SESSIONAL PAPER No. 29c supplied until the improved state of their Society furnishes a sufficient number of persons qualified by Education for this important trust. If they have at present a sufficient number of persons who are qualified, a new Commission of the Peace may issue & is the legal course to supply this want. The subordinate Officers of Justice may be furnished by the appointment of Captains and other inferior Officers of Militia, who under the Ordce 27 Geo: III. C. 6.1 are all Peace Officers: and where there are no Militia Officers the Magistrate may address his Warrant to any Individual by name, who, in consequence thereof, becomes a Peace Officer pro hac vice. All which is, nevertheless most respectfully submitted by &c. Quebec 10 May Endorsed. (B) J. SEWELL R.S.M. The Attorney General's Opinion for the Honble Committee of the Execue Council, upon several Articles of the Memorial from the Inhabits. of Stanstead, Hatley &c. Dated 10th May 1805. In Lt. Governor Milnes's No. 31. To the Earl Camden PROCLAMATION CONFERRING THE GOVERNMENT OF LOWER CANADA ON MR. DUNN.2 BY HIS EXCELLENCY SIR ROBERT SHORE MILNES, BARONET, LIEUTENANT GOVERNOR OF THE PROVINCE OF LOWER CANADA &ca &ca &ca. WHEREAS OUR SOVEREIGN LORD THE KING, by Certain Letters Patent Under the Great Seal of Great Britain, bearing date At Westminster, the Fifteenth day of December, in the Thirty Seventh Year of His Reign,3 hath been pleased to declare, that in Case of the death, absence, removal or suspension of the Governor and of the Lieutenant Governor of this His Province of Lower Canada, the Oldest Member of the Executive Council of the Said Province, being a Natural born Subject of Great Britain or of Ireland, or of the Colonies and Plantations, Professing the Protestant Religion, and residing within the Said Province, Shall take Upon him the Administration and Government of the Said Province and Shall Execute His Majesty's Commission of Governor of the Said Province, his Instructions thereon and the Several Powers and Authorities therein Contained, to All Intents and Purposes, as Others, His Majesty's Governors, Lieutenant Governors and Persons administering the Government of His Majesty during such Absence and Until the further pleasure of His Majesty Shall be Known therein. AND WHEREAS His Excellency Robert Prescott Esquire, Governor of the Said Province is Now by the Royal Permission Absent from this Province, And His Majesty hath been most Graciously pleased Also to permit me the Said Sir Robert Shore Milnes to Absent myself from the Said Province. THEREFORE I have thought fit by and with the Advice of His Majesty's Executive Council of and for the Said Province, to make Known by this Proclamation, the Will 1. See Constitutional Documents, 1759-1791, Shortt and Doughty, 1907, page 505. 2. From the original in the Canadian Archives, Sundry Papers, Lower Canada, 1805. 3. The commission to General Prescott of this date is in the same terms as Lord Dorchester's commission, page 5. On this point see page 12. 4 GEORGE V., A. 1914 and Pleasure of His Majesty in the Premisses, Unto All whom it doth or shall in any wise Concern. AND THAT by reason of the Absence of His Excellency Robert Prescott Esquire, and of Me the Said Sir Robert Shore Milnes, from the Said Province, The Adminis tration of the Government of the Said Province, from and After the departure of me the Said Sir Robert Shore Milnes from the Said Province, will devolve upon the Honourable Thomas Dunn Esquire.'-He the Said Thomas Dunn being the Oldest Member of His Majesty's Executive Council of and for the Said Province of Lower Canada Who is A Natural born Subject of Great Britain, Professing the Protestant Religion. And that He the Said Thomas Dunn, Under and by Virtue of the afore said Letters Patent will thenceforth take Upon him the Administration of the Gov ernment of this Province and Execute His Majesty's Commission of Governor of the Said Province and the Royal Instructions thereon and the Several Powers and Authorities therein Contained to all intents and purposes as Other His Majesty's Governors, Lieutenant Governors Or Persons Administering the Government during the Absence of His Excellency Robert Prescott Esquire and of me the Said Sir Robert Shore Milnes from the Said Province, and Until His Majesty's further pleasure in the Premisses Shall be Known. Of all which the Officers of His Majesty's Government and All Others His Majesty's Subjects in this Province And Generally All whom the Premisses shall or may in Any Wise Concern, Are hereby required to take Notice and govern themselves Accordingly. GIVEN under my Hand and Seal at Arms at the Castle of Saint Lewis in the City of Quebec the Thirty first-day of July in the Forty fifth year of His Majesty's Reign. By His Excellency's Command, Nath Taylor ROBT S MILNES AN ACT RESPECTING THE TRIAL OF CONTROVERTED ELECTIONS, Preamble. UPPER CANADA.2 IN THE FORTY-FIFTH YEAR OF GEORGE THE THIRD. GEORGE THE THIRD. CHAP. III An Act to Regulate the Trial of Controverted Elections, or Returns of Members to serve in the House of Assembly. [Passed 2d March, 1805. WHEREAS the present mode of decision in this Province, upon Petitions complaining of undue Elections, or Returns of Members to serve in the Parliament thereof, is defective, for want of those 1. See page 14, note 5. 2. From The Statutes of His Majesty's Province of Upper Canada in North America, York. 1805. The proceedings in the trial of a contested election under this Act may be found on page 416. The provisions of this Act were repealed by the Statute of 4 Geo. IV, Cap. IV. The Statute of Lower Canada relating to the same subject is given at page 332. SESSIONAL PAPER No. 29c sanctions and solemnities which are established by Law in other trials, and is attended with many inconveniences:1 For remedy thereof, be it enacted by the King's most excellent Majesty, by and with the advice, and consent of the Legislative Council, and Assembly, of the Province of Upper Canada, constituted and assembled, by virtue of, and under the authority of an Act, passed in the Parliament of Great Britain, intituled, " An Act to repeal certain parts of an Act, passed in the fourteenth year of his Majesty's reign, intituled, "An Act to make more "effectual provision for the Government of the Province of Quebec, "in North America, and to make further provision for the Govern"ment of the said Province," and by the authority of the same, That every petition, complaining of an undue Election, or return On complaints of of a Member, or Members, to serve in the House of Assembly, shall undue election, a contain the grounds and reason of complaint, and in case the House time to be fixed for considering of Assembly, shall think such grounds and reasons (if true) suffi- thereof. cient to make the election void, a day and hour shall, by the said House be appointed, for taking the same into consideration, and notice thereof, in writing, shall be forthwith given by the Speaker, to the petitioners, and the sitting Member, or Members, or their respective agents, accompanied with an order to them to attend the House at the time appointed, either in person, or by their counsel or agents. II. Provided always, That no such petition shall be taken into Time of taking consideration within fourteen days after the same shall have been the petition into consideration. first read in the House by the Clerk, unless by consent of parties. III. And be it further Enacted by the Authority aforesaid, Manner of taking the said petition That at the time appointed for taking such petition into considera- into consideration, and after reading the order of the day for that purpose, the tion. House shall be cleared, and the Members thereof (excepting the Member or Members whose election shall be contested) with the Speaker, shall be sworn at the Table, well and truly to try the matter of the petition referred to them, and a true judgment give, according to the evidence; the Speaker shall then take the Chair, the doors shall be opened, and the petitioners, their counsel, or agent shall attend. witnesses for the IV. And be it further Enacted by the Authority aforesaid, Method of That the witnesses for the petitioners shall be ordered by the examining Speaker to retire without the House, and the petitioners, their petitioner. counsel, or agent, shall call them in one by one, for examination, and each and every witness, as aforesaid, shall be sworn at the Bar of the House, and the names of the witnesses, for either party, shall be given in to the Clerk of the House, before they are sworn, 1. The petition against the election of Henry Allcock for the East Riding of the Counties of York and the Counties of Durham and Simcoe in 1801, led the Legislative Assembly to consider the regulations for the trial of contested elections. Two rules were then adopted,-1st that all petitions complaining of undue elections should be referred to a Committee of the Whole House. 2nd, that the House do appoint the time for hearing - the petitions and that the Speaker do give notice of the time to the Parties. In considering this petition the Assembly decided that witnesses should be heard without being sworn and that the evidence of the petitioners in a case should be received. (See the Journals of the Legislative Assembly of Upper Canada for June 3rd and 10th.) During the succeeding four years no cases arose so that the procedure prior to this Act remained as in 1801. Method of examining witnesses for the sitting member. Sitting member not allowed to vote in course of the trial. No member to vote who has not attended during the whole of the trial. Persons swearing falsely, shall incur the penalties of perjury. 4 GEORGE V., A. 1914 V. And be it further Enacted by the Authority aforesaid, That after the witnesses for the petitioners shall have been fully examined, the sitting Member, or Members, shall be requested by the Speaker, to make a defence, and the witnesses for the said sitting Member, or Members, shall be ordered to retire, shall be separately called in for examination, and shall be sworn in manner aforesaid; provided nevertheless, That whenever any Member of the House shall be a witness for either party, he shall not be obliged to retire, as aforesaid; but he shall be sworn in his place. VI. And be it further Enacted by the Authority aforesaid, That the said sitting Member, or Members, whose election shall be contested, as aforesaid, shall not be allowed to vote upon any question, which shall arise in the course of the trial, or upon the determination thereof. VII. Provided always, That no such determination as aforesaid, shall be made, nor any question be proposed, unless there be a quorum of the House; and no Member shall have a vote on such determination, or any other question, or resolution, who has not attended during the whole of the trial. VIII. And be it further Enacted by the Authority aforesaid, That the oaths by this Act directed to be taken, shall be administered by the Clerk of the House, and that any person who shall be guilty of wilful and corrupt perjury, in any evidence, which he shall give before the House, in consequence of the oath, which he shall have taken by the direction of this Act, shall, on conviction thereof, incur, and suffer the like pains and penalties, to which any other person convicted of wilful and corrupt perjury is liable, by the Laws and Statutes of this Province. GRANT TO CASTLEREAGH.1 No. 14. York, Upper Canada. My Lord, It will be necessary for me to submit a short statement of the Revenue of this Province, for the better understanding the purport of an address of the House of Assembly and the Schedule of accounts to which it refers, with my answer thereto, which I have now the honor to transmit to your Lordship. The Revenue of this Province arises in part from certain Duties, which previous to the eighteenth year of His Majesty's Reign, had been imposed on the Province of Quebec by the authority of the British Parliament-and partly from Taxes and Duties imposed by the Legislature of this Province, together with an eighth part of the Duties laid on Goods imported into Lower Canada (under the authority of it's Legislature) by virtue of an agreement between the two Provinces.2 1. From the copy in the Canadian Archives, Q. 304, page 10. Robert Stewart, Viscount Castlereagh, was born in 1769. His early political activities were centered in Ireland where, as chief secretary, he was largely instrumental in securing the passage of the Union Bill. From the union until his death in 1822 he held a seat in the Imperial Parliament. His services were of value to the Addington Ministry and in 1802 he was appointed President of the Board of Control for East India with a seat in the cabinet. He continued to hold this seat in Pitt's Administration and in July, 1805, in addition was made Secretary of State for the War and Colonial Department. 2. The agreement which fixed on an eighth as the share of Upper Canada of the duties imposed by Lower Canada was originally formed in February, 1795. A new agreement was reached in 1797, but the division of the duties remained the same. This arrangement was continued by agreements of 1801 and 1805 and confirmed by special legislation in each province. SESSIONAL PAPER No. 29c From the Establishment of this Province, to the year 1803, the Taxes and Duties imposed by its Legislature, together with the eighth part of the Duties abovementioned, amounting to about Three thousand Pounds annually, were considered as solely at the disposal of the Parliament of this Province, and were, for the greater part, from year to year, appropriated by it for specific purposes within the same, the Residue of such Taxes and Duties remaining in the hands of the Receiver General, subject to future appropriations by the same authority. In the year 1803, by direction of Lieutenant Governor Hunter, accounts of a nature similar to those stated in the beforementioned Schedule1 (being expences incidental to the administration of Justice and the Civil Government of the Province) were charged against and paid out of the above Residue in the hands of the Receiver General, without any appropriation by the Legislature of this Province for that purpose. ལས་ For two years, such charges were laid before that Legislature, and no complaint was made for the want of Parliamentary appropriation of the abovementioned Residue, so applied; When the Administration of the Government of this Province devolved on me, confiding in the Judgment and Ability of Lieutenant Governor Hunter, I did not feel myself at Liberty, in my Temporary situation, to discontinue what he had authorized. In what manner the House of Assembly considered this matter at the last Session of the Legislature, the address sufficiently indicates; the answer given by me to that address, was, to the best of my Judgment, suited to the occasion The Language of that address is intemperate, especially when the Bounty of Great Britain to this Province is taken into consideration: But I should be sorry, if Your Lordship supposed, that the Members of the House of Assembly for the greater part are inimical to the measures of Government, they wish to do what is right, but sequestered from the World, and some of them not having had the benefit of a Liberal Education, they are ready to be too easily influenced by the persuasion of others, who, by their means, endeavor to perplex, if not to distress, the Administration of the Government of this Province. I must however, respecting the subject of the address, candidly confess, and since the prorogation of the Legislature I have taken every means to be informed, that I cannot discover any authority by which the Governor, Lieutenant Governor, or person administering the Government, possesses the power of appropriating to specific purposes any part of the Revenue raised for this Province by the Acts of it's Legislature, without the assent of that Legislature to such appropriation. I therefore cannot help offering it to your Lordship, after the best consideration that I am able to give this subject, as my opinion, that matters should be put on the same footing as they were, from the Establishment of the Province to the year 1803, and that the Items of expenditure charged in the year 1805, mentioned in the address of the House of Assembly, and stated in the Schedule should be withdrawn as charges against the Taxes and Duties imposed by Provincial authority; this would give complete satisfaction, and I have little doubt, but that in such case, as in Lower Canada,2 the Legislature would appropriate a sum, according to it's abilities, for the support of the Civil Government of this Province, out of the Revenue which is raised by its authority: I make this observation with the greater confidence, as One hundred Pounds Currency has last session of the Legislature been appropriated out of the Revenue for the payment of the Salaries due to the Sheriffs of the Eastern and Western Districts of this Province, which Salaries were not, nor ever had been, charged against that Revenue in the Public accounts. 1. For the schedule see the Canadian Archives, Q. 304, page 17. 2. See the Provincial Statute of Lower Canada, 35 Geo. III, Chap. IX, an Act providing for the charges of the Administration of Justice and for the support of Civil Government within the Province. |