IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ^ ftiii 122 l£& 12.0 us lU IS ^> y Photographic Sciences Corporatioii 23 WEST MAIN STREET VtfEBSTSR,N.Y. 145M (/16) 872-4S03 7 .^ (meaning "CON- TINUED"), or tha symbol ▼ (meaning "END"), whichever applies. Un des symboles suivants apparaftra sur la dernlAre image de cheque microfiche, selon ie cas: la symbols — »• signifle "A SUIVRE", ie symbols ▼ signifle "FIN". Maps, plates, charts, etc., may be filmed aic different reduction ratios. Those too large to be entirely Included in one exposure are filmed beginning in the upper l^ft hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmAs d des taux de rMuction dlff^rents. Lorsque Ie document est trop grand pour Atre reproduit en un seul clichA, II est fllm6 A partir de Tangle supArieur gauche, de gauche A droits, et de haut en bas, en prenant la nombre d'images nAcessaire. Les diagrammes suivants illustrent la mAthode. 1 2 3 ■1 2 3 4 5 6 T i I GOVERNMENT 1 COMMISSIONS OF INQUIRY BY T. K. KAMSAY, ADVOOATB. 4 PRINTED BY JOHN LOVELL, ST. NICHOLAS STREET. 1863. 1 1 i 1 COMMISSIONS OF INQUIRY. i Has tJte Crown the right to issue commissions for the pur- pose of obtaining irformation only ? And if so, within what limits f THiese are two questions which cannot have failed to have presented themselves of late to the minds of many. When the exercise of authority is in the hands of those who are using it for the general good, it is not easy to induce the public to be very critical as to its limits ; but when the power of the state is evidently being employed oppressively and for per- sonal and private ends, it becomes necessary, as well aa interesting, to inquire what those limits are, and to see that they are not wantonly over-stepped . Such a moment is the present, for it would be useless to deny the existence of a well-founded belief that the recent appointments of commissions have been made 3olely with the view of unearthing pretexts for the vacating of offices, in the interests of the administration, and of its friends — ambitious of the spoils of power. Taking advantage of the attention occa- sioned by the circumstances giving rise to this belief, I pro- pose to examine, and shall endeavour to answer, these two questions. If such a light exists, it must be either by the common law or by statute. At first sight it seems hardily to suffer any question that the Crown should have, at common law, the same power to obtain information as to all matters of public interest by coiih mission, that the other two branches of the Legislature undoubtedly have by committee. This power in the two Houses of Parliament is founded on the very necessities of their cxfetonce ; and it is difficult to imagine any inconve- nience or impropriety which should arise from the Crown possessing a similar authority, without which it would seem to be impossible for any administration to carry on intelligently the affairs of the country. There must be, or at all events there may at any time arise, matters on which it is neces- sary for the Government to possess information, and which cannot be provided for hy statute ; and to forbid the Govern- ment to make such inquiry by commission, would be very much like condemning it to a state of helpless ignorance. Nevertheless this right has been denied, and on a dictum of Lord Coke, mutilated and misinterpreted as I contend, the universities of Oxford and Cambridge* questioned the legality of a commission for inquiry into and reporting upon the state, discipline, studies and revenues, &c., of these universities. Now, without attempting to decide whether the universities are liable to such an inquiry or not (and they may very well be exempt from it without seeking protection from the author- ity of Lord Coke), I think they have totally failed to make out the position they assume, that " all commissions for inqui- ry only" (i. e. for obtaining information) ^' not authorized by statute, are void." But although admitting to the fullest extent the right of the Crown to appoint commissions of inquiry, it would seem that this power must be so exercised as not to trespass on the rights of individuals, or to enter upon any investigation other- wise provided for by law. The power must be exercised in good faith for the purposes of obtaining information, and not with a view of dividing the responsibility of the executive * I hare taken the facta of this case from the London Law ReyiQW^. TOl. 16. with persons independent of the direct censure of Parliament. But so understood, this power is a common law right of the Crown, and perfectly independent of the IBth chapter of the Consolidated Statutes of Canada. That act may be taken as an exposition of the scope of thid common law right, Avhen it enumerates * the causes for which commissions of inquiry may be appointed, with power to ex- amine witnesses under oath ; but it certainly did not originate the right, which, the counsel for the universities admitted, without hesitation, had been frecpiently exercised. The only effect then of that statute was to give the Governor power to appoint Commissioners, having power to send for persons and papers, to examine witnesses under oath, and to compel them to attend and give evidence. This right of examining under oath, it is hardly necessary to add, the Crown did not possess at common law, more than a committee of the Lords or Commons. The true doctrine, therefore, appears to be : 1st, that at common law the Crown has the right to appohit commis- sioners to inquire into, and concerning any matter connected with the good government of the state, or the conduct of any part of the public business thereof, or the administration of justice therein, when such inquiry is not regulated by any special law. 2nd. That here the Governor has the further power, under the 13th chapter of the Consolidated Statutes of Canada, to authorize the commissioners so appointed in any of the above mentioned cases, to summon before them " any party or witnessess, and of requiring them to give evidence on oath * Whenever the Governor in Counsel deems it expedient to cause in- quiry to be made into and concerning any matter connected with tho good government of this province, or the conduct of any part of the pub- lic business thereof, or the administration of justice therein, and such in- quiry is not regulated by any special law, &c. orally, or in writing, and to produce such documents and things, as such Commissioners deem requisite to the full investigation of the matters into which they are appointed to examine."* If this exposition of doctrine be correct, it would seem to result, 3dly, that neither by common law, nor by tho general statute, docs any such power extend to the investiga- tion into anything purely of a private nature, or into the con- duct of any person named, or to any accusation of any crimes or oflfenccs alleged against any particular person. Fortunately we are not obliged to have recourse to abstract reasoning in support of this proposition. In the 12 Coke 31, under the heading of Trin. 5 Jac. 1, we find the following : " Note ; commissioners in English under the Great Seal directed to divers commissioners within the counties of Bedford, Bucks, Huntington, Northampton, Leicester, and Warwick to enquire of divers articles annexed to it rf and the articles wore also in English, to enquire of depopulation • And for carrying out these powers the Comraissionera have " tho same power to enforce the attendance of such witnesses and to compel them to give evidence as is vested in any Court of Law, in civil matters." Sect. 1, S.S. 2. t The articles annexed (which I have copied from the Law Review mentioned above,) were instructions to the Commissioners to inquire :— 1. Of towns, villages, churches, houses, farms, &c., wasted or depo- pulated since 20 Eliz., and the x>ersons in default. 2. Of lands converted from tillage to pasture by unlawful enclosure, and by whom. 3. Of lands severed from farmhouses, so as to leave insufficient for the use of the occupants, and by whom. 4. Of barns and outhouses pulled down, decayed or deserted, and by whom. 5. Of those who keep on hand several farms, and let the farmhouses stand void or occupied by the poor. 6. Of farmers removed from their houses liy their landlords, and the houses left vacant, and by whom. *l. Of obstruction of highways by unlawful enclosures and by wjiom, &0." i '^ of houses, converting of arable land into pasture, &c. But the commissioners should not have any power to hear and determine the said offonces, but only to enquire of them : and by colour of the said commissions the said commissioners took many presentments in English, and did return them into the chancery and after, soil Trin. 5 Jac. it was resolved by the two chief Justices, and by Walmsley, Fenner, Yelverton, Williams, Snigg, Altham, and Foster^ that the said commissions were against the law for three* causes : 1. For this, that they were in English.f 2. For that the offences cnquirable were not certain with- in the commission itself, but in a schedule annexed to it. J 3. For this, that it was only to enquire, which is against law, for by this a man may be unjustly accused by perjury.f and he shall not have any remedy. 4. For this, that it is not within the statute of 5 Eliz , ka. Also tho party may be defamed, and shall not have any traverse to it. Such a commission may be only to enquire of Treason^ Felony committed, &c. And no such commission ever was seen to enquire only (i. e. of crimes)." This dictum then of Lord Coke fully supports our 3rd proposition. The commissions to the persons in these different counties, were commissions of inquiry only, as to offences, and • In the edilion of the report before me there are four paragraphs numbered; but the causes are of three kinds. t No record could be in English before the 4 of Geo. 11 cap. 26. X Curious to say this same irregularity occurs in the clerk of the Peace Commission, and it was a great snare on the hearing of the quo uarranto, for the Court did not seem to know whether to read the charges as part of the commission or to treat them as a separate matter. § Our statute to some extent does away with that difficulty, for it attaches tlie pains of perjury to all false swearing before Commission- ers, i. e. those lawfully appointed. 8 as to the persoHH " ])y v.hom" tlicy were committed, and as Lord Coko says, '* no snoh commission over was scon." And this dictum is confirmed hy Hale* rf* ITaivkin8.-\ But commissions for more than inquiry, that is to hear and determine, could not bo addressed to commissioners, but to the judges of assize, for in Magna Cliarta^ cap. xii., we find, " We, or if we be out of the realm, our Chief Justiccr, shall send our Justices through every county once in the year, who, with the knights of the shires, shall take the aforesaid assizes in the counties." And the famous chap, xxix, declares : " No freeman shall be taken or imprisoned, or be disseised of his freehold, or his liberties, or free customs, or be out-lawed, or exiled, or hi anj other wise destroyed, nor will wo pass upon him nor condemn him unless by the lawful judgment of his peers, or by the law of the land." And Coke interprets this to mean, " no man shall be condemned at the King's suit, cither before the King in his Bench, where the pleas arc coram rege (and so arc the words ncG super eum ibimus to be understood) nor before any othor commissioner or judge whatever (and so are the words nee super eum mittemus to be understood.) J And so the 16 Car. 1, cap. 10, which abolished the Star Chamber, declares " that from henceforth no Court, council, or place of judicature, shall be erected, ordained, constituted, or appointed within this realm or dominion of Wales, which shall have, use or exercise the same or the like juiisdiction§ as is or hath been * Special commissions to hear and not to determine offenses : Tho' by force of some particular statutes such commissions of inquiry may issue as upon the statute of 23 H. 6, cap. 10, of sheriffs and some others, yet regularly as to matters of misdemeanour, especially such as are capital, as felony or treason, no such inquiry only is warrantable : 2 Hale's ". C. p. 21, fo. t Book 2, chap. 5, p. 25. X Inst. 46. § It was ordained by the 3 lien. 7, c. 1. and by the 21 Hen. 8, c. 2, that the chancellor n.- isted by others there named, should have power i used, [iractisod or exoreiscMl in tlio said Court of Star Cham- ber." And Lhe Hill of Ui^^lits (',stal)liMhos that all commiH.sioni? and CourtH,of a like uatui'e lo the late (.-ourt of Commission- ers for ecelesiastieal purposes, are " illegal and pernieious" It is therefore not only the positive law, 1)ut the very hasis of all that poliey, of which British suhjeets are so justly proud, that no one shall be affected in his liberty, or in his goods, or in his character, but in the regular course of law. This proposition will bo readily admitted. Indeed it would bo no easy task to find any one bold enough openly to con- trovert it ; and yet wo find the prineif)lc it involves flagrant- ly contravened, without almost attracting a passing remark. As an example we propose, in conclusion, to examine the commission addressed to Messrs. Lafrenaye & Dohorty, in the early part of the present year ;* and in order that there may be no cavil as to the narrative, 'I propose to give the substance of the documents. On the 18th of February, 1803, a Commission was issued setting forth, that " certain charges of malversation of office had been made agiiinst the late joint Clerk of the Peace and Clerk of the Crown at Montreal, Messrs. Deiisle & Bre- haut, and their Deputy also,Charles Schiller." The Commission went on to state that it ^^ had been deemed advisable that the charges so made should be thoroughly investigated, and that full enquiry should be made into the organization of those of- fices ;" therefore the Governor, " under and pursuant to the to punish routs, riota, forgeries, maiatenances, embra'"rie3 or perjuries, and other such misdemeanours as were not sufficient!} provided for by the common law, and for which the inferior judges were not so proper to give correction. V. Tomlins Diet. Vo. Star-Chamber. * This Commission is by no means exceptional, except perhaps in the spirit and motive of those by whom, and at whose instigation, it waa issued. The commissions against Mr. Archambault and into the Corrigan murder and many others, are in law quite as objectionable as those against Menfnrs. Deiisle & Brehaut, and against Mr. Tass^. 10 Provisions of the 13th chapter of tlic Consolidated Statutes of Canada, " nominated, constituted, and appointed" Pierre Richard Lafrenayo and Marcus Doherty, to be Cor^missioners to investigate the charge'^ so brought against the above officers , and to* inquire into the organization of those offices." The Commission further empowered the said Crmmissioners " to summon before them any party or witnesses, and to require them to give evidence on oath, orally or in writing, and to produce * such documents and things as they, the said Pierre Richard Lafrenaye and Marcus Doherty, may deem requisite to the full investigation of the matters and things aforesaid." Under this Commission MM. Lafrenaye & Doherty met, and addressed to the parties accused, summonses to appear before them " to answer f and explain suJi charges as may then and there, and/rom day to day^ during the sitting of said Commissioners, J be preferred against you as such, late joint Clerk of the Peace, and Clerk of the Crown as afore- said." MM. Delisle and Brehaut f^nd Mr Schiller appeared in obedience to this fiat, on the 9th of March, when a list of charges as communicated to them to the following effect :§ *'lst. That by false returns, false names, signatures, and false pretences, the late joint Clerk of the Peace and Clerk of the Crown at Montreal, Messrs. Dehsle & Brehaut, and their *In the words of the statute, but the statute is badly drawn. t And yet one of the Commissioners had the hardihood to declare, subsequent to the proceedings on the quo warranto, that " thej did not ask Mr Delisle to bring forward witnesses," and that " They were not a tribunal to decide." Why then was h% called upon to answer, and how was he to doit but by bringing up evidence ? X If the Commission goes beyond the law ; this summons as far exceeds the Commission, which only authorizes the commissioner' to investigate "certain charges," i. e. charges certain at the date of the commission. § Query. — ^Were those the charges of malversation of office " made" against MM. Delisle and Brehaut and Schiller, or is it a schedule drawn up by the Commissioners on their authority. The question might be important even though the Commission were legal. 11 ) Deputy? also, Charles E. Schiller,* have tVatidukMitly ob- tained a considerable amount of money from the govern- ment. 2nd. That one of them has embezzled i • Y VIRTUE of a Commission of His Excellency The Right Honorable Charles Stanley Viscount Monck, Baron Monck of Ballytrammon in the County of Wexford, Governor-General of British North America, and Captain-General and Governor-in- Chief in and over the Provinces of Canada, Nova Scotia, New Brunswick, and the Island of Prince Edward, and Vice-Admiral of the same, &c., &c., &c. Appointing Pierre Richard Lafrenaye and Marcus Doherty> Esquires, Commissioners to investigate certain charges of Mai' versation of Office, which have been made against the late Joint Clerk of the Peace, and Clerk of the Crown at Montreal, Messieurs Delisle and Brehaut, and their Deputy also, Charles Schiller, and to enquire into the organization of those offices. €a of the City of Montreal, You and each 0/ YOU are hereby summoned and required in Her MJJESTyS namcj personally to be and appear before us, the said Commissioners, on the day of at the hour of o'clock, in the noon, in the Special Jury Room, in the Court House in the City of Montreal, then and there to give EVIDENCE touching the matters referred to in the said Commis- sion, and herein neither you nor either of you are to fail at your peril. 1 ( { i 17 6ifam «ntJ« our jjanlia, at the City of Montreal, th'n day of in the year of Our Lord one thou- aand eight hundred and sixty-three. Commissioner. Commirsioner. I, the undersigned Bailiff, do hereby certify and return, under ray oath of office, that on the day of I did serve in the within named a duplicate of this Subpcpna by speaking to and leaving the same with Dated at Montreal, this day of 1862. A trick of a similar nature was attempted after the deci- Bion of the quo warranto^ when the form of summons was changed to a mere notification, dated 30th August ; that the Commissioners " would resume and proceed with such inves- tigation and inquiry upon such charges as form the proper f matter of the inquiry and investigation to be made, by and in virtue of the Commission issued by His Excellency, bearing date the 18th of February, 1863, for that purpose.^ Is it possible to avoid the conclusion that the Commission- ers were persuaded of the utter illegality of their acts ? A feeble attempt has been made in one of the daily papers to question the propriety of Mr. Justice Aylwin's conduct in going before the Commissioners and refusing to be sworn. To non-professional persons this may appear tr» have some weight, but his doing so was perfectly in accordance with the practice in such matters. Where there is a semblance of authority, the proper way is to inquire if it is real or usurped, and this is what Mr. Justice Aylwin did. But the Commissioners and their friends are indignant that he did not treat them and their proceedings with the contempt which, no one is more fully convinced than the Commissioners them- •elves, they so richly deserved. It may be that a virtuous Executive will pay no attention to all these irregularities, in so far as regards this particular • Vid9 supra f p. 10. t What purpose ? 18- Oommission ; but it is probable that we have seen the last of commissions to inquire of felonies and misdemeanours for some time to come. If another makes its appearance, it is to be hoped it will be met with a resistance of a formidable deBcriT>tion.