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Lorsque le document est trop grand pour dtre reproduit en un seul cllchd, II est film6 A partir de Tangle sup6rleur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'Images n6cessaire. Les diagrammes suivants lllustrent la m^thode. by errata ned to lent une pelure, fagon d 1 2 3 32X 1 2 3 4 5 6 / /V LETTER ov TH O M A S L E E, Not. Pub. TO THE EARL DALHOUSIE, GOVERNOR IN CHlEl' Ol- I-OWER-CANADA, &c. ^c. &c. RELATING TO HIS 1-ATE DISMISSION FROM THE MILITIA OF THE PROVINCE. <• Ouand Ics nations niurissent, lapensec est un instriimciit noiivcau pourellcs, iltaiitlour ,i-nrcndrl before His Excc'.lency, the Governor in-Cliicf, a Leiicr addressed lo liini by Capt. Thonias \xq, ill the following vvtird^ : — {a} ' Apres avoir conside;e I.i manierc pen genereiise que vou? e-n. plo/czpoiir poursiiivrelcs Mdiciensde ma Compagiiic,(iui soiit siipposcs av:)ir manqiids an:; exeiciscs prC'eii'.'i, par la 27c. ct la '29c. aniiee do George Tfois ; jc ciois devoir vouB.informcr que jc nie suis rcti.-e et que je me refuse a me conformer a-Vos instructions, et a executer vos ordies a ccc egard. * J'ai riioiineur d'cfe M'UKsieur votro obeisseur scrvitcur, (Sigie) THOMAS LEL, « Cau. Ir. Bat. M. C, Q. • Ouebec, 'Jc, Oc. IH'JT.' ' Au Lieul. Col. Perraulf, le. Hat. M C. (J. " His Excellency C4)nsideis tliis to bo a lireath of di'cinline so ■.'•rn<;s, «... » t? ' that it merits immediate puni-ihrntni and disgrace, ((J) ; the Gnvernor in- Chief therefore, in rhe exefcise of the authority vested in him, canceh the Commissi. m of Mr. Thomas Lee, [c) and orders ihal he be er.rolled as a private m litiaman, udierevei he may reside in the province uf Lovvcr-Caiiada. fa J See a correct cojiy ff the ririgiia! Letter appeiuled. fh) 1'l'nishment: a pinaliy far liaiisgii'svin;^ the L;ov. I'unitior! : Ce met est synonytrivS a I'liatimciU. La punition est reservee ti la sctile autoritc de« lois. Disgrace, s. S'att; of ignominy, flishonoiir, ^unty of of that Martial /ho had jn from y to de- 't'lrauh, jriveii by lis com- lis pait, I he mat- IF,L, JR, 18Q7.) ?/ oj tht d used 11 ion of right 1 : heard, le same eral or- ly com- mihtia >1. Jo- ^ully re- >aid Jo- scpli Francois Perraiilt;* because your militia general oitlcr, my Lord, as liovernor-iii-Cliief is illegal j be- cause the itica artfully spread iu society, that a Cio- vcruor, hy virtue ol* his commission, is accountable tor his conduct only to God and his conscience ; or that he cim, with impunity, act in any instance arbi- trarily, despotically, or tyrannically as regaitis tl>e liberties or property of his Majesty's brave and Io}al Canadian subject"^, is a monstrous doctrine, which cannot be maintained w ithout the greatest danger ; because a Cjovernor cannot, unt'er th.» colour of law, nor even under the most rigid ibrms of law, exercise cruelty, malice, or oppression in resj)ect of any of his Majestv*s SLd)jects without being therefore })ersonally resj)onsible ; because you have unjustly listened, my Lord, to wicked insinuations injurious to me, and false ; finally, because the letter which you have caused to be])ublished, and annexed to the geneial or- der of militia which annuls my commission, is, my Lord, incorrect, and contains absurdities and falsehoods. THOMAS LI:K, Ex-Capt.of the \it hat of the Militia of rhiclec,and Nol.tnj. *'V\\c following anecdote may be rc'icd I'.poti, as true ; it is ja^d to be written by Sir \N alter Scott : — «♦ At the table of the Cotnmander id -Chief, not many years since, a young officer entered into a dispute with LieiitenaiU-Colonel -^- , upon the point to which military obcdii-iice ought to be carried. ' It the Commander-in-Chief,' buid the young officer, l;k.e a second Seil, ' bhould command me to do a thing wliich I knew to be civilly illegal, 1 bhuuld not scruple to obey him, and consider my. self as relieved f;om all lesponsibility by the commands of my military superior.' * So would not f,' reioitcd the gallant and intelligent officer, who maintained the opposite side of the question ; • I should rather prefer the risk of hei.ig shot for disobedience by my command- ing officer, than hanged f.^r transgressing the laws and violating the libertiei of the coimtiy.' 'You have answered like yourself,' said his Royal Highness, whose attention had been attracted by the viva- city of the debate ; * atul the officer would deserve both to be shot and hanged that should act otherwise. 1 trust all British officeri would be as unwilling to execute an illegal comirand, as, I trust, the Comi.ander in-Chief w(.'u!d be incapable of i.-suing one." APPENDIX. Thk fol!ou-in«^ Extracts, from Williams' Cases arf^ued ami (letenninod in the ICnulish Courts of l^aw, ai'e found in the 1st edition of that Work : — Misfeasance r.v thj: ExrncisE of a Public AuriioRny Mnstijn V. Fabrigas, Mic. 15 Geo. HI. B.R. Cowp. ICI. An action may be maintained against the Governor of any Britisli Sctiloment on h s return to England, for an injury done by Iiim under the colour of hh authority : for wheie an action was biought in the Court of Common Pleas, by the plaintifFagainst the tlefenJaiif, for an assault and false impasonment, and banishing him fiuni the I?lai,d of Minorca, to Cailhagena in Spain : the defendant put in two pleas, Isr, Not (JuiUy ; 2dly, '1 hat ho wd3 governor of Mmorea by letters patent from the Crown. That the plaintiff was raising a seduioii and mutiny ; and that in con'-eqiiei-ce cf buch sedition and mu'.iuy, he did imprison liim, and send him out of the island, which r.s govcrrm!-, being invested with all the j>riviloges and rights (da governor, he aHcgcd he had a right to do. The replication was, de injuria sua pi o^riu absque tali causa ; by which he denied the truth of t" fact, aiid put in ii^ue whether the facts in the plea \\ le true. At itie trial, the jury gave a verdict for the plaintiff upon botu issues, with 3,O0OA damages and 90/. costs : it appearing by the evidence, that the defendant being such governor as afore.-aiil, caused the plaintitf to be sc'zed, imprison- ed, and banished, without any reasonable or probable cau.e, or any other matter alleged in his plea, or any other act tending thereto. The defendant tendered a bdl of exceptions ; upon which bill of ex- ceptions the cause came before the Court of King's Bench ; and it was there contended, that the plea of not gudty was totally immate- rial, and so was the plea ot justification ; because fiun* the p'a'ntifl's own shewing, it appeared, 1st, That the cause of action arose ui Mi- norca, out of the realm . 2d!y, That the defendant was governor of s arg'iiod )*e t'oumi )RrTY ny British l)iin under lit in the lU, for ail Mai.d of wo pica?, by letters luioii and y, he did fT, being Icgtd he ia ah s que in is-uc 11 ry gave ages and nt being mpriscn- or any thereto, ill of cx- ; and it imrnate- (la'ntifl's ; in Mi- eriior of Minorca; and by virtue of such his authoiity, imprisoned the plain- tiff: and from thence it ^Jas urguedt that thejatl^e autho- rity delegated to him by the letters patent, legally and properly, or whether he has-^ibused it, m violation of the laws of England, and the dust so reposed in him It does not follow from hence, that let the cause of action arise where it may, a man is not intitled to make use of every iustification his case will admit of, whicli ought to be a defence to him. If he h.is acted right, according to the authoiity w:th wh'ch he i^ invcbted, he mi. at kiy ii befoie tl'ic court by way of plea, rmJ t)ie 10 coait will exercise its judgment whether it is a sufficient justification or not. In this casey if the justification haJ been proved, the court rright have considered it as a sufflcieni answer ; a^d if the nature of the case would have allowed it, might have adjudged, that the raising a mutiny was a good ground for sucli a suniuary proceeding. There may be cases in time of war in ivhich a governor tvould be justified^ though he acted vert/ arhitrarihj, in ivhieh he could nt le justified in time of peace ; as (or iniiaoce, if, during a scige, or upon an 'nvasinp, the governor sluiuld judge it proper to send an hundred ■ f the iiduibi- tants out of the island from motives of re.il and geneial expediency ; or if, ucori a general suspicic.n, he should take peoplt; up as i;pi('3 : upon proper ci'cwinstance,s laid before the court, it would hp. very lit 'o dee whether he [»ad acted as the governor of a garrison ought, according to the circumstances of the case. — As to suggetitions with legard to tli'^ difficulty of brnigifg witnesses, the court will always tul-s care that a defendant is iiot surprised, and that the man has a fair trnportu- iiiiv of hritiging his evidence, if it is a case proper in other respects for the jurisdictiori of the court. Inhere may be some cases arising abroad, whic^ may not be fit to be tried here ; but that cannot be the case of a gov^.'rnor injuring a man contrary to the duty of his office, and in violation of the trust repo- sed ia |;o^ ^j \\^^ IcMigs commission, [d.) Ir r>e wants the testimony (»r witrK'sses, whom he cannot cotnpcl to attend, the court will oblige the party to consent that the witnesses may be examined upon inter- rogatories ; and that the depositions therein taken shall be )ead at the trial. And unless the party will bo consent, the court will put off the trial forever. — In every lighcy thtrefore, in nvhich I see the sub' ject, I am of opinion that the action holds emphatically against the gO' vernor, f it did not hold in the ca\e of any ether person. If so, he is accountable in this court, or he is accoiintiihle nowhere, for the hing in council has no jurisdiction. Complaints made to the king in coun- cil tend to remove the governor, or take from him any commission which he holds during the pleasure of the crowr. Bur if he is in England, and holds nothing at the pleasure of the crown, they have no jurisdiction to make reparation, by giving damages, or to punish ^d ) With respcft to tliarges relatinpr to aibilriiry acts donp by a former Corernor of the I*fovince (meariinfr Sir James Henry Craij;) which Ihe Assembly im puled to the advice pi\en by the Chief Justice to ihat Governor, by referring to .Sn Gordop Drumn-.ond's mes-nire to the House of Assenibly, 181G, I find the follow in <; opi- iiion -»-" His Itoyiil Highness ha>i deerned thiit no incjniry wonid be necessary as lo Ihiit point, inasimich iis iioneronld be instituted without the adniissinii of the prin- ciple, that the governor of a province n,ight at his own dihcieiion divtbt himsulf of aW rciiponsibiiity on points ol political gov';rnincjU." 1 11 ut off sub- the go- he 18 le hitig COUtl- nis&ioii is in have unish him in any shape for the injury comnu'tted. Therefore to lay down in an Engiish court of ju slice., such a monstrous proposiiion, as that a go- vernor, acting hij virtue of h-tlcs patent under the great seal, is ac countable cnly to God, and his own conscience ; that he is absolutely des- poticy and c in spoil, plunder, and affect his Majesty^ s subjects, both in their liberty and property, vith impunity, is a doctrine that cannot be maintained {e . As to the other chjcction, namely, tliat as the cause of action arr)se abroud, it could not be tried here in England, his lot d hip, after a very learned and elaborate discrimination between transitory and local action-:, declared that there was not a question which could arise upon the subject, and the jiidgnient was affirmc^ /)tfr tot cur. Sutherland v, Murray, sill, at J/VvVw. nf). Ea. 17.S3. Cor. Hyre Baron died, 1 Tcr. Hep. 538. So, where the declaialion stated ihut the defendant was governor of Minorca, and vice-admiral of the island ; that the plannifF was judge of the vice admirahy court, with all fees, enioluments, &c., and that the defendant to injcire and oppress him, maliciously, and luithout any reasomable or probable cause suspended him from his o/^ce, per quod, he lost his prcjfits. On the evidence it appeared, that General Murray had legal authority to suspend till ihe king's plasure was known ; :n.:the had so suspended him, and directed the Secretary of State to take the king's pleasure on it. The general professed himself ready to restore him if he made a parliculiir apology, the king approved of the suspension, unless the teims were complied with. There the plaintiff recovered .5,000/. The gist of the action wis, admitting the legality of the suspension thus confirmed, that the defendant exercised (e) I'a ley says, •' The constitutional maxim, 'that the king can do no wrong,' i36. And a person representing the king in all functions, etvl! and military, shall answer fur an abuse ot his authority, though the act complained of was in itself legal, if it appears to have been aggra- vated by unnecessary cruelty, tnahce, and oppression : for where an action was brought by the phiintiff, as captain in the African corps, against the defendant, as lieutenant-governor of Senegambia, for im- prisoning him for nine months at Gambia in Africa, the defendant pleaded the general issue, intcr.ding to justify the imprisonment under the mutiny act for disobedience of orders. At the trial, it appeared that the imprisonment, which at first was legal, namely, for leaving his post, without leave from his superior officer, though in a bad state of health, was aggravated by many circumstances of cruelty. Lord Mansfield, in summing up to the jury, said, ** in tryii.g the legality of acts done by military officers in the exercise of their duty, particu- larly beyond the seas, where cases may occnr, without the possibility of npplication for :iro[/tr advice, great latitudes ought to be iillowcd, and they ought not to suffer fur a slip of form, if their intention ap- pears by the evidence to have been upright ; it is the same as where complamts are brought against inferior civil magistrates, such as jus- tices of the peace, for actions done by them in the exercise of their civil duty. There the principal inquiry to be made by the court of justice is, how the heart stood ? and if there appears to be nothing wrong there, great latitude will be allowed for misappreheusion cr mistake. But, on the other hand, if the heart is wrong, if cruelty, malice, and oppression, appear io have occasioned or aggravated the im- prisonment, or other irjury {g) complained of , they shall not cover them' selves with the thin vest of legal forms, nor escape under the cover of a juitif cation the most technically regular, from that punishment, which it is your province and your duty to inflict on so scandalous an abuse of public trust. In the present case, it is admitted, that the plaintiff" ff) Since the ordinance in question, in tbeo|)inionoriiis Etcellcncy, was in force, why was not ihe Xllth clause consulted, which statutes the manner of trying bolli militiamen and oflicers for eontiaventions. Instead of ihht, his Excellency has chosen, for reasons best known to hin.self, to use the kirig's prerogative. Montesquieu parlant des Itois.dit, " Le droit dc faire grace aux coupables est leplus bel altrdiutde la souverainle d'uti monari]ue ; il ne doit done pas etre Icur jnge.; The power of dispensing with laws, or the execution of laws by regal authority is illegal. — Bill of Rights, fgj See how my chHraclcr is aspersed by the language of the general order of mili~ tia, printed in the first part of this Letter, IS 'e or prohtt' procured the ep, i;36. , ch'tJ and though the leeii aggra- r where an I'can corps, >ia, for im- dcfendant nent under It appeared for leaving a bad state ty. Lord he legality y, particu- possibility le allowed, :ention ap. e as where Lich as jus- 2 of their court of 30 nothing heusion cr if cruelty i ted the im- over them' cover of a :nt, which 3 an abuse be plaintiff" ivas in force, rtrying binli •ellency ha& Dupables est js otre leur jai authority rder of mili- *ai to blame in leaving his post ; but tlierc wsi no rafmy— no mu- tiny—no danger — his health was declining, and he trusted to the bf- nevolcnci; of the defendant to consider the circumstances under which he acted ; but supposing it to have been tiie defendant's duty to call him to a military account for his misconduct, what apology is there for dentjing him the me of the common air m a sultry clitnatf, and shut- ting him up in n gloomy prison, lohere there nuas no pos%ihiUty of bring- ing him to a trial for several months^ there not being a sufficient mini- ber of officers to form a Court Martial, These circumstances, in- dependent of the direct evidence of malice, as sworn by one of the witnesses, are sufficient for you to perceive a malignant motive in the defendant, which would destroy his jiistification, had it even becti within the power delegated to the defendant by his commission. — The jury gave 1000/. damages." tc I shall finally add a passaj^c from Brou«;ham'% Inquiry on the Political Policy of the EuropoiUi PoH'ers : — After an expose oi the causes which gradually brought about the independence of the old Colonies, now the United States of America, by the narrtvv-minded policy of the then Ministry ; " May we presume to hope," says that enlightened (ientleman, vol. i. p. 138, whose libeialily and noble principles are so well known all over the world, *' that the colonial history of Great Britain will exhibit to future starfsmen,a Ubcful picture of the advan- taaes which may fairly be expected from just views of provincial go- vernment ; that it will hold out the pro<^pcct of certain success to the enlightened and generous policy which shall consider the parts of an tmpire, however situated, as membors of the same political body ; that it will display the p(>5,slbility ofroiaining the distant proviiiceti ni the relations, not of subordination, but of union, even after they have become mo'c worthy of bearing the same name, by tlieir progress in wealth, in arts, and iu arms \ and tcacli every nation of luirope, which IS happy enongh to possess such s-etllenuMits, how amply tlieu nurtm mg care must fnnlly be iccoirpensed, even in a political view, bv the eflorts of their mature- age, • All colonics,' fiays an eloquent and «ag,iclo\»s hiitovinn, ' aic a kti.d of poiiiical children, and, a- such, tonmbuie to the hunonr, safety, a>''i :ii.hi's ot" tiitir jr.ron's, if thuae patents are not wanting to theinscivcu It is, hcwcvrr, very cymmou for governmtr.15, n'j, wfil a> private prr-ii.is, to i'.ill into niai.v great ♦•••ror.. iipon 'hih h'-ad ; such a*, Utjati'ig yoniij: tcloitios v /. va'st tt';dt'ri;r;ss ?nd jpdiilg^iir..',, fj»rr-ti';- 'rotn i m .^r v>cry ?;>ngiiirr, ^\.i\ »';rfieii!r^'-s vf-y uri,-;c!S.'n.'.b!f •.xj'CfU;' ir j ui- J, b^c«;!?t ihtit-a'e ■'wt 14 answered as soon as expected, falling out with, and disregarding, those colonies, at the very time when, if they had been attended to, they might have more than answered their expectations. It is like- wise common with them, as well as parents, to grow unreasonably, I was going to say ridiculously, jealous ot" their offspring ; and, by ti ia foolish conduct, actually piuducing those nii9'-;hiefs they cndeavoureil to avoid, and which could have been produced only by such endea vours. They are apt to fancy, that, because the children are settled at a distance, they forget that they are children ; and, full of this idle fancy, they soon forget that they aie parents, and begin to treat them with an arbitrary authority. Because they live at a distance, and rujp- port themselves by their own labours, they u^ake it their study «o druvv from ihcm wherewith to maintain the luxury and prodigality ^f those children who live at home wiih th^m, and are thereby become the objects of an irregular affection, which very soon degenerates into ftn excessive indulgence. Hence arise all those mischiefs that are so warmly deplored by those, who, if they would act with proper care and spiiit, might easily amend them : for it is with colonies, as it is with children ; nine times in ten ihei: errora spring fiom the usage they have met with : and they are blamed for their miscarriages, by those w!)c are actually the authors of those miscarriagesi and ou^ht therefore to blame t/iemse!ve{."* Lettre du capUaine Lee an colonel Perrault. commandnnt It let bataillon de milice du comti de Qjiebec. MoNSiEURi Apres avoir consider^ la maniere peu genereuse que vous employez pour pourstivre les miliciens de ma compagnie, qui sont supposes avoir manque anx exercices presents par les ordonnances de la 27e et de la '29e annee de Geo. III., je crois devoir vous informer que je me suis refus^ et que je me refus^ a me conformer z vos inettuctions, et a ex6cuter vos ordres a cet ^gard. J'ai I'honneur d'(Jtre, Monsieur, voire obcissant serviteur, 25 oclobre 1827. THOMAS LEE, capt. ler bat, M.C Q. Au lieut.-col. Penauk, ler bat, M. C Q. • History of Peru and Ch)li~ Harris', Voyages, vol. i!, p. 165,