority of the legal tribunals of the country, I cannot but take the liberty of remarking, is without precedent, and, if successful in this instance, must be destructive of all legitimate authority. It does not belong to mu to notice the charges contained in these Resolutions, against '•' '■ I APPENDIX 107 I the Governor-in-Chief, Courts, Chief Justice, Sheriffs, Jurors, and other public functionaries, all of whom it has cntert'd into the views of the writer of these Resolutions to traduce and vihfy. But as ' am made personally conspicuous in these charges, and am represented to have acted from improper mo- tives, and to have dischai-ged my official duty Villi undue severity, even oppressively, it seems fit, that; in submitting to your Excellency this account of the prosecutions^complained'of, I should exonerate myself from this foul imputation, by stat'ing a few particulars. It is insinuated, if not asserted, in these Resolutions, that, in the institution of the prosecutions in ques- tion, I have acted under the influence of personal feelings, from having concurred in advising the militia arrangements complained of. My feelings, as prosecuting officer of the Crown, must be a matter of indifference, in relation to the truth or falsehood of criminal charges; but the insinuation or assertion, such as it is, is entirely untrue, and has been hazarded at random, as the other disgraceful imputations contained in these Resolutions have been, merely to bring discredit on individuals and public authorities, and thereby render the Government itself odious. Except in having advised the enforcing of the Militia Ordi- nances, as a part of the law of the land, it has n. t fallen within the scope of my duty, to have any thing to do with the Militia arrangements of the country. To appointments and dismissals I have been equally a stranger. I am also represented as a violent opponent of the representative body, but am at a loss to conceive on what ground; and equally so to perceive the bearing of this demerit on the prosecutions complained of. i I am likewise charged with having proceeded, \xx -a ^^ vexatimis and oppressive manner," against Mr. Charles Mondelet, of the prosecution against whom an account has been given. This charge, depending on matter of fact, is easily refuted. It is said that Mr. Mondelet ought to have been prosecuted in the dis- tnct in which be resides, and where his offence was committed. Had the offences for which he has been indicted been committed in the district of Three Rivers, this observation would have been^true, and he could not have been prosecuted elsewhere • but ..e H-as indicted, not tor writing or publishing libels in the district of Three Rivers, in relation to which offences I was iu 108 APPENDIX. tlJ ilr ■ fHll I > .If!: I: iH ;f poBsession of no evidence to enable me to prosecute him there, but for having published, and caused and procured to be pub- lished, certain libels in the district of Quebec, in the courts of which latter district only could these offences be cognizable. This charge, therefore, is utterly groundless. But it is also said that Mr. Mondelet was put to inconvenience, in travelling from Three Rivers to Quebec, to answer these indictments against him, there. This certainly is an unusual complaint on the part of a person accused, particularly before his innocence has been ascertained by an acquittal. The inconvenience complained of is, necessarily, experienced by all persons, who subject thera- selves to criminal accusations ; and, in making Mr. Mondelet amenable to the Court of King's Bench at Quebec, the trouble of travelling hither, on his part was unavoidable. It is also said that Mr. Mondelet, and the witnesses subpoenaed from Three Rivers, incurred personal danger in performing the journey. The route betWeen Quebec and Three Rivers, the great high- way of the province, is known here (though it may not be in known by persons in London, for whose perusal Mr. Waller's Resolutions were intended) to be free from danger to travellers at all seasons of the year, as much so as a promenade in the streets of Quebec and Montreal. If, by any strange misad- venture or accident, these persons should have incurred any risk, it must be considered as one of the casualties to which men, in every situation, even in those the most secure, are liable, and for which it does not seem reasonable to make His Majesty's Attorney General responsible. It is also represented that I have acted partially^in selecting for prosecution the editors of one class of newspapers only. It has been my duty to pro- secute those persons, by whom libellous attacks have been made oa thci Government, its courts of justice, and its public functionaries, for the purpose of bringing them into contempt and disgrace, in the minds of the people. If such attacks have been found in one class of papers only, as has been the case, it sufficiently accounts for my having prosecuted the editors and printers of these only. With the personal abuse of contending editors, which it might have been prudent and proper, on the . . .• 1 *« U-..^ .•Asfvotnofl hilt not. pan of tlieir respecnve euipiuycia, w uoVc .^cv.m..!^ -, affecting any part of the Government, I have had nothing to do. APPENDIX. 109 The King's courts of justice have been open to all persons Bggrieve\ it is not surprising that the judicature of the country, how- ever free from reproach, till reached by his malignity, should not be acceptable to him : it is indeed not likely that he should be satisfied, otherwise than with a judicature of his own choice, or with no judicature at all ; and, of these alternatives, the last would probably be most agreeable. I cannot conclude this Report to your Excellency, without respectfully deprecating the dangerous consequences to be ap- prehended to His Majesty's Government, and the peace and tranquillity of the province, from the course which has been pursued by Mr. Waller and his associates, if it should be per- mitted to be successful. This course may be characterized in a few wnrda. Thp Gnvprnnr nf tha Pfntr!r>/«#> tl.~ rt ^_ i« Justice, Juries, and other principal functionaries of His Ma- J t 'fl' no APPEVmX. '-Hit! jcBty's Government, have been p;ro88ly calumniated, traduced, and vilified. Of these grave offeneeB, the authors of them have been accused, in legal form, by the Grand Inquests of the Country. Instead of meeting the charges against them, in the course prescribed by law, the principal delinquent, for the pur- pose of counteracting the legal proceedings had against hire and his associates, and in contempt of the authority of the Court iu which the accusations are pending, calls a meeting of his friends and partisans, who pronounce him and his co-delinquents inno- cent of the ctiargos against them. Under colour of this meeting, he frames Resolutions, containing a specious misrepresentation of the facts on which the indictments have been found, an.l proclaims the falsehood of the charges contained in them. In these same Resolutions, the principal party accused renews the calumnies he had previously published against the Government and the administration of justice ; and, on the ground that these calumnies are true, presumes to decline the jurisdiction of the Courts before which he anP£NDIX. _ ■'■■— y- , .' 1 1 ': Ml/lord, en t^te de cet Ordre General de Milice qvi annulle ma Commission de Capitaine, contient des absurdites, des faussetes, et est incorrecte. "THOMAS LEE, " Ex-Capitaine au ler Bataillon de Milice *« du Comte de Quebec, et Notaire." « Quebec, 29e Octobre, 1827." (No. 3.) Extracts from the **Spectateur Canadien" of the llth Nov. 1827, containing the libellous matter for which an Indict- ment was found by the Grand Jury, against the Printer of that paper, in a Court of Oyer and Terminer and General Gaol Delivery, hel() at Montreal in Nov. 1827. " Cour d'Oyer et Terminer — Lundi dernier les Grands Jur^s ont trouve un True Bill contre Mr. Stanley Bagg, pour nuisance, et contre Mr. Jacques Viger pour negligence a remplir les devoirs de sa charge dTnspecteur des chemins, &c. Nous publions sur C(^ cas int^ressant les faits qui sont parvenus a Dotre connoissance. «' II y a quelques mois Mr. Stanley Bagg fit construire, sur un terrain clos, une petite batlsse en bois, qui depuis a ete habitle. Sur plainte portee devant les Magistrats, apres longue contestation, la majorite des Magistrats, alors presentee, ordonna la demolition de I'edifice, et enjoignit a Mr. Viger de la faire demolir aux frais de Mr. Bagg, si ce dernier ne se conforraait point a leur jugement, dans un certain delai. Mr. Bagg, se croyant lese par cette decision, fit une application devant quelques Magistrats, qui trouvait qu'il avait raison de so plaindre lui accordferent cet ordre de supersedeas dont les Jouruaux ont d6ja rendu compte. Cependant Mr. Viger, pour obeir a ses ordres, se mit en devoir d'executer le jugement. Aussitot, le supersedeas lui fit suspendre ses travaux, et il pr6senta un rapport en forme aux Magistrats. Leur corps s'assemble, on ^^„f Fa'^va A&o^amr mil rpt. nrdffi: finalement on s'aoercoit que le tribunal civil superieur peut seul decider ce differend, et APPENDIX. 115 I'assembl^e ee disperse, sur ces entrefaites les Magistrals, qui 86 croient offenses par ce supersedeas, envoient au Gouverneur une plainte centre leurs confreres. Nous ignorony quelle reponse a pu faire son Excellence. Mais aujourd'liui I'affaire devient serieuse, et la Cour d Oyer et Terminer sen trouve saisie. Quel en sera le resultat, c'est ce que nous ne pouvons dire—// parait ires-extraordinaire que Von traduise ainsi a. la Cour Criminelle, sans distinction, des affaires civiles et celles qui appartientd une classe differente. On ouhlie et on meprise les idees que Von s'etait formees de la Justice et du droit. Le Pays presente un aspect alarmant; les citoyens doivent trembler. Les Magistrats, qui se trouvent blesses par ce supetsedeas sont du nombre des Grands Jures, et le Pre- sident dr la Police qui a dirigi tons ces procedes, siege a ceUe Cour ! une chose nous rassure un peu, c'est que les Grands Jures n'auront pas a juger Jinalement cette poursuite. Nous nentreprenons point de disculper Mr. Bagg. S'il a commis une infraction a la loi, et s'il a empiete sur le terrein que n'est pas a lui il doit etre deboute de ces pretentions. Mais nous regardons la poursuite au terme criminel, comme une insulte et une outrage aux lois, puisquil y avait un autre tribunal plus competent pour en juger, et qui en devait etre saisi." Nous ne pouvons terminer sans exprimer le desir que nous avons que la Legislature s'occupe promptement des chargemens que demaade imperieusement I'organisation de nos Cours Cri- niinelles. Les fonds de la Province doivent etre employes d des objets de necessite, et non a des poursuites ruineuses pour le pays, oppressives aux citoyens, et en opposition directe au but de la loi. Lohjet quont en vue ccux qui excitent les deux poursuites en question est trap evident pour que nous nous etendrions d'avantage sur cette matiere : nous craindrions d'insulter au jugement de nos lecteurs si nous entrions dans des details," tjgjjgL I . ..It .wm m_ n 01 i' I ■ ' ^' 1 i 116 APPENDIX. (No. 4.) Extract from the Canadian Spectator of 24th November, containing the libellous matter for which an Indictment was found by the Grand Jury, against the Editor and Printer of that Paper, in the Court of King's Bench, held at Montreal, hi March, 1828 :— " In England, a practice almost without exception has es- tablished, that an individual acquitted by a Jury, of an accusa- tion brought against him for a crime or misdemeanour, is pro- tected against any further prosecution and inquietude, on account of that accusation. Our late Court of Oyer and Terminer has Just given us an example which overturns from the foundation that principle, and which teaches us that an individual is exposed to be prosecuted to infinity, for an offence of which he has already been acquitted by the Country; and we do not here allude to Mr. Jobin, against whom the Attorney General has presented, at different times, three bills for the same offence. However, we console ourselves, with the hope, that what has just passed in that Court will not be taken as a precedent, and that a Jury composed of independent men will never allow themselves to be used as an instrument, like that of the late Court of Oyer and Terminer. The foreman, Mr. Henry M'Kenzie, had tak^n a very actiVe part in favour of the Ad- ministration, in the late election. He had carried his imprudence (to give it no other name) so far as to require the intervention of the military, at the election of the West Quarter; he was in the middle of the fray, where he played a part not suitable for a Justice of Peace : he has ventured to alledge publicly that the Governor of this country was not amenable to the law — This Mr. M'Kenzie is a clerk in the employment of Mr. Molson, and has no other property than his salary. Would it be possible to expect much of independence and impartiality from a man in that situation, who had, as lumumu oi aic ^^^^j, »^ j— d who had taken a warm part in the elections on the side opposed APPENDIX 117 to fiis opinion ? To hope for justice in sucli case would be to show little knowledge of human nature ; particularly when we know that this same Mr. M'Kenzie, instead of withdrawing when the Jury was engaged with the business of the election for the West Ward, did conduct the measure himself, by relat- ing facts, searching tor witnesses, and giving his opinion. Jn saying that the public has great cause of complaint with respect to the composition and the proceedings of the Grand Jury in question, we owe it to justice to sat/, that five or six of that Jury should be exempted: their character, private and public, and the independent manner with which they opposed, though without success, all these proceedings, make an honourable ex- ception in their favour, and oblige me to distinguish them from the rest, many of whom should have been excluded, from want of property and other circumstances." (No. 5). Extracts from the « Quebec Gazette," of the 28th February, 1828, containing the libellous matter for which the Indictment was found by the Grand Jury, against the Editor and Printer of that paper, in the Court of King's Bench, held at Quebec, in March, 1828. iii<1rro triAn " A une assemblee du Comite Constitutionel du District des Trois-Rivieres, (seance extraordinaire a la maison de Rene Kimber, Ecuyer,) Lundi, le 25e Fevrier, 1828:— Presens,— M. Rene Kimber a la chaire ; Pierre Defossds, Jean Doucet, Etienne Tapin, Jos. Dubord Lafontaine, Jean Defoe86, Louis R. Talbot, W. Vondenvelden, Joseph Couryal, Etienne Leblanc, Pierre Blondin, L. Olivier Coulombe, Lau- rent Craig, Charles Mondelet, Ant. Zept. Leblanc, et Ant. Cazeau. Lu rOrdre Genci-el de Milice du 21 du courant. Hesolu, lo. Que la loyaute, I'integrite, et I'independance qui fint. no fmit. tama navaftafiaA tm^t-nc Im. ««.,' Li? , .,.,._ ,._ ..^mco tecs avti-Jlia puDiiuuus et privees de Franjois Legendre et Antoine Poulin de Cour- iitilaio^ 118 APPENDIX. val, Ecuyera, Vice-Prgsidena de ce Comit6, et epeciale- ment la conduite qu'ils ont deployee dans la crise qui a necessity de la part des habitans de ce pays, des accusations contra le Comte Dalhousie, leur m6ritent la confiance et le respect de leurs concitoyens. Resoluy 2o. Que ce Comity a appris, que par I'Ordre General de Milice du 21 du courant, Son Excellence George Comte de Dalhousie a cass6 et d^mis de leurs rangs de Lieutenant dans la Milice, ces deux Messieurs, en all6guant «« qu'ils se sont montres les agens actifa d'un parti hostile au Gouvernnaent de sa Majeste. Rholu, 3o. Que dans I'opinion de ce Comitg cet allepng de la part de Son Excellence est entierement mal fonde. Resolu, 4o. Qu'en consequence, ce Comite se ct< H autorisg a declarer que ces demissions ne pourront jamais porter atteinte a la respectability de ceux qu'elles ont pour objots. Risolu, 4o. Que I'adresse suivante a MM. Francois Legendre et Antoine Poulin de Courval, soit adoptee par ce Comit6 et qu'un comite speciale compost de quatre membres, savoir: MM. Jean Doucet, Joseph Dubord Lafontaine, Fnenne Leblanc et Jean Defoases, prenne les moyens de la faire parvenir a MM. Legendre et Courval. (Vrai Extrait,) (CHARLES MONDELET, Secretaires, | ^^^ g. LEBLANC. Mardi, le 26. — Lfes quatre Messieurs choisis par le Comite pour faire parvenir I'Adresse du Comite a MM. Legendre et De Courval, apprenant que Mr. Legendre etait en ville, se ren- dirent a I'hotel ou il logeait, et lui presenterent IWdresse suivante adoptef ;ar le Comite. A Francois Legendre et Antoine Poulin de Courval, Ecuyers. Nous, Membres du Comite Constitutionnel du District des Trois Rivieres, avons cru devoir vous temoigner combien nous sommea aensibles a injustice a vous faite, par Son Excellence OGOVCG ^OIIllG UC i-raXllVUOlt) vis T-^t^r? ^fCc^-^e^'^MStv '"^ -» *• missions de Lieutenant Colonels. Nous esperons que ce procede APPENDIX 119 arbitraire sera repousse par le Gouvernement paternel de Sa Majeste, et en meme terns nous prenons la liberty ft APPENDIX. 121 totis les tionneurs dont il ahreuve cenx gut ne se les font prodiffuer, quen ahjurant leur/ot politique, qu'en se declarant trattres a lapatrie, et en fletrissant pour toujours un nom qui ne leur a 4t^ donni que pour y ajouter celui de *'viais Canadiens." Beaufort, ler Fevrier, 1828. Narcisse Duchesnay, Ecuyer, Lieutenant-Colonel, &c. Mon Colonel, Sous Tadministration d'un homme u jamais memorable et digne de I'amour de tous les bons et loyaux sujets, je raetrouvai honor6 de meiiter assez la confiance d'un si illustre perennnage pour me charger d une Commission d'Enseigne. Mais en ce jour que tout est venal, que I'on ne saurait etre citoyen tjtant milicien commissionnd, que tant de personnes mille fois plus respectables que moi ont 6t6 deplac6es et que d'autres etrangers et inconnus, ont 6t6 substitu^s a leur place, Je me croirais souille si je retenais une commission qui n'a plus rien que de degradant a mes yeux. Quelque honors quejefusseje repus cette commission, je ne Vacceptai qu'apres avoir su que mon devoir serait d'agir con- formement d la hi. Cette conformity ne pouvant plus etre, ma commission cesse d'exister. Elle est a vous disposez en. (Sign^) M. PARENT. (No. 6.) Extract from the Quebec Gazette of the 1 1th March, 1828, containing the libellous matter, for which an Indictment was' found by the Grand Jury, against the Editor and Printer of that Paper, in the Terra of the Court of King's Bench, held at Quebec, in March, 1828. A une Assemble Gcnerale des Comitds Constitutionnels des Paroisses de St. Gregoire Becancour, Gentilly, et Saint - " '"^■' ^^"^v^^"* icuuu daiis la maison de M. Joseph Malhiot, en la Paroisse de Becancour, le 5 Mars courant: f i III n 122 AFFHNDIX. Present. — MM. Jean B. Hubert, a la Chaire, Joseph Turcot, Antoiae Leblanc, Viee-Preaidens. J. B. Legen et qu'il a justement mlrit^s, •oit comme Repreeentant du Codat^, Li^uteaant-Colonel, Magistrat, ou simple citoyen. Resolu, 9o. Que la Lettre suivante 2k Mr. Legendre, aoit adoptee, et J. B. Hebert et Louis Landry, Ecnyere* soient pri^s de la lui presenter. R^olu, lOo. Que cette Assemblge remercie le president du z^le qu'il a montr6 cfaos la presente circonstance. R69olu, Ho. Que les proced^s de cette Assemblge soit publies. (Sign^) LAURENT GENEST, Scr. (Pour vraie Copie.) Le 7 du courant MM. Hubert et Landry se sont rendua aux desirs de I'Assemblee, en presentant a Mr. Legendre I'adresse qui suit: — Monsieur— Nous, Sousaign^s OfiSciers de votre ci-devant Bataillon, avons appris par un Ordre General du 21 Fevrie- dernier, qu'il a plu a Son Excellence de vous priver de votre Commission de Lieutenant-Colonel. Cette destitution nous eut surpris dans tout autre terns et toute autre circonstance, mais accoutum^s a voir des personnes de la plus haute consi- deration destituees, nous avions deja prgvu que votre m^rit^ personnel et votre devouement a la cause publique, vous ex- 184 APPENDIX. poseraient a la critique d'agens Bubalternes, qui, poar avoir TOtre Commission, vous representeraient sous un faux jour, auprSs d'un chef militaire. Nous vous assurons qu .- on- servons I'estime, la consideration, et le resp' c<. ij[U« /otre conduitu civile et militaire vous a morit^s, et y»*. r- ■• conai- derons voire destitution comme 4quivalente d j/i p. ri. ronne civique, (Sign6) JEAN B. HEBERT rodent. LOUIS LANDRY. (R^ponse de Mr. Legendre.) Messieurs— Je suis sensible a I'estime que vous me temoignez en cette circonstance. Votre devouement me prouve ce que vous avez 6t6 par le passg, a mon 6gard, je vous en remercie. Je n'ai gte nuUement sorpris de voir dans la Gazette Officielle, un Ordre General du Comto Dalhousie, qui annon9ait ma destitution de commandant du 3me Bataillon du Comte de Buckinghamshire, aprtis les projets depuis longtems raeditgs centre moi, par des gens vils et rempans, qui ont en6n trouve une occasion favorable dans la credulite dun chef qui se laisse induire en erreur par les imposteurs, qui lancent au hazard des jugemens sans avoir entendu les parties accusees. J'ai I'honneur d'etre, Messieurs, Votre Serviteur, (Sign6) FRANCOIS LEGENDRE. Gentilly, 7 Mars, 1828. M (No. 7.) Extract from the Quebec Gazette of the 12th November, 1827, containing the libellous matter for which an indictment was found by the Grand Jury against Mr. Charles Mondelet, in the Term of the Court of King's Bench, held at Quebec, in March, lb28. APPKNDIX m vous me "A Son Excellence George Comte de Dalhouaie, Gouverneur- en- Chef, 8fc. $^-c. S^c. Qu'il plaise h, Votre Excellence, Si je n'C'coutais quo la voix qui so fait entendre puis- fiamment an fond des cceurs de beaucoup de vos partisans, ft de la plupart de vos courtiHans, je sera i» peut-etre enclin a voir en vous un etre privilegiti, et a I'abri des atteintes de la loi. Mais, qu'il plaise a votre Excellence, glorieux d'etre nc ot de vivre sujet Britannique, je dois reconnaitre comme principe souverain que la loi est au dessus des autoritC's. II me sera done permis. de me pr^valoir du droit dont jouit un sujet de I'empire Rritai nique, celui de signaler a votre Excellence, avec tout le repsect que votre haut rang commande, un acte rucent de votre Ad- ministration, qui ce me semble, ne lui tlonne pas beaucoup de relief. La plus grande clarte si je ne me trompe, aussi bien que la bonne foi la plus scrupuleuse, doivent caracteriser lea actes d'une Administration quelconque ; la bonne foi dans leur perpetration, la clavte dans la mani^re et le mode ou il sont soumis au public. Or, qu'il plaise a votre Excellence, quelque 8oit le merite des motifs qui ont pu induire votre Conseil a vous portt: a me demettre de ma Commission de Capitaine Aide Major a la division de Boucherville, je prendrai la liberty de representsr a votre Excellence, que votre Conseil s'est un peu ecarte de la saine logique, en vous avisant sur cette mati^re, abstraction faite de Villegalite de votre Ordre General du 5 Novemhre courant, a P emanation duquel votre Conseil a fait servir d'instrument, votre Excellence. La raison assignee comme cause agissante sur I'esprit de votre Excellence, me paroit-Stre mon absence de la Division a laquelle j'appartenais. 11 faut avouer, que si cette decouverte de la part de Votre Conseil est recente, elle ne dit beaucoup en sa faveur; si Ton savait que je ne residais pas a Boucherville, comment se fait-il que le z61e de Votre Conseil ait ete jusqu'a present si endormi? Si done le motif de Votre Excellence, pour me demettre, est appuye sur ma non-residence dans la division de Boucherville, il est assez singulier que MM. Charles Panet, Pien. Elzear Taschereau, 'tfik^: 126 APPENDIX. et Charles Turgeon, egalement absens des divisionB auxquels ils appartiennent, soient detenus les objets des predilections de Votre Conseil, au point de I'engager a aviser aussi singuli^re- ment Votre Excellence. Ces Messieurs sont promus, et chose frappante, Votre Conseil na craint ni pour iui-tyeme, ni pour Votre Excellence, la reprobation public^ et le ridicule qu'une semblable contradiction miriterait a son auteur! Peu de lignes la montrent au public dans tout son jour. II me setnble, qu'il plaise a Votre Excellence, que la loi, k justice, et la saine politique (qui dans une administration doit avoir pour but de ne pas exciter des mecontentemens) auraient du suffire pour ne pas egarer a ce point Votre Conseil, et par suite, Votre Excellence. Demettre de ses fonctions quelconques, un sujet Britannique, sans lui donner prealablement I'occasion d'etre entendu, sans lui assigner de raisons, ou lui en assignor qui couvrent de ridicule le procede qui y tend, aussi bien que ceux qui I'adoptent n'est pas beaucoup respecter les opinions, les idees, et les principes, que I'age actuel et le systeme admirable de Tadrainistration Britannique, ont coiisackes au foyer de I'em- pire, qui, grace a Votre Conseil, est souvent pri?6 de nous faire ressentir la douce influence des rayons qui en jaillissent. Si vous m'eussiez tax6, qu'il plaise a Votre Excellence, de m'etre refus4 a Fexecution de vos ordres generaux, qui me semblent aussi illegaux, que sont illegales et non lots, les ordonnances que I'on assigne comme leur base, vous n'auriez pas pu. a la verite, en justice, me demettre, sans me donner I'occasion d'etre entendu, mais au moins les formes de votre Ordre General n'auraient pas en apparence choqii^ la raison, et cette ordre n'aurait pas H& aussi fortemeni I'object du ridicule de coux qui ne font pas profession volontaire ou necessaire de courber ser- vilement la t^te a la voix de celui que plusieurs regardent comme 6tant au dessus des lois. En dernierc analyse, qu'il plaise a votre Excellence, je me perraettrai de vous dire, en usant du droit d'un sujet Anglais, qu£ votre Conseil egare grandement votre Excellence, en la portant a commeltre des actes qui devraient etre inouis sous Vempire Britannique, et dont notrc Colonic scule offre des exemples. Quant a ma demission (qui dans le fond n'en est pas une puisqu'il ny a aticiine loi de milicej loin de me peiner. loin de produire sur APPENDIX m moi I'effet qne votre CoDBeil et voire Excellence en ont peut- etre anticip6, elle ne peut que me rendre glorieux, soie qu'elle ait eu pour cause mon refus de reconnaitre comme lots, des ordonnan ces qui ne le sontpas, soit qu'elle ait etg la suite de la conduite politique que la justice, mon respect pour le* loix et la constitution, et mon attachement inebranJable aux interets de ma patrie, m'ont impose le devoir imperieux de tenir. Telle a etg ma conduite, qu'il plaise a votre Excellence, telle elle sera, tant que j'aurai le bonheur de me glorifier d'etre, un sujet Bri- tannique. CHARLES MONDELET, Ex-Capitaine Aide-Major a la division de Boucher- ville, et Avocat resident aux Trois-Rivi^res. Quebec, 10 Novembre, 1827. (No. 8.) Extracts from the Quebec Gazette, of the 29th November, 1827, containing the libellous matter for which an Indictment was found by the Grahd Jury, against Mr. Neilson, the Editor and Printer of that paper, in the Term of the Court of King's Bench, held at Quebec, in March, 1828. « Nous avons vu que le Procureur-Gen^ral a soumis an Grand Jure des bills d'accusation pour libelle, savoir ; deux centre MM. Waller et Duvernay, I'un gdiieur et I'autre im- primeur du Canadien Spectateur, un contre M. Lane, imprimeur du Spectateur Canadien ; et que la majority dee jur^s a approuvg ces bills. Pour toutc remarqueje renvoie a la composition du jure; et je declare seulement que c'est la premiere fois, a ma connaissance, qu'une cow de justice, au lieu d'inspirer, la con- fence et la securite a tous les citoyens, aparu inspirer au con- traire des craintes pour la liberie et la propriete des individus en general^ quelle etait censee defendre. Le bill trouve contre les Editeurs des Papiers qui ne sont pas les fauteurs du pottvoir arbitraire, est certainemmi des 128 APPENDIX. autns procedes dune cour quit au lieu de s'occnper, comme Findique la pratique constante et le discours d'ouverture de son honneur le Juge Reid, a, vuider les prisons surchargees de brigands, dHncendiaires et de meurtriers, a pris presque exclu- sivement pour ohjet de ses travaux pendant une duree de quinze jours, des offenses hien moindres, telles que des emeutes, des assaults et batteries de simples delits ; devant laquelle enfin on atraduit, pour des offenses politiques, despersonnes qui avaient deja ete acquittees par un jure du pays, ou d'autres personnes qui netaientpas meme arretees lors de la constitution de la cour. Lea Bills pour parjure trouves contie eux a la pouisuite du Pro- cureur-General, maintenant partie publique coutre eux, et qui avait ete acquittes au dernier terme du Banc du Roi ; les bills pour emeute et assault et batterie centre nombre d'electeurs du quartier-ouest de Montreal, loraque le dernier Grand Jure avait trouve bill contre deux seulement pour rescue ou deliverance d'un prisonnier d'entre les mains d'un connetable ; I'accusation portee contre Mr. Jacques Viger pour n'avoir pas mis a execu- tion uii ordre des magistrats, n'ayant pu le faire en consequence d'un supersedeas accord e par plusieurs autres members de ce corps ; enfin le bill contre les presses qui ne rampent pas ser- vilement aux pieds de certains officiers publics ; voila la pro- tection que doit a la cour la societe du corps de laquelle on pretend que le Grand Jure a eite tire. En parlant de la composition du Grand Jure, ce n'est pas a dire que tous ses membres soient de la meme trempe ; la par- tialite eut ete trop visible ; je me flatte seulement que la seule inspection de leurs boms peut exciter de grand soap9ons a ce sujet. Les merabres de jure ont ete bien loin d'etre uuanimes sur les accusations d'une nature politique; pit sieurs dentr'eux auraient rougi de servir d'instrumens a la pvij-s i tiun; on dit meme que quelques-uns dont les opinions politlqu'^s aiiraient pu les egarer, ont ete frappes de la PiUre des oifenses qu'on soumettait a cette cour ; on dit ausbi q'iib jurea ont eui d'accord Bur un des bills : qu'un des membrss de la minorite a cz:[,»ae u ses confreres d'une maniere tV>i -ne et lumlneuse ie danger qu'il y aurait pour eux d'agir par resseui'ment et pai passion. Ill m APPENDIX 1S9 No. 17. Cbpy of a Letter from James Stuart, Esq.ire, to the Itight Hon. Lord Viscount Goderich, 8fc. &;c. London, 8, Dover Street, 22nd Oct. 1831. My Lord, frnm r A T'f"" *''''' ^""^ '^^y' P^'- ^ ^«^« received from Canada several affidavits, relating to two of tbr. charge, of the Assembly, against me; which, though strictly speaking, not necessary for my justification, cannot b,.t be deemed satisfactory in the consideration of these charges ; and 1 beg loave, therefore transmit copies of them, herewith, to your Lordship. Among em are the affidavits of Samuel Gale, Es.uire, late chairman of he Court of Quarter Sessions for the District of Montreal, of John Dehsle, Lsquire, Clerk of the Peace, and also Clerk o the Crown for the same District, and of Thomas Andrew Turner, Esquire, Pcreman of the Grand Jury, in March, 1830 whose presentiment is referred to in the Proceedings of the As* Bemb y. The affidavits of these respectable individuals, whom I had no opportunity of seeing n.evious to my departure from Canada, have been made by them, of their own accord, from a sense of justice and a regard fo. .ruth. They contain details with which the official dudes of these gentlemen, connected with those o the Attorney General, made them particularly ac- quamted; and while they eontin . my statement, the . uh of which IS well kno vn t. pe. at all conversant with the CW- mma Courts in Lower C unada, they disprove in toto, and i„ minute particulars, the second charge of the Assembly, grounded on the evidence of Mr. Jac ,:r . Viger. fe'^unued The tw> other affidavit; herewith transmitted relate to the fifth charge of the Assembly. In my answer to this charge it is stated, that no private prosecutor ever required m. to in«tW... ^he prosecutions for pt.^ary, for the non-institution of which I R m ISO APFBNDIX. am belt! culpable ; and also, that one of the charges for perjury alluded to by the Assembly, was made against a voter who had voted without laking any oath whatever. Both these are sin- gular facts, and are now accounted for, by the disclosures made in these two aflBdavits ; by which it appears that tbe persons by whom the charges in question were made, being all of them of low condition in life, were conveyed to an island lying in the River St. Lawrence, between William-Henry and Berthier, where they were made drunk ; and that while they were in a Btate of intoxication, disqualifying them for taking an oath, a Justice of the Peace, who had been sent for to the contiguous mainland (Berthier) for this purpose, arrived on the island, and swore them to the depositions, which were subsequently sent to me» to ground prosecutions for perjury. With a knowledge of these facts, it ceases to be a matter of surprise, that a voter, who had taken no oath at all, should have been charged with perjury by a drunken man deprived of his reason, and that no private prosecutor would incur the responsibility of acting on depositions thus taken. I have the honour to be, with the greatest respect, My Lord, Your Lordship's most obedient, humble senrant, (Signed) J. STUART, To the Right Hon. Lord Viscount Godericb, &c. &c. &c. APPENDIX. 131 No. 18. Affidavit 0/ SvMUEL Gale, Esquire, late Ck^irman <^ the Court of the Quarter Sessions of the Peace for the District of Montreal, in Lower Canada. PROVINCE OF LOWER CANADA. District of | t, Montreal. / ^<* ^"• SAMUEL GALE, of Montreal, m the said district, Es- quire, Advocate, being duly sworn, deposeth and saith, that he was appointed one of His Majesty's Justices of the Peace, and Chairman of the Court of Quarter Sessions, in and for the said district of Montreal, in the month of May, one thousand eight nundred and twenty-four, or about that time, and continued to discharge the duties of the said office, as well as the duty of Police Magistrate for the said district, until the month of October now last past, with the exception of a period of about seventeen .-nonths, during which he was absent on a mission, on behalf of the Executive Government of Lower Canada, and during which another person was appointed to perform the duties of the said office. And the deponeht further saith, that, according to the practice which prevailed during the said period of time, as well as previously, it was his duty to transmit to His Majesty's At- torney General for the said Province, residing at Quebec, in the said Province, the depositions and papers relating to criminal proceedings to be carried on in His Majesty's Court of King's Bench for the said district of Montreal ; and such depositions and papers, it was usual and customary to forward to the said Attorney General, some days before the opening of the said Court, in order that the said Attorney General might prepare the necessary Indictments, and give the requisite directions for the subpoenaing of the witnesses in support of the proceedings to be grounded on the said depositions and papers. And the deponent further saith, that this course was pursuHd, as we!! 132 APPKKOtX. w; before as after the appointment of Jamea Stuart, Esquire, to tlie eaid office of the Attorney General. And the deponent further saith, that among the depoRitions and papers so transmitted to the Attorney General, it has been the practice to include depo- sitions and papers relating to petty larcenies and misdemeanors, of which persons in custody have been accused, and proceedings for such offences in these cases have, during the period aforesaid been carried on by the Attorney General in His Majesty's Court of King's Bench ; and the deponent believes that the same practice has obtained for a great number of years past, in the said district. And the deponent further saith, that having perused the evidence ascribed to Jean Delisle, Esquire, in the Second Report of Grievances of the House of Assembly of the said Province of Lower Canada, and therein appearing to have been given before the said Committee, on the eighteenth day of February last, this deponent saith, that the depositions and papers relating to the indictments therein-mentioned to have been preferred against Francois Fournel, Thomas Pebble, Jean Baptiste Blondin, Pierre and Tiraothe Guerin, Jean Baptiste Fournel, and Richard M'Ginnes, and David Codey, and also against Charles Carpenter, were, to the best of his recollection and belief, transmitted, together with the recognizances of such of the witnesses as had been bound over, to the said James Stuart, as such Attorney General, in the usual and accustomed manner,^in order that he might prepare Indictments, and carry on proceedings on the same, in His Majesty's said Court of King's Bench, for the oflFences specified in the said evidence of the said Jean Delisle.^ And having also perused the evidence ascribed to Jacques Viger, Esquire, in the said Second Report of the Committee of Grievances, and therein appearing to have been given, before the said Committee, on the twenty-third day of February last, this deponent further saith, according to the best of his recollection and belief, derived from his having acted in his capacity aforesaid, that the several indictments whereof mention is made, in the said last-mentioned evidence, and which, it is therein stated, were preferred against the individuals therein named, were framed and drawn up, upon or in consequence of depositions and papers, which, in the usual and accustomed r«onner before mentioned, had been transmitted to tlie said APPENDIX. 133 Attorney General (James Stuart), in order that he might ground proceedings on the same ; and that the said James Stuart, in tl.e several cases mentioned in the evidence of the said Jean Dehsle and Jacques Viger, preferred Indictments, and carried on proceedmgs against the several individuals therein named, in H.S Majesty's said Court of King's Bench, in the usual manner, and as th.s deponent is of opinion would have been done by his competent predecessors in office, under al the circumstances. And th,8 deponent further saith, that, during his continuance m the office of Chairman of the Quarter Sessions, he endea- voured to cause various larcenies and offences of the minor descnptions, mentioned in the evidence of the said Jean Delisle and Jacques Viger, to be prosecuted before the Court of Quarter Sessions, and gave directions to that effect to the Clerk of the I eace ; but that the .aid Clerk of the Peace, Jean Delisle, Esq represented to this deponent, that he had heretofore made dis- bursements in subpaM.aing witnesses, and other proceedings, on behalf o Government, before the said Court, for which he had long and vainly solicited payment, as there were no funds appr . pnated for the payment of such process, and the allowance of witnesses, before the Court of Quarter Sessions, and that it could not be expected that he, the said Clerk, was personally to incur the losses and expense attendant upon such prosecu- tions, nor was he inclined, from his own funds, to make the disbursements. That this deponent conceived the said Clerk to have just reasons for his conduct, and hath a knowledge that many bills of indictment for crimes co^ld not be found nor when found, proceeded upon in the said Court of Quarter Sessions, for want of funds to pay the expences and allowances to witnesses; and that when the accused were in confinement for such crimes, there was often no alternative but either to discharge them without trial, or to bring their cases before the said Court of King's Bench, for whose proceedings funds were provided, applicable to the payment of the expences and allow- ances to witnesses; and that, in the opinion of this deponent, the said Attorney General would have been culpable, audit might have been made a charge against him, fbr the neglect of duty, and the established practise of his predecessors in office had he omitted to bring before the Grand Jury aud the said I 134 APPENDIX. Court of King's Bench tlie bills of indictment, the bringing of which is now, by aonie persons, endeavoured to be perverted into malversation, or ascribed to improper motives. (Signed) SAML. GALE. In Sworn before me, at Montreal aforesaid, this 30M July, 1831, (Signed) JS. REID, J.K.B. Montreal. True Copy, J. STUART. ■ I ■'1 No. 19. Affidavit o/" John Demsle, Esquire, Clerk of the Peace for the District of Montreal Lmoer Canada, PROVINCE OF LOWER CANADA. District of Montreal r[ JOHN DELISLE, of the City of Montreal, in the Pro- vince of Lower Canada, Esquire, maketh oath and saith — that he hath been, since the month of September, one thousand eight hundred and fourteen, and continues to be, clerk of the peace in and for the said District of Montreal, and hath been, during six years now last past, and continues to be clerk of the crown in and for the said District. And the deponent further saith, that, in the whole course of the said periods, during which the deponent hath been clerk of the peace and clerk of crown as aforesaid, one uniform practice has prevailed with respect to prosecutions for petty larcenies and misdemeanors, in His Majesty's Court of King's Bench for the said Districi, by the Attorney General, or other crown officer charged with the conducting of criminal prosecutions; according to which practice, prosecutions for the said offences have been carried on 4 ' APPENDIX 135 by the said Attorney or crown officer, in His Majesty', said Court of King's Bench, in cases in which the persons accused of the said offences have been in custody; the said Court of King's Bench being a Court of General Gaol Delivery for the said District. And the deponent further saith, that, since James Stuart, Esquire, His Majesty's Attorney General for this Province, assumed the duties of that office, no deviation whatever has taken place in the said practice; the same course havmg been pursued by the said James Stuart, in carrying on criminal prosecutions in His Majesty's said court, as was pur- sued by his predecessors in office, during the periods aforesaid- and in no instance, to the knowledge of the deponent, has any one prosecution been carried on by the said James Stuart, in His Majesty's said Court of King's Bench, which he believes would not, under like circumstances, have been carried on by the predecessors of the said James Stuart, in the said office of Attorney General. And the deponent further saith, that, ac cording to the practise which has prevailed during the periods aforesaid, the depositions and papers on which prosecutions have been carried on by the Attorney General, in His Majesty's eaid Court of King's Bench, have been forwarded to him by the chairman of the Quarter Sessions and the Clerk of the Peace, in order that such prosecutions might be carried on by him. And the deponent has no knowledge of any criminal prosecutions having been ever carried on by the said James Stuart, in His Majesty's said court, the depositions and papers in relation to which were not forwarded to him for that purpose as aforesaid. And the deponent further saith, that the circum- stance which has in many instances prevented the carrying on of prosecutions for petty larceny, in the Court of Quarter Sessions, has been the want of pecuniary means to pay for the subpoenaing of, and the allowance to witnesses; and this in reality, has been, in this deponent's opinion, the impediment in the way of prosecutions for such ofiences in that court, and has rendered necessary the prosecution of them, in the Court of Kings Bench. And the deponent further saith, that, in the evidence ascribed to the deponent, in the second Report of the Committee of Grievances of the Assembly of this Province and which evidence is thnrAin atn*^A ♦„ i. l . . * ..,„vvu lu uoTc uccu given oa the It '• f -1 « -11 136 APPKNDIX. 18th of February last, an error lias been committe/f/ A %■ 1.0 II I.I 150 ■^" HMIM 1^ 1^ 112.2 6" 1.8 11.25 11.4 11.6 V] vQ 7: '^^'.^^ '^i'^ /!S^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 872-4503 k % <* ?^ 198 APPBNDrr. i ^Hi nisif i^^l ^^^^^n fitS^llt^Kafl III ■'liii ■ ' 1 -* ' ii ^^^11 ,; . '* •the Government to the practice that had bo long obtained ik that respect, to the end that funds might be provided for facili- tating the prosecution of such offences, before the said Court cf Quarter Sessions. (Signed) THO. A. TURNER. Sworn before me, at Montreal, this 9th day of August, ]8S I, (Signed) GEORGE PYKE, J.K.B. True Copy, J. STUART. No. 21. Affidavit of Michel Lafleur, of Sorel, Labourer.^ PROVINCE OF LOWER CANADA. District de) Montreal. J MICHEL LAFLEUR de Sorel, autreraent appelle Willliam Henry, dit district, Journalier, age ie vingt sept ans, apr^s serment prete sur les Saints Evangilet,. depose et dit comme suit: Je deraeure ^a Sorel, depuis douze ans. En mil huit cent vingt aept, au mois de Juillet, il y eut une election au dit lieu de Sorel, tres contestee entre James Stuart, Ecuier, Procureur-Gcneral pour la dite province, et Wolfred Nelson, Ecuyer, Medecin. Cette election etoit pour choisir I'un ou I'autre, pour servir comme membre du parlement provincial. — Lors de cette election, je travaillois pour Louis Marcoux, qui demeuroit alors a Sorel, comme marcband, et qui reste main- tenant a Yamaska, au meme district. Depuis cette election, j'ai continue a travailler pour lui, jusques dans le mois d'Octobre de la meme annee. Vers la fin d'Aout de cette annee, pendant qxiB j'etois occupe a decharger une barge pour lui, le dit Louis APPENblX. 130 Marcoux m'envoya chercher, et me demancja ei je vouloU ainener un de r.es hoinmes avec moi, et le traveraer lai et dautres personnes, ^)I«le d'un nomm^ Morrison, qui etoit urn des Isles dependant d« Ja paroisse de Berthier, situ6e de 1 autre cotg du fleuve Saint Laurent, et presque vis4-vis du dit Bourg de Sorel. Viens, viens av.. moi, dit-il, tu gagneras plu., et je raettrai deux hommes a ta place, et a celle de celui que tu amenes avec toi. La-dessas, je lui dis que j'irois, et ie n.e suis ea cons quence rendu chez lui avec un de mes hommes Ayant vu partir de chez. le dit Marcoux, le nomme Joseph Allard de Sorel, sceur de long, avec unecruche, je m'attendois W qud alloit chercher du Hum, chez le nomm^ Creba^oa. guelque temsaprds son depart, je fus au devant du dit Joseph Allard; 1 ayant rencontr6 a-peu-pr^s h mo\u6 chemin sur son retour chez le dit Marcoux, nous avons bu h meme le crucbe, chacun a sa soif. Cette cruche pouvoit tenir environ un galon et demi, et ,ne paroissoit pleine ou presque pleine do Rum. Arrives chez Marcoux, celui-ci a fait preparer une chaloupe, et a fait embarquer sm- icelle plusieurs personnes; entre ceux qui quisesont embarques sur la dite chalope, Ala requisition du d. Marcoux, 6toient les personnes suivantes, savoir, Joseph Allard, ^.onzague Rouleau. Jean Crebassa, Noel Guillot, Antojne Hus dit Cournoyer, Pierre Bouage, et le nommg Des Jardins. Je ne me rappelle pas des autres, si toutefois il y en avoit; mais Mr. Marcoux etoit un du nombre. Quand ie su,s parti de Sorel, j'etois un peu pris de boisson, mais assez bien en etat pour gouverner la chaloupe, que je crois avoir gouverne comme il convenoit, puisque je I'ai conduite k I'Isle appartenante d un nomme Morrison, laqueile est une des Isles de Berthier susdit. Je me rappelle ti-^s bien qu'en partant de Sorel, le nomme Joseph Allard, dont j'ai parl^, e'toit dans la chabupe. Dans le cours de la travers^e de Soi-el k cette Isle de Berthier, j ai bu du Bum que je croyois veni.- de la cruche en question. Arnve a I'Isle en question, que Ton disoit etre Isle de Monsr Morrison, je ne me rappelle pas au f uste si j'ai bu et mange: il y avoit de quoi faire I'un et I'autre.^ J'ai senti que ma raison etoit bien affoiblie; elle ne I'^toit cependant nas a«sez pour m'empecher de me rappeller de ce qui s'y est passg pourvu que ce fut quelque chose qui me frappat, mais je sais ? ' 1 ? !.;, \^Sk 1 "1,^ 1W 1«0 APPisMDliC. que ma raison 6toit trop affoiblie pour pouvoir me Bervir de guide dans mes actions. Cette Isle oil nous deberquanies, appellee I'lsle de Mons. Morrison, 6toit separ^e d'avec la terre ferme par un chenail d'environ quinze arpens. Pendant que j'litoit dans I'etat que je viens df mentionner, Ton fiit chercher k Berthier Monsieur Joseph Douaire Bondy, qui 6toit alors un juge de paix. Ce Monsieur est renu dans I'lsle en question, et m'a fait prater segment sur une depositiou centre un nomm6 Fontaine, qui avoit vot6 pour le dit James Stuart, Ecuyer, je roe rappelle bien du fait. Mais je sais bien que je n'^tois pas en 6tat sur la part que jepouvois pretendre en paradis d'appeller Dieu a temoin de la verit6 de ce que je disois. Je n'etoit seule- ment pas en ^tat de faire nn marchg, ou de contracter avec quelqu'un pour une entreprise. Je me rappelle tr^s bien que le dit Monsieur Douaire m'a fait faire serment. Suivant mon opinion le dit Joseph Allard, qui 6toit dans la dite Isle avec nous, 6toit dans un 6tat pire que le mien, et incapable de pouvoir se rappeller le lendemain de ce qu'il pouvoit faire alors. Le deposant declare que cette depositiont lui ayant 6te lue, elle con^ient la verit6. Lecture faite, dit de plus qu'il ne Bait signer. Sa (Sign6) MICHEL x LAFLEUR. Marque, li, it Iftt Assermente devant mot, ce 21ejouT Juillet, une huit cent trente et un ; cette deposition ayant itepar moi-meme prealablement lue au dit Deposant. (Sign6) PETER M'GILL, J. P. True Copy, J. STUART. APP£N0IX. No. 22. 141 Affidavit of VfiLhiAt,! M'Lean, of Sorel, Boatman. PROVINCE OF LOWER CANADA. District of \ MpNTREAL. j WILLIAM M«LEAN, of Sorel, otherwise called William- Henry, in the said district, Boatman, being duly sworn on the Holy Evangelists, deposeth and saith as follows, to wit:— I have lived at Sorel aforesaid, for about fifteen years. In the month of July, one^thousand eight hundred and twenty-seven, there was a contested election there between James Stuart, Esquire, Attor- ney General for the said Province, and Wolfred Nelson, Esquire, Physician. In the month of August following, it might be about the fifteenth or twentieth, Louis Marcoux, then residing at Sorel aforesaid, but now residi. , at a place called Yamaska, Merchant, told me that he wished me to assist in ferrying or crossing some eight or twelve persons, to one of the island* belonging to Berthier, on the opposite shore of the River St. Lawrence, and said that he would pay me for my trouble. I went with Mr. Marcoux to his house, where I found eight or a dozen persons. A boat was prepared, some bread and butter put on board, together with a jar capable of containing about a gallon and a half, and which contained rum. We all got on board, Mr. Marcoux being with us. I was one of those who rowed the boat, and Joseph AUard steered her. We put ashore upon one of the Berthier Islands called Morrison's Island. On our arrival, Mr. Marcoux told us to eat and drink, while he would be going to Berthier, that is, the village of Berthier : be did not tell us for what purpose. We were there at the distance of about a mile from the said village. After an absence of about an hour or an hour and a half, Mr. Marcoux returned, with a Justice of the Peace, whose name I did not know, nor do I know it now. While Mr. Marcoux was absent, we did nothing but eat and drink. I observed that the others were drinking too much, and resolved to keep myself sober; I therefore drank but little. By the time Mr. Marcoux returned, they were all tipsy except myself*: some ' ■ m WBsW y " ^ 1 i ^^|G, ■ BB 1 . 142 APrENDIX. of them were very tipsy. Soon after the return of Mr. Marcoux, he inquired of us what we knew about certain persons who had voted for the said James Stuart, at the said election. The said Justice of the Peace swore us upon a Bible or book, which had a crucifix tied, to it. After we were sworn, a man of the name of Kimber, who had crossed over from Sorel aforesaid before us, began to write. I suppose that he was writing what we said. I cau swear positively that one Joseph Allard and one Michel Lafleur were on the island with me, and were sworn by the Justice of the Peace above-mentioned. Joseph Allard appeared to me to be very tipsy : Michel Lafleur was not so far gone. Mr. Marcoux, Mr. Crebaasa, who was one of the party, Mr. Kimber, and myself, were the only sober persons of those who had left Sorel with me : the others appeared to me tipsy, some more tipsy than others. From what I could perceive of my companions, they were none of them sufficiently sober to make a bargain, or enter into any kind of a contract, or comprehend the nature of ari oath. After we were sworn, we returned to Sorel. I received from Mr. Marcoux fifteen pence. What I swore to on the island was, that I was present when a man of the name of Thompson, of Sorel, had sold his lot and premises to Mrs. Kittson, reserving to himself the enjoyment and use of it during his life. I also swore there, that a Mrs. Hunes had, to my knowledge, made n deed of gift to one Joseph Bernier of one lot of land, situate at Sorel, with a reservation for her children, and of the other lot of land which she had adjacent thereunto. In consideration of the said deed of gift, the said Joseph Bernier was to support hei duri : her life. Such were the facts which I swore to. I kno\fr ujx. low Mr. Kimber wrote them down. I declare that I cannot write or sign my name. His (Signed) WILLIAM x M'LEAN. Mark. Sworn to before me, this \st day of August, 1831, at Montreal, in the said District; the fore- going having been by myself first duly read to the said William M'Lean, (Signed) JOS. SHUTER, J. P. True Copy, J. STUART. APPENDIX. 143 COPY OF A LETTER r&ou JAMES STUART, ESQUIRE, TO TlIK RIGHT HON. LORD VISCOUNT GODERICH, 8^c. Sfc. Sfc. London, 8, Dover Street, 22d Oct. 18SI. My Lord, In a Memorial addressed to your Lordship, from Quebec, and also in a Memoir in support of my hun.ble Petition to His Majesty, I have had the honour of bringing under your Lordship's consideration, a satisfactory, and, I ap- prehend, conclusive answer to the charges of the Assembly of Lower Canada, upon which, by their Address to His Majesty, they have prayed for my dismissal from the office of Attorney General for that province. Besides these charges, however, I find that various animadversions on my conduct, and misrepre- sentations of it, are interspersed in certain proceedings of the Assembly, transmitted hither for your Lordship's consideration, which might produce impressions injurious to my character if not repelled and refuted. I hope, therefore, your Lordship will permit me to use this mode of pointing out these animadversons and misrepresentations, and of establishing, that my conduct, in all the particulars referred to, has been unexceptionable and proper— In proceeding to acquit myself of this easy task, I may perhaps be allowed to observe, that the course thus pursued by the Assembly is, I believe, without precedent, and is certainly of a nature (however unintentional it may have jeen on the IW 144 APPENDIX. :i h tif part of the Assembly) to operate great injustice to the officers of His Majesty's Government, who rnay be the objects of such a course of proceeding, as well as an extensive injury to the public service. — The House of Assembly having adoptee^ the resolution of preferring ch.irges against me, it would seem to have been reasonable, juet and proper, that whatever was deemed criminal or culpable in my conduct, should have been cmuodied in these charges. All the grounds of imputed offence would thus have been made known to the party inculpated ; — an op- portunity would have been afforded to him to defend himself, and a fit determination on them might easily have been obtained. Instead of adopting this course, which reason and justice would prescribe, the^Assembly, at the same time that they prefer and convict me of certain charges, bring under the notice of His Majesty's Government, it would appear, ex parte proceedings, unconnected with these charges, in which are to be found anim- adversions, untrue allegations, and misrepresentations, injurious to my character. Hence cause for impressions to my disadvan- tage, and probably permanent injury, is afforded ; while an op- portunity for self-defence and justification, or even for explaina- tion of any kind, is withheld. This course of proceeding, I beg leave in all humility to state, appears to me to be most unjust towards the person against whom it is adopted, as being calcu- lated indirectly, on the false, unfounded, and malicious state- ments of irresponsible individuals, to injure him in credit and character, without cause, without hearing or trial, and without means of redress on his part ; and to be highly injurious to His Majesty's service, as having the effect of bringing a public officer, and, through him, the Government itself, in some degree, into disparagement and discredit ; thus impairing the usefulness and efficiency of both, while the gratification of private malignity, a purpose not intended by the Assembly, is alone accomplished. — Either the statements of facts contained in the proceedings now referred to, did or did not, in the opinion of the Assembly, afford sufficient cause for imputing official misconduct to me : if they did, charges against me, grounded on them, ought to have been exhibited : if they did not, these statements, it ap- pears to me, ought not to have been extracted from the Journals of the Assembly, to be submitted to His Majesty's APPfiNDlX. US Government, or to be put into public circulation, to my injury. ' "' At the same time that I have deemed it a duty, therefore respectfully to solicit your Lordship's attention to the manne; in which the animadversions and misrepresentations, as to my conduct, have been brought under your Lordship', notice I n^ost readilyand willingly proceed to point out and refute them. Ihey are to be found in the Report of a Committee of Grie- vances on the Petition of Edward Glackmeyer. in a R.port and Resolutions of the same Committee, on the Petition of William Lampson, in which Resolutions the Assembly has con- curred, and in detached statements of individuals, unconnected with any subject before the Committee. In this order, I «hall beg leave to advert to them. In the 6.st of these Reports, my conduct is made the subject of animadversion m two particulars;-! at. In having received fees on new Commissions for attornies and notaries, on the occasion o the demise of His late Majesty; 2d, In having in- troduced alterations in the Commissions of Notaries, by which these Commissions are assimilated, it is said, to the Commis- Bions of Public Officers, whose appointment depends on His iviajesty. That these animadversions of the Committee of Grievances niay be duly appreciated, it is necessary briefly to state what was done by the Government of Lower C .ada, with respect to the issuing of new Commissions, after the demise of His late Majesty, and what acts of official duty were performed by me in relation to this matter. On the 7th December, 1830 a circular letter was adressed by Lieutenant Colonel Gkfr. the Governors Secretary, to the Judges and Law Officers of the Crown, requiring them «'to report, with all practicable despatch, for his Lordships informacion, what effect (in their opinion the demise of His late Majesty George the Fourth would have on the Commissions of Public Officers in this Province, after ^ the lapse of six months from that event, and whether a re- ■ newal ot such Commissions would be of indispensable necessity, before the expiration of the said period of six months." Unoa tins reference, the Chief Justice of the Province, the Chief Justice for the District of Montreal, and all the Judges, with T ',11 146 APPENDIX. If I,' I the exception of two, and all the Law Officers of the Crown, concurred in opinions separately given, that the CommiBsionfi of Public Officerii in the colony would be determined at the expiration of nix months from the demise of His late Majesty, and that the renewal of them, before the expiration of that period, would be indispensably necessary. In consequence cf these opinions, the Governor of the Province, by an Order in Council, directed the Provincial Secretary to publish in the Newspapers a noiice, by which persons holding Commissions, during pleasure, under His Majesty's Provincial Goverment, which, at the time of the demise of His late Majesty, were in force, and would continue to be so, by statute, till the 26th December, might be notified, that their new Commissions, rendered necessary thenceforward by His late Majesty's demise, would be delivered to them on application at bis office. At the same tim^, an order of the Govornor was conveyed, in a letter from his Secretary, to the Attorney General, directing him to give his assistance to the Secretary of the Province, in the issuing of new Commissions, by preparing such drafts of them as might be required. No authority whatever was ex- ercised by the Colonial Government, as to the issuing of new Commissions, except in the particulars now mentioned. In the course thus taken by the Government, I became its humble in- strument, in execution of its express orders, by performing three acts of official duty — I gave an opinion, as required by the Governor's order of the 7th December, 1830, in which the Chief Justices and Judges of the land, and the other Law Officers of the Crown, concurred; I prepared the draft of a notice, which was approved by the Governor in Council, who ordered it to be published by the Secretary of the Province ; and I prepared such drafts of Commissions, as were required at my bands by that officer. It was not to have been imagined, that cause of complaint, either of the Colonial Government, or myself as one of its officers, could have been found in these facts. The measure of issuing new Commissions was adopted on the highest authority within the colony, and was grounded on the best legal advice that coald be obtained, that of the Judges and Law Servants of the Crown. The notice which was published under this authority and advice, it is also to be APPENDIX. 147 observed, was expremly and excluMTely addressed to those public officers only, whose commissions by law would expire at the end of six months from His late Majesty's demise. At the same time, no obligation was imposed on any public officer to renew his commission, it beiti^ left to his discretion to do «o or not, as he might be advised, and on his own responsibility. la this, as in other cases, depemling on a rule of law, or an enact- ment of the legislature, it was not competent to the Go-'ernment to prescribe an interpretation of it. A specification of the officers on whom it might be incumbent to renew their com- missions could not therefore proceed from the Govornor of the Colony: the law itself was to bo referred to by the individual! tliemselves, as governing this point; and the cases in which a renewal of commissions might or might not be necessary, could ultimately be determined by the King's Courts alone ; though on this, as on some other recent occasions, in Lower Canada, their authority, if not superseded, was certainly encroached upon in an extraordinary manner by public meetings, called for the purpose of determining and settling the law on this subject, at which resolutions to that effect were passed. The decisions of these meetings are even referred to in the Report of the C./mmittee of Grievances, with approbation, and, it would ap- pear, as constituting some authority. No reference, however, was ever made to me by the Colonial Government, on the point now adverted to, and 1 was neither required to give, nor did over give, any opinion as to the description of public officers, whose commissions would or would not require renewal. In what respects Public Notaries, in particular, I was never called upon to express, nor have I ever given any opinion as to the necessity of the renewal of their commissions. These being the general facts connected with the animadversions of the committee, on my conduct, in the issuing of new Commissions, J now beg leave to answer, specifically, the two animadversions abov(! mentioned. With respect to Fees on the new Comraisdons of Attornies and Notaries, I have to observe, that Fees on Public Commis- sions are received, not by the Attorney General, but by the Secretary of the Province, who demands and receives fees, at his peril, on Public Commissions, and afterwards accounts to the f lU APPtStitK. Attorney General, from time to time, for his proportion of thfttf^ If, thorefvre, fees ha'l been improperly taken, (which in not thfl fact,) the culpable officer would not have been t,,e Attorney General, but *So Secretary of the Province. In this, aa in other instances of the proceedings of the Ast^embly againfit hie, I cannot but remark, as evincing a Hingnlar proneness to fasten the impatatiou of otfence on me, that I am made chargeable for the supposed misconduct of other public officers, which is imputed to me, and me only, as if it were mine ; and in this particular in- Btance, that which is deemed innocent in another, is declared to be culpable in me. The effect of such a spirit in leading to the erroneous conclusions which have been adopted by the Com- mittee of Grievances, yonr Lordship cannot fail to appreciate. Bnt, in truth, the Secretary of the Province only ('.ischarged his duty, in taking fees on the new Commissions of such :tomies and notaries as required them : these Commissions were pre- pared at their express desire, and they were of course equally bound to pay for them, according to the establisherl tariff, a" for the forriier Commissions which they held. What renders this animadversion of the Committee the more extraordinary is, that the attornies and notaries, who solicited and obtained new Commissions, have not complained of the payment of fees on them ; and no reference appears ever to have ueen made to the Committee on this head. Mr. Glackmeyer, a notary, who alone petitioned the House, and whose Petition was referred to the Committee, was not one of the number of notaries who solicited and obtained new Commissions, and could not there- fore complain of thes payment of -fees. The Committee has, therefore, it would appear, directed its attention to a matter not bnught under its cognizance ; and, in doing so, has evi- dently misapprehended the subject, and mistaken its object, in imputing blame to me, on the score of fees taken by the Secretary of the Province, on the new Commissions of attornies and notaries, wlio applied for them. In the second of the animadversions above-mentioned, alterations, it is said, have been made in the Commissions of Notaries, by which *' these Commissions are assimilated to the Commissions of Public Officers, whose appointment depends on His Majesty." What is meant by these latter words, 1 do not ArPEVDfX. 149 (liHtlnctly unucr.Uand. — Notari«« aro pablic ofticerii, veHterf with considerable poweiH, and charged with very important dutien, urnong which are tho preparing, authenticating, and safe custody of all titles to land held under tii« French tenures. — The ap- pointment of these otticers in Lower Canada proceeds from, and has always been made by the Crown : it therefore depends on His Majesty; and I am at a loss, therefore, to conceive oa what ground such appointments are supposed to differ from other appointments which depend on His Majesty, and with which an ashimilation, it would seem, is held by the Committee of Grievances to be improper. Ijut, in reality, no t eraiion whatever have been made in the Commissions of Notaries, by which the nature, (Juration, or effect of these Commissions could in the smallest degree be chaii 'ed or affected. Having for the first time been required to piepare the Draft of a Notary'-. Commission, 1 became responsible for the correctness and suffi- ciency of the Draft I might furnish. The form in use for Com- missions of Notaries was under the Governor's Private Seal. In the appointment of these, as of other public officers, it ap- p«>arecamp of His Excellency. Although the repeal of the ordinance on which these actions were founded, it appears, was insisted upon by the Honourable Mr. Primrose, the attorney and counsel of the defendants, and although the Magistrates were by him made acquainted with the report on which the pardon and licence had been refused, they, never- theless, convicted the defendants of the alleged offences for which these actions were brought, and, besides imposing on them a penalty of five poun Is, sentenced them to an imprison- ment of twenty-four hours in the common jail fur the District of Quebec. Boucher, one of the defendants, being on the spot, was immediately imprisoned under this conviction ; against the two others, Messrs. Cowie and Davis, who were at Mille- Vaches, distant about one hundred and fifty miles from Quebec, warrants were forthwith issued for their apprehension and com- mitment, to undergo at Quebec an imprisonment of twenty-four hours. After Boucher was lodged in jail, under an order of Mr. Sewell, the Sheriff of the District of Quebec, who, it would appear, took upon himself to execute the Magistrates' sentence of imprisonment, without any warrant in writing from them to that effect, a Petition for a Writ of Habeas Corpus to relieve him from his imprisonment, was presented by the Honourable Mr. Primrose on his behalf to the Chief Justice of the Province, and, on his refusal to grant the Writ, a similar Petition was presented to the Honourable Mr. Justice Kerr, one of the Justices of the Court of King's Bench, who ordered a Writ of Habeas Corpus to issue, as prayed for. Under this writ, Boucher was brought before Mr. Justice Kerr, but before the hearing of his case was concluded, the period of his impri- sonment expired, so that he was discharged on this grouud, as a matter of course. Similar Petitions were afterwards pre- sented to Mr. Justice Kerr ou behalf of Messrs. Cowie and Davis, to be liberated from their imprisonment, and upon the return of the Writs which he granted they were discharged. The defendants having afterwards obtained Writs of certiorari, to bring into the Court of King's Bench the convictions which APPBNDrX. 169 they had undergone before the MagistrateB, applications wer« inalic uid private interests involved in this Petition, as with a view to the immediate in- vestigation of the injurious imputation it contains on the character and honour of a public officer of high trust in the colony, would have unhesitatingly referred this Petition to His Majesty's law servants, including the Attorney General, the inculpated officer, for their report on the allegations of the Petitioner. The concluding paragraph of the Petition, it might APPKNDIX. 16S have been eipected, would, in the opinion of Hit ExcelUncy, havto rendered this reasonnble course urffently neceviary and proper. That ihiu comae was not atlopted appears tlie more extraordinary, as in a l«tler to me from Lieutenant Colonel Glegg, Secretary to His Excellency, dated tJie 30ili December, 1830, upon the subject of Mr. Lampsoa's Pttiiion, and with reference to my request, that if any imputation against me had been made or insinuated, it might undergo immediate investiou- tion, His Excellency was pleased to give the most positive assurances that •' no malicious insinuations regarding my cha- •« racter had reached his ears ; that lie was an entire stranger to "any such insinuations, and had they been conveyed to him, he " would have imparted jiem to me,' It is fit that your Lord- ship should be informed, that not only were the contents of this Petit'^-n withheld from me, at the time it was acted upon by his Excellency, but, in fact, I did not become informed of them till the Petition was published in the month of April last, among other papers laid before the House of Assembly, by his Excellency. Omitting to require the report of the Attorney General, or of any other of the law servants of the Crown, on the Petition of Mr. Lampson, his Excellency was pleased to adopt the state- nients contained in that Petition, as the ground of his determin- ation, by which the Attorney General was peremptorily ordered to institute an action for the establishment of boundaries be- tween the King's Posts and Mille- Vaches, without having been afforded sny opportunity for ascertaining the sufficiency of the grounds on which such an action was to be instituted, and without having been previously required to give any opinion respecting them, or in any manner consuled on the subject. In compliance with his Excellency's peremptory order, exclud- ing the exercise of any judgment or discretion on my part, this action was instituted by me, on the 16th of February last. And I beg leave to refer your Lordship to the correspondence* here- unto annexed, which preceded the institution of it, by which your Lordship will become accurately informed of the peculiar and unusual circnmstances under which that measure was adopted. • Vide Appendix, No. 4. 164 APP£NtlX. It appears that subsequently, on the Ist of March, a Petition was presented by Mr. Lampson, to the House of Assembly. Of the proceedings had on this Petition, as well as of the trans- mission of them to this country, for your Lordship's considera« tion, I remained ignorant, until I observed in the newspapers of the colony, an answer of his Excellency Lord Aylmer, to an address of the Assembly, by which his Excellency assured the House he wouid transmit them ; but his Excellency did not make me acquainted with the address, or his answer to it, till after a letter was written by me to his Excellency's Secretary, requesting to bo informed, whether such proceedings bad, or had not, come under his Excellency's notice.* In his Petition to the Assembly, Mr. Lampson, after a par- tial and untrue statement of facts, representing him to be an unoffending and much injured party, ascribes the prosecutions which he states to be pending on the criminal and civil side of the Court of King's Bench, being those above mentioned, •* to the aggressions of the agents and servants of the Hudson's " Bay Company," and then proceeds to advance specific causes of complaint against me, as Attorney General, which, being divested of injurious terms and gross misrepresentation, resolve themselves into the acts of official and professional duty per- formed by me, as above stated. This Petition was referred by the House of Assembly to the Committee of Grievances ; and, upon it is grounded the Third Report of that Committee, to which your Lordship's attention is now solicited. The Report was preceded by an investigation, in whjch Mr. Lan>pson, his counsl and attorney, were the only witnesses examined, to subsantiate the alledged rights of Mr. Lampson, and justify the conduct of himself and of his servants, (these being subjects which were then under the cognizance of His Majesty's Courts of Justice,) and also ta prove his alledged grounds of complaint against me. Two other witnesses, the Honourable Mr. Primrose and Captain Byfield, were, indeed, examined before the Committee, but as to imma- terial points ; the former, as to his professional engagements to the Hudson's Bay Company, and the instances in which I acted • Vide Appendix, No. H. APPENDIX. 165 i1 I professionally for tliat Company, and the latter as to the geo- graphical situation and extent of the Bay of Mille- Vaches. Upon the information thus obtained, the Committee has takea a wide range in its Report, embracing all the subjects of litiga- tion between the Hudson's Bay Company and Mr. Lampson, and their servants respectively, as well in criminal as civil Courts of Justice. As was to be expected from the sources of informa- tion exclusively referred to, the Committee has found no diffi- culty in deciding, summarily, in the most unqualified terms, in favour of Mr. Lampson, upon all these subjects. The criminal prosecutions against his servants, in one of which a conviction on confession has been obtained, and in others of which Indict- ments have been found by a Grand Jury, are held by the Com- mittee, without any evidence whatever before it, to have been frivolous and vexatious, while those which Mr. Lampson insti- tured, and in wliich bills of indictment were ignored by the same constitutional authority, are, with like easy acquiescence in his statements, and equally without any evidence to enable the Committee to form any opinion on the subject, declared to have had the best foundation. With the same facility, the Committee has pronounced Mr. Lampson's alledged civil rights and claims to be, all of them, well founded, and seems to have perceived nothing reprehensible in his manner of enforcing them, by tak- ing the law into his own hands ; the forcible entry and detainer committed by him on the Seigniory of Mille- Vaches, it would appear, has been held by the Committee to have been an inno- cen; act ; he is clearly also, according to the opinion of the Corimittee, entitled to all the land he has forcibly wrested from the proprietors of Mille- Vaches, and from the Hudson's Bay Corafany, and to all he has claimed; he has an equally just rigl t, in their opinion, to the furs, which he demands in his action of detinue, still undetermined, the latter action, accord- ing to the judgment of the Committee, being well founded, while the action of " Reintegrade," against Mr. Lampson, has received their marked disapprobation. In a word, the Com- mittee, having adopted the statements and legal opinions of Mr. Lampson, his counsel and attorney, as the foundation of its decisions, without further inquiry, and havine virtuallv mada Mr. Lampson a judge in bis own cause, has decided on all the 166 APt>Ei4I>IX. subjects in dispute between him and bis adrerse parties, pre* cisely as Mr. Lampson himself would have done, and, I may be permitted to add, in the same sweeping manner. Upon such an exercise of power by a Committee of the Assembly of Lower Canada, and the effect of it in overaving, obstructing, and in- fluencing the administration of justice, it does not belong to me to offer any remark. In what respects myself, a corresponding facility has been displayed in finding me guilty, upon all the heads of complaint which Mr. Lampson, his counsel and attor- ney, have found it convenient to fasten on me ; and this has been done, in terms not usually employed in parliamentary reports, but strikingly indicative of the spi.it in which the proceedings of the Committee have been conducted. That 1 may with be- coming brevity and disMnctness, answer the animadversions or charges of the Committee, conveyed in these terms, I shall beg leave to class them under certain heads. First, — I am charged, in the Report of the Committee, with official misconduct, in having, professionally, taken upon myself the defence of an action of detinue, brought by Mr. Lampson, whereof mention is above made, and which, it is said, was grounded " on the illegal and forcible agressions" of the servants of the Hudson's Bay Company. Tiie Attorney General of Lower Canada, for the time being, as well as the other law servants of His Majesty in that Pro- vince, has always been engaged in private practice, as an Advo- cate, to an extent corresponding with his professional character and industry. — In the adjoining Provinces, and in other parts of His Majesty's Dominions, the same^ right of practising as a private Advocate is exercised by the Attorney General. This right is of course limited to cases in which His Majesty's inter- ests are not involved. Subject to this limitation, within which I have always acted, it was, I presume, perfectly competent to me, to institute or defend actions for individuals. In the action of detinue in question. His Majesty had, and could have no interest whatever. The defendants being in possession of certain furs, Mr. Lampson instituted this action, to recover them, as being his. The action, therefore, involved merely a question of nrivntA richt between him and the defendants, from the de- termination of which, neither profit nor loss, benefit nor injury, Vfc APP£NDIX. 167 could accrae to the Crown. Mr. Lampaon, it is to be observed, also, did not apply to me to institute the action, or consult me respecting it, but, as he had a right to do, made choice, for that purpose, of a professional gentleman, in whom, it is to be pre- sumed, he reposed confidence ; and with him he associated, as counsel, Mr. Vanfelson, who holds the office of Advocate Gene- ral in the Province. I am, therefore, charged as being culpable, in a high degree, by the Committee of Grievances, for having withheld from Mr. Lampson professional services which he never solicited, and which, by the employment of other Advocates, he precluded me from affording. But it is also perfectly plain that the defendants had the same right to choose their Advo- cate, which Mr. Lampson had himself exercised, and that their choice might fall on me, as well as on any other individual, not retained by him. I have, therefore, incurred the animadversion of the Committee on this head, expressed in terms highly inju- rious to my character, without the slightest reason. Secondly,— I am charged by the Committee of Grievances with official misconduct, in having instituted an action of «« Reintegrande," for and in the name of the lessees of Mille- Vaches, against William Lampson, « to compel him to remove «' from the banks of the River Portneuf ;" and with being, by this professional ac», guilty " of a direct and positive viola'tiori " of my duty to the Crown, the interests whereof," it is alledged, « have been culpably abandoned by me, either from ;,n inordi- «♦ nate love of lucre, or from (what would be as bad) a strong " desire to render service to my clients, even to the prejudice « of the Crown, which," it is said, is « eminently interested in " the success of its lessee, in his disputes with his adversaries, « the partners and servants of the Hudson's Bay Company." This is strong language, indeed: that it should have been adopted and applied to me, cannot but excite great surprise, when the alleged cause for it is explained. The action of ** Riintegrande' referred to by the Committee, as having been instituted b me against Mr. Lampson, is the same action of ''Reintegrande" whereof mention is above made. The action known in Lower Canada, under this French name, is the Inierdictum unde vi of the Roman law. It is a possessory action, by which persons, forcibly dispossessed of lands or i^ I ':f', wm 168 APPB(}DtX. mi houses, are enabled to obtain restitution of them, and recover damages for the injury thus sustained, on the ground of posses- sion alone, without any reference whatever to title ; the maxim applicable to this action being — ^^spoliatus ante omnia resti- tuendus est" In the English law no ci>rresponding civil action is to be found. The violence complained of in such cases, by that law, is dealt with as a breach of the peace, as a crime; and an equally efficacious and more prompt remedy is afforded by indictment for a forcible entry and detainer, or by resort to the power of Justices of Peace, who are authorized, on com- plaint '>f the party aggrieved to go upon the spot and immedi- ately reinstate him in possession. The action thus brought against Mr. Lampson was, therefore, grounded on an alleged illegal criminal act; in it the title to the land of which the Hudson's Bay Company had been forcibly disseised, could not be brought in question, nor could any ground of defence be derived to Mr. Lampson from a right of property in the Crown, if such right had existed ; nor even from an absolute and un- questionable right of property in himself. The decision, there- fore, to be given in this action, could not, in the smallest degree, affect the rights of the Crown, which, if they existed, could not have been pleaded or urged in it, and after a decision against Mr. Lampson, might have been enforced in the same manner, and to the same extent, as if no such decision had been given. It is plain, therefore, that the Crown had no interest whatever in the action in question ; and that, in bringing it, I did not, as erroneously and injuriously alleged by the Com- mittee, " culpably abandon its interests." But it is alleged by the Committee, that the support of the Government was due to Mr. Lampson, as lessee of the Crown, " which," it is said, « was eminently interested in the success of its lessee, in his disputes with his adversaries, the partners and servants of the «< Hudson's Bay Company." It was certainly incumbent on the Government and its officers to protect Mr. Lampson, in all legal rights derived under hi*: lease ; but, as lessee of (pix. 169 " the success of its lessee in his disputes" occasioned by any such act.— -If Mr. Lampson forcibly wrested property from bis neighbour, as being within hia lease, it was fit that the laws should receive executionas to him, as they would, with respect to any other person ; and it is singular, indeed, that the Com- mittee of Grievances should have thought special protection and support due to him in such a case. Under the circumstances complained of by the Hudson's Bay Company, it might have been the duty of the Attorney General, if proper affidavits had been laid before him, to have indicted Mr. Lampson, and the twenty.five or thirty men in his service, by whom the dispos- session of the Hudson's Bay Company was effected vi et armis, for a riot and forcible entry and detainer ; and it is certainly rather unreasonable, that he should be held in a high degree culpable by the Committee of Grievances, for having adopted, professionally, the more lenient remedy of a civil actiou.--But it is palpably manifest, that inasmuch as the ground of the action of which the institution by me is complained of, was a criminal breach of the peace, and even an indictable offence of consider- able magnitude, protection and support, in relation to it, were due from His Majesty's Governor, his Courts of Justice, and Law Servants, within their respective spheres o'' duty, and in execution of the laws-not to Mr. Lampson, (though z lessee of the Crown,) to afford him impunity, for a criminal aggression on his neighbonr— but to the parties complainingof injury from his unlawful violence, to enable them to obtain justice.—In the institution of this action, therefore, I have not acted inconsist- ently with my official duty, as erroneously and unjustly repre- sented by the Committee of Grievances, but in perfect conformity with it ; and I may confidently conclude, that I have incurred this, as other of the animadversions of the Cemmittee, without the slightest reason. It hap been immaterial to my justification, under this head of charge, I beg leave to state, to inquire whether the land claimed by Mr. Lampson, as being within his lease, belon<'s to the Crown, or to the Seigniors of Mille- Vaches. The Com mitteo of Grievances has decided very positively, that it belonffs 10 IV ^.r^„„._,,,„,„u^ proress-.ng to Have any formed opinion on this point, I would only observe, that the Committee, in Y il? I!E 1} \ I Bi I WRaagiiMMaBf'c 170 APPeKtttX. toming to this conclHsten, has by «o means b«e ments which I had applied for. Immediately after and without losing a moment, I set about prepaiing the information to ground the proposed action ; and while thus engaged, I received a letter from His Excellency's Secretary, transmitting, by order of His Excellency, a Petition from the proprietors of Mille- Vaches, dated 5th February, complaining of the proposed m- stitution of an action for the establishment of boundaries, as by being unnecessary and calculated to subject them to great expense and trouble; and this Petition was transmitted to me " for such observations as I might judge necessary, to guide His « Excellency in any further proceeding in this business." I found it diflBcult to reconcile the two orders of His Excellency, one of which I required to institute an action, and by the other, according to my interpretation of it, to report whether the action ought to be instituted. In this dilemma, I addressed myself to His Excellency, to be informed — " whether it was « His Excellency's intention, that I should persist in the imme- « diate execution of his order of the 10th February; or whether «* I was to suspend the execution of that order, till after my « report on the Petition of the Proprietors of Mille- VacJieSy " and till I might be honoured with the further directions of « His Excellency on the subject." On the 15th February, I was relieved from my embarrassment by a letter from His Ex- cellency's Secretary, informing me that—" with the view of pre- «« venting all misconceptions," His Excellency was plpr-ed to desire—" that the suit ' en homage,' of the Seigniory of Milk- « Vaches might proceed, without loss of time," and adding that "with reference toHhe Petition' of the Proprietors of Mille- « Vaches, and the mode of defraying the expenees connected " therewith, Hir Excellency was of opinion, that it was a point "for future consideration." This order of His Excellency, not having reached me till after office hours, on the 1 5th of February, I could not sue out process on that day; but the very next day this was done, and the action instituted. From this statements of facts, it is plain that I was not enabled to institute the action in question till the 12th February; that the institu- tion of it was necessarily suspended between that day and the 15th, till 1 could learn which of the two apparently contra- dictory orders I was to e:tecute ; and ahat the action was insti- APPENDIX. 173 tuted the day after this cause of embarrassment was removed, and at the first possible moment. So that I may assert that the action was instituted within two days after I was enabled, by His Excellency Lord Aylmer, to institute it. This period is called, by the Committee of Grievancs " a delay for a long time," fur which an improper motive is arbitrarily assigned by the Committee ; and, in order to aggravate the singular oiience thus imputed to me, it is alledged by the Committee, " that it ** required nothing less than the repeated and positive orders of *' the Governor-in-Chief to make me undertake the proceeding." Such a charge, grounded on sucli facts, need not be enlarged upon, and cannot, I presume, but be thought by your Lordship to be very extraordinary. Fourthly, — I am charged by the Committee with having, in November last, given an tjrroneous opinion " respecting a Peti- *< tion presented on behalf of the Hudson's Bay Company, *' praying to be authorized to sell and distribute liquors to the " Indians, and soliciting pardons for those of their servadts who <* bad done so ;" and in giving this opinion, it is alledged, that I was " instigated by a desire to be of service to my clients, « whose interests were opposed to those of the lessee of the ** King's Posts, and by a necessary consequence, to those of the « Crown itself." This animadversion involves two imputations: 1st Error in giving an official opinion; 2d, A corrupt motive for having given the opinion. Both these imputations are destitute of any foundatio i ; and the latter, as in other instances, has been gratuitously applied to my conduct. Without admitting, as seems to be implied in this animadversion of the Committee, that error in the opinions of an Advocate, or Law Officer of the Crown, constitutes au offence, I am most willing, on this occasion, that it should be so considered, and to rest my justification on the validity and correctness of the opinion, which has subjected me to the censure of the Committee. The opinion referred to is that contained in my Report above- mentioned, to His Excellency Lord Aylmer, on the Petition of the Hudson's Bay Company, for a licence to sell and distribute uuuxs \i\s j.iiuiaua^ auu a paiuuxi ixsi pas ; i, 'ii^xii.c3y ouppvccru bO have been incurred for the want of such a licence. This opinion r 171 ArrcNDnc. i! was given by me on a question of public law, not affecting merely the interests of the individuals concerned in it, but those of the province at large, and was formed under the most perfect conviction of its being legal and correct; which conviction I atill retain. The diiferenco between the Committee and myself, on this point, fortunately does not depend on facts, as to which the parties might be at variance, but on the construc- tion of a provincial law, as it appears to me, of the plainest and most unequivocal import, and respecting which an opinion may as easily be formed in London as in Quebec. Without tres- passing, therefore, on your Lordship's patience, by offering reasons in support of my construction of the law, I will merely beg leave to solicit your Lordnhip's attention to the two ordinances to which my opinion refers, which will be found under No. 15 (10) and No. Id (11) in the annexed Appendix, and also to my Report to His Excellency Lord Aylmer, of the 29th January last^ which will be found under No. 15 (7) in the same Appendix; in which Report are contained the grounds of the opinion that I am held culpable for having given. The opinion chained on me as an offence, so far from being cen« Burable, is, I apprehend, entitled to the approbation of His Majesty's government, not only as being legally correct, but as having been calculated when given, to arrest and prevent much mischief, injustice, and disorder in the Colony. A short expla- nation will suffice to establish the latter opinion. By the pro- vision of the ordinance, which the Committee holds to be in force, and which, I am of opinion, has been repealed, the sale and distribution of spirituous liquors^o Indians is prohibited— << without a special licence for that purpose first had and " obtained from the Governor, Lieutenant-Governor, or Com- ♦* maiHJer-in-Chief of the Province, or from His Majesty's *' Agents or Superintendents for Indian Affairs, or from His " Majesty's Commandants of the different forts in this Province *' or from such other person or persons as the Governor, &c. '< shall authorise for that purpose." This prevision of tlie ordinance, which was applicable to a state and condition of the colony, which have long ceased to exist, vests in the Crovernor, and the siihordinate officers which it anecifies; ft power) involving in it a monopoly of the Indian trade, throughout APPBNDIX. 175 the Province. At tlie time at which my opini.in was giren, on the Petition of the Hudson's Bay Company, traders in different parts of the Province carried on their trade with the Indians and sold and distributed spiritnous liquors to them (as had been done for forty years before) without any licence whatever. All these traders, with their numerous clorks and servants, were equally, with the servants of the Hudson's Bay Company, obnoxious to qui tarn actions, such as those brought by Linton at tlie instigation of Lampson. If the opinion of the Com- mittee and not mine were correct, and had been acted up„n, these different traders, or persons desirous of supplanting them in their trade, from rivalry, conflicting interests, personal resent- ments, or other such motives, following the example of Mr. Lampson, could not have failed to harass and annoy each other by vexatious qui tarn actions, similar to those now referred to. Mr. Lampson, not having a licence to sell and distribute spiritu- ous liquors to Indians, as required by the ordinance, must himself, as well as his servants, have been liable to such ac- tions; and it is not to be supposed, that the servants of the Hudson's Bay Company, smarting under the actions of Linton, and with the ruin of their trade in prospect, would have omitted to retaliate on him the same means of annoyance and vexation, which he had directed against the trade of that company! Hence actions of this vexations description must have been multiplied without number; and all parties must at last, to avoid a common ruin, have resorted to the Governor for that protec- tion and support in their trade, which were solicited by the Hudson's Bay Company, from his Excellency Lord Aylmer. It cannot be imagined, that his Excellency, in the discreet exercise of his authority, could have granted licences to some persons, and have ref- \ them to others. If he refused them, the subordinate officers above mentioned might have been referred to for licences, as having the same power, as the Governor, to grant them. In this state of things, one or other of two conse- quences must have occurred. Either licences would have been granted, indiscriminately, to all applicants for them, or they would have been confined to a few favoured individuals, with Mr, Lampson at their head. In the former case, the provision or the Ordinance would have been virtually, and to all practical 176 APPENDIX. t .''■4 puqioaes, nullified, and Mr. Lampnon, and other Indian tradert, seeking an excluaive right uf trading with the Indians, could have acquired no advantage, from a partial exercise of the Gov- ernor's power. In the latter, the Governor's monopoly of the Indian trade would have heen so invidious in its exercise, so inconNistent with puhlic policy, and bo injurions to the general interests of the Province, that an imniediate repeal of the Ordi- nance in question must have heen solicited from the Provincial Legislature, and if refused by it, must have been sought, and would, it is to be presumed, have been obtained, from the Im- perial Parliament. Now, it is for having, by a correct discharge of my official duty, in giving the opinion complained of, arrested in limine the train of injurious consequeiices which I have described, and which must have resulted from the success of Mr. Lampson's pretensions, which have been eince supported hy the Committee of Grievances ; and it would appear, also, by the House of Assembly itself, that I have become obnoxious to the animadversion at present under consideration. Entertaining the fullest persuasion that the opinion complained of is legal and correct, and was calculated to be eminently useful when given, and conscious that it was dictated by no other considera- tion than a sense of duty, I confidently submit myself to your Lordship's judgment, on this animadversion of the Committee of Grievances of the Assembly of Lower Canada. Fifthly,— I am charged by the Committee of Grievances, with '* having, in suits wherein a partner and two r" the agents *' of the Hudson's Bay Company were senienced to fines and to «* twenty-four hours hnprisonment,' for having repeatedly sold *« strong liquors to the Indians, and made them drunk, consti- *< tuted myself as their advocate, and exerted myself to procure " them to be exempted from the payment of the fines imposed ; « although I well knew that a moiety of those fines would fall « to the profit of the Government, and be paid into its chest." The suits referred to in this animadversion are the qui tarn actions of Linton ; though there is some inaccuracy and ampli- fication in the description of them. My answer to this animad- version is very brief. Upon the return of the Writs of Habeas ^^ 1 A. U.. 4.Ua A^C^^A^^*^ t*n mUawa A*nfA^1 T nnnaat*AH V^OrpUS JjUCvX UUl uy liJC uc:cuuaiii3 an awuro oioncuj * «.j-j— •-•-••- as counsel for them, and insisted on their right to be discharged. APPKNUIX. m Thii exerciae of professional duty, on nay part, in favour of the liberty of the subject, 1 apprehend to have been perfectly un. exceptionable. I did not, as erroneously alleged by the Com- mittee, constitute myself the a APPENDIX. ITd he vexations . In this I dut\ of an • in contempt t cause, the < torn ' from Quehe: as them which instances at- ;lect of duty, js to he my ti impunity." other of its atter of fact, itatemcnts of een hetrayed 8. The ser- t " torn," or esidence, as tempt of the ht have heen 3t eluded the Timiltee can- ution of Mr. is impossilile [uajfc of this after setting above stated, at their own ime at wliich 1 into recog- to any arrest adopted for and his a«so- I the opinion iipt as above i'ous exercise I of the iaws> was urgently necessary ; and I can entertain no doubt that seri- ous outrages, and probably bloodshed, were prevented by it The indictments, which it was my duty to prefer against these individuals, are stated by the Committee, to have been ''frivol- ous and not justijiable." This decision, as in other instances, has been pronounced by the Committee, without any evidence whatever before it, as to the nature or grounds of these indict- ments. The Committee was, therefore, absolutely without ary means of forming any opinion on the subject ; and the weight due to decisions thus given cannot be dubious. But to disprove this allegation of the Committee, it is sutlicient for me to refer to the bills of indictment laid before the Grand Jury of the district, and to those found by them, whereof mention is above made, by which it is ascertained that the offences charged against Mr. Lampson's servants, in these indictments, on grounds found by the Grand Jury to be "justifiiiblc," far from being " frivolous," were of a serious and grave character, without the repression [of which neither tlie security of person or i>roperty nor the peace and good order of society could be maintained. To ground a charge of partiality on my part, i-: favo«ir, as it ia said, of my clients, a falselmod has been imposed on the Com- mittee, the particulars of which it is necessary to explain. It is said — " that the attornies of Mr. Larn|)son, who were em- " ployed by the lessee of the King's Posts to maintain his •' rights, with respect to the charges brought against a number "of the servants or agents of the Hudson's Bay Company, for <' having robbed the Indians of the interior, and having fired " with guns and pieces of artillery upon the servants and clerkg *' of William Lampson, being desirous of ascertaining whether " the said Attorney General intended to proceed against them, " in the criminal term of September last, ivrote officially lo hinij " in order that in ca^id he had determined to proceed, they might " send for the witnesses required from the Indian country. " That gentleman, however, not having thought fit to give them " any answer, they, as they ought to do, considered his silence " to indicate his intention of not proceeding in those suits ; but " how much were they not surprised, when they found that the •' Raid Attorney General, as soon m he knew ijiat there were " no witnesses, came forward with Bills of Indictment, which i 'i^ 180 APPENDIX. A " he submitted to the Grand Jury, who threw them out, as was " naturally to be expected. To the remonstrances which the " Attornies of the lessee of the King's Posts made to him on " this subject, who maintained that they were not bound to send " for witnesses from such a distance, without being sure of the' " cases being brought on, he answered, • It is not my fault — " * I have done my duty — here are the Bills.' " This statement is entirely untrue, and without any the slightest foundation : the proof of its being inconsistent and at variance with truth in every particular is easily established. The servants of Mr. Lampson were complainants or private prosecutors on some charges, and on others they were parties accused. In the former capacity, they were bound to be prepared with their evidence, to sustain the indictments to be preferred on their charges : if not, the accused, whether in jail or under bail, were entitled to be discharged. The practice in conformity with this principle has always been, to prepare and lay before the Grand Jury, at the opening of the Court, the indictments on the charges of the private prosecutors, when sustained by sufficient depositions. Mr. Lampson and his Attornies were, therefore, perfectly aware of the obligation under which he was, to be ready with evidence to support the indictments to be preferred, at the in- stance of his servants. No communication from the Attorney General on this head was necessary, or could be expected, nor was any solicited bi/ notary or otherwise ; and it is absolutely and entirely unture, that the Attornies of Mr. Lampson, as above stated, " wrote to me officially" for information whether I meant to proceed or not on^ the charges 6f Mr. Lampson's servants, as complainants or private prosecutors. A letter was, indeed, written to me while I was at Montreal, by Mr. Gugy, one of Mr. Lampson's counsel, hut for a totally different purpose ; and it is peculiarly fortunate for me, that having preserved this letter, I am enabled, by the production of it, to falsify most conclusively this unfounded imputation on my character and honour. The letter of Mr. Gugy will be found in the an- nexed Appendix : it relates exclusively to the charges made not by but against "the agents and servants of the King's " Posts," for " certain trespasses upon the persons and property " of the agents of the Hudfon's Bay Company," and as to these l> i fe fi \ ..f APPENDIX. 181 f * Mr. Gugy desires to know, « whether it was my intention to " try them at the next ensuing term." The object, therefore, of tiiis letter was not, as untruly stated in the Report of the Committee, to learn whether the charges brought against the servants of the Hudson's Bay Company would be proceeded upon, Mr. Gugy requiring no information on this point, and being perfectly aware that tliese charges must be proceeded upon by indictment, or be abandoned ; but to learn whether I would consent to try the indictments, which it was expected would be found, against the servants of Mr. Lampson, in the then next term ; it being implied by Mr. Gugy's letter that, in that case, the defendants would waive their right to traverse. This letter from Mr. Gugy I did not answer, and my reasons were these : The private prosecutor, to be consulted on the charges against Mr. Lampson's servants, was the agent of the Hudson'^ Bay Company, who resides at Quebec. I had left that place, to attend the Criminal Court at Montreal, about ten days before the receipt of the letter of Mr. Gugy, who was perfectly aware of the time of my departure, and might most readily have ob- tained the desired information from me, while on the same spot with the private prosecutor and himself. If he had communi- cated with me personally, or in writing, while I was still at Quebec, I should immediately have sent for the private prose- cutor, and have ascertained whether he would be ready for trial in the course of the term, or not, and have informed Mr. Gugy accordingly : but, being at the distance of two hundred miles from the private prosecutor, I could hold no such communication with him, and therefore could give no answer to Mr. Gugy, in the affirmative or negative, on the subject of his letter. I was indeed equally ignorant, whether the witnesses of the one or the other of ihe parties concerned in these prosecutions would or would not be forthcoming, having ■ o other information what- ever, than what was furnished by the written depositions in my hands. Under the circumstances to which I have adverted, I thought my inability to give the desired information might be sufficiently inferred from facts within the knowledge of Mr. Gugy, and from my silence, and did not, therefore, answer Mr. Gugy's letter. Subsequeutiy, at the opening of the Criminal Court at Quebec, Mr. Gugy inquired of me, whether I bad 182 APPKNDIXt received his letter. I told liim I had, and had not answered it, for reasons of which he must be sufficiently aware ; and nothing further was said respecting the letter. No injury was, or could be, sustained by Mr. Lampson, from the circuniStance of no answer having been given to this letter, as his servants were not ready to take their trial, and insisted on their right to traverse, which was permitted by the Court. Having, as n^y duty required, prepared indictments on the depositions in my hands, against the servants of the Hudson's Bay Company, as well as against these of Mr. Lampson, I laid both before the Grand Jury. When in the act of preferring the former, it is perfectly true, that Mr. Lampson's counsel remarked, that some of his witnesses were not in attendance ; and it is also true, that I answered, that it was not my fault, and that I had prepared indictments, as it was my duty to do ; referring, by theor that purpose Their affidavits before a magistrate, drawn by that professional gentleman, it would appear, were held sufficient to hold Mr Lampson to bail on a charge of perjury, which is still pending against bun; and it is this proceeding that, without any evidence whatever, is ascribed to me, and that is called an «« expedient " which is repugnant to honour, to duty, and to the due ad- « ministration of justice." Such terms were certainly never before applied to the exercise of a strictly legal remedy, already under the cognizance of a Court of Justice, and in ,he course of judicial investigation. If the charge adverted to had been improperly made, it was obviously, by the rejection of a bill of indictment by a Grand Jury, or by a verdict of acquittal by a Petty Jury, that the party was to be exonerated from if and his ulterior recourse for damages for a malicious prosecution is well known. The whole course of justice, by this proceedioo- of the Committee, is virtually obstructed, and the arbitrary determination of a Committee of the Assembly, upon the mere statements of the party accused, substituted for the decisions of grand and petty juries. In thus absolvino- M- t from the charge of perjury, the Committee also seems to convey by implication a similar charge, proceeding from itself, against 184 APPENDIX. 1^ the private pwsecutors, for if he was guiltless, they could not be innocent, in swearing that he committed that offence. But, whatever may be the merits or demerits of the parties respec- tively, in the transactions referred to by the Committee, on which it was competent to His Majesty's courts of justice alone to determine, and respecting which the Committee had no means of formiiiji any opinion; it is most strange that I should he held criminal or cub ..1^1% for a remedy not adopted by me, but by other persons, c^ «vhich I could exercise no control, and for which I am in no respect responsible. I can, therefore, only express surprise, that I should have been implicated, by the Committee of Grievances, in such a charge, conveyed in Buch terms. I liave thus, not without trespassing largely but unavoidably on your Lordship's attention, extracted from the Third Report of the Committee of Grievances of Lower Canada, all the animadversions and imputations to be found in that docun7ent, to my prejudice, and to each successively have submitted a specific answer. I must now beg leave to advert to the resolu- tions subjoined to the Report, of which a brief notice will suffice, as they necessarily depend for support on the Report itself, which has been refuted in all its parts. The first and second of these resolutions are intended to establish a proposition of unquestionable truth, namely, that the Attorney General, in his private practice, ought not to place himself in opposition to the interests of the crown and of the public. By the third resolution, it is declared that the Attorney General, by reason of his salary and fees, " has no need of « practising as an Attorney in the Courts, in behalf of indivi- « duals." The salary and fees of the Attorney General, 1 beg leave to state, are now the same which they have been for thirty years past, and indeed for a much longer period; and, in the persons of my predecessors, they were not found to be too large, or incompatible with private practice. The annual amount of fees, received by my immediate predecessor, was more considerable than that which 1 have received; although !•___: 1 -„„:„< „.>/.o nroo afP/iivloH tn bim. at the Dublic ex- pense; whereas the duties of the office have been discharged APPENDIX. 185 by me without any assistance whatever. Tlie labour performed by me officially, it is to be observed also, would be compensated by a larger amount of income, if performed for private indivi- duals. There are not, therefore, any considerations, that I am aware of, that would require, that the office should now be put on a different footing from that on which it has always subsisted in the colony, and which corresponds with the established rights of the office of Attorney General, throughout His Ma- jesty's dominions. This resolution seems to have been grounded exclusively on the statements and opinions of the counsel and attorney of Mr. Lampson, which could not have derived any particular recommendation from their disinterestedness or ac- curacy. By the fourth and fifth resolutions, it is declared that I became counsel, in certain matters, for the Hudson's Bay Company, their agents and servants ; and that I thereby placed myself in opposition to the interests of the lessee of the crown, and by a necessary consequence, in opposition also to the in- terests of the crown itself. I have already shown, most con- clusively, that the Committee of Grievances was led into error upon tliis head, and that I never placed myself in opposition to the interests of the crown. In this resolution, two very dif- ferent interests have obviously been confounded as being the same. In stating that, by placing myself in opposition to Mr. Lampson's interests, I placed myself, << by a necessary conse- quence," in opposition to those of the Crown, a non sequitnr has evidently been adopted, as being a " necessary consequence ;" and it is plain that, on this fallacy, suggested by Mr. Lampson, the whole Report of the Committee, and the resolutions ap> pended to it, have been constructed. By the sixth resolution it is stated — '* That my conduct oa <* the occasion of the disputes pending between the Hudson's " Bay Company and the lessee of the Crown for the King's " Posts, has been exceedingly unjust, vexatious, and equally << injurious to the rights and interests of the Crown, and those ** of its lessee, in the enjoyment of the Posts known by the << name of the King's Posts." By the word « disputes" are to which an account has been given. In the former, my conduct AA 9im^ 186 APPSNOIX. W l!-' 1 «io«» instance his services were pec- formed; and it waa on this ground, that I could not certify bis accouats against the Governineflt for these services. AaoKber very trivial matter, entirely of a personal nature, has been mag- nified into sufficient importaoce to 6nd a place in the pro- ceedings of the Committee of Grievances; being merely an expostulation on ray part with the agent for the Seigniory of Sore), for not affording me his services at the election there, by giving me the requisite information, as to the qualification of the voters, of whieb being a stranger at the place, I was wholly ignwaflt; and it is alledged that, ia the course of this expostM- lation, it was stated by me, that I would report his conduct to. the GoYerwMT. This feet, a» in other instauces, is misrepre- aented, and ia compJaiaod of aa the exercise of a culpable otf cial influence on my part. Having thus submitted to your Lordship a justification of my conduct, in all the particulars in which it has been incul- pated, I have to apologize for the length of the statements, and the minuteness of the details into which I have be«n compelled to enter. This however will not, I apprehend, be thought chargeable on me, but to be a necessary consequence of the form in which the accusations against me have been made. If reports of Committees, in the composition of which much latitude has been and will be take*i, are substituted in gloho for specific charges, proceeding from and sanctioned by the Assembly itself, the defence will unavoidably partake of the character of the accusation in its diffusiveness and prolixity; and the uncertainty of the imputed offences, to be collected from voluminous documents, must be productive of embarrassment to the accused, as well as to the high authority under whose cognizance they are brought. How far this mode of proceeding against public colonial officers may or may not bo just, fit, or expedient, it does not belong to me to inquire, but may be -_ •....^...^raiiuu xA His ivlajesiys Goveiiiment. In what respects myself, individually, the injustice of such a As 188 ApPENnnc. proceeding, in its practical application, has been connutnmated* M is sufficiently exemplified in the situation in which I have been placed on this occasion; and I am therefore without personal interest in adverting to it, as being, on many grounds, in a high degree objectionable, and of pernicious and dangerous tendency. Waving all objections as to form, it has been my anxious desire, in this particular instance, to meet the charges of the Assembly, or of individuals, in whatever form and through whatever channels they may be conveyed ; and I have thought it incumbent on me, to render my answers to the animadver- sions, which are the subject to this letter, the more minute and satisfactory, as the agent of the Assembly of Lower Canada has specially called the attention of your Lordship* to the first and third Reports of the Committee of Grievances, as containing « les plaintcs de rAssemblde." Conscious of purity of inten- tion and rectitude of conduct, in all the particulars which have been made the alledged causes of unfounded animadversion and imputation, I submit myself to the justice of his Majesty's Government. I have the honour to be> with the greatest respect, My Lord, Your Lordship's most obedient humble servant, J. STUART. • Vide Appendix, Nos. 6 ^nd 7. APPENDIX. 189 f KOM THt APPENDIX TO A LETTER TO THE RT. HON. LORD VISCOUNT GODERlCff. No. 1, p. 153. Report of James Stuart, Esquire, His Majesty's Attorney General for Lower Canada, to His Excellency Sir James Kempt, in a Letter to His Excellency's Secretary. Sir, Quebec, 5th Aug. 1830, I have been honoured with the commands of His Excellency Sir James Kempt, signified in your letter of this day, transmitting a letter, with its enclosures, from the agent of the Hudson's Bay Company, requesting the interference of His Majesty's Government to procure the arrest of certain persons charged with obstructing the execution of a warrant on Mr. Peter M'l-eod on a charge of felony, at the post of Islet Jeremie, on the 20th ultimo ; upon which His Excellency has been pleased to require me to report my opinion, whether the conduct of the persons in question, as shown by the affidavits, amounted to such an actual resistance to the authority which the constable possessed for the apprehension of Mr. M«Leod, as to require that warrants should be issued against them. In obedience to His Excellency's commands I have perused the papers which His Excellency has been pleased to refer to me, and among these the affidavits of Charles Provost, Joseph . „..., ,!„,,,, ^■^ytiiiiiUg. iiutu lucsu Ik appears luai unaties Prevost was specially charged with the execution of a warrant, Jgiii 100 APPENDIX. Sh- Ik..^^ under the hand and teal of a justice of the peace, for the arrent of one Peter M'Leod, on a charge of felony;— that, with his assistants, hepioceeded to a trading post, called Islet ^ Jeremie for the purpose of executing his warrant ; that he there found M'Leod with a drawn sword in his hand, at the head of a hundred men, or more, consisting of Indians and white men, supplied with arms, and, it is sufficiently evident, assemhled for the purpose of preventing the execution of the warrant with which Prdvost.was charged; — that M'Leod and the persons with him were made acquainted with the authority under which Provost acted, and the purpose for which he came ; — tliat, in defiance of this authority, M'Leod, at the head of his party, forhade the officer, at the peril of his life, to advance towards him for the purpose of arresting him, declaring " quil se lais- " seroit couper en mor^emix plutdt que d'etre pris ; que lui et *• ses assistants dtoient amies de fusils, de haches, et de batons^ " et pHts a Se defendre ; " — that immediately after, Peter M'Leod, the younger, son of the person accused, forcibly took possession of the canoe in which Pruvost, the constable, had reached the shore ; thus preventing him from returning, except on the terms which they might prescribe ; — that, by these means, the constable was prevented from executing the warrant against M'Leod, and was compelled to return to Quebec. I cannot but express my extreme surprise, that Mr. Christie, the police magistrate, on such facts, substantiated by affidavit, should have refused, or even hesitated an instant, to issue his warrant for the arrest of the two M'Leoda and the principal ringleaders in this outrageous and presumptious resistance of public authority, which must constitute a grave offence under every system of law, by which %\w rights and security of indivU duals are protected. Under the law of this province it is a well settled principle, that the obstruction of lawful process is au indictable offence ; and stronger circumstances than in this case to aggravate such an offence have seldom occurred. A huntired men assembled with arras, for the avowed purpose of preventing the execution of a legal warrant on an accusation of felony, and actually accomplishing this purpose by intimidation and violence, i« such a defiance and contempt of public authority, such an alarming obatrudion of public justice, as cau but rarely occui APPENDIX. 101 under any established, well-administered government. When such an outrageous offence is committed, it is most important, in all cases, for the security of men's lives and property, thai it should be visited with exemplary punishment. But, in this particular case, there are peculiar considerations, arising from the remoteness of the country in which the offence was com- mitted, the absence of all local authority, and the consequent facility of infringing and evading the laws with impunity, which enhance the serious character of the offence, and lender it urgent that effectual steps should be taken to render amenable to jus- tice the persons who have been guilty of it, and inspire, in the remote parts of the provinces, where these transactions have occurred, a proper respect for the laws and for public authority. I will only beg leavt further to add, that by the affidavits taken before Mr. Christie, und above referred to, the persons therein named stand legally chvged with the offence of a riot, and obstructing, by force and violence, the execution of the warrant of a Justice of the Peace In a case of felony ; and, on this charge, it was the duty of Mr. Christie to have issued, and it is now the duty of any other magistrate, to whom the same affidavits may be submitted, to issue a warrant for the arrest of the said persons. It is fit to observe, that, by opposing the execution of the warrant of the Justice of the Peace, these same persons may have become participes criminis with M'Leod, the elder, and have incurred the guilt of accessaries after the fact. I have the honour to be Sir, Your most obedient, humble servant, (Signed) J. STUART, Attorney General, True Copy, J. STUART. 198 APPENDIX. W I No. 2, p. 157. Letter from 3. Stuart, Esq. Attorney General, to Lieut.- Col Glegg, Secretary, 3fc. Sir, Quebec, 25th Nov. 1830. I have been honoured with the commands of His Excellency Lord Aylmer, transmitting a copy of a Petition from the Hudson's Bay Company, in which they pray that a Licence may be granted to them, their agents and servants, to distribute spirituous liquors to Indians, within the Seigniory of « Mille- Vaches," and at all other posts and places occupied by the said Company, for the purpose of trade, within this Province ; and requiring me to state, for his Excellency's information, whether he is empoweved by the laws now in force, to grant the licence prayed for, and whether it is expedient that the said prayer should be granted. In obedience to His Excellency's commands, I have perused the Petition which His Excellency has been pleased to refer to me and have the honour to state, that this Petition has evidently been preferred in consequence of the opinion entertained by the agent of the Hudson's Bay Company, that the provisions of the Provincial Ordinance, 17 Geo. HI. c. 7, prohibiting the sale of strong liquors to Indians, without licence, are still in force, and applicable to that Company. But this opinion is erroneous. Tlie provisions refe^rred to, by a. subsequent Provisional Ordin- ance, (31 Geo. HI. c. 1.) have been repealed, as to all traders, except those at a fixed residence, in a settled part of the pro- vince, who are required to have a licence for keeping a house of public entertainment. They are, therefore, inapplicable to the dealings of the Hudson's Bay Company, in their Seigniory of « Mille-Vaches," and neither the pardon nor the licence applied for, is necessary. I have the honour to be. Sir, Your most obedient, humble servant, (Signed) J. STUART, Attorney General' True Copy, J. STUART. N APPENDIX. 19S ds of His tion from i Licence distribute « Mille- ■f the said nee ; and , whether he licence id prayer re perused to refer to evidently led by the ons of the the sale of force, and erroneous, nal Ordin- lU traders, if the prrt- a house of ible to the jigniory of ice applied nt, ART, / General' No. 3, p. 159. Letter from James Stuart, Bsq. His Majesty's Attorney General, to Lieut.- Col. Glegg, Secretary/, S^c. Sir, Quebec, 29th January, 1830. I hay« been honoured with the commands of His Excellency the Administrator of the Government, signified in your letter of the 19th inst. transmitting two applications from 1. 1 Messrs. Neiison, Duchesnay, and Wilson, sjuciting the pro- fessional assistance of the Advocate General, in certain suits or actions tried before them, the decisions in which arc about to be removed into the Court of King's Bench, by certiorari; upon which His Excellency has been pleased to require my opinion as to the course it would be advisable to adopt, in regard to these applications for the assistance of the Advocate General, instead of mine, on the ground of my having already delivered an opinion in opposition to the decisions given by th« applicants in the cases in question. In order *iat His Excellency maybe made acquainted with the nature of the applications referred to in your letter, and the considerations on which they rest, it seems necessary to explain some particulars, for the information of His Excellency. By the Provincial Ordinance 17 Geo. HI. c. 7. four distinct legislative provisions were enacted restrictive of trade and inter- course with the Indians. By the first a special licence in writing was required from the Governor, or from His Majesty's agents or superintendants for Indian affairs, or from the com- mandants of the different fons, or from such persons as the Governor might empower to grant it, to authorize the sale of spirituous liquors to Indians ; and the sale of liquors to them without a licence, was prohibited under a penalty, for the first offence, of 5/. imprisonment for a period not exceeding a month, find triA fnrFoiti'i^'a nt h!a Wnanna f» \,-^x^^ ^ .... :r xL. i:. „ ,,,,.^.„,.., 5,„ ticcp a Larciil, ii mC liquorS «Ii0uld be sold by an innkeeper: for a aecond and subsequent BB i'i- . (till " i il , II 194 Al^rRNDtX. \n\ U offence the ppiialty and imprisonment were doubled. By tli« Becoiid fif the said enactments, tlie purchase of clothes or arms from Indians was prohibited, under like penalties. IJy the third, all person were prohibited from settling in any Ini; ti uiiucicu, iiiai iiuitianu ci>'.t . .i.-- " publication of this Act, it shall not be necessary for any of APPENDIX. 105 *< Hi? Mnjcsty's suhjects carrying on trnda, op otlior Btated *• rcHidoiitH of th'ui l*r»viiicn upon themselves to enforce the provisions of a law which, it is most manifest, were repealed thirty-nine years ago,— pro- visions which have since remained a dead letter,— which are wholly inapplicable to the present state and condition of the Province,— and which, if now in force, it would be the first care of the Legislature to repeal, without delay ; and these provisions have been so enforced, at the instaiice of a party, not actuated by fair motives, under circumstances of peculiar hardship to the persons affected by thdm, and in dirfect opposition to the opinion of the first law officer of the Crown. These being the reasons on which my opinion is grounded, I have only further respectfully to observe, that if they do not afford satisfaction, the subject admits of being referred to other of His Majesty's law servants. I have the honour to be Sir, Your most obedient, humble servant, (Signed) J. STUART, Attorney General. True Copy, J. STUAUT. . i APPiCNDIX. 199 Letter from James Stuart, Esquire, His Majesty s Attorney General, to Lieutenant- Colonel^ Glegg, Secretary, 8fc. Quebec, Zith Dec. 1830. Sir, I have been honoured with the commandfi of His Excellency the Administrator of the Government, signi- fied in your letter of the 23d instant, in which His Lordship refers to a Petition from Mr. Lampoon, wherein it is stated, that he is engaged in a law suit respecting the boundary of the Seigniory of Mille-Vaches, in which law suit, as he states, the interests of the Crown are identified with his own, and wherein it is also stated, that I am retained as counsel for the party op- posed to him ; whereupon His Lordship has been pleased to require me to report, for his information, whether the assertion of Mr. Lampson, of my being retained by the opposite party is correct, and whether, in my opinion, the interests of the Crown are identified with those of Mr. Lampson, as stated by him in his Petition. In obedience to His Lordship's commands, I have the honour to state, that the duty of the office of Attorney General, which I have the honour of holding, necessarily precludes me from taking any retainer to support the interests of individuals, in opposition to, or inconsistent with those of the Crown ; and 1 have not therefore become, nor could be, retained by any party adverse to Mr. Lampson, to oppose, or question interests in him, which are identified with those of the Crown. The case to which Mr. Lampson, I presume, refers, and which it has been erroneously supposed by him furnishes ground for his assertion, is a possessory action, called in the French law an action " de Reintegrande," (being the "Interdictum unde vi" of the Roman law,) recently brought by me for the Hudson's "~j r — J --sT.incrv iTii. xjUiiipsuii aim ins servanis. Tor havmg with forc« and arms entered upon a piece of land which then 200 APPENDIX. wa«, and ' ampson, as Hp Sis Excel- !y with tho necessary mm idaries and w of giving ight proper ct together ure desires, Vanfelson, lecessary to intentions, ch commu- Letter from James Stuart, Esq. His Majesty's Attorney General^ to Lieut.-Col, Gleqg, Secretary ^ S^a. Sir, Quebec, 30th Dec. 1830. I have heen honoured with your letter of the 29th instant, in which, with reference to legal steps which it is therein stated, His Excellency the Administrator of the Government has come to tlie decision of directing to he taken, towards estahlishing the houndaries and metes of the Seigniory of Mille-Vaches, it is intimated that his Excellency has thought proper to associate me and the Advocate General, to act together on hehalf of the Crown, and that his Excellency therefore desires me to communicate with Mr. Vanfelson on the suhject, and to concert with him the measures necessary to he adopted, in order to give effect to his Lordship's intentions, reporting to you for his information, the result of such communications with the least possible delay. From the nature of this coramunication, as well as that which preceded it, on the same subject, it seems indispensable that I should respectfully submit to his Excellency's consideration, that It belongs to the office of Attorney G..ieral > advise, institute, defend, and conduct all suits of the Crown, which are carried on in His Majesty's Courts of Justice, in which that officer acts professionally. These duties are by law inherent in the office, and cannot be severed from it:— for the faithful, skilful, and honest discharge of them the officer is responsible; and this responsibility constitutes the security of the public and of individuals, in so far as their respective interests are concerned. Not being conscious of any inability to fulfil the duties of the office I hold, and not having learnt that my honour or integrity has been impeached, I must beg leave to claim from his Excel- lency the undisturbed and unrestricted exefcise of the ri-hts vested in me by His Majesty's Commission, appointing me'his Attorney General for Lower Canada. If, however, any charge or report calculated to impair the confidence of His JMajesty'a 204 APPBWOnC. Government in the upright discharge of my duties has reached his Excellency, instead of sustaining any abridgment of the rights now referred to, I must solicit from his Excellency's justice an immediate investigation of the imputation, whatever it may be, that no disparagement may be suffered by the honourable service in which I am engaged, from malignant in- sinuation or unfounded suspicion. But, in the absence of any such cause for withholding the confidence which is due to the office with which His Majesty has honoured me, and while I continue to hold this office, I cannot acquiesce in any transfer of the duties legally incident to it to another person ; nor can I submit to become the auxiliary of Mr. Vanfelson, or of any other professional gentleman, in matters in which it belongs to to me to act aa principal. I hare the honour to be, Sir, Your most obedient, humble Servant, (Signed) J. STUART, Attorney General, Lieut. Col. GLEGG, Secretary, &c. True Copy, J. STUART. sffn^ I'i 1 , • f * I ^i 'k\^ i I m ^{1 Letter from Lieut. Cof. Glegg, Secretary, S^c. to J. Stuart, Esq. Attorney General, Castle of St. Lewis, Quebec 30/A Dec. 1830. Sir, 1 am directed by His Excellency the Administrator of the Government, to lose no time in assuring you, in answer to your letter of this date (which his Lordship has just perused) that his decision regarding the mode to be adopted in the case of Mr. Lampson, does not in the remotest degree arise from any doubt existing in his mind of either your integrity and honour, or of your professional ability. To the existence of these qualities in your person, His Excellency is disposed to APPENDIX. MS give full and entire belief: neitlier have Iuh deciitions been caused by any malicious insinuations regarding your character that have reached his ears. His Lordship commands me to assure you, he is altogether a stranger to any such insinuations, and had they been conveyed to him, he would not have he8itate(' for one moment candidly and honestly to have imparted them to you. A due regard to your official character as well as to his own would have rendered such a communication an important duty on his part, and perhaps he may have some right to add, that his silence uu the subie^t might have been assumed as conclusive of the fact of his mind being entirely free from any such impres- sion. Having disposed of this part of the subject, which His Excellency has most at heart to do, in a way that may be en- tirely satisfactory to your feelings, he has directed me to add, that unless he has formed very erroneous notions of the functions of the office which he has the honour of filling as Administrator of this Province, he may be permitted to judge for himself, whether he shall associate one or more of the Law Officers of the Crown, in the conduct and management of any particular proceeding. His Lordship still thinks, that he is invested with such dis- cretionary power, and acting upon that assumption, his Lord- ship has directed me to request you will have the goodness to acquaint me, for his information, whether it be your intention to persist in refusing to act in conjunction with the Advocate General, in the matter of determining the metes and boundary of the Seigniory of Mille Vaches, as directed in my letter of the 29tb instant. I have the honour to be, Sir, your obedient, humble servant, (Signed) J. B. GLEGG, Secretary. Honble. J. STUART, Attorney General. True Copy, J. STUART. I *■ 906 APPENDIX. Note from His Excellency Lord Aylmer to James Stuart, E&q. Attorney General. (Private) Castle of St. Lewis, Quebec^ ZQth Dec. 1830. My dear Sir, An official correspondence is now going forward between us through tiie medium of Lieut. Col. Glegg, which I do Rssure you is very painful to me; but 1 hope and trust, it will not have the efFeci of pro'lu''iiig any change in the social intercourse, and those perso. j' elings of regard between us, which it is very much my desire to cherish and cultivate to the utmost. An assurance, on your part, that you participate in these feelings would be liighly gratifying to, my dear Sir, Your very faithful servant, (Signed) AYLMER. True Copy, J. STUART. Letter of 5. Stuart, Esq. Attorney General, to Lieut. Col. Glegg, Secretary, S^c. ,1 ■ I I ir' i in Sir, Quebec, Slst December, 1830. I have been honoured with your letter of the 30th inst. and beg leave to state, that I have derived the greatest featisfac- tion from the assurances His Excellency the Administrator of the Government, has been pleased to convey to me, that, in his directions respecting the suit to settle the boundaries of "Mille Vaches," he was not influenced by any doubt of my integrity or honour, and my most respectful acknowledgments are due for the terms in which these assurances have been conveyed. APPENDIX. 207 In stating, in my last letter, the rights which I appreliend to be inherent in the office of Attorney General, it was not my in- ten»ion to call in question the discretionary power of His Ex- cellency, to authorise any number of Counsel he may think fit, to give their assistance in the conducting of the suits of the Crown, but respectfully to asseit, that they cannot act as principals, or direct or control the Attorney General in the management of such suits ; the responsibility for the proper and efficient conducting of the suits of the Crown resting entirely upon hinn, I beg leave, therefore, respectfully to mention, that there is no objection on my part, that tl Advocate General, or any other professional gentleman, be authorised to act as Counsel, in conjunction with me, in the legal measures which it may be proper to adopt, for determining the metes and boundaries of thfi Seigniory of Mille V^aches; and, on this head, there is the most ready and willing acquiescence en my part in whatever may be the pleasure of His Lordship. I have the honour to be, Sir, Your most obedient, humble servant, (Signed) J. STUART, Attorney General. Lieut. Col. GLEGG, Secretary, &c. True Copy, J. STUART. Note from J. Stuart, Esq. Attorney General^ to His Excel- lency Lord Aylmer. (Private) Friday Morning, Ust December. My Lord, It was with extreme satisfaction that I perused your Lordship's very friendly and condescending note of last evening, by which the painful feelings necessarily produced by the recent correspondence to which your Lordship refers, were m le immediately to yield to those of a very dijQferent cha- 208 APP£NDIX. racter. The impressions of respect for your Lordsliip which I had previously entertained, have received an indelible confirma- tion from your Lordship's frankness, kindness, and condescen- sion on the present occasion ; and I beg leave respectfully to assure your Lordship, that it will be my most anxious desire, both in my official and private conduct, to merit a continuance of your Lordship's favourable opinion, and of the social inter- course by which I have been honoured by your Lordship. I have the honour to be, my Lord, With the greatest respect, Your Lordship's most faithful and Obliged humble servant, (Signed) J. STUART. Lieut. Col. GLEQG, Secreitv, &c. True Copy, J. STUART. No. 5, p. 164. Letter from James Stuart, Esquire, His Mijesty' s Attorney Generaly to Lieutenant- Colonel, Glegg, Secretary, Sfc. Sir, Quebec, 18th April, 183L In the course of a cursory perusal of Newspapers pub- lished in this Province, I have observed that, among the reported proceedings of the House of Assembly, is the adoption by that House, on the 23d March last, of certain resolutioas criminating me, for alleged misconduct as Attorney General, in relation to certain disputes between the Hudson's Bay Company and William Lampson, lessee of the King's Posts. I have also observed, that it is therein stated, that a copy of these resolutions, by order of the House, was to hn mnaonfo,! __ j^ , to His Excellency the Governor-in-Chief, with a request that APPENDIX. 209 he vrould be pleased to transmit the same to be laid at the foot 01 the throne. Not having received from His Excellency the Governor-in- ch.ef any information or intimation, that any such criminatory reso ufons had been laid before His Excellency, or that any Address had been presented to His Excellency, to transmit any such resolutions to His Majesty's Secretary of State, or any communication whatever from His Excellency, in relation to any such resolutions, I am led to suppose, that the state- ments, no»v referred to in the newspapers must necessarily be erroneous. ' That I may be relieved from all uncertainty on this head, I request you will submit to His Excellency my respectful ap- P hcat.on to be informed, whether any resolutions of the nature of those above mentioned, have been laid before His Excel- ency; and, if they have, that I may be made acquainted with the nature of them, in so far as the authority of His Excellency may have been referred to or interposed. I have the honour to be, Sir, Your most obedient, humble servant, Lieu. Col. GLEGG, Secretary, &c. J. STUART, Attorney General, Letter Jrom Lieut^Col Glegg, Secretary, to J. Stuart, Esq, Attorney- General. Sir, Quebec, IWi April, 1831. Pv 11 "^;'"»;"^'"'««^ y«"r letter of the 18th inst. to Hi, Excellency the Governor-in-Chief, I am commanded to trans- mit you a copy of the Resolutions of the House of Assembly dated the 28th March, with His Excellency's an.w JZ17' uateti the day following. ' ' "'■"'' 210 APPENDIX. m idiHiiiiiniii I nil I have also received directions to inclose you a copy of His Excellency's Message to the House of Assembly, dated the twenty-eighth March, in which you will see that His Excellency relies on the justice of that House, to furnish you with copies of the various documents upon which the charges against you are founded. Having by direction of His Excellency made application to the Clerk of the House of Asseir.bly, for copies of the docu- ments in relation to certain disputes between the Hudson's Bay Company and Wm. Lampson, lessee of the King's Posts, I have been informed that ihey are now printing, and will bo transmitted to you the moment they are ready, which, it is hoped, will take place in about ten days. I have the honour to be. Sir, Your most humble, obedient servant, (Signed) J. B. GLEGG, Secretary. Honourable the Attorney General. True Copy, J. STUART. CopiJ fftJie Resolutions of the Assemble/ of Lower Canada of the 28th March, 1831, and of the Answer (f His Excel- lency the Governor-in- Chief, referred to in the fore- going Letter. House of Assembly, 3Ionday, 2Sth March, 1831. Resolved— That the Attorney General of this Province is, both by law and custom, the officer who is specially charged with the duty of maintaining the rights of the Crown, as well as those of tbe pubiic, as the present Attorney Gcaeral, James t' i APPBVDIX. ftll Stuart, Esquire, expresses himself in his letter addressed to the Civil Secretary, and dated on the 24th day of Decemher, 1830. Resolved — That the Attorney General of this Province ought not to practise as a private Attorney, in any case where he might he placed in opposition to the interest of the Crown and of the public, who are exclusively entitled to his services. Resolved— Thai the said Jamts Stuart, Esquire, Attorney General as aforesaid, did, in the matters relating to the complaints made by the Petitioner William Lampson, be- come Counsel and Attorney for the partners, servants, or agents of the Hudson's I'ay Cotnpiiny. Resolved — That by thus becoming Counsel and Attorney for the above-mentioned individuals, the said James Stuart, Esquire, placed himself in opposition to the interests of the lessee of the Crown, and by a necessary consequence also in opposition to llie interests of the Crown itself. Resolved— That the conduct of the said James Stuart, Esquire, on the occasion of the disputes pendin^f between the Hudson's Bay Company, and the lessee of tlie Crown fur the King's Posts, has been exceedingly unjust, vexatious, and equally injurious to the rights and interests of the Crown and those of its lessee, in tlie enjoyment of the Po.ns known by the name of the King's Posts. Resolved — 'i'hat the House perceive, in this conduct of the said James Stuart, a new motive to solicit His Majesty's Government to dismiss him from his situation of Attorney General of this Province. Resolved — That a copy of the said resolutions be presented to His Excellency the Governor-in-Chief, as well as a copy of the report and evidence upon which the said resolutions are founded, with a request that he will be pleased to transmit the same to be laid at the foot of the throne. 212 APPKNPIJC m m [!,;:•■ Gentlemen, Upon receiving the documents adverted to in thb address, the same shall be transmitte?' by me to the Secretary of State for the Colonial Department, for the purpose of being laid at the foot of the throne, in compliance with the desire of the House of Assembly. (Signed) AYLMER, Governor-in-Chief. Castle of St. Lewis, Quebec, 29th March, 1831. True Copy, (Signed) J. B. GLEGG, Secretary. III-. I Letter from B. C. A. Gugy, to James Stuart, Esquire, His ^lajestijs Attorney 'General. Sir, Quebec, 30//i August, 1830. I am retained to defend the agents and servants of the lessees of the King's Posts, who are accused of certain tres- passes upon the persons and property of the agents of the Hudson's Bay Company; and I therefore hope it will not prove ofFensive to you, that I should inquire whether or not it be your intention to try those cases the next ensuing Term. I beg you will have the goodness to n\ake me acquainted with your determination, as not only the accused, but their wit- nesses and others interested, would govern themselves accord- ingly, and thus abide by the result with the least possible expenco and vexation, I have the honour to be, Sir, Your most obedient servant, (Signed) A. GUGY. Honourable the Attorney General. True Copy, J. STUART. fi APPENDIX. 913 Affidavit of Anthony Von Iffland, Esquire, Doctor of P/if/sic, residiny at Sorel, t- ANTHONY VON IFFLAND. of the Borough of William-Honi^ in the Province of Lower Canada, Esquire, Doctor of Physic, maketh oath, tliat he has kiiovvn upwards of eight years, one Pierre f^ouis Deligalle, of the said Borough, being the same person who was examined as a witness before a Committee of Grievnnces of llie House of Assembly of Lower Canada, on the first day of March now last past. And the deponent further saitl that the said Pierre Louis Deligalle has been, for a considerable time, and continues to be, a confirmed drunkard, in indigent circumstances, and of bad character, to whose statements, even on oath, the deponent would not give credit. And further the deponent saith not. (Signed) A. VON IFFLAND, M.D. Sworn at the City of Quebec, this 2d day of May, 1831, before me, (Signed) J. KERR, J.B.R. Quebec. True Copy, J. STUART. 214 APPENDIX. Affidavit o/*noBEnT Jones, Esquire, PROVLNCE OF LOWER CANADA. STRICT of) )NTJIEAL. J District of Mon: ROBERT JONES, of tlie Borough of William- Henry, in the said District, Esquire, Lieutenant-Colonel in the Militia, in the said Province, commanding the tliird hnttalion of the Richelieu Militia, and one of His Majesty's Justices of the Peace for the said District, maketh oatli and saitli, that he iiath resided for upwards of fifty years in the saiil Boiong!). That he is well acquainted with the character of one Pierre Louis Deligalle, Bailiff, who resides at William Henry aforesaid. Tliat he lias known the said Pierre Louis Deligalle for those six or seven years ; that, his general character has been such, and is so worthless, that he, this deprment, would r.ot heheve any statement or asserti(ni made by him, Cilthough it were under the obligation of an oath. (Signed) R. JONES. Sworn before me at Montreal, in (fie said District, this 3rd day of August, 1831, (Signed) JOS. SHUTEH, J. P. True Copy, J. STUART. APPBNOIX. 215 Copi/ of an Account of PtEnnE Lotus Deligalle against James Sivart, Esr/., for having appre/iended, under a Warrant of a Justice of (he Peace, certain Voters at the Election held at Sorel in Julij, 1827, on a charge of Perjury. Jame Stuart, Esq., Etoiney Geiieal for the Province, Dr. to Peter Ls Delligall, H.B.R. July 28, 1827, /. s. d. For npptelsending the body of Nicolas BiJokner, in vertiie of a Warrant signed by A. Von Iffland, Esq. 5 Record Denis Cnpplet 2 6 For apprelu'nding tiie body of 11. St. Michel 5 Record Denis Capplet 2 Aug. 6, 1827, For apprehending the body of Antoine Paulet Hus dit Counoyer 5 Record Denis Cap! 2 6 1 2 6 Received payment, P. L. DELLIGALL, H.B.R. Willim Henry, 8th August, 1827. True Copy, J. STUART. 216 API'ENDIX. m Copy of an Account of Peter Thiganne against Jamrs Stuart, Esq. for havimf apprehended, tinder a Warrant of a Justice of the Peace, certain Voters at the Election held at Sorel in July, 1827, on a charge of Perjury, James Stuart, Esq. His Majesty's Attorney General for the Province of Lower Canada, Dr. to Peter Tiuganne, H.B.R. July 27, 1827, /. ,. ^. To service and apprcliending, by virtue of a Warrant issued by A. V. Iffland, Esq. one of His Majesty's Justices of the Peace for the District of Montreal, the body of Louis Allard 10 To Reccvd 5 Distance one league 2 July 28, 1827, To apprehending the body of M. Neven, in virtue of a Warrant issued by A. V. Iffland, Esq. J.P 10 "To Record 5 Distance six leagues, at 2*. per league , 12 To carriage to convey tlje said M. Neveu 6 Aug. 3, 1827, To apprehending the body of Antoine Ausant, in vir- tue of a Warrant issued by A. V. Iffland, Esq. J. P. 10 To Record 5 Distance one league o 2 Aug. 4, 1827, To apprehending the body of Jean Baptiste Cantara, in virtue of a Warrant issued by A. V. Iffland, J. P. 10 To Record 5 APPENDIX. 217 Aug. 7, 1827, I, ,. d. To apprehending the body of Joseph Claprood, in vir- tue of a Warrant Issued by A. V. IfBand, Esq. J. P. 10 To Record 5 Distance one league 2 5 1 I hereby certify that Pierre Triganne has served the above- mentioned Warrants, and that I believe the charges are ac- cording to the tarifl' of bailiffs submitted to me. (Signed) A. V. IFFLAND, J. P. Re9u Je iVIontant du present compte, (Signd) PIERRE TRIGANNE, H. True Copy, J. STUART. Letter from Robert W. Hay, Esquire, Under Secretary of State, to James Stuart, Esq. Sir, Downing-street, 26th August, 1831. I have received the directions of Lord Goderich to transmit to you the inclosed copy of an Extract of a Letter addressed by Mr. Viger to myself, and to request that you will, at your earliest convenience, enable me to reply to the question proposed by Mr. Viger. I have the honour to be. Sir, Your most obedient, humble Servant, (Signed) R. W. hay. J. STUARlV Esquire. EE IV 218 APPBNOrX. Extract of a Letter from Mr. Vioer to Robert W. Hay, Esquire, Under Secretary of State, dated 23d August, 1831, referred to in the preceding Letter, " J'ai donn6 a I'examen de ces papiers autant d'attention que ce court espace do terns me I'a permis; je n'y vois d'obser- vations que rclativement aux second et troisi^me rapports de I'Assemblee, et rien du tout quant au premier. Je vous prierais de vouloir bien m'informer si j'en dois conclure que Mr. Stuart ne se croit pas dans la necessite de repondre a cet article des plaintes de I'Assemblej contre lui. Si au contraire, on avoit omis, par hazard, d'inclure les observations rclative- ment a cet objet dans la liasse des papiers que j'ai reyus hier, je vous prierais de me les faire parvenir, a fin que je puisse trailer ces differens sujets dans I'ordre dans lequel ils ont ete presentes, et doivent naturellement etre discutes. i m Letter from James Stuart, Esquire, to Robert W. Hay, Esquire, Under Secretary of State. Sin, London, 8, Dover-street, 27th Aug, 1831. I have been honoured with your Letter of the 26th instant, transmitting a*i Extract of 'a Letter from Mr. Viger, relating to the papers which I have lately bad the honour to submit to His Majesty's Government, on the subject of an Address of the Assembly, for my dismissal from office. To obviate some misapprehension which appears to exist in Mr. Viger's mind, in relation to this matter, it seems to be proper that I should explain to what papers Mr. Viger'e atten- tion is now exclusively called. By the Address of the Assembly they have prayed that His Majesty would inflict on me the punishment of dismissal from office, for certain alleged offences, of which they have adjudged n?b guilty; and Mr. Viger has been deputed by the Assembly to sustain this Address. On APPENDIX. S19 my part, I have had the honour to represent, by my humble Petition to His Majesty, and the Memoir in support of it, that I have been thus cuiivjcted and condemned by the Assembly on ex parte pror >fuiJ!g!« without ilefence or hearing, or an oppor- tunity for eithf., • ... that I am wholly guiltless of the offences imputed to n.j '.- t Assembly. On these grounds I pray that, before punibli.wv^nt is inflicted, I maybe let in to prove my innocence, in t.ihstunce, therefore, my Petition and Memoir are to be conb.uered oa an answer to the charges and Address of the Assembly; and Mr. Viger, I presume it is now expected, will furnish such reply as he may deem necessary, to sustain these charges and address. This, and this only, is the subject to which Mi. Viger's attentioa is now called. In the extract you have done me the honour to transmit, Mr. Viger remarks, that my «« observations," by which he means, I presume, my Petition and Memoir, apply to the second and ♦bird Reports only, and that nothing is said of the first. The charges and Address of the Assembly were founded solely on what is called the second Report of the Committee of Grie- vances; and my Petition and Memoir, therefore, have relation to this only, and do not touch at all on the other two Reports. It haa been my intention, in justificp.Mon of myself to His Majesty's Government, to give a satisfactory t swer, in detail, to each and every statement and allegation, affecting my oflBcial conduct or character, which is to be found in the first and third Reports; and I am now employed in [ leparing this answer, which I purpose to submit, in the form of a letter, to be ad- dressed to His Majesty's Secretary of State for the Colonies. But I did not conceive I could, without impropriety, notice the subject matter of either of these Reports in ray Petition and Memoir; which, from considerations of fitness and propriety, are necessarily restricted to the Address of the Assembly, and the charges therein specified. Mr. Viger seems to confound the Reports of a Committee with charges preferred by the Assembly, and adverts to both under the denomination of '^Plaintes de rAssemblee." They are, I apprehend, very different in their nature; and it is one of the singularities in the proceedings adopted against me, that I am called upon to defend myself against «« Charges;' and also against Reports of ^«(i»^.. 220 APPISNDnB, IM ?! EM a Committee of the Assembly. These Reports in the opiniofi of the House of Assembly, either contained sufBcient grbundt for imputing to me ofBcial misconduct, or they did not; if they did, charges founded on them ought, I apprehend, to have been exhibited against me, to be embodied with the other charges which have been preferred: if they did not, the statements they contain injurious to my character, it appears to me, ought not to hare been brought under the consideration of His Ma^ jesty's Government at all, or put into public circulation to my prejudice. But I am not come hither, I beg leave to mention, to oppose objections of form to the investigation of any com- plaint against me, in whatever manner and by whomsoever it may be made. I have, within the colony, for some time past, been must unjusMy assailed by unfounded imputations and mis- representations ot my conduct, without having it in my power tc refute them there. This opportunity I am happy is now afforded to me here ; and I shall most gladly avail myself of it, not only to answer whatever imputations are to be found in the two Reports referred to by Mr Viger, but also any and every complaint or imputation which he may think proper, if so in- structed, to add to them. In the mean time, and in order to avoid unnecessary delay, which is personally injurious to me, I hope Mr. Viger will find it convenient, within a short time, tc furnish his reply on the only subject to which his attention i» at present called, viz. my answer to the charges and address of the Assembly. I have the honour to be. Sir, Your most obedient, humble servant, J. STUART, ROBERT W. HAY, Esquire, Under Secretary of State, &c. &c. &g. AtPKVt>iX* 221 EXTRACT FROM A lilEMORIAL FROM JAMES STUART, ESQUIRE, to THE RIGHT HON. LORD VISCOUNT GODERICM, ONS OF BIS MJJSSTY^S FRINCIFAL SECKETASIES OF STATU. That your Memorialist, in pursuance of a Mandamus from His late Majesty, George the Fourth, was appointed His late Majesty's Attorney General for the province of Lower Canada, by Commission under the Great Seal of the said Province, bear- ing date the twenty-fis-st day of January, in the year of our Lord one thousand eight hundred and twenty-five ; and since the accession of His present Majesty, your Memorialist, in pur- suance of His Majesty's Mandamus in this behalf, has been appointed His present Majesty's Attorney General for the said Province, by Commission under the Great Seal of the said Province, bearing Jate the Eleventh day of December now- last past. Although your Memorialist has discharged the duties of the said office, from the period of his first appointment, with unre- mitting attention, zealously, honestly, and faithfully, and, he trusts also, with adequate ability, he has recently, nevertheless, to his great mortification and injury, been subjected to suspen- sion from his said office, by an order of His Excellency Lord Aylmer, Governor-in-Chief of the said Province; by which order he has reason to consider himself most unjustly aggrieved, and of which he now begs leave respectfully to submit his com- plaint to vour Lordshin's consideration. 222 APPENDIX. ml I! !■! IN W Before proceeding to state the nature of this order of sus- pension, it is fit your Memorialist should make your Lordship acquainted with some circumstances which preceded it. In the discharge of his official duties, your Memorialist had been absent from Quebec about a month, in the upper parts of the Province, where his presence was required in the conducting of criminal prosecutions. Three days after his return, when diligently employed in preparations for the Court of King's Bench, immediately about to be opened at Quebec, as well as in other duties incident to his office, he learnt from a gentleman who called on him, that, the evening before, the House of Assembly had adopted a Resolution to address His Majesty to remove him from office, and to address His Excellency to suspend him until His Majesty's pleasure should be known. Your Memorialist was indeed aware, that a Committee of the Assembly, under the name of a Committee of Grievances, had, during the Session, been occupied in a scrutiny of various matters, in which it was supposed cause for imputing misconduct to your Memorialist might be found; but, being conscious that no materials for accusation against him could be derived from any part of his conduct, your Memorialist had continued in perfect security, and was entirely ignorant of the proceedings which were to terminate in the resolution above mentioned. As soon, therefore, as it could be done, on the 2l8t March, he submitted his application to His Excellency, by Letter to his Secretary, to be made acquainted with the nature of these pro- ceedings, as well as with the charges on which they were founded, that he might be enabled* to satisfy His Excellency that no cause had been afforded for the imputations with which he was assailed. In answer to this application, he was assured, by letter from Lieutenant Colonel Glegg, that His Excellency had leceived no official intimation of the proceedings in ques- tion ; and that, at all times, and under all circumstances, your Memorialist might rely upo". the justice and impartiality of His Excellency. Two days after, without any communication whatevc^ to your Memorialist, of the information which the last mentioned letter led him to expect, your Memorialist re- ceived a letter from His Excellency's Secretary, apprizing him that an Address for his immedir.ie suspension had been presented « APPENDIX. 223 to His Excellency; and, in the same letter, His Excellency was pleased to inform your Memorialist » That he greatly appre- « hended, that, in the end, it would be his painful duty to com- « ply with the desire of the House of Assembly in this instance ; " unless he could be relieved from the adoption of such a mea- " sure, by some arrangement which should virtually accomplish « the object of the House of Assembly, and, at the same time, • be the least painful to the feelings cf your Memorialist." Your Memorialist could not but be greatly surprised at the receipt of this communication, by which, without being made acquainted with any charges against him.-without being afforded any opportunity for justification or explanation, and certainly-, without the fulfilment of the assurances held out to your Me- morialist, by His Excellency, in the letter last referred to, he was menaced with suspension from oflice, unless he would con- sent to some arrangement which would virtually accomplish the object of the House of Assembly; this object being, as above stated, the punishment and disgrace of your Memorialist. Notwithstanding this communication, of the nature and terms of which your Memorialist apprehends he has just cause of complaint, your Memorialist was still unwilling to believe, that the principle of natural justice, of which he claimed the exercise, would be departed from ; and therefore, at the same time that he repudiated the compromise proposed to him, he respectfully renewed his application for the communication of the charges against him. That His Excellency might, also, be aware ot the extent of the injury he was about to inflict, your Memorialist disclosed particulars from which that might be in^. ferred ; and, in f is uncertainty whether an opportunity for answering *^e charges, or offering explanations respecting them, womH be afforded, he transmitted with his letter several affidavits wlH.h '.e thought calculated to influence His Excel- lency's judgmen ., in the discretionary power which he was about to ex,?vci8e— It was, nevertheless, only on the 24th Maixh, late m th- fti^mooh, that your Memorialist was made acquainted wit!, xiiii chj.^es against him, by the receipt of a letter from Lieutenant C ^lonel Glegg, inclosing the two Addresses referred to in his letter of the 23rd March. Being then engaged in 294 APPENDIX. M sides, other official duties which occupied him when released from his attendance in Court, your Memorialist solicited, from His Excellency, a short interval of time, for preparing his answer to the charges specified in the Address of the Assembly ; at the same time assuring His Excellency, that, if required, his «nswer should be furnished the next day.— In reply to his ap- plication, your Memorialist was informed, " That it was quite « unnecessary that your Memorialist should prepare any answer «« to the charges preferred against him by the House of Assem- ♦* bly ; it being quite foreign to the course that His Excellency « intended to adopt, to enter at all into the merits of the case, « one way or other." Being thus debarred, by His Excellency, from all oppor- •tunity of self-justification, or explanation on the subject of the charges in question, your Memorialist was without any means of informing or enlightening His Excellency's discretion, as to the justice or expediency of inflicting on him the punishment of suspension. He continued, therefore, with His Excellency's menace of suspension impending over him, to discharge the duties of his office, until His Excellency's absolute order of suspension was conveyed to him in a letter from Lieutenant Colonel Gli'irg, of the ySth March. By this order, His Ex- cellency, in adopting a measure pregnant with great, and perhaps irreparable, injury to your Memorialist, it is most singular to remark, disclaims the exercise of any discretion in relation to it, and would seem to have considered that he was called unon passively to comply with the desire of the House of Assembly. On this order, foav Memorialist will only permit himself to remark, that His Excellency's premises, in the reasons assigned for his determination, appear to be strangely at variance with his conclusion. For, while His Excellency professes to have no judgment to exercise on the case,: and to be indifferent between the parties, he, nevertheie.ss, inflicts serious injury, in the nature of punishment, on one of them, at the desire of the other; while lie also states, that to lave abstained from that injury would have given him tho character of a judge was acquired or assumed, by making no decision, and exercising no power, to the injury or benefit of either party, .1 _-i. .,.:~„>1 ni. ouoiimoH Kv a i\pf\ii\nn in favour of one. tO SUCi uui u»-«.\uiic\* v» wM«j~~.w»-, ^f — — — - APi>jsm>ix. S25 the great injury and perhaps min of the other; and as if, in adopting tho latter course, on this occasion, His Excellency Was to be or could he considered as exercising no judgment, and as being indifferent between the parties. Although it be most obviously true, as stated by His Excel- lency, that His Excellency was not invested with tho power of a judge, to determine on the merits of the charges of the House of Assepibly; it is, nevertheless, also very certain, your Memo- rialist humbly apprehends, that he was called upon, by the Address of the Assembly to him, to exercise a high discretion- ary powsr, preliminary to the determination of His Majesty, which power could not be justly or properly exercised without consideration of the charges, on the one hand, and of the answer or justification opposed to them on the other. Without such consideration, the general presumption, in favour of your Memo- rialist, of innocence, until conviction, was, your Memorialist apprehends, conclusive against the exercise of such a discre- tionary power. It would seem also, that His Excellency has not observed or distinctly understood, that the suspension prayed for in the Address of the Assembly, was not a tempo- rary suspension, to continue during the investigation of criminal charges, and until a determination on them might be had, but a suspension in the nature of punishment, preliminary to a still greater punishment, by absolute removal from office and dis- grace ; and that this suspension, with these consequences, was intenc^ed by the Assembly to supersede any investigation what- ever, as well as any defence on the part of the accused, and to exclude the exercise of all judicial power over the subject. Under this view of the Address of the Assembly, His Excel- lency miglrt have been disposed to t,hink he was not, indeed, called upon to exercise judicial functions, but to carry into ex- ecution a sentence or judgment of the Assembly; and that the right of the Assembly to pronounce it, as well as the grounds on v/'icli ii alight rest, were fit subjects for grave consideration. Beinij, therefore, under the persuasion, that it was the duty of His Excellency the Governor-in-Cnief, before inflicting on him the severe injury cf suspension, to have permitted him to submit to His Excellency a justification of his conduct, as was 'f J AATTA m aavt-k' 'rr T\/\t«^ r\¥ 1^1 VI V VS U&O iiji^': rp rsi^ 2S& H. fth *■ ii ^ APP£NOJ]E. present complaint, to bring under your Lordship's conaideratian, the reasons and grounds which, if such an opportunity for self- justification had been afforded, wouhl have been adduced by your Memorialist, to satisfy His ExceD'Micy that his supension ought not to take place. While the right of the Assembly to complain of and accuse public officers, who may abuse the trust confided totiiem, or be guilty of misdemeanours in the discharge of their official duties, is acknowledged by your Memorialist, he respectfully begs leave to deny the right of the Assembly to condemn such officers, or exercise any judicial power over their own accusa- tions against them: — ihey cannot both accuse and condemn. In the Addresses presented for the suspension and removal of your Memorialist, the right of the Assembly to condemn, as well as to accuse, seems to be implied; inasmuch as no accusa- tion, with a view to defence or answer, on the part of your Memorialist, or to trial, investigation, or judgment, seems to be preferred ; but, omitting accusation, defence, trial, and judgment, punishment is prayed for by the Assembly, uno saltUt as on a conviction. This is a course of proceeding so fraught with in- justice, so destructive of the security of public officers, in what respects their offices, their honour, reputation, and fortunes, and 80 incompatible with the very existence of His Majesty's Ex- ecutive Government, otherwise than in subjection to the House of Assembly, that your Memorialist presumes to think no such course of proceeding can be admitted. His Excellency the Governor-in-Cbi«f could not, therefore, in this particular case, suspend your MeraoriaUst from his office, without the greatest injustice to your Memorialist, and without affi)rding his sanctioo to a course of proceeding of the most dangerous tendency. APPBNOrx. S27 F JM THE APPENDIX TO THE SAID MEMORIAL. ^^'^f^omm Excellency Lord X^^u^r^^Govern^^n-Ch^^^ to J. Stuaut, Esq. Attorney General. Sin, Castle of St. Lewis, Quebec, 16th April, 1831, I co"l ship, I shall be most happy to furnish the one or the other, without a moment's delay. I have the honor to be, my Lord, Your Lordship's most obedt. humble servant, (Signed) J. STUART. His Excellency the Right Honorable Lord Aylmer, Governor-in-Chief, &c. &c. &c. True Copy, J. STUART. |i« 1 Ml ' I, Letter from J. Stuaut, Esq. Attorney General, to the Right Honorable Lord Viscount Goderich, one of His Majesty's Principal Secretaries of State, Quebec, 16th April, 183L My Lord, Having been recently subjected to suspen- sion from the office of His Majesty's Attorney Generp.l for this Province, by an order of His Excellency Lord Aylmer, Go- vernor-in-Chief, I have had the honor of addressing to your Lordship, through His Excellency, a Memorial on this subject, which His Excellency has assured me he will transmit to your Lordship, together with his own despatches, a few days hence. Anxious, however, to obviate the effect of any accidental mis- carriage of my Memorial, to be conveyed through His Excel- lency, I beg leave, herewifh, to transmit to your Lordship, by private conveyance, a copy of the same Memorial, and of the same Documents annexed to it, which are now in Lord Aylmer's hands, and which His Excellency, in his letter to me, of which a copy is herewith transmitted, notices under the name of « a 230 APPENDIX. ** bundle of papers described as a Memorial to Lord VisGonat " Goderich." Expecting to hare the honour oF submitting, in person, to your Lordship, in a short time, the particulars of the cane set forth in this Memorial, I abstain from troubling your Lordship, by ndding any thing, at this moment, to the statement contained in it. I may, however, perhaps be permitted, in the singular situation in which I am placed, to notice the aggravatud hard- ship which, in consequence of Lord Aylraer's order of suspen- sion, I labour under, in being suddenly and unexpectedly com- pelled to relinquish, and withdraw myself from, a lucrative professional practice, which cannot be easily regained ; in being deprived of considerable official emoluments; in being made to incur, from the two causes last mentioned, an immediate, certain, and absolute, pecuniary loss of several thousand pounds; in being subjected to temporary discredit, if not disgrace, and an entire derangbment of my business, pursuits, and plan of life; and constrained to travel three thousand miles, to answer charges, which are not in a form to be susceptible of answer and investigation, which the party from which they proceed, there is reason to believe, never expected would be answered or investigated, and which, when they are inquired into, will be found to be utterly groundless. In these circumstances, requiring the exercise of some for- titude, I place the most perfect reliance on the justice of His Majesty's Government, and do not, for an instant, doubt that what is right and proper, in this matter, will be done, without regard to the inequality^ of the parties. I have the honor to be, my Lord, With the greatest respect, Your Lordship's most obedient> humble servant, J. STUART, Atty. Genl.for Lower Canada, The Rigbt Hon. Lord Viscount Goderich, &c. &c. True Copy, J. STUART. APPBNDIX. SSi Letterfrom His Excellency LordAYiMKn, Govemor-in- Chief to J. Stuart, £s(^uire, Attorney General. Sin, Castle of St. Lewis, Quebec, ISth April, 1831. « .nn f' '!"'" ''" '"'""'' «f ^'^""'"'"inf,. for your information, a opy of a letter n.l.h.sse.l by .. to Lor APPENDIX. S^ lis cerned been my own .Brother> I could not have acted otherwise. I have the honor to he, my Lord, Your Lordship's most obedient humble servant, (Signed) AYLMER. True Copy, Certified, FllEDK. F. MAITLAND, Aid de Camp. Letter from J. Stuart, Esquire, Attorney General, to His Excellency Lord A\LUKB.y Governor-in- Chief. Quebec, I8th April, 1831. My Lord, ' I have been honored with yc- Excellency's letter of this day, transmitting a copy of a letter addressed by your Excellency to Lord Goderich, on the subject of my Memorial to His Lordship; and I beg leave to offer your Excellency my respectful acknowledgmen.,s for this communication. I have the honor to be, my Lord, Your Lordship's most obedient humble servant, (Signed) J. STUART, Attorney General. His Excellency the Right Honorable Lord Aylraer^ Governor-in-Chief, &c. &c. True Copy, J. STUART. APPENDIX. 235 IPROM THE CORRESPONDENCE ANNEXED TO THE SAID APPENDIX. Letter from J. Stuart, Esq. Attorney General, to Lieut, Col. Glegg, Secretary of the Governor -in- Chief. I Quebec, Monday, 2\st March, 1831. OIR, I Iparnt yesterday, with some surprise, tliat the House of Asseml.ly, on Saturday evening, adopted tlie Resolution to address His Excellency the Governor-iti-Chief, for my immediate suspension, and future removal, from the office of Attorney General for this Province, on the ground of mis- conduct imputed to me. Being a stranger to the proceed- ings which have led to this measure, I beg leave, through you, to submit to His Excellency, my respectful application to J)e made acquainted with the nature of these proceedings, as well as with tlie charges on which they are founded, in order that I may be enabled to satisfy His Excellency, that no cause whatever has been afforded for the imputations with which I have been assailed. To be accused and condemned for supposed misconduct, not made known to the party criminated,— without a hearing,-^and without any opportunity having been afforded for self-defence. is raidc injustice, which is rarely experienced ; but to be pun- ished also, under the same disadvantages, would certainly be the ne plus ultra of oppression. I have the honor to be, Sir, Your most obedient humble servant, (Signed) J. STUART, T • 4 /-« 1 r^ I o Atty. General. Lieut. Col. Glegg, Secretary, &c. &c. 238 APPEMMX* in i mm Letter fram Lieut. Col. Glegg, Secretary, Sfc. to J. Stuart, Esq. Attorney General. Sir, Castle of St. Lewis, Quebec, 2Ut March^ 1831. Having submitted to His Excellency the Governor- in-Chief your letter of this date, I am commanded to assure you, that he has not received any official intimation of the pro- ceedings in the House of Assembly to which you allude, and that at all times and under all circumstances you may firmly rely upon the justice and impartiality of His Excellency. I have the honor to be, Sir, Your most obedient humble servant, (Signed) J. B. GLEGG, Secfj. Honble. JAMES STUART, Attorney General. I Letter from Lieut. Col. GlegGj Secretary, to J. Stuari, Esq. Attorney General, Sir, Castle of St. Lewis, 2Brd March, 1831. The Govemor-in-Chief has directed me to inform you that he has received intimation of an intention on the part of the House of Assembly, to present an Address to him, praying that he will be pleased to suspend you from the ex- ercise of your functions as Attorney Ganeral, on tlie ground of certain charges of misconduct which they have instituted against you in that capacity, and respecting which it appears the House of Assembly purpose to address His Majesty. It is the intention of His Excellency to return for answer to the Address praying for your suspension, that His Excel- lency will take the matter into consideration, with all the deli- APPENDIX. »7 beratioB which its importance demands, and that he must defer for a day or two, to return a definitiFe answer to their Address. In the meanwhile, His Excellency cannot conceal from you, that he greatly apprehends that in the end it will be his painful duty to comply with the desire of the House of Assembly in this instance, unless he can be relieved from the adoption of such a measure, by some arrangement which shall virtually ac- complish the object of the House of Assembly, and at the same time be the least hurtful to your feelings. I have the honor to be, Sir, Your most obedient humble servant, (Signed) J. B. GLEGG, Secy. Honble. James Stuart, Attorney General. Letter from 3. Stuart, EsquirCy Attorney General^ to Lieut. Col. GhEGGf Secretary of the Governor-in- Chief. Sir, Quebec, 23d March, 1831. I have been honored with your letter of this day, in which you inform me, by order of His Excellency the Governor- in-Chief, that His Excellency has received intimatioa of an intention, on the part of the House of Assembly, to present an Address to him, praying that he will be pleased to suspend me from the exercise of my functions as Attorney General, on the ground of certain charges of misconduct, which they have in- stituted against me in that capacity, and respecting which, it appears, the House of Assembly purpose to address His Majesty; and ia which letter His Excellency is further pleased to"Jnform me, that he greatly apprehends that in the end it will be his painful duty to comply with the desire of the House of Assembly in this instance, unless he can be relieved from the adoption of aucb a measure, by some arrangement which shall ass APPENUlJt. . i viriiiar.y accomplisli the object of tlie House of Assembly, and at the same time be th'3 least painful to my feelings. In answer to this communication, I beg leave to mention, that I desire nothing at the liands of His Excellency, except the justice due to me in the office which I have the honor of holding under His Majesty's Government in this Province; and that I neither wish nor expect, in consideration of my personal feelings, that any deviation should take place from that course which His Excellency's duty may require on this occa- eion. In the exercise of the justice which I claim from Ilia Excellency, 1 thought, and still continue to think, myself en- titled to lie made acquainted with the nature of any charges against me, which have been or may be brouglit under the consideration of His Excellency, by the House of Assembly, m and of submitting my answer to such charges, before 1 a visited with any penal infliction, under the authority of His Excellency. It was; under this persuasion, that I had the honour of addressing to you my letter of the 2l8t instant; on this subject; and from the tenor of His Excellency's answer, conveyed in your Letter of the same date, I was led to expect that the justice which I solicited would not be withheld. I cannot, indeed, still entertain the belief, that His Excellency will feel himself justified in proceeding to the extremity of suspending me from office, without previously receiving my answer to the charges on which His Excellency intimates his inclination to adopt that measure of punishme t. I must beg leave, therefore, to repeat the request contained in my letter of the 21st instant, in order that I may be enabled to refute the charges, whatever tliey maybe, to which His Excellency refers in your letter. Eor I wish His Excellency to be most dis- tinctly assured, that there is not the slightest foundation for a charge of any kind against me, either in my official or private capacity; and that, if an opportunity of answering such charges be afforded, I can have no difficulty in establishing this fact. His Excellency will, therefore, excuse me, if 1 most unequivo- cally decline to compromise my rights or character, by con- senting to any arrangement which would virtually accomplish the object of the House of Assembly, as suggested in your letter. I beg also, that His Excellency may understand, that APPENDIX. 239 the suspension to wliicli lie adverts is a mensure pregnant with no small degree of injury to me, and for wl.iili, if subjected to It, I must cliiim an indemnity. My professional and ofttcial income is considerable; tlio animal amount of my receipts for professional services and official duties, cannot be less than between four and five tliousand pounds. If I am compelled, by a suspension from oflice, to take a trip across the Atlantic, to obtain justice there, my absence must occasion me a very large pecuniary loss, and an object not intimated to His Ex- cellency by the House of Assembly, but certainly in the con- templaiion of the persons with whom the proceedings in question originate, and well calculated to satisfy their motives in part, would be thus accomplished; that is, I should incur a loss of several thousand pounds, in manifesting a readiness to defend myself against unfounded charges, proceeding from private malice and political animosity, which the persons to whom they are ascribable know to be groundless, and which cannot be prosecuted with any rational prospect of success. That the authors of tliese proceedings are themselves of this opinion, seems to bo sufficiently implied by the course which, I am to infer from your letter, has been taken by the House of As. sembly. Charges are not exhibited against me, so as to admit of an answer and r. futation on my part; but, by a tyrannical, unprecedented mode of pro(;edure, contrary to the first prin- ciples of justice, immediate punishment is called for, without the exhibition of charges— without proof of any offence— and without defence, or opportunity for defence on my part. It behoves His Excellency, I must beg permission to state, well to consider, before such a mode of proceeding receives his sanction, the offensive injustice it involves, and the consequences to be apprehended from it, in its api)lication to public officers in general, but particularly when directed against an officer whose public duties render him peculiarly obnoxious to the malevolent and unprincipled machinations of popular agitators. I should be happy, even in the hasty manner which the numerous official avocations which press on me at this moment would permit, to enter immediately into such explanations as miglit satisfy His Excellency, that the chargf^s referred to are without a shadow of foundation. But while these are enter- Willi t4t APPBNDTX. w\ tained hy Hii Etcellency, wUhont »ny rommanication of them to me, I cannot, upon mere conjecture of their nature, or upon popalar report, prcHtime to offer such explanations. In order, bowever, tliat His Excellency, before he comes to the deter* mination adverted to in your letter, may not be deprived, at leant, of some information, which might be expected to influence that detei-mination, I beg leave to transmit herewith, for His Excellency's perusal, copies of Affidavits of J. K. Wellea, Esq. Robert Jones, Esq. A. Von Iffland, Esq. and of Messrs. Burke, Carter, Glackmeyer, and Louis Paul,* in relation to the pro- ceedings at the Sorel election, to which the charges referred to io your letter, I have reason to believe, in part relate. I have the honor to be, Sir, Your most obedient humble servant, (Signed) J. STUART, ' Attorney General. Lieut. Col. GLEGG, Secretary, &c. &c. \14 J I • I Letter from Lieut. Col. Glego, Secretary, Sfc. to J. Stuart, Esquire, Attorney General. Castle of St. Lewis, Quebec, 23rf March, 1831. Sir, I have received the commands cf His Excel- lency the Governor-in-Chief, to transmit you the accompanying copies of his Answers delivered to the Addresses which were presented this day, by the House of Assembly, copies of which I shall also transmit to you as soon as prepared. I have the honor to be, Sir, Your most obedient humble servant, (Signed) J. B. GLEGG, Secy. Hon. James Stuart, Attorney General. True Copy, J. STUART. * Tbcse Affidavits have already been placed in this Appendix. APPENDIX. 241 Anstter of His Excellenaj the Gai^emor-in- C/aef to the Firti of the Addresses referred to in the foregoing Letter. Mr. Speaker and Gentlemen of the House of Assembly, I shall not fail to transmit without delay, to the Secretary of State for the Colonial Department, your Petition to the King, praying that His Mujesty will be graciously pleased to dismiss the Attorney General of this Province from his office. (Signed) AYLMER, Governor-in-Chief. Castle of St. Lewis, Quebec, 22d March, 1831. True Copy, (Signed) J. B. GLEGG, Secy. Answer of His Excellency the Governor-in- Chief to the Second of the Addresses referred to iti the foregoing Letter, Mr. Speaker and Gentlemen of the House of Assembly, I beg of you to be assured that it is quite impossible that you can take a deeper interest than I do in whatever concerns the purity of the Administration of Justice in this Province; for it is a matter which affects no less the character of the Government than the interest of the public. Concurring with you, as I do most faithfully, on this point, and equally anxious with you to see the contemplated charges against the Attorney General brought to a hearing, the House of Assembly on their part will, I am sure, concur with me in opinion, that to suspend from his functions one of the highest Law Officers of the Crown, is a step which ought not to be hastily adopted; and I must therefore trespass on the patience of the House, for a day or two, before I can return a definitive HH 9A2 APPRNUIX. answer to tliw prny; .if this Address, callings upon me to HUHpeiHl the Attor.iey General from tlic exercino of Iuh functions until His M«j:!.siy*« pleasure be known. (Signed) AYLMER, Governor-in-Chief. True Copy, (Sitjned) J. B. GLEGG, Sect/. Letter from Lieut. Col. Gi.eog, Secretary, 8^c. to J. StuauT, Esq. Attorney dneral. Castle of St. Lewis, Quebec, 2Uh March, 1831. R«-ferrir.g to my let. or of yt *or(Iny, I have now the honor to enclose you Copies of the two Addresses, presented to Mis Excellency the Govcrnor-in-Chiff, by tlie House of Assembly, the Answers to which have been already commu- nicated to yon. I have tlie honor to be, Sir, Your most obedient humble servant, (Signed) J. B. GLEGG, Secy. Honble. JAMES STUART, Attorney General. Copy of the First of the tu)(, Addresses referred to in the fore- going Letter. To Hi:* Excellency the Right Honorable 'vlatthew Lord Aylmer, K. C. B. Captain General and Governor-in-Ciiief in and over the Provinces of Lower Canada, Upper Canada, Nova Scotia, &c. &c. &c. May it please your Excellency, We, His Majesty's faithful and loyal subjects, the Assembly of the Province of Lower Canada in Provincial Parliament assembled, most respectfully inform your Excel- --r H^ APPENDIX. 9in-Chief, *' the eldest Counsellor, whose name is first placed in these " Instructions to you, and who shall be at the time of your " death or absence, residing within our said colony, shall take '* upon him the administration of the Government, and execute '* our said Commission and Instructions, and the several powers *' and authorities therein contained, in the manner therein " directed. It is, nevertheless, our express will and pleasure, " that in such case, the said eldest Counsellor or President shall *' forbear to pass any act or acts, but such as shall be immedi- " ately necessary fur the peace and welfare of our said colony, " without our particular order for that purpose, and that he shall *' not take upon him to dissolve the Assembly, if it should "happen that there should be an Assembly then in being; nor *' to remove or suspend any of the members of our Council, nor " any judge, justices of the peace, or other officers civil or '* military, without the advice and consent of at least seven of <* the Council. And our said President is to transmit over to ** our Commissioners for Trade and Plantations, by the first *' opportunity, the reasons for such alterations, signed by himself ** and our Council, in order to be laid before us. Instruction CVIII — " And, whereas we are willing in the *« best manner to provide for the support of the Government of " our said colony, by setting apart a sufficient allowance to such *♦ person as shall be our Governor, Lieutenant Governor, Com- " mander>in-Chief, or President of our Council, residing for the " time being within the same ; our will and pleasure therefore " is, that when it shall hap|)en that you, shall be absent from « Georgia, one half or moiety of the salary, and of all perqui- " sites and emoluments whatsoever, which would otherwise be- " come due unto you, shall, during the time of such absence, " be paid and satisfied unto such Governor, Lieutenant Go- " vernor, Commander-in-Chief, or President of our said Council, "who shall be resident upon the place for the time being; " which we do hereby order, and allot unto him towards his " maintenance, and for the better support of the dignity of that ** our Government. Provided, nevertheless, and it is our intent " and meaning, that whenever we shall think fit to require you *« by our especial order to repair to any other of our Govern- I ( APPENDIX. 263 '» I « ments on tho continent of America, for our particular service, " that then and in such case, you shall receive your full salary, " perquisites, and emoluments as if you were then actually re- '« siding within our colony of Georgia, any thing in these In- " structions to the contrary in any wise notwithstanding." These are all the Instructions to the Governor of Georgia, that relate to the Council of the Province, excepting some of those relating to grants of land in the Province, which io a branch of power in which the Governor is directed » the Commission itself to act with the advice and consent of the Council. And by these Instructions we may see both how the Councils of the American Provinces are appointed, and what their powers and duties are. No. 7,— JO. 1G8 Sf- 170. FRENCHMAN.—! see that in some respects the Council of Georgia is made to participate with the Governor in the exercise of the executive powers of the state, as for example, in the appointment of Judges and Justices of the Peace, which can only be done with the advice and consent of at least three members of the Council; and in other respects it is rnnrla to participate with him in the performance of certain acts of legis- lation of a peculiar kind, in which His Majesty does not seem to think the concurrence of the Assembly of the Province necessary. Such are the establishment of tables of fees to be taken by the several officers of Government in the Province, and the establishment of martial law or articles of war, for' the government of the forces that may occasionally be levied and mustered for the defence of the province. And to both these acts, I observe, the consent as well as advice of . Council of the Province, is expressly required by the above-mentioned Instructions. It seems to me, therefore, that the Council of the Province, is not a mere privy council or council of advice to ' "" ^ ofP'®"'="" "'« ^ "vy v>ouncH m Ji^ugiand is to the King, who may, if he pleases, lawfully do an act of state in ( : i if' 264 APPENDIX. his Privy Council in direct opposition to the unanimous advice uf all the members of it, but is in some cases a council of vontronl upon him, namely, in all those cases in which (by either the Commission or Instructions of the Governor) their consent as well as advice is necessary to the execution of his public acts. And besides these two capacities, of & tnere priiy council or council of advice to the Governor, and a council of cantroul to him, with respect to public acts, in which the Assembly of tlie Province is not required to join with them ; tlipy have, by a clause in the commission, a right to act in a third capacity, namely, as a legislative body, whose consent is necessary in conjunction with those of the Governor and the Assembly of the people's representatives to the passing of laws, frtatutos, and ordinances for the peace, welfare, and good go- vernment of the Province. And their last capacity is the highest and most important of the three, and that in which they are best known, ahd most frequently or at least most pub- licly seen. This is what I collect concerning the nature of this Council from the Commission of Governors-in-Chief of the American colonies, and from the Instructions you have above recited to me. Pray is this a just conception of it? ENGLISHMAN. — I think it is a very just one, except that I do not recollect any part of the Commission or Instruc- tions which requires the Governor to hear the advice of the Council concerning any act of government, without also re- quiring that he should obtain their consent to the doing it. I doubt, therefore, whether the Council of a Province ought ever to be considered in the first of the three capacities you have mentioned, or as a mere council of advice. But it certainly is to be considered in the two other capacities of a council of advice and control, and of a legislative council. Now it is in this last capacity of a legislative council that I f ^nceive its con- stitution to be defective, and to stand in need of the alterations above-mentioned. For, as a council of advice and controid to the Governor, in the execution of the powera of his commission I think it is sufliciently numerous; though, even in that capa- city, the members of it oug/U, in my opinion, to be made abso- lutely independent of the Governor y or incapable of being either APPENDIX. »65 removed or suspended by him even for an hour ; because other- wise they cannot be supposed to act with freedom in the exercise of their power of consenting to or dissenting from the acts of government, upon which the Governor consults them. But as a legislative body, whose consent is necessary, in conjunction with tlie Governor and the Assembly of the people's representatives, to the paising of neve laws in the province, the necessity of amending their constitution is much more apparent. That they may be useful in this capacity, and contribute to excite a reverence in the minds of the people for the laws they concur in enacting, it is necessary tliat they should be considered as acting freely and independently in their deliberations on public affairs, and as having a large concern or interest in the welfare and prosperity of the Province, and an extensive knowledge of its various wants and resources. And for this reason, it seems to me, they ought in number to be more than twelve persons, and ought to be made, not only independent of the Governor, (so as not to be liable upon any occasion to be either removed or suspended by him,) but even independent of the King himself; I mean, so far as not to be removable from their offices of counsellors, without a complaint of some misbehaviour ex- hibited against them before His Majesty, in his Privy Council, and a hearing before the committee of the Privy Council by themselves and their counsel, in answer to such complaint, and a report of the said committee of the Privy Council to the King, confirming the truth of the said complaint, and advising His Majesty to remove them from their said offices; after which it should be in His Maj,e8ty'8 choice to remove them from their offices as counsellors, or continue them in the same, by his order in council as he should think proper. I could wish, therefore, that their number was in every province increased to at least twenty-three members; and in the more populous provinces to a still greater number; in the large province of Virginia perhaps to forty-three; and that at least twelve of thorn should be necessary to make a board, and do business as a legislative body; and that they should be appointed by the King, either under the Great Seal of England, or under the Public Seal of the province, in pursuance of warrants to the Governor, under the King's signet and sign manual, directing LL 266 APPENDIX. the Governor to make such appointments und. r the Seal of the prorince, for their lives, or during their good behaviour, so an not to be liable to be removed or suspended by the Governor in any case, nor by the King himself, except by his order in his Privy Council, after a complaint and a hearing before the com- mittee of the Privy Cooiwil, and a report to the King by the said committee after such hearing, confirming the truth of such complaint, and advising the King to remove the person com- plained of from the office of counsellor of the province. This degree of independence I should think sufficient to render the members of the Council of a province respectable in the eyes of the people, as it could hardly be suspected that the power of removing them from their seats in the Council, (when It was thus reserved to the King alone, and to be exercised by him only by his order in Council after a complaint against the person to be removed, and a hearing of the same before a com- mittee of the Privy Council, and a report of the said committee confirming such complaint, and advising the removal of the person complained of) would be used improperly, or that the fear of its being so used would have any undue influence upon the minds and votes of the members of the Council in their public actings as a legislative body. But if such a suspicion was entertained in any province, and was found to lessen the dignity of the Council in the eyes of the people, I should, in such case, wish to see the members of the Council appointed in a manner still more independent of the crown; nay, even in such a permanent rannner, that nothing but a conviction of treason or felony, upon a ^trial by jury,, should be sufficient to deprive them of their seats in the Council. So much do I conceive it for the benefit of the several provinces, that the members of their Councils should both be and be thought by the people as free as possible from every undue bias and influence in favor of the crown, in their deliberations on the laws which are proposed to be passed for the public welfare. Perhaps, also, the possession of a certain quantity of land in the province ought to be made a necessary qualification for a member of the Legislative Council of ti)e province. But this is a circumstance which we may well suppose His Majesty will usually have regard io in choosing the members of these Councils, in order APPENDIX. S67 to increase their weight and inflaence in their respective provinces. These are the alterations I would propose in the constitu- tion of these Councils in the American colonies, which are to join with the Governors and Assemblies of the people in the important budness of making laws. As to the Councils of advice and control to the Governors, who are to assist them in the exercise of the executive powers of their commission, I see no reason (as I said before) to increase their numbc. They might, therefore, continue to consist of twelve or thirteen members, (for with the Surveyor General of the Customs, who was a counsellor extraordinary, you may remember the number in Georgia was thirteen,) and should hold their places at the pleasure of the crown, as the King's Privy Counsellors do in England ; but should not he liable to be either removed or sus- pended by the Govei-nor. And they might either be members of the greater, or Legislative Council, or not, as His Majesty should think fit. If these alterations of the constitution of the Councils of the American colonies were to be adopted, I am persuaded they would contribute greatly to the ease and tran- quility of the King's Government in tliem, and to the repressing any factious motions or attempts of the Lower Houses of Assem- bly that might tend to prejudice tL- King's authority. For as the members of these Councils would have been obliged to the King's favour for their appoinment to the office of a Counsellor, the) would probably, from gratitude, be sufficiently inclined to support the just prerogative of the crown; and the people, where they saw that the Council was composed of three or four and twenty of the most substantial and discreet and upright men in the province, who were men in no degree depenilent on the Governor, and very little dependent upon the King himself, for a continuance in their seats, would consider their operations upon public affairs as the safest and best they could resort to, and would therefore acquiesce in the disp.ppointmeut of such plausible attempts as might be made by men of turbulent dis- positions in the Lower House of Assembly, to diminish the prerogative of the crown, when those attempts were disappointed hu t.hn nnnnait.inn nf Bnr>h a V.nnnoW YKnt in tVta nt-aman* afnt-a of things, the members in the Councils in the royal governments 268 APPKNntX, •re very little respected by the people, becauHe they avo con- sidered an the mere tools and creatures of the Governor and tiie crown, who dare not act and vote according to their real senti- ments, for fear of being suspended or removed. And some- times, the extreme smatiness of the number makes their acting as a legislative body, with a negative on the resolution of a full Assembly of the people's representatives, appear absolutely ridiculous. Of this w, nor their appointment in what are called the King's Governments, by the King's man- damns, are free from exceptions, especially if the Council, as a leg..:jtive body, is intended to answer the idea of the House of Lords in the British Legislature. The:e they are supposed to be a free and independent body, and on their being such, the strength and firmness of the constitution does very much de- pend ; whereas the election or appointment of the Councils in the manner before mentioned, renders them altogether dependent on their constituents. The King is the fountain of honour and as such the peers of tho realm derive their honours from* hira ; but then they hold them by a surer tenure than the pro- vincial Counsellors, who are appointed by mandamus. On the other hand, our popular elections very often expose them to conteii;pt; for nothing is more common than for the represen- tatives, when they find the Council a little untractable at the 272 APPENDIX. close of the year, to remind them that — May is at hand." It is not requisite, that I know of, that a Counsellor should be a freeholder. According to the charter, his residence is a suffi- cient qualification : for that provides only that he be an inha- bitant of, or proprietor of, lands within the district for which he is chosen; whereas, the peers of the realm sit in the House of Lords (as I take it) in virtue of their bnronies. If there should be a reform of any of the colony charters, with a view to keep up the resemblance of the three estates in England, the Legislative Council should consist of men of landed estates. But as our landed estates here are small at present, the yearly value of 100/. sterling per annum might, in some of them at least, be a sufficient qualification. As our estates are partible after the decease of the proprietor, the honour could not be continued in families as in England. It might, however, be continued in the appointee quamdiu se bene gesserit, and proof might he required of some malpractice before a suspension or removal." " The King might have the immediate appointment (of these counsellors) by mandamus, as at present in the royal governments." " Besides this Legislative Council, a Privy Council might be established." These iare the words of Mr. Oliver's letter to Mr. Whately which agree in substance with those of Sir Egercon Leigh above cited. And they surely are very respectable authorities, and of prodigious weight in favour of such an amendment of the constitution of the King's Councils in North America, as has been just now mentioned. Alterations of these Governments in favour of liberty, that arfe suggested arid recommended by such friends to the authority in Great Britain, as the authors of the foregoing passages, seem to be indisputably reasonable and ex- pedient, and fit to be adopted by Great Britain. — You now see the reasons of the amendments I have proposed in the constitu- tion of the Provincial Councils of the several royal governments in America, as the last measure which seemed to be necessary to a lasting reconciliation between Great Britain and her Colo- nics. I have only to add my most hearty wishes, that both this and all the former measures which seemed necessary to the snrna /ri\ni\ Arul ntav )io snppflilv ndnnt.pd. IfiHi bv Rven a small delay in the p reseat critical situation of affairs, the opportunity APPENDIX. «7S of restoring peace and confidence between the two countries by means of them be lost for ever." The Canadian Freeholder, from which the two foregoing extracts are taken, was written by Mr. Mazeres, the first Attorney Genera! of Lower Canada, after the cession of the country, and published in London in the year 1779. There was another work published by him in 1774, intituled "Quebec Commissions," containing many valuable documents relating to proceedings had in this country from the time of the cession down to the passing of the Quebec Act in 1 774. Mr. Mazeres does not seem to have returned to Canada after publishing his last work, but remained in England, having had the office of Cursitor Bai on of the Exchequer conferred upon him, and died in that office some few years back at a very advanced age. It is not possible to read papers coming from his pen without perceiving that he was a constitutional lawyer of the very first order, a man of integrity and patriotism. He is the author also of some papers or works on mathematical subjects, I think on the doctrine of Chances. His views as to the public policy to be pursued by Great Britain in the government of this colony, were diametrically opposite to those entertained by the then Governor of the colony, Loixi Dorchester. Extract from the Anonymous Work mentioned at p. 170 of the text, as No. 8. "Whatever may have been the reasons which induced Government, in the year 1774, when tLe Quebec Act was passed, to withhold the full participation of the privileges of British subjects, as the Canadians are now generally convinced of the superior mildness, security, and advantages of a British constitution; and His Majesty's ancient subjects in that pro- vince, are now as a body become respectable, compared either in regard to their number, their wealth, the landed property t!iey possess, or their general influence— we presume no suflS- MM IP r- I if1| 274 APTEWDTX. dent reasons can now be given for continuing an arbitrary system in that country. It has already prevailed too long for the interest of the British Empire; as we hope we shall be able to shew that it has been the cause of much oppression to the people; that it has impeded cultivation and population; has greatly depressed the trade and commerce of that province; and has, in its consequences, been very injurious to Great Britain. The Quebec Act established a Governor and Council as th& legislature of the province; this Council to consist of not more than twenty-three, or less than seventeen members; a majority of the whole Council, when legally assembled, might proceed to the business of legislating. In consequence of this clause, it has been determined by the Council, that nine members (being the majority of seventeen, the smallest number limited by the Act of Parliament) may legislate; and of course, as every thing is carried in the Council by f» majority of votes, the acts of five Councillors may legally bind the whole province. The Gov- ernor is Commissioned by His Majesty, and the Counsellors being recommended by the Governor, are appointed by the King's mandamus. They may be suspended by the Governor, ant. removed at His Majesty's pleasure. No qualification is required of the members of that Council, except residence in the province; they may be men entirely unconnected with and entirely ignorant of the various interests of that extended pro- vince and its numerous dependencies. Such is the legislature established by the Quebec Act; and we will venture to assert that no country or natioii can producfe a system, which in its constitution is more arbitrary or despotic. Had the Governor been solely invested with the legislative, as he is with the ex- ecutive powers, ea he would have been accountable to the King, to the nation, and in some measure to the inhabitants of the province, for the propriety and necessity of his legislative acts, these would have served as checks to restrain him from any- glaring abuse of those powers ; but under the system of legisla- tion established by the Quebec Act, all idea of responsibility is removed; it is the Council that legislates; and as the members of it are, irom Ua ii/usinuiivrnj air.^i^S'.- -^ — j - — seats at that board, and have each a pension or salary as Coun- ■t'i . A<»t»KVniX. 275 Willor, a Govei ror may, through them, oppress with impunity.* There is no incentive to engage the members of that Council to seek after information with a view to the good of the com- munity. The welfare of the people, their ease, their comfort or happiness, must be only secondary considerations under such • Litt of the present Legialative Council of Qudfec. "•'"••y "«p« £100 And as Lieutenant Governor 1500 William Smith j^q And as Chief Justice ]2qq Hugh Finlay j^^ And as Post Master General 250 Thomas Dunn iqq And as Judge of the Common Pleas 50O Edward Harrison jqq John Collins j^q And as Deputy Surveyor General ioq Adam Mabane iqq And as Judge of the Common Pleas ^qq J. G< C. Delery , , ^ iqq And Pension aQQ George Pownal Iqq And as Secretary of the Province 400 Picotede Belletre jqq And as Surveyoi' of the Koads iqq John Fraser _ iqq And as Judge of the Common Pleas 50O Henry CaldweU (late Deputy Receiver General) ]00 William Grant (late Deputy Heceiver General) JOO Paul Hoc St. Ours jqq Francois Baby, Lieutenant Colonel Militia \qq Joseph de Longueuil, Half-Pay Captain iqq Samuel Holland jqq And as Surveyor General 3QQ George Davidson, (late Deputy Receiver General) Joo Sir John Johnson, Superintendant of Indian Affairs 100 Charles de Lanaudiere jqq And as Superintendant General of Roads 500 R. A. BoucherviUe jqq And as Surveyor of Ruads jqo Le Comte Duure. Crili>iii>l of MilUiu „ jru\ Owe Vacant. r M »K 276 APPKVT)T«, \r' a constitution. The public has no right to expect any f^reat degree of patriotic exertions from a body constitutionally so dependant.* It cannot be expected that the members of that body, from their situations (few of them being concerned in commercial pursuits) should be sensible of all the inconveniences which the present system imposes on trade and industry; or that they can in any great degree feel as their fellow-subjects, those alarming apprehensions for the security of their property, which uncertain or unknown laws must ever occasion. The laws and ordinances that have been enacted by the Legislative Council, are loudly complained of by the people, as being ob- scurely worded, and made without suflacient knowledge of the subject; and public objects as may naturally be expected under such a system of government, have been generally neglected. There is not a decent Court House in the province. The jails are small, inconvenient, and in a ruinous condition, very niinuus condition, very hurtful to the health of the prisoners, and a nuisance to the public ; and as the Sheriffs are not accountable for escapes, the public laws have no certain remedy in cases of fraud. There has not even been a Protestant church erected in the province. • George Allsopp, Esq., was suspended in January, 1783, for having entered a protest in March, 1780, against some proceedings then had in the Council, as will appear by the following copy of the letter of suspension, viz :— Council Office, Jan. 9, 1783. SiR^I am ordered hy His Excellency the Governor to acquaint ynu that His Excellency, having resumed the consideration of the Protest made by you on the 6th of March, 1 780, and of the Minutes of the Legislative Council subsequent to it, has thought proper to suspend you from your seat in the Legislative Council, until His Majesty's pleasure be known. I have the honour to be. Sir, Your most obt. humble Servt. (Signed) J. WILLIAMS. Clerk of the Council* The Hon. George Allsopp, Esq. N. B. — Mr. Allsopp was some time afterwards removed from his seat at that board. APPl!ND13t. 277 Will any one say that the people are not justified in com- plaining of a system of government so oppressive, and so miser- ably defective, under which their dearest and most sacred rights are withheld ; and their property is the sport of laws which they cannot comprehend. Do these patriotic members of the the community deserve to be branded with the invidious name of factious, who have come forward to lay before His most Gracious Majesty and Parliament, the abuses and grievances that exist in a British province. We know that it must have been the intention of our Gracious Sovereign and of Parliament in passing the Quebec Act, to promote the happiness and pros- perity of the inhabitants of that province ; it is therefore the duty of every good subject to point out the causes why those gracious intentions have not had the desired effect ; and to pro- pose for the consideration of Government such measures as may appear most likely to attain arid secure these desirable objects." In allusion to the case of Mr. AUsopp, at the end of this extract, in the margin of the volume, we find the following words in writing :— « Look to page 104, and you will see the crime alledged, which does honour to the memory of the ac- cused," and upon referring to it we find the following:— Extract from a Protest hy George AUsopp, Esq. member of the Legislative Council of Quebec, in Council, 6fh March, 1780. « It must be allowed that there is a manifest want of order and regularity in the Court of Common Pleas; the first judges or presidents of those Courts not being versed in the science of the law, or the usage of Courts of Judicature, consequently cannot be supposed capable to form or keep up proper regula- tions for that end; nor do they confine themselves to rules of law, but occasionally decide on the equity of the case, contrary to the letter of the law; the impropriety whereof cannot be better defined than in the words and language of a law officer of resoectahlp anthnritu in Kia /tKon.^^nfJ/^.^o — . iU- r ry ' — .•' '•-• "''"vi TKtivriia ifii mc lui'iiier Court of Common Pleas, of which the President of the Legislative 278 APPENDIX. Council, and the tliree Judges of the Common Pleas, now of of the Council, were members. " But how vague and uncertain their proceedings as a Court of Equity must be, without one established maxim of Equity in the Court l—How ill calculated to preserve (what it certainly was not intended to preserve) an ancient system of laws, which were to be admitted or rejected upon notions of equity, adopted by gentlemen who merit however no other imputation than the want of education in, *;.• acquaintance with, Courts of Law or Equity, and the confusion in which such decisions mtist neces- sarily be involved, are matters upon which I think I need not enlarge !" " Since the Quebec Act took place, little or no beneficial alterations have happened in the proceedings of these Courts ; on the contrary, the only desirable parts of the former system have been taken away; the subject has been deprived of the benefit of juries in actions fo* personal injuries, the merchant of the decision of causes by the law of merchants, and according to the laws of England, heretofore in use prior to the introduction of the Quebec Bill ; and no positive law, no fixed or estab- lished rule, to supply these dejects. The Courts, now sole judges of the fact and of the law, in all cases, and though generally unacquainted with law, and particularly with the laws of commerce, are left to their own judgments; consequently their decisions are too arbitrary, and their power too unbounded to tally with the principles of the British Constitution I " To prove these assertions it will be considered that the laws and customs of Canada, wh^ch form the most imperfect system iu ilie world for a commercial people, have, in matters of trade, been long since exploded in France, and the Code Marchand introduced in all their Courts in its stead. Canada, before the conquest of it by His Majesty's arms, had little or no trade of consequence, except that of the India Company for furs, who monopolized almost the whole; and, therefore, probably not having so great occasion for the Code Marchand or Jurisdic- tion Consulaire, it was not introduced into this country." APPEXDIX. «7a No. 9,—^. 5C).* Statement of the Contingent P.xpensea of the Home of As- sembly ^ Session of the year 1828-9. ^'•- £ s a ^—Witnesses 856 4 4 2 — Accounts paid for Committees 222 17 7 3 — Messengers for Committees 55 18 3 4 — Clerks of Committees, Extra Writers, &c. 2297 1 1 9 5. — Call of the House ^ 2I 17 6 6 — Commissioners on Contested Elections ... 118 8 91 7 — Messengers and Servants 403 5 8. — Gazettes 89 7 9 — Wood and Coals 71 7 /^x 10 — Divers Accounts 154,9 g 5 ll.--.Candles 'ZZZZ. 81 2 10 12.— Books, &c 9^ jj g 13 — Clerks' Petty Disbursements 18 3 6 Do. Commission on Cash received 60 5 Currency 5940 16 1 *^2^* Account No. 10. Jan. 31 — Neilson and Cowan, Printing and Sta- tionery to 30th April, 1828 57 Jo % Neilson and Cowan, on Account of Session 1828-9 443 9 g April 1. — Ditto, on Account of do 500 1000 • " OfJate years the expenditures have been considerably augmented by allowances to witnesses. In one instance as much as 120/. was allowed to one witness ; and the costs so incurred, during the session of. I think. 1828-9, upon a single petition of grievances, amounted to between 6007. and 700/.-Some witnesses one sees as regularly about a fortnight after the opening of the session as su^alhws in the spring ; and although they 00 not iast qui^e so long, yet they hardly leave Quebec before either th; Houae or the roads breiik mj^:' ^Extract from Ihe text, p. 56. S60 APPRVDIX. 1828. £. ,. d. Dec. 17 — T. Cary & Co. Piintinflr. Stationery. &c. 23 9 1829. Aug. 5. — W. H. Jones for a full-length Portrait of George IV 150 Account No, l.—.Witnei,scs. 1828. Dec. 19.— H. A. Ballantyne 6 2 6 23 — F. Dayer and A. Bolduc 6 J. B. Taclie 14 24 — J. Veilleux and F. X. Venault 9 30. — Jean Delis le, Grievance Committee 12 10 1829. Jany. 3. — Charles Mondelef do 10 Henry Chriffin do 13 David Ross do 13 10 9. — Remi Puire do 4 P. de Boucher ville do 16 10 12. — P. C. Marquis do 6 P. Leprohon do 11 5 15. — Josias King do. 3 7 6 17 — Jacques Viger do 20 19. — Louis Guy do 13 23. — J. R. Rolland do 6 Jacques Viger do 10 24. — Louis Guy ^ do. ». 10 Jacques Viger do 2 27 — W.Scott do 13 29. — J. Crebassa do 6 17 Rev. Mr. Kelly do 8 5 J, J. Girouard do 13 A. Levallee 5 31. — M. Boucher and A. Poulin 6 A. C. Taschereau 3 15 Feb. 4. — Pierre Triganney Grievance Committee 7 6 N. Crebassa do 7 5 Rev. Mr. Driscoll do 6 12 6 APPBNDIX. 28 [ Feb. 6 — M. Glachmeyer do 6 1? 6 W' Hall do 6 7 — H.J.Martin. do 18 G. C. Coldough do 18 15 9 — P. J. Cressi do 10 A. Lovejoy do 17 15 *2. — Charles Felton do 10 Joseph Bouchette do 4 13 4 13 — S. Barnard do 23 10 IQ.^W. Macrae do 4 10 ^T'—C.B. Felton do 12 10 18 — S.Barnard do , 2 21 — Rufus Miner do 19 23. — Samuel Brooks do 20 27 — F. A. Evans do , 5 28.— Chief of Lorette Indians 3 10 March 3._T. Verrault *."'* 5 q q C 7^. G^oo6?^Me, Grievance Committee 42 10 ^.—M.Bostie do 4 5 — C. de Tonnancour do 67 10 C. B. Felton do , ... 145 j q I'—P'J- Cresse do 47 10 7.— T. M'Millan 5 T- Murphy 3.'.* 5 9 — a de Tonnancour, Grievance Committee 4 l^.—F. A. Evans do 4 10 ^*«^ do 4 ^'Z r. ^" 58 10 ^' H. Dickerson do 58 10 Currency £856 4 4 NN 282 APPENDIX. i To)Ca$hpaid, the folloicing Disbursements from IstJanttary, 1830, to I5M January, 1831. No. £. ,. d. 1. — Petty diHhursementB 11 14 6 2 Newspapers, &c 99 18 6 3. — Divers accounts 5569 3 3 4. — Clerks of Committees, extra Writers, &c.... 1277 2 6 6.— Candles 73 12 6 6 Wood and Coals 75 8 6 7. — For Committees 16 17 8 Witnesses 103 2 6 9. — Messengers and Servants 360 10 10— Books; 508 4 5 o095 13 8 To the Clerk's Commission on 8575/. currency, received on account of the contingent Ex- penses of the House of Assembly 85 15 Total amount of the Contingencies, from Ist Jan. — — .— — . 1830, to 15th Jan. 1831 8181 8 8 Account No. 3. 1830. Feb. 11. — Neilson and Cowan> on account of Sension 1828-9; see their accounts ... 200O April 24. — Neilson and Cowan, on account of Session 1830 .^ \ 1000 Sept. 4. — Neilson and Cowan, on account of do. 1000 Printing 4000 Mar. 30. — Neilson and Cowan, Lithographic Maps to Journals of 1828-9 81 14 6 Nov. 19. — Neilson and Cowan for four cases of Stationery 246 6 7 Total paid Neilson and Cowan 4328 1 1 T. CaryandCo 173 19 6 Priming and Stationery 4502 7 ArPBNDIX. 283 Account No. S. €. ». d. April 2.— J. B. Audy, for Portrait George IV. 112 10 U. and A. Haddon, frame for do GO Joseph Bailey, a frame for do. for the one at the Castle 35 207 10 July 80 — Joseph Bailey, seven Gilt Frames for Portraits of Speakers, &c 21 Dec, 30. — John James, on account of Painting seven Portraits of Speakers, &c 70 91 Feb. 1 1 . — T. Gary and Co. for Stationery, Parch- ment, &c. to 26th January, 1830 159 10 I Dec. 2. — Do. since do 14 9 5 1831. 173 iQ 6 Jan. 5. — Paid Postages from 6tli January, 1 830, to 5th Januaiy, l«31 86 10 4 No. 8. — Witnesses, Sec. 1830. ..• ' Feb. 12 — Chs. Lafrenaye, Three Rivers Petition 5 10 L. C. Cressd, do. do.... 5 6 3 Pierre Desfosst. , do. do.... 5 10 Joseph Badeaujc, do. do. ... 6 Charles Mondekt, do. do. ... 5 6 3 L. O. Coulombe, do. do. ... 4 15 Petrus Noiseux, do. do. ... 4 15 Francis Normand, do. do 5 10 18. — A. Boucher, Internal Communications 8 Charles Chapais, do. do 8 19. — Ls, Galarneau, do. do 2 25. — Jacques Morin, do. do 1 10 27. — Louis Lafleche, do. do 5 C. T. H Goodhue, several Committees 9 ^84» ' APPBNDIX. March 1 — E. Bercier, Internal Communications. 1 10 Abraham Turgeon, do. do 10 8.— J. Dalrymple, Petition from New Glas- gow i 13, — S. II. Dicker son, on his Petition against Judge Fletcher 23 10 16. — A. C. TaMchereau, Internal Communi- cations 4 5 103 2 6 From 16th January to 18M November, 1831. Ko. !• — Pc ty Disbursements 25 18 2. — Divers Accounts 4061 17 1 3. — Newspapers, &c ]74 ]4 g 4*-- Clerks of Committees, Extra Writers, &c. 1394, 2 9 5.— Witnesses and Expences for Committees... 273 18 10 6. Call of the House 22 9 I 7. — Wood and Coals 46 9 1 8. — Messengers, Door Keepers, &c 44-0 10 9.--Candles 67 10 10 — Books r. 493 14 4 7001 3 7 Letter of Credit to Hon. D. B. Viger 500 W. B. Lindsay, Commission on 7125/. 71 5 J. B. R. Audy, Portrait of George III 75 J. Bailey, Gilt Frame and Crown 35 liO Postages 164 10 6 APPBNDIS. 885 10 5 3 7 5 1 83 ^''"^^'^' "'"^ Expenses for Commktees. Feb. 14.~J. BHithe, Committee of Elect! .' and ^ P"''il«'Ce'" 1 J. Barthe&N. A Hard, Berthier Petition 1 17 6 15. — Joseph Claprood, Grievances 4 |0 Q 19.^ IVolJred Nelson do '* 8-^6 John DelisJe do 30 5 3 T. Imbaiilt, deliverinj? letters to Cur^s 15 21 — Andre A. Laval/