4 GEORGE V., A. 1914

No 14-Duplicate

SIR,

6

DORCHESTER TO DUNDAS.1

4

QUEBEC, 31 December 1793.

The business of the Executive Council is very much increased and that board is of considerable service in the administration of the King's Government in this Province, but their numbers are unequal to what is required of them, so that allowing for ordinary casualities it must frequently happen that their public business will be at a stand for want of members sufficient. Of the nine who form that council? one has never joined,3 one is vacant, one sick and one has leave of absence on public business, and of the five who remain three live at Montreal, where besides being persons of consideration in their Country they are frequently useful in their capacity of Executive Councillors, at present they are attending the Legislature, and two3 live at Quebec, so that as soon as the Assembly is prorogued two only will remain here. It does not appear to me that less than thirteen can carry on that business without frequent interruptions for want of a Quorum, and perhaps it might still be necessary to allow a discretionary power to add temporary members or members without Salary, when it becomes necessary by any extraordinary contingency. Sould this addition of four Members be approved I should recommend P. A. DeBonne1o and A. J. Duchesnay, Canadian Gentlemen, John Lees' and John Young,13 English Merchants all of the Assembly.

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I am with much respect and esteem.

The Right Honorable)

HENRY DUNDAS S

SIR

Your most obedient and
Most Humble Servant.
DORCHESTER

P.S.-I am to acknowledge the receipt of your letter of the 24 October, to which due attention will be paid.

1. From the original copy in the Canadian Archives, Duplicate Despatches, Quebec, 1793. 2. The Council was originally composed of nine Members. (See the Instructions to Lord Dorchester, Article 4, page 14.) The vacancy caused by the death of Adam Mabane in 1792, had been filled by the appointment of James McGill.

3. Adam Lymburner did not apply for admission to the Council until 1799, when it was refused on account of his absence from the province without the permission of the Governor. 4. This vacancy was caused by the death of Chief Justice Smith.

5. The reference is to Pierre Panet.

6. Hugh Finlay had been granted leave of absence in connection with the business of the Postal Service.

7. Paul Roc de St. Ours, Joseph de Longueuil and James McGill resided at Montreal. 8. François Baby and Thomas Dunn.

9. The appointment of honorary Members to the Executive Council had been suggested by Mr. Monk in a letter to Evan Nepean of May 8th, 1793. (See Canadian Archives, Q 66, page 300.)

10. Pierre Amable de Bonne had been commissioned as an advocate for the Province of Quebec in 1780. In 1790, he was appointed Clerk for the adjustment of the Land Roll of the Province. In 1790 and 1791, he acted as French Secretary and Translator to the Governor and Council. He was elected to the first Assembly of Lower Canada for the County of York and 1794 he was appointed a judge of the Court of Common Pleas. On the organization of the Court of King's Bench he was appointed a justice for the district of Quebec. His appointment as an honorary member of the Executive Council was confirmed in 1794 and in 1802 he was admitted as a regular member of the Council. The policy of permitting judges to sit in the Legislative Assembly was an important issue during the administration of Sir James Craig, and in 1810, Justice DeBonne was declared disqualified from sitting in the Assembly by a resolution of the House. Two years later he resigned from the Court of King's Bench. He died in September, 1816. For the proceedings relating to the disqualification of Mr. DeBonne, see pages 370 and 371.

11. Antoine Juchereau Duchesnay, Seignior of Beauport, represented the county of Buckingham in the Legislative Assembly. He had already been recommended by Lieutenant Governor Clarke for a seat in the Legislative Council. He continued to act as an honorary mem

I have received and laid before the King your Lordship's Letters numbered from 12, to 16, inclusive.

From your Lordship's judicious remarks contained in N° 12,2 respecting the Fees and Perquisites of office, particularly as far as they regard Courts of Justice, I feel great satisfaction in His Majesty's appointment of Mr Osgoode to be Chief Justice of Lower Canada as I am assured that in the person of that Gentleman, the Province is secured from any such Fees or Perquisites being taken: I am equally well assured, that there will be no Judge in the Court to be established under the new Judicature Bill, which I trust is already passed, in favour of whom the same observation may not Le made. I observe that the Instruments appointing the Justices and Judges, in His Majesty's Colonies & Plantations abroad, are precisely of the same tenor as those by which the Welsh Judges are appointed in this Country and it should always be borne in mind that no Instrument in mentioning Fees or Perquisites neither can nor does thereby create any Fees or Perquisites, but simply warrants the receipt of such as are bonâfide, legal, and accustomed or ancient, and in lieu of which no compensation has been received. In the case of Judges I apprehend, those words more particularly relate to those small Fees, or Perquisites to the inferior officers concerned in the process and proceedings of the Court, and which, it is the bounden duty of such Court, and I am confident will be so considered, to render as reasonable, & as little burthensome to Suitors as possible.

When I consider the ample Salaries annexed to the Civil Appointments in Lower Canada, and the number of those appointments, I perfectly coincide with your Lordship in opinion, that it is highly expedient, that distinction should be made between such Fees as are useful, have been legally authorized, have been at all times the same, and never discontinued, and in lieu of which no additional Salary is expressed to have been granted; and such as are in their nature oppressive, have not been regularly and uniformly received, or in lieu of which additional Salaries, or other compensations have been expressly granted. I should apprehend that Fees coming under this latter description cannot be warranted under the appointment of the persons receiving them, and that your Lordship, as Governor, must in general have sufficient authority to correct such abuses. And where it should be doubted, I have only to add, that your Lordship's representation of any specific case of this nature will be properly attended to here, to whatever department the consideration of it may belong.

In answer to your Lordship's Letter N° 4.* proposing to add four Members to the Executive Council, to avoid any interruption of the Public Business, for want of a Quorum, I cannot but be of opinion, considering the present expensive Civil

ber of the Executive Council until his death in December, 1806. His son A. L. J. Duchesnay was likewise a member of the Legislative Assembly and was later appointed to both the Legislature and Executive Councils.

12. John Lees was at this time a member of the Assembly for the Borough of Three Rivers which he continued to represent during the first four Parliaments of the Province. He took his seat as a Member of the Executive Council in December, 1794, although, through the miscarriage of his commission, he did not take the oath of office until the following July. In 1795, he was appointed Storekeeper General for the Indian Department. On several occasions he served on the Commission to determine the division of customs dues between the Upper and Lower Province. In 1804, he succeeded Pierre Panet as a regular member of the Council. He died at Montreal, March 3rd, 1807.

13. See page 162, note 2.

1. From the copy in the Canadian Archives, Q. 77, page 123.

2. See page 168.

3. See page 34, note 1.

4. Obviously an error in the copy. The reference is to Dorchester's letter No. 14, which immediately precedes this despatch.

4 GEORGE V., A. 1914 Establishment of Lower Canada,' and the addition which those Members would make to that Establishment, that the adoption of the measure proposed by your Lordship, (vizt.) that of granting Your Lordship the discretionary power of adding temporary members without Salary, would of itself, do away the difficulties you have stated. I shall therefore lose no time in laying before His Majesty in Council an additional Instruction to your Lordship to that effect. In the meanwhile, and to render the Executive Council as efficient a Board as possible, I have directed that Mr Chief Justice Osgoode's Mandamus to the Executive, as well as the Instrument to summon him to the Legislative Council, should both be transmitted with this Letter. I have likewise signified to Mr Lymburner2 the necessity there is, that he should attend his Duty, as Executive Councillor, who perfectly concurring in the propriety of this observation has engaged either to proceed to Quebec this Summer, or should his health not permit him to do so, in that case to resign his situation.

As the Legislative Council & Assembly have amicably terminated such Disputes, as might be expected to arise between them, in the first exercise of their functions, I shall not, at present, further observe upon them, than just to remark that there is the greatest possible difference between the case of a Revenue Bill, a Tax, a Grant, or the like, where a Penalty may be enacted to enforce those objects, and where in various other instances, Penalties are enacted, without any connection with or relation to Money Bills or Grants-as for instance-in Bills of a Judicial nature, in Bills for the suppression and punishment of crimes, and in various other cases where the enactment of a Penalty as far as the Proceedings of this Country are made a Rule of Proceeding, may originate with propriety, either in the Legislative Council, or Assembly3

I am
My Lord

etc.

HENRY DUNDAS.

D.

WARRANT FOR THE APPOINTMENT OF HONORARY MEMBERS OF THE EXECUTIVE COUNCIL.*

Duplicate.

GEORGE R

RIGHT Trusty and Welbeloved We greet you well! We being well satisfied of the

1. For the original Civil Establishment of the Province, see page 30. This had been increased by the reorganization of the courts.

2. See page 16, note 1.

3. See the proceedings of the Legislative Council and Assembly, pages 166 et seq.

4. From the original in the Canadian Archives, Secretary of State, Sundry Papers, Lower Canada, 1794.

The same form of warrant was used for the appointment of honorary members of the Executive Council in Upper and Lower Canada. In 1795, a situation arose in Upper Canada similar to that represented by Lord Dorchester in his despatch No. 14. On November 8th, Lieutenant Governor Simcoe wrote to the Duke of Portland, "I beg to offer to your Grace's consideration, what I have heretofore represented, the very insufficient number of the Executive Council of this Country-the Members at present by the Non-Appointment of a Chief Justice are reduced to four, and in consequence the Public Business is by no means carried on in that methodical manner, which I could wish, from the non attendance of the Members, and the burthen in general falls with extreme weight on myself, the Receiver General and Major Shaw. Mr. Grant, who commands the Kings Vessels, being generally absent on his duty, and Mr. Baby, the remaining Member residing at Detroit where He has Mercantile Transactions.

It is therefore I most seriously beg Your Grace's attention to what is a great public inconvenience; the sickness of a Single Member stops the whole Business of the Province; and the Series of Ill Health with which I have of late been afflicted, admits of no remedy, as a Quorum without me, cannot be formed for the preparation or despatch of Business. (Canadian Archives, Q. 282, pt. 1, p. 21.)

To this the Duke of Portland replied, March 3rd, 1795, "And in the meantime, in consequence of your representation of the necessity of augmenting the number of His Majesty's

SESSIONAL PAPER No. 29c

Loyalty Integrity and Ability of Our Trusty and Welbeloved P Amoble De Bonne, John Lees, Antoine Jucherau Duchesnay and John Young Esqrs have thought fit hereby to signify Our Will and Pleasure that forthwith upon receipt of these Presents you swear and admit them the said P Amoble De Bonne, John Lees, Antoine Jucherau Duchesnay and John Young to be of Our Executive Council of Our Province of Lower Canada in America to act as Members of such Council respectively at the times on the occasions and upon the Summons herein after mentioned and not otherwise, that is to say, provided nevertheless that the said P Amoble De Bonne, John Lees, Antoine Jucherau Duchesnay and John Young shall not nor shall any of them Act as Members or a Member of Our said Executive Council save only and except at such time or times and upon such occasion or occasions respectively when they shall respectively le especially summoned to attend as Members of such Council by Our Governor or the Person having the Government of Our said Province for the time being nor shall any of them by virtue of this Appointment and of their being so sworn and admitted as aforesaid be entitled to any Salary as Members of Our said Executive Council. And it is Our further Will and Pleasure that the special Appointment and Admission of the said P. Amoble De Bonne, John Lees, Antoine Jucherau Duchesnay and John Young respectively in manner aforesaid shall be clearly and distinctly expressed in the Minutes of Our said Council upon the swearing and admission of the said P Amoble De Bonne, John Lees, Antoine Jucherau Duchesnay and John Young respectively. And for so doing this shall be Your Warrant. And so We bid You heartily farewell! Given at Our Court at Saint James's, the Thirtieth day of June 1794 In the Thirty fourth Year of Our Reign

By His Majesty's Command

P Amoble De Bonne & others Esqrs to be of the Executive Council of Lower Canada. S

(Endorsed)

PORTLAND.

To Our Right Trusty and Welbeloved Guy Lord Dorchester K. B.; Our Captain General and Governor in Chief in and over Our Province of Lower Canada in America or in his absence to Our Lieutenant Governor or Commander in Chief of Our said Province for the time being.

No 19.

SIMCOE TO PORTLAND.1

Upper Canada Johnstown
February 17th 1795.

My Lord Duke,

I beg to inclose to Your Grace some letters (A.B.C.D) which have lately passed between Lord Dorchester and myself relative to Indian Affairs and, I hope that the

Council for the better carrying on of the Public Affairs of the Province, I have received His Majesty's Pleasure that Captain McGill and Mr. Smith should be appointed Executive Councillors Extraordinary but without any present Salary, and to attend only when specially summoned by you for that purpose according to the tenor of His Majesty's Warrant which I herewith inclose. Similar Appointments have been made in Lower Canada on a similar requisition from Lord Dorchester; and it is intended that the Extraordinary Executive Councillors, thus named, should succeed to Salaries when Vacancies arise in consequence of the death or removal of any of the five Councillors provided for in the Provincial Estimate." (Canadian Archives, Q. 282, pt. 1, page 37.)

The question later arose as to the right of honorary members of the Executive Council to sit in the Court of Appeals. For the opinion of the Law Officers of the Crown on this subject see page 479.

1. From the copy in the Canadian Archives, Q. 281, pt. 1, p. 273.

The Duke of Portland had been head of the coalition ministry which succeeded Shelburne in April, 1783. The rejection of Fox's India Bill in December of the same year led to his re

4 GEORGE V., A. 1914 Commission of Sir John Johnson1 will be altered in the manner, that was intimated by the Letter of Mr Dundas to Lord Dorchester (N° 1)2 to which I have referred; and under the impressions of which, I undertook the Government of this Colony.

There ought not to be an unnecessary vestige of Military Government in this Country, and the power exercised by the Superintendants is what of course, being unknown to the British Constitution, cannot from its influence be submitted to with safety to the King's Authority.3

The Lieutenant Governor of this Province must be an Officer in the Confidence of his Majesty's Ministers. I need not enter into the detail of Indian Superintendants; their Want of Education, Ignorance of all but the Seperate Nations, upon an interest with whom, their own consequence is grafted, their immoral Habits, and the Indolence and depravity which in them, seems to be derived from the Persons with whom they are so conversant, disable them, from unnecessary confidence.

The Commander in Chief at Quebec in lesser transactions cannot controul the department, its expenditure & informalities; the very distance prevents Him; and the Regulations now transmitted at this critical period, while they substantiate the fact, allow me to hope, that Your Grace and His Majesty's Ministers in the system for the future Garrisons and stations of the Kings Troops, will also give proper and suitable regulations for this important Branch, such as may give satisfaction to the

66

signation. In July, 1794, an alliance was formed between Pitt, who had succeeded the Duke of Portland as Prime Minister, and the more conservative wing of the Whig party with the result that the Duke joined the ministry as Secretary of State for the Home Department. 1. Sir John Johnson, Bart., eldest son of Sir William Johnson was born in 1742. On the outbreak of the War of Independence he joined the Loyalist forces and was instrumental in raising The King's Royal Regiment of New York." He was knighted in 1765 and on his father's death in 1774 succeeded to the title and family estates. In 1776, he led a large band of followers, chiefly from his tenants, to the Province of Quebec and later raised and commanded a regiment which did effective service in the defence of the Province. In 1782, hè was appointed Superintendent General and Inspector General of Indian Affairs and four years later was made a member of the Legislative Council of Quebec. When the Loyalist migrations began, Sir John was placed in charge of the work of settlement in the districts around the Upper St. Lawrence and Lake Ontario. His connection with the Indian Department and with settlement made him familiar with the needs of the newer districts of the Province and on the formation of Upper Canada, Johnson was recommended by Lord Dorchester as its first Lieutenant Governor. The British Government, however, had already decided on the appointment of Simcoe. The division of the Province involved no serious change in the Indian Department and Sir John continued as Superintendent General. In 1796, he was appointed to the Legislative Council of Lower Canada. He died at Montreal January 4th, 1830.

2. Before his departure from Quebec in 1791, Lord Dorchester raised the question as to what officer should, in the absence of the Commander in Chief, "take the command of the Superintendant General and Inspector General of Indian Affairs." (Dorchester to Grenville, No. 83, March 19. Canadian Archives, Q. 50, pt. 1, p. 81.) The letter of Mr. Dundas, No. 1 of September 16, 1791, contains a reply to Lord Dorchester's reference. Mr. Dundas observes that "The difficulties which occur with respect to the Superintendant General of Indian Affairs, as stated in Your Lordships letter No. 83 will immediately be removed, by recalling his present, and granting him a new Commission, as from the nature of that appointment, that Department must necessarily be subject to the Command and Control of such officers as His Majesty may from time to time think fit to entrust with the Government of either of those Provinces wherein the Residence of such Superintendant may be necessary, but particularly that of Upper Canada." (Canadian Archives, Q. 59 B, p. 207.)

A new Commission was accordingly granted which contains the following regulation, "And you are to observe and follow such orders and directions as you shall receive from Our Commander in Chief of our Forces in our said Provinces of Upper Canada and Lower Canada, or in case of his absence from the Officer who may be left in Command of the said Forces for the time being." (Commission to Johnson, September 16, 1791, Canadian Archives, Q. 71, pt. 2, p. 455. See also Dundas to Johnson, of the same date, Q. 59B, p. 229). From this it is seen that the Commission to Sir John Johnson had already been altered but not in the manner desired by Lieutenant Governor Simcoe.

3. The particular issue between Lieutenant Governor Simcoe and Lord Dorchester was the control of the Indian Department which, being considered a part of the military establishment of the colony, came within the authority of Lord Dorchester, as Commander in Chief of His Majesty's forces. At this time the Department consisted of the Superintendent General, Storekeeper General, Agent, Secretary and Surgeon together with a Deputy Agent and a staff at the Indian Posts situated at Niagara, Detroit and Michilimackinac. As the Indian Settlements were almost entirely within Upper Canada, Simcoe insisted that the control of the Indian Department should be vested in the Government of Upper Canada.