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Les diagrammes suivants illustrent le mAthode. 1 2 3 1 2 3 4 5 6 ' ^PROCEEDINGS B E T W E E K if i Sir Guy Carlet Late Governor o -.Os ,c^^ P Jl@yj NCEoF QUEBEC, Peter Livius, Efquire, > Chief Juftice of the faid Proven c ^ ; A' \ WITH T H £ V .ay Reprefentation of the Lords Commiflu^neajstf Trade aixd Plantations thereupon -, The Report of the Lords Committee of Council, and his Majefty's Order in Council. mo* f^. fe ' I. r:9 \\ T O T H E King's moft excellent Majefty* THE MEMORIAL o F §0. PETER LIVIUS, Your Majefty's Chief-Juftice of your Province of Quebec, in North- America, Moft humhly Jheweth, THAT by your Majelty's moft gracious ac- ceptance of your Memoriaiift's dutiful, though poor fervices, he was appointed by your M^jefly your Chief-Juftice in your faid Pro- vince. . That your Memorialift, to the beft of his power, has diicharged the duties of the faid office, faith- fully, diligently, and, as he humbly trufts, un- blameably. That Sir Guy Carleton, then Governor of the faid Province, did take upon himfelf, though not inverted with any fuch authority, to amove your Memorialift from his faid office, without affigning B any [ ^ 1 any caufe whatever, though fubmiflively intrcated fo to do by your Memorialift. That notvvlthftanding Sir Guy Carleton had no authority to amove your Memorialift, yet in the pre- fcnt circumftancc of public affairs in that country, your Memorialift, to avoid the public fcandal that would attend a conteft, and the detriment it would occafion to your Majelty's fervice, thought it is his duty to acquiefce under the oppreflion, humbly referring the matter to your Majefty's wifdom, and firmly confiding in your Majefty's juftice ; that juf- tice he now prefumes to implore. He cannot fuf- fer himfelf to believe, that Sir Guy Carleton would have proceeded with fuch violence, had he not been deceived to think there was fome very great caufe for it. Your Memorialift therefore humbly prays,- that Sir Guy Carleton may now affign the fuppofed caufe, which hitherto he has refufed your Memo- rialift to do; and your Memorialift further humbly prays, that your Majefty would be gracioufly pleaf- cd to afford him, confident of his own fidelity and uprightnefs, fuch opportunity as fo your royal juf- tice and wifdom fhall feem fir, of difpelling every imagination that the unwarranted and unprovoked condudrof Sir Guy Carleton may have fuggefted to the prejudice of your Memorialift's charader. And your Memorialift, as in duty bound, will ever pray, &c, "London y Sept. 23, 1778. I^jj [ 3 ] His Majefty was pleafed to refer the confidera- tion of this Memorial to the Lords Commiflloners for trade and plantations; they directed the Go- vernor to affign the canfes of his fufpending or re- moving the Chief Juftice. The Governor by letter referred their Lordflilps to what he had written from Canada to the Secre- tary of State, and to the journals of the Lcgiflativc Council, for the caufes of his proceeding. On the 8th of December the Chief- Juftice had communication of the Governor's letters from Ca- nada, and of the journals of the Council there, and was direfted to avoid any anfwer to the invec- tive in the letters, and to confine himfelf merely to the matter of fad alledged againfl him, and was allowed to the 15th to prepare and deliver in his anfwer. On the 15th, he accordingly delivered in hi^ anfwer in thefe words : May it f leaf e your Lord/hips, When theChief-Juftice of an American Province is fufpended or removed from his office, it will naturally be expedted, efpecially in thefe times of public difquiet and jealoufy, that the caufe was fome great and notorious crime, as treafon, bribery, or at leaft an infufficiency in his office, or a negligent difcharge of its duties ; and that the delinquent had •<.-» 2- a fair / . t 4 ] a fair opportunity of making his defence before he was publicly difgraced and dilhonoured. In the prefent inftance, the Governor, knowing himfelf to be then a(ftually under recall, yet took upon him- felf to remove the Chief- Jufticc fuddenly, without inquiry, and without allowing a defence, becaufe y in his place in Council he had prefumed to fpeak his opinion, and to propofe meafures not confonant; to the Governor's ideas. It is unneccflary that the Chief-Juftice ihould make proteftation of his loyal- ty; his paft conduft places it above fufpicion; and he trufls he fhall convince your Lordftiips that on this occalion alfo he has done only his duty in Council, by concurring in opinion with fome of the principal fervants of the Crown in that country and by ufing his endeavours that the King's inftruc- tions, and the adt of Parliament for the govern- ment of the Province, might be obeyed : yet when- ever he had made fuch reprefentations as he conceiv- ed his office and a due attention to law and juftice 1/ required of him, he fubmitted to whatever was de- termined, and has always endeavoured to give the beft appearance to thofe meafures he had privately difapproved, when once they were adopted public- ly as meafures of Government ; as often as his ad^ vice has been afked, this has been his condudt, and the Governor will not, he cannot, give an in- ftance to the contrary. In C 5 1 In order to examine with method the Governcr's proceeding, and his defultory accufation againftthe Chief.Juftice, he begs leave to confider them un- c]er the following heads : I. The Governor's authority to remove him. II. The impropriety of the time and the man- ner of proceeding. III. The caufe afligned as good and fufficient, I. He is to confider the Governor's authority to remove him. He was appointed Chief- Juftice of the Province of Quebec by his Majefty in his Privy Council ; in confequence letters mandatory iffued under the King's Signet and Sign Manual, diredting and re- quiring the keeper of the public feal of the Pro- vince (the Governor) forthwith to caufe Letters Patent to be paffed granting the office during the King's will and pleafure, and the patentee's refi- dencein the Province; Letters Patent were ac- cordingly paffed, he was in by patent, and a per- fon fo appointed cannot furcly be removed by the mere word of the Governor : the pradtice and pre- cedents have ever been againft it ; when Gover- nors in America have conceived themfelves obli- ged to flop the proceedings of any of their Coun- cil, they never pretended to remove them, but only y } t ^ ] only fufpended them till his Majefty's will and pleafure Ihould be known, yet an ordinary Coun- fellor has only a Mandamus for his office ; whcre- ' as the Chicf-Jufticc of the Province of Q^iehec is , appointed by the King himfclf in his Privy Coun- cil; is in by Letters Pafent, and is not only of che Council, but a Prefident, and a neceflary conflitu- cnt member of it. It may be perhaps fald that Sir Guy Carleton's commiffion was different from that of any other Governor, yet his commifTion gave no authority to remove any perfon, and though in his inftruc- . tions he was diredled not to difplace any Judges or other officers, but for good and fufficient caufe, it cannot be thence inferred that he may remove them when he pleafes; and this inftrudtion has ne- vcr been confidered as affefting the Chief- Juftice or a Counfellor, or any officer appointed by the King himfelf, but to refpeft only fuch judges an4 officers as the Governor may have appointed, who by this inftrudiion are not to be confidered as crea- tures of the Governor's mere will and pleafure : when once in office, the King direds they are to continue while they behave well ; the inftrudion is intended as a barrier againft the Governor's ar- bitrary treatment of them, and this has been the conftrudion and pradice of every other American Governor, If f If it be conceived that Sir Guy Carleton's pro- ceeding was founded on fome principle of French government in Canada, it is a miflake; the cafe is quite othcrwife; for during the time the French were in polTeffion of that country, the Governor and the perfon at the head of the adminiflration of juftice, though equally dependent on the King, were perfcdtly independent of each other. II. The impropriety of the time and the manner of the Governor's proceeding is to be confidered. When the greateft part of America was in re^ belHon, and the almofl fingle Province then at peace was under fome difquiet and jealoufy, was it prudent to remove the Chief- Jullice, unlefs there had been the moft abfolute neceffity f^r it ? _For the proceeding itfelf, and the manner of it. ^t """' "'^'^l'""^^^' w^s never heard, andun-// til he came hither, was uninformed of the nature of his offence. What never was or ever can be juftly denied to the moft notorious and infamous crimi- nal, was denied the Chief- Juftice of the country- he was condemned, difgraced, and difhonoured without either being heard in his defence, or any hotice given him; and when he molt humbly prayed (as your Lordlhips will fee) to have a knowledge of what he had done amifs, and to be heard, he was comcmptuouily denied both The manner :>.-.'^ • 1 1 r. s 3 manner of it was thus. — In March laft the Gover- nor thought projier to aflemblc the Legiflatlve Council J the general difcontent throughout the Province was too public, and threatened too much danger to his Majefl:y*$ government, not to draw the molt ferious attention from thofe of the Coun- cil who preferred his Majefty's fervice and their own duty to every partial confideration i fome mo- tions were made, which, although they tended to preferve the public peace, yet proved difagreeable to the Governor, upon which the Council was very fuddenly prorogued, and iix duys after the Chief-Juflice was furprized with the following letter from the Secretary. Secretary's Office^ ^ehec^ May ift, 1778. " Sir, " By his Excellency's the Governor's com- " mand I rm ordered to inform you, you are no longer Chief- Juftice of his Majeily's Province of Qiiebec ; of which you will take notice and " govern yowrffjlf accordingly. ^^ J. am, Sir, *' Your mofl . '-edient, '' Hun.ble Servant, " GEORGE POWNALL, " Secretary, P. Q/' ^0 Peter LhiuSj F/q, 7 On CC €t tt U tt tc te t( it te te tt tt ff C 9 ] the Ch.ef-Juft,ce was at no lofs to determine with- in himfelf that the Governor had no right of re «oval : but when he confidered what fcandal to government, and detriment to the King's fervice woud probably be the confequence of a conteft. he determined to facrifice his own feelings, and to acqu.efcc for the prefent ; with a view thfrrfore of bnngtng on an interview and explanation before he a&rr bec.me public, he immediately wrote the following letter to the Governor. To Sir Guy Carkton, Governor, &?<:. « Sir, 'f I received this moment from the Secretary, a Sgnification that it was your pleafure I ftould Ponfider myfelf no longer as Chief-Juftice of this Provmce, and that I ihould take notice and J vern myfelf accordingly : I will do fo, yet 'fuf- fer me Sir. to fay. I am furprized at this ; I feel ftrongly, that although my conduft in another capacity may have been rendered through mif. reprefentation, and very much againft my wift and intention, d.ftafteful to your Excellency, yet my endeavours in my capacity of Counfel- !o.-, to the beft of my underftanding f for I do not pretend to be a politician) have been loyal, honeft and refpedful towards you : and in L; Office of Chicf=Juftice I muft preiume to fay li what tt cr t< C IP 3 II f 1' J ''"^ '' ^^"' °^" °P^"^°"' ^^^t my con- dudt has been unblameable. What then could induce your ExcelJency to give me fuch an in- fiance of your anger, I will not even prefume to think, but Ihall be ready in every honourable J way to deprecte it; and I do intreat that I may have that common juflice done tome, of bein^ « informed of what I am accufed , and before you" finally condemn me, of being heard in my jufti. fication by you, for of your honour I think, and - ever did think myfelf affured, and am certain " of my own innocency and uprightnefs, and of *^ my refpedtful thoughts of you and towards you. " I have the honour to be, " With the trueft refped:, ' " Your Excellency's mofl humble " And mofl obedient fervant, *' PETER LiyiUS, ^elfec,May i,iyy2. His Excellency Sir Guy Carleton, K, B. ^c,'* To this letter, moderate and refpedful as it mufl appear, a verbal reply only was returned by the bearer of it, « that there was no anfwer/' It is owing to this denial of the knowledge of the charge againft nim, that he may not perhaps be able to give your Lordfhips the fame information, as if he had known it while he was yet in that country, and proofs were in his power ; yet your f " 3 Lordihips will not have a doubt, that his removal Was the effedt of private refentment, and not of any good and fufficient caufe, when you fliall have bonlidered, Illdly and laftly. The pretended caufe of the violence offered to him. The Governor has not thought proper to fpecify (as IS ufual on occafions of this nature) his charge againft the Chief-Juftice, but has left your Lord- ihips to colled it from the minutes of the Council to which he refers you. What is to be under- flood by this ? but that the Governor has alTumed the power of removing the Chief-Juftice, becaufe the meafures he promoted, and the advice he gave in Council, were not agreeable to the Governor 5 that is to fay, the King has inftrudied the Governor 10 allow freedom of debate, and vote in Council , and he now tells your Lordfliips, that inftead of allowing any fuch matter, he has taken upon him to remove the Chief- Juftice from his judicial of- fice, for having dared to ufe that freedom in Coun- til. The meafureshe propofed and promoted are* m their nature, fuch as leave no room to imagine they were fditioully intended- fuppofing him therefore mirtaken in his condud in Council, that would not be a fufficient caufe even for his being fufpended from being of the Council; but how abfurd IS it, that becaufe it is fuppofed he did not ^ * behave f * J il behave properly in Council, he is therefore ii» moved, not from being of the Council, but from his judicial office ; in which it is not pretended, or even infinuated, that he merits the leaft blame • and this too fix days after the Council had been prorogued, when no longer any embarraffments could be apprehended to the Governor's views, from the Chief-Juflice's difference in opinion in regard to public meafures. If ever the mifcarri- ages and mifcoridaft in Canada become objefts of public enquiry, to clear himfelf of blame f6 far as refpefts him in the civil line, what muft be his juftilication ? the meafures followed were con- trary to his opinion ; why did he not then declare his opinion ? he did, firft privately to the Gover- nor; and, when that proved ineffeftual, in Coun- cil; what then in faft and in truth is, and muft be the Chief-Juftice's juftification, he finds im- puted to him as a crime. He therefore begs leave lurth« to fay, that the meafitres he profnoted, in which he had the honour of the concurrence of ibme of the beft informed Members of the Coun- cil, were not only intentionally right, but they were in reality the moft effeftual and the beft tot the King's fervice- In order to render the reafons of his condua plainly intelligible and fafisfaaorv he muft beg leave to obferve^ That for fome time after the reduftion of Ca- nada, It continued under a mere military admini- : ' " ilration. [ 13 ] ilration._ In 1763 his Majefty was pleafed to g.ve It civil government, as nearly as might b« on the footing of Englift law. This wa, at firft received with fome difguft; the Canadians knew nothing of Englift law, and were attached to thofe laws they had been long governed by; but the Britifli fubjeds, of whom many bad by this time fettled in Canada, affured them, they would foon feel the difference, and alter their opinion ; fo It proved, in a very few years Canada, inftead of miportmg its own bread, as it had done during the French government, counted its export of wheat by the hundred thoufand buftiels ; and the Canadian peafants, inftead of an inconfiderable fum of depreciated paper currency, or perhaps none came to be pofliflbrs of no inconfiderable hoard of filver money ; thefe effeds they attributed juftly to the operation of the freedom and protec- tion of the Engliih law over their induftry, and the„: attachment, and love to the government were daily growmg ftronger ; the Seigneurs indeed,^^ although under the Englifh law/^etaincd all their feigneurial rights, were not fo well fatisfied • they had not altogether the fame importance, or tefpeft, as in French times ; though generall>r worthyand deferving men, they have much of their origin, and are better courtiers than Englini- men commonly are ; it is therefore no great won- '^^U It they infufed their own notions into the per- fon I j / ^^^i: t U 1 ifon who was fupreme among them ; and as he con- vcrfed little with any other Canadians, except fuch as are 6f the predicament laft mentioned, he na- turally enough conceived, that the opinions he heard were the fentiments of the Canadian na- tion, and that an entire revival of the French law Would firmly attach every Canadian. Thiis idea was encouraged by fome about him, who felt that ., / V / bower in him would in eftevince dthat ed by ? and inity, amifs f the ^ana- ding Ifion their iges, , [ 17 ] carriages, their teams, and their labour without any pay, under sin ill-grounded fuppofirion that it was agreeable to Canadian law, and with a pretence of punifhing them for having been lukewarm in the King's fcrvice on the Rebel invafion. The confequences were, that thofe who had milbe- haved, or who had no principles of loj'alty, dif- obeyed the fummons, and hid themfelves in the woods; thofe who had always been friends to Government, readily attended, were exceedingly harrafled, and then were laughed at by their ill- difpofed neighbours, for their " penible loyaute j** they foon became difgufted with a government whofe injuftice they feverely felt, the afFedtions of the few faithful remaining among the Cana- dians were alienated, and their numbers rapidly diminifhing, when another adt of Government, about this time, completed the difguft with every man of refledion. By the Quebec A6:, the Council for the affairs of the Province was to con- fift of not lefs than feventeen members ; but by the King's inftruftions, any five were to be a fuf- ficicnt number to ad as a council of flate. Though this be a general inftrudtion, no American Go- vernor had ever fuppofed it was the King's inten- tions to allow the packing of a Council ; yet under pretence of thefe words, " any five," Sir Guy Carleton thought proper, by an order of the 8th Auguft, 1776, to appoiftt, not any Jive, but a D par- r '8 ] f articular fvey whom he mentioned by name, who, together with fuch as the Lieutenant Go- vernor Ihould think proper to fend for, were to compofe his Council, under the new and affuming title of the Privy Council ; the reft of the Council, though honoured with the King's appointment, were to get it approved by the Lieutenant G ,/ vcrnor, who was the Governor's private fecretary, "Before they were to prefume to enter the new Council. This was attended with very bad con- fcquences, fome confidence reafonably might be, and was placed in a Council that was to confift of not lefs than feventeen, and might be compofed of twenty-three of the principal perfons in the Pror vince; but all confidence was loft when it was feen, that by the Governor's ad, five, or even three, out of three and twenty, and thofe a packed three, might decide, contrary to the more whole- fome opinion of the twenty j that thefe five mem- bers were fubftituted in the room of the Council for the affairs of the Province, conftituted by the A6:, and appointed by the King ; and that this culled Council were often called to decide finally in matters of the greateft importance, and fome- times in affairs of a leglfiative nature, with the fole cognizance of the expenditures of all public monies ; and all thofe about the Governor were pot equally exempt from the fufpicion which na- turally follows myftery and concealment in affairs cf a public pecuniary nateie, Iq [ '9 1 In February 1777, the Council were again af- fembled for the purpofe of legiflation, and the King's inftrudtions being dill kept clofe, a fct of very extraordinary ordinances were obtained, con- trary to the King's purpofes and intentions, as declared in the inftrudions. Thefc ordinances quenched all hope, for it could not enter into any man to conceive, that a Governor would pafs fuch ordinances, in oppofition to the earncH: defires, prayers, and formal reprefentations of the moft fubftantial people in the Province, and contrary to the King's inftrudions then in his pofleffion, but concealed by him. The Ad of Parliament for the government of the Province having been, by thefe means, inter- Af^ted very differently from its true fenfe and intent, and being loaded with the undeferved odium of being fuppofed to legalife many ads of unneceflary oppreffion, has been rendered an ob- jed of public diflike j whereas, had the wife and lenient meafures recommended by his Majefty been attended to, there can be little doubt, that this Ad would have given the Province a firm, good, legal eftablifliment ; and ere this, would have been generally confidered as a bleffing. In this train matters continued with but little difference, except that a fmall pittance has been paid the Ca- nadians for their labour, if they choofe to aik for D z it. y ;- [ lo ] it, but it was fo inadequate, that a great number have rather chofcn to ferve the King for nothing than for fuch pay; and it has raifed more indigna- tion in the people than if they had been offtTcd no pay, for it has juft allowed their right to be paid, yet refufed due payment. Thefe, with feveral un- neceflary, illegal, cruel imprifonments, and many other lefler circumftances of oppreffion, have filled the country with difcontent ; and when an invafion was threatened laft: winter, it was plain how the Canadians were difpofcd, in fome places they ac- tually took up arms agalnft the King's troops. Such was the fituation of affairs in Canada, when the Council met a third time for the purpofc of legiflation and fettling the Province. This was the firft and only meeting of the legiflative Coun- cil, at which the Chief-Juftice was prefent, it can therefore only concern him to give an account of his condud during that feflion ; but it was necef- fary to enter into this detail that the reafons of his conduft might be made evident. There were four propofitions made in Council by others, and two by him. The Governor pro- pofed a regulation of feesj though the Chief-Juf- tice thought a fee bill very improper in the prefent wavering uncertain courfe of pradtice in the Courts, and though the fees then taken were not exorbitant in, proportion to the bufinefs improperly rendered necelTary ; [ il ] neceflary ; yet as a fee bill was infilled on, he fin- cerely endeavoured to render it as unexceptionable as poffible, and as Chairman of the Committee for law fees, he went through the bufinefs with all poffible expedition, and duly made his report. By the terms in which the Governor has mention-' ed this matter, your Lordlhips will be led to ima- gine that the Chief-Juftice had taken exorbitant fees, and therefore endeavoured to delay, and if poffible to prevent a bill for the regulation of fees. The truth is, he has never received a /ingle fee, or any perquifite of any kind whatever, except the'fa- laries his Majefty has been pleafed to allow him. Mr. Finlay, joint Poftmafter General in Ameri- ca, and Mr. Grant, afting Receiver General, each of them propofed a bill which they repr?fentcd as of great public utility, and very neceflary to the prefervation and colledion of that part of his Ma- jefty*s revenue entrulled to their refpediive care ; the Chief-Juftice voted for the commitment of both bills, becaufe they were offered by thofc to whom his Majefty had committed the care of thefc matters ; and it was a great indecency to rcfufc their bills the common attention of being confi- dered by a committee. Col. Caldwell (who commanded the Britflfi mi- litia during the fiege of 1775.6) made a motion for fome alterations in the militia ordinance, and for [ " ] for the appointment of a committee to rake the fame into confideration, and to make inquiry into the caufos of the prefent difcontents among the Ca- nadians, with a power to fend for perfons, pa- pers, &c. The prevalence of thefe difcontents was notorious, and Col. Caldwell repeated fome very re- markable inttances of them, and of fome oppreffions he himfelf had been a witnefs to. If the Chief- Juftice had been difpofed to foment difturbances and divifions, he would doubtlefs have fupporred this motion ; whereas on the contrary he oppofed it in the ftrongeft manner he was able, paAticularly the appointment of fuch a committee, as he thought it could only ferve to give fedition an opportunity of rendering the public difcontents more general and more dangerous. Yet could the Governor have been moved to communicate, as he was ordered, the royal in* ftrudions, and to liften to the advice of his whole Council, it would no doubt have produced the moft falutary ciTeds to the King's fervice, by convincing the people that their oppreffions could not be afcribcd to the King or his Minifters, and thereby reftoring to his Majelly the hearts and affedions of his fubjedts in that Province. The Chief-Juftice had endeavoured fix months before, very refpedfuUy to offer fome private ad- vice to this purpofc, but it anfwered no other end than [ ^3 ] than to increafe a diftance and coolnefs towards him. Without hope therefore of fuccefs from more private application, at the meeting of the legillative Council, and after Col. Caldwell's mo- tion, the Chief-Juftice felt himfelf coerced by every motive of honedy and fidelity to make two mo- tions dired^d to the purpofe before-mentioned, in the following words : f « Province of ^ehec, in Council, <* M April, 1778. *' The Chief Juftice moved. That this Board " not having hitherto had communication of his «' Majefty's inflrudions, forthe making and palling " laws in this province; his Excellency the Go* " vernor be humbly requefted to communicate « to this Board fuch royal inftrudions as he may *' have received relative to the legiflation of this " province, and he may think are proper to be '^ difclofed to us, in order that the legiflatlve ^? Council may dutifully endeavour to conform " themfelves to his Majefty's intentions, and that ** they may, fo far as they are able, carry into ^* effea his Majefty's moft grncious purpofes, for f' the good government of his fubjeds in this pro- »« vince," *p "Province (( tc €C te it te €t tt [ H ] Province of ^ehec^ in Council^ " 23^ A-prily 1778. " The Chief- Juftice moved, That whereas by an adt of parliament for the making more ef- fectual provifion for the government of this province, paffed in the i4ch year of his prefent Majefty, it is enacted, that it fhould be lawful for his Majefty, his heirs and fucceflbrs, in manner therein expreffed, lO conftitute and ap- point a Council for the affairs of the province ** of Quebec^ to confift of perfons refident there, ' not exceeding twenty-three, or lefs than fevcn- ** teen. That his Excellency the Governor was ** pleafed, by an order of the 8th of Augull, ** 1776, to appoint a council, (calling the fame *• a Privy-Council) to confift of only five parti- " cular perfons in the faid order named, and of ** fuch others as the Lieutenant Governor fhould think proper to fend for. ** That by virtue of the faid order, the five per- fons in the faid order named, repeatedly, in different affairs of different natures, have taken upon themfelves to ad. as a Council for the af- fairs of the province of Quebec, in oppofition to the faid adt of parliament, and in exclufion of his Majefl:y*s Council for the affairs of the province of Quebec, legally conftituted and ap- pointed according to the faid adt. " That « it a (C <« (C (( (( (( ic C ^5 ] of the (C (( (( <{ tc a (t it it it iC That the accounts or the expenditures ot aU the public monies for the ufe of this province, have been examined only by thefe five perfons* or fuch others as the Lieutenant Governor chofe to fend for, and afterwards have been reported by them to the Governor, and by him approv- ed jn the prefence indeed of the legal Council, but without their interference, approbation, or confent. That the faid approbation of the Governor, in the prefence of the legal Coun- cd, by fome accident, has been entered in the Journals, In words that may naturally be un- derftood to mean, that the faid accounts have received the approbation and fandion of his Majefty's legal Council for the affairs of this province. a a re a " Thatt:hefe proceedings are irregular and Il- legal, tend to introduce confufion, uncertainty, and difcontent, and if not timely remedied^ will give opportunity and means of collufion and impunity to future peculation and perver- fion of public monies under any future Go- vernor. " The Chief- Juftice therefore moved, than an ** humble addrefs be prepared and prefented to *' his Excellency the Governor, ftating the pie- " mifes, and humbly praying, that Te will be "»* r>l pleafi-d CO order cod ivenient remcdv/' n* [ ^6 ] The firft of thefe motions was rejeded, the fe- cond was precluded from confideration by the fiidden prorogation, and fix days afterwards he was removed from his office in the manner before- mentioned. Such has been the Chief- Juftice's condudt in Council ; whether any part of it is ad- verfe to the interefts of government, or in any de- gree merits the llrange and cruel treatment he has received, he humbly fubmits to your Lordfhips. If it be thought, there are occaiions in which it is the duty of a faithful fervant of the crown, not only to fubmit his actions, but even to be iilent as to his opinion, when it differs from that of the perfon who is chief in command. In the prefent inftance, the anfwer is, that whether the (ituation of affairs, or the condud: of the perfon in command be confidered, the times required the moft explicit frankncfs, conliflent with decency, on the part of thofe whom his Majelly had been pleafed to call into his Council there, and to entruft with a voice in the government of the province. As to the fitu* ation of affairs, the detail already gone through, will fatisfy your Lordfliips how improper it would have been for any fervant of the crown to have withheld his fentiments ; to the condud of the perfon in command, the Chief-Juftice means to fay as little as poffible, he wifhes not to recrimi- nate ; he has throughout his anfwer, endeavoured to avoid making obfervatioiis on the conduct of others r. [. C 27 ] others, except where it was neceffary to explain and juftify his own ; but called upon as he is, in his own defence, he may be permitted to fay, that however the Governor's proceedings may be ex- plained, their appearance at lead rendered him an unfit objed of implicit political faith to any fervant of the crown felicitous to difcharge his own duty. Upon the whole, the Chief- Juftice begs leave to conclude, that efpecially at a time, when the nation is expending millions of treafure, and fa-- crificing tboufahds of lives to maintain the fu- preme authority of the King and Parliament in America, it is his duty to endeavour to obtain an obfervance of the royal inftrudions, and of the adt of parliament, for the government of the pro- vince he is ftationed in; when therefore he faw, in lieu of fuch obfervance, meaiures,^ a mode of government adopted, repugnant to the -King's inftrudions and the adt of parliament ; that the King's grace to his people was intercepted, his royal intentions mifconceived, and the province thereby fo tilled with difcontent, that the moft alarming confequences were very juftly dreaded ; unplcafant and dangerous as it was, he did his duty, and endeavoured to remove an unjuft im- putation of oppreflion from his Prince, to place it on thofe who deferved it. This is the full ex- tent of his crime, for this he has been treated with unexampled indignity and cruelty. His charader E 2 as C i8 ] « Chief-Jufticc is unimpeached even by thofe who have oppreffed him, and hi, conduft i„ Council was fuggefted „,erely by the fame zeal for the K.ngs fervce, that has always aftuaied every o er part of his life. It is therefore with the « eateft confidence, that he appeals to the juftice of your Lordfliips. P. LI VI US. Copes of the 2d, ^th, %th, ^th, ,oth, juh, nth nth, and iph Articles of his Majeftfs general Inftrurtions to Guy C^r\.,on, Efquire, GovernoY of the province of Qiiebec. 2dly, It Is our further will and pleafure, that any five of the faid Council fhall conftitute a Board of Council for tranfading all bufinefs, in which their advice and confent may be requifite, ads of legiflature only excepted (in which cafe you are not to adt without a majority of the whole.) And i£ IS our further will and pleafure, that the Mem- bers of our faid Council fliall have and enjoy all the povyerg, privileges, and emoluments, enjoyed by the Members of our Councils in our other plantations; and alfo fuch others, as are contain- ed and dire^ded in our faid commilfion under our Great Seal of Great Britain, and in thefe our in- ilrudlions to you, and that they iliall meet toge- ther at fuch time and times, place and places, as you in your difcretion Ihall think neceifary, ex- cept [ ^9 ] ce^t when, they meet for the purpofe of legifla- tion, in which cafe they are.to be affembkd at the town of Quebec only. 7th, You are forthwith to communicate fuch and fo many of thefe our inftrudions to our faid Council, wherein their advice and confent arc men- tioned requifite ; as Jikcwife all fuch others, from time to time, as you fhall find convenient for our fervice to be imparted 'o them. 8th, You are to permit the Members of our faid Council, to have and enjoy freedom of debate, and vote in all afiliirs of public concern, that may be debated in Council. ni 9th, And whereas by the aforefaid zCt, palTed in the fourteenth year of our reign, entituled, " An ad for making more effedual provifion for ** the government of the province of Quebec in « North America;'* it is further enadled and pro- vided, that the Council for the affairs of the faid province, to be conftituted and appointed in man- ncr therein direded, or the major part thereof, fliall have power and authority to make ordinances for the peace, welfare, and good government of the faid province, with the confent of our Go- vernor, or, in his abfence, of the Lieutenant Go- vernor, or Commander in Chief for the time be- ing, provided that no ordii>3nce ftall be paffed, unjeis [ 3° ] unlcfs upon fome urgent occaiion, at any meeting "of the Council, except between the firft day of January and the firft day of May. And whereas the ftate and condition of our faid province do re- quire, that inimediate provifion fhould be made by law for a great variety of arrangements and re- gulations effentially neceflary to the government ; it is therefore our will and pleafure, that you do, within a convenient time, iffue fummons for the aflembling of our faid Council in their legiflative capacity, either on the firft day of April next, or as foon after as may be convenient, in order to de- Jiberate upon, and frame fuch ordinances, as the condition of affairs within our faid province Ihall require, and as Ihall, in your and their judgment, be fit and neceffary for the welfare of our faid pro- vince, apd the territories thereunto belonging. loth, You are neverthelefs to take efpecial care, that no ordinance be paffed at any meeting of the Council, where lefs than a majority of the Coun- cil is prefent; or at any time, except between the firft day of January and the firft day of May, as aforefaid, unlefs upon fome urgent occafion ; in which cafe every Member thereof, refident at Quebec, or within fifty miles thereof, Ihall be perfonally fummoned to attend the fame. That no ordinance be paflTed for laying any taxes or duties, fuch rates and taxes only excepted, as the C 31 ] the inhabitants of any town or diftrift may be au- thorized to aflefs, levy, and apply within the faid town or diftri<5t for making roads, eredling and re- pairing public buildings, or for any other purpofe, refpedting the local convenience and ceconomy of fuch town or diftridt. That no ordinance touching religion, or by which any puniihment may be inflidted greater than fine or imprifonment for three months, be made to take effed:, until the fame Ihall have re- ceived our approbation. That no ordinance be pafled relative to the trade, commerce, or filheries of the faid Province, by which the inhabitants thereof Ihall be put upon a more advantageous footing than any of his Ma- jefty's fubjeds either of this Kingdom or the Plan- tations. That no ordinance refpedting private property be pafled without a claufe fufpending its execu- tion, until our royal will and pleafure is knowr, nor without a faving of the right of us, our heirs and fucceflbrs, and of all bodies politic and corporate ; and of all other perfons, except fuch as are mentioned in the faid ordinance, and thofe claiming by, from, and under them ; and before fuch ordinance is pafled, proof muft be made be- fore you in Council, and entered in the Council books. [ 3a ] books, that public notification was made of the party's intention to apply for Rich ordinance in the feveral parilh churches, where the lands in queflion lie, for three Sundays at lead fucceflively before any fuch ordinance fhall be propofed ; and you arc to tranfmit and annex to the faid ordinance a cer. tificate under your hand, that the fame pafTed through all the forms above-mentioned. That no ordinance fhall be enadled for a lefs tiine than two years, except in cafes of imminent ncceffity, or immediate temporary expediency ; and you fhall not re-enaa: any ordinance, to which our aflent fhall have been once refufed, without exprcfs leave for that purpofe firft obtained from us, upon a Full reprefentation by you, to be made to us by one of our principal Secretaries of State, and to our CommifHoners for Trade and Plantations, for their information of the reafons and necefHty for 'paffing fuch ordinances ; nor give your afTent to any ordinance for repealing any other ordinance, which hath pafTed in your government, and fhall have received our royal approbation, unlefs you take care, that there be a claufe inferted therein, fufpending and deferring the execution thereof, ' until our pleafure be known concerning the fame. nth, In the confideration of what may be necellary to be provided for by law, within cur laid Province, as created and eilabllfhed by the ^ i. > I' I [ 33 ] the aforefald adt, intituled " An Adk for making <* more effectual proviiion for the government of ** the Province of Quebec in North America," a great variety of objedfi hold themfelves forth to the attention of the legiflative Council. 1 2th, The eftablifhment of courts, and a pro- per mode of adminiftering civil and criminal juftice throughout the whole extent of our Pro- vince, according to the principles declared in the faid ad for making more effedual provifion for the government thereof, demand the greateft care and circumfpedion ; for, as on the one hand, it is our gracious purpofe, conformable to the fpirit and intention of the faid Aft of Parliament, that our Canadian lubje<5ls fhould have the benefit and ufe of their own law, ufages, and cuftoms, in ail controverfies refpedting titles of land; and the tenure, defcent, alienation, incumbrances, and fettlement of real eftates, and the diftribution of perfonal property of perfons dying inteftate ; fo on the other hand, it will be the duty of the legifla-, tive Council to confider well in framing luch or- . dinances, as may be neceflfary for the eftablilhmcnt of courts of juftice, and for the better adminiftra- tion of juftice ; whether the laws of England may not be, if not altogether, at leaft in part, the rule of decifion in all cafes of perfonal aftions, grounded upon debts, promifes, contracts, and ?jgreements ; whether of a mercantile or other na- F ture 4 r 34 ] ture ; and alfo of wrongs, proper to l,e compen, lated in damages ; and more efpecially where out natural-born fubjefts of Great-Britain, Ireland, or our other Plantations, refiding at Quebec or v.'ho may refort thither, or have credit or property withm the fame ; may happen to be either plaintiff or defendant, in any civil fuit of fuch a nature.' // 13th. Security to perfonal liberty, is a funda, ^mental principle of juftice in all free governments ; and the making due provifion for that purpofc is an objea the legiflature of Quebec ought never to lofe fight of; nor can they follow a better ex- ample than that which the common law of this kingdom hajh fet, in the provifion made for a writ of h%as corpus, which is the right of every Brmfli fubjea in this kingdom. ' ' ^ 17th, You Ihall not difplacc any of the judges, juftices of the peace, or other officers or minifters jvithout good and fufficient caufe ; which you fhall fignify to us by one of our principal Secretaries of State, or to our GommifTioners for Trade and Plantations, for their information. After ^he Chief-Juftice's anfwer was delivered 9nd read, he would have proceeded to adduce his proofs in fupport of all he had alledged ; but their ^ordihips thought proper to defer the bufinefs to Tuefday ^he zzd of December, in order that $ir Guy t 35 3 fcuy Carleton might have notice. On which day* Sir Guy Carleton having fignified by letter, that he chofe to decline being prefent, and the Chief- Juftice appearing, he was heard, and fome of his proofs were adduced, till their Lordlhips thought proper to tell him, he need give himfclf no fur- ther trouble. The Lords of Trade and Plantations made their rcprefcntation to his Majefty on the 2d March, 1779, in the following words : ** In obedience to your Majefty*s commands, *' we have taken into our confideration the humble ** Memorial of Peter Livius, Efq; appointed by " your Majefty to be Chief-Juftice of the Pro- *' vince of Quebec, complaining of his having ** been amoved from his fald office by order of ** Sir Guy Carleton, Knight of the Bath, late your " Majefty's Governor of that Province, without " afli^ning any caufc, and without authority for *' fo doing; and praying that Sir Guy CarletOR " may be now required to affign the reafons for *' his amoval, and that the fame may be enquired ** into; we have thereupon, in purfuance of our <* duty, required of Sir Guy Carleton, a commu- " nication of the reafons which induced him to " difplace Mr. Livius ; and having received for *' anfwer, that he ftated thofe reafons in one of his y laft letters to Lord George Germain, one of your J-- (C C( I t 36 ] « Majefty's principal Secretaries of State, and hac! « referred his Lordfhip for proof of the neceffity of « themeafuretothe minutes of thelegiflativeCoun- « cil in their laft feffion ; we have examined thofe «' Minutes, together with the letter referred to by " Sir Guy Carleton (copy of which has been com- municated to us by Lord George Germain) and having made known to Mr. Livius the matters «' in charge againft him, we did appoint a day for « hearing: him in his defence, and gave notice " thereof to Sir Guy Carleton, that he might at- " tend and make good the reafons affigned for his " amoval; but he fubmitting, whether his atten- « dance might be neceflary, as his charge was '« confined to the papers before us, we proceeded, on the day appointed, to hear and confider what Mr. Livius had to offer in his juftification and " defence, and now beg leave, humbly to repre-s « fent unto your Majefly ; <« That before we proceed to examine the pa- *' pers to which we are referred for proofs of Mr. « Livius's mifcondua:, we think it neceflary to « premife, that no part of the charges contained in " thofe papers, apply to impeacb the Chief- Juftice *« in his judicial charader and capacity in any particular; nnd it is our duty here to obferve, that your Majefly, by the feventeenth article' <* of your inftrudlions to the Governor of Quebec, " was gracioully pleafed to dircdt, that he Ihould o «^ not K (( CC (( 1^ 1. f 'Tt C 37 ] " not difplace any of the judge?, juftices of ttie *« peace, or other officers or minifters, without <' good and fufficient caufej which he was to fig- " nify in the fuUeft and mott diftindt manner to " your Majefly, by one of your Majelly's princi- " pal Secretaries of State, and to your Majefly'a *' Commiffioners for Trade and Plantations, for " their information. We Ihall now proceed to *« examine his conduct as one of the legiilativc ** Council, and beg leave thereupon to obferve *' to your Majeily j " That it does appear to us, that 3'our Ma- " jefty's Council of Quebec, were called together •' by the late Governor, for the purpofes of legif- ** lation, on the 23d of March laft, and were •' prorogued by his order, on the 25th of April •* following; that this was the firil: and only ** feffions of the lep;iflative Council at which the <' Chief-Juftice was prefcnt ; and that during the *« period of this fellion he cont^antly attended ; *« that upon the firft day of the meeting, the late •* Governor being prefent, recommended to the *« confideration of the Council, the regulation of *' fees to be taken in the feveral offices ; and that upon the day following, they refolved them- felves into two committees for the purpofe of *' making the neceffary examinations and reports, ** preparatory to the framing an ordinance, the *' Chief- Juflice being chairman of the commit- ** tee [ 38 ] ** tee for law fees ; that upon this occariori it ap- " pears on the minutes, that the Chief-Juftice *' moved in the following words, viz; *« That in order to regulate the fees, in compli- *' ance with his Excellency's the Governor's re- " commendation, the Judges of the Courts of ** Common Pleas, for the diflrids of Quebec and ** Montreal, might be dire&ed to furniih a ftate of •' the courfe of their proceeding in their refpeftive " Courts, and of fuch rules, orders, and notices of ** pradlice as they have made to regulate the courfe of ** their refpeftlve Courts, in order that this Board *' may receive the information neceflary tc appor- " tion juftly the fees to be allowed to the labour *< neceflary to be done/^ *' This motion being rejected upon a divifion, *' the Committee proceeded on their bufinefs, but «' before they were prepared to make their report, " it appears that Mr. Finlay, joint Poftrtiafter of " America, and Mr. Grants ading Receiver-Ge- " neral, each moved certain regulations for the '* better managing and colleding your Ivlajerty's " revenue within their refpedive departments } " the Chief-Juftice voted for referring thefe to a " Committee in both ihftances ; which were over- " ruled, and the reafons he affigns for fo doing, ** are, becaufe thefe propoiitions were offered by ** thofe to whom your Majefty had committed the «< C2re a i te 6( te (( ft (C I 39 ] « care of the matters to which they referred ; and *« becaufe it was, as he conceives, a breach of de- *' cency in the proceedings to refufe them the «^ common attention of being confidered by a' f* committee,"—" When we ftate thefe proceed- ings to your Majefty, we would not wiih to con- vey any idea that it is upon them the late Go- *' vernor founds his reafons *e«fom-for difplacing " the Chief-Juftice, efpecially as your Majefty had in the eighth article of your royal inftrudions to your Governor, fignified your exprcfs will and pleafure, that he Ihould permit to all mem- f bers of the Council, to have and enjoy freedom " of debate and vote, in all affairs of public con- ^' cern that might be debated in Council ; but we ^« lay thefe fadis before your Majefty, fimply as *' they ftand on the minutes to which we are re- *« ferred, that no particular of the proceedings, « wherein the Chief-Juftice diffented from the ^' prevailing fenfe of the Council, may be with- f' held from view on this examination; at the '' fame time alfo that we ftate thefe inftances, in « which the Chief-Juftice divided againft the nia- « jority of the Council, we muft in juftice obferve, *« that in cafe of certain propofitions as the foun- ** dation of an ordinance, moved for by Mr. Cald- 1' well, one of the faid Council, and rejected by ♦' a majority, it is ftated by Mr. Livius, that l^e '* took part in the rejcftlon of thofe motions ai^d 'f the ordinance thereup depei i( Wo C( I t 40 ] <« We proceed now to confider what we miift " believe to have been the efpecial caufe of Mr. ^« Livius*s removal ; the two following motions *' made and propofed by him in Council ; the lirft *' of which, we find In the minutes of the 8th of ♦« April, in the following words : viz, " The Chief-Juftice moved, that this Board not having hitherto had communication of his <« Majefty's inilrudions for making and paffing " laws in this province, his Excellency the Go- « vernor be humbly requcfted to communicate to " this Board, fuch royal inftrudlions as he may ^< have received relative to the legiflation of this " province, and he may think are proper to be *' difclofed to us, in order that the legillativc ^< Council may dutifully endeavour to conform themfelves to his Majefty's intentions j and they may fo far as they are able, carry into efFed: " his Majefty's moft gracious purpofes for the *' good government of his fubjeds in this pro. ^' yipce. ** *' This motion, conveyed in words to which no ' ^* exception feems to lie, is in effea: a call upon " the Governor to comply with your Majefty's " commands, by imparting to the Council fuch ** and fo many of your Majefty^s royal inftruftions *' as he may have been direded to communicate, *^ or may find convenient fo to do; and it is our ^' duty / t 47 ] « the minutes of the Council of the 8th of Auguf^, •* 1776, that the Governor, with the Lieutenant *• Governor, Hugh Finlay, Thomas Dunn, John « Collins, and Adam Alabane, being the only " members prcfcnt, appointed the faid five mem- •* bers a board of Privy Council ; and ordered, " that they examine and report upon the provin- " rial accounts down to the firft of May laft ; the *« military contingent accounts for the defence of " the Province, to the time of difcharging the *' militia of the city of Quebec ; the Indian^on- " tingent accounts, including the bills drawn at •' Ofwegatche, Niagara, Detroit, and Michilima^ *' kinac j and all other accounts which may be «' laid before them by his Excellency's orders :• " that they enquire into the Hate of the Province " with regard to provifions, both in wheat and " live ftock, which it is capable of furniiliino- to- *' his Majefty's troops, over and above the con- " fumption of the inhabitants; and that they " forthwith give their opinion to his Excellencv, " upon the propriety of flopping the exportation ** of thole articles. 4- " That they take into confideration the fees of ^ the different offices, and of the attornles of the « different courts of juftice in the Province, and « caufe a lift thereof to be made out, and laid be- ** fore his Excellency. Ct That: 6i C( I 48 ] «* That they alfo take into confidcratiori the ' regulation of the police of the Province, and caufe commiflioris to be prepared for conftitutirfg an inferior criminal jurifdicftion in the refpec- '* tive diftri(!^3 of Quebec and Montreal. " That the Lieutenant Governor may caufe *' any other member or members of the Council '' to be fummoned to aflift at the Board, when- *' ever he ihall think it neceiTary to confider of *' any matters regarding the tranquillity and good " order of the Province." " Having thus at large recited the minutes to « which the motion refers, the whole of Mr. ** Livius's condu(5t in Council is before your Ma- " jefty, and fubmitted to your royal wifdorii i *' but your Majefty having been pleated to r'e- " quire our opinion in the cafe, it is our duty to « fay, that although it were much to be wilhed, <« that the lait of the above recited motions had « been propounded in terms iHore fludiouily " o-uarded, and to appearance not fo offenfive to *« the Governor ; yet upon a full review of thefe ** proceedings, without any difcuffion of the au- " thority aflumcd by the Governor in the inodc " of removal, there does not appear to us good and fufficient caufe for difplacing Mr. Livius; efpecially when we confider, what has been be- ** fore obferved, that no complaint or imputatiod «c CC l; " whatever r A9 ] " ,^^^tever has been preferred agalnft him in his •' judicial capacity/' S. JENYNS, B. GASCOYNE, W. JOLLYFFE, C. GREVILLE, T. DEGREY. / His Majefty was plcafed to refer this reprcfen- tation to the Lords of the Committee of Council for plantation affairs, who gave notice to Sir Guvr Carleton to attend, but he declining it as before *, their Lordlhips made their reporc in this man- ■ J"".' ^^J^«y h^'ving beep pleafed, by your order .„ Council of the ,9th of this inftam, to e e unto th., Committee, a reprefentation from the Lords Comm.ffioners for Trade and Plantati- ons, dated the .d of this inftant, i„ the word, following, viz, * *u, Were was infert^d the foregoing repreftn- Jation of the Lords of Trade and Plan- tations, and then the Lords of the Com, mittee went on with their report in this manner, • '^^^'^ ^'e Prefcnt in the Committee of Council th. Earl of Gower. Lord Prefident ; the Earl of m! k LordGeo^eGermaine, Oen.:! ColJl^^Z^Zt i3^ot, and Sir Thomas Parker. ^ " *^ '< Th^ * g6 (C . '• iaM£S^it^'\\>«i3llifi St*