3 GEORGE V., A. 1913 of the Government, and execute Our said Commission and Instructions, and the Several Powers and Authorities therein contained in the manner therein directed1-It is nevertheless Our express Will and Pleasure, that in such case the said President shall forbear to assent to any Acts but what are immediately necessary for the Welfare of Our said Province without Our particular order for that Purpose, and that he shall not take upon him to dissolve the Assembly then in being, nor to remove or suspend any of the Members of Our said Executive Council, nor any Judges, Justices of the Peace or other Officers Civil or Military without the Advice and Consent of the majority of the said Executive Council; and the said President is by the first opportunity to transmit to Us by one of Our Principal Secretaries of State, the reasons for such Alterations signed by him and Our Council-And Our Will and Pleasure is, that the above Instructions with respect to such President shall also be equally observed by and binding upon such other Executive Councillor as may be nominated and appointed by you under the Great Seal of Our said Province by virtue of Our said Commission in that behalf. 76. And Whereas by Our different Commissions We have appointed you to be Our Governor and Commander in chief of Our Province of Upper Canada, Lower Canada, and of Our Province of Nova Scotia, including the Islands of St. John and Cape Breton, as well as of Our Province of New Brunswick, and it is Our Intention that the Lieutenant Governors commanding in the said Provinces of Nova Scotia and New Brunswick, and Upper Canada should have and enjoy the full Salaries, Perquisites, and Emoluments granted to them and arising from the respective Governments in as full and ample a manner as if the said Governments were under distinct Governors in Chief; it is therefore Our Will and Pleasure that you shall not at any time or times when you shall be resident and commanding in chief in either of Our said Provinces of Upper Canada, Nova Scotia, and New Brunswick have or receive any part of the said Salaries, Perquisites or Emoluments, but that the same shall continue to be paid and satisfied to the Lieutenant Governors of the said Provinces respectively in like manner as they usually are during your Absence therefrom. 77. And you are upon all occasions to send to Us by one of Our Principal Secretaries of State a particular Account of all your Proceedings and of the Condition of Affairs within Your Government: Endorsed: Instructions for the Right Honourable Lord Dorchester, Governor of Lower Canada. Dated 16th September, 1791. [L.S.] 1. See page 12. SESSIONAL PAPER No. 18 INSTRUCTIONS TO LORD DORCHESTER AS GOVERNOR OF UPPER CANADA.1 GEORGE R. INSTRUCTIONS to Our Right Trusty and Well beloved Guy Lord Dorches- 1st. With these Our Instructions You will receive Our Commission2 under Our Great Seal of Great Britain, constituting You Our Captain General and Governor in Chief in and over Our Provinces of Upper Canada and Lower Canada bounded as in Our said Commission is particularly expressed. In the execution therefore of so much of the Office and Trust We have reposed in You as relates to Our Province of Upper Canada, You are to take upon you the Administration of the Government of the said Province, and to do and execute all things belonging to Your Command, according to the several Powers and Authorities of Our said Commission under Our Great Seal of Great Britain, and of the Act passed in the present Year of Our Reign therein recited, and of these Our Instructions to you and according to such further Powers and Instructions as you shall at any time hereafter receive under Our Signet and Sign Manual, or by Our Order in Our Privy Council. 2. And You are, with all due Solemnity, before the Members of Our Executive Council, to cause Our said Commission to be read and published, which being done, You shall then take, and also administer to each of the Members of Our said Executive Council, the Oaths mentioned in an Act passed in the first Year of His late Majesty King George the First, intituled, "An Act for the further Security of His Majesty's “Person, and Government, and the Succession of the Crown in the Heirs of the late "Princess Sophia, being Protestants and for extinguishing the hopes of the pretended "Prince of Wales, and his open and secret Abettors;" as altered and explained by an Act passed in the Sixth Year of Our Reign, intituled, " An Act for altering the "Oath of Abjuration and the Assurance, and for amending so much of an Act of the Seventh Year of Her late Majesty Queen Anne, intituled "An Act for the “Improvement of the Union of the two Kingdoms, as after the time therein limited “requires the delivery of certain Lists therein mentioned to Persons indicted for "High Treason or Misprision of Treason;" and also make and subscribe and cause the Members of the said Executive Council to make and subscribe the Declaration mentioned in an Act of Parliament made in the Twenty fifth Year of the Reign of King Charles the Second, intituled, "An Act for preventing the Dangers which may "happen from Popish Recusants," and You and every of them are likewise to take an Oath for the due execution of Your and Their Places and Trusts, with regard to Your and their equal and impartial administration of Justice, and You are also to take the Oath required by an Act passed in the Seventh and Eighth Years of the 1. From the copy in the Canadian Archives, M. 232, p. 1. These Instructions are very similar to the Instructions for Lower Canada. They have likewise been printed in the Report of the Canadian Archives for 1905, Vol. 1. In order to avoid confusion in future references to them they are here printed in full.' 2. See page 5. 3 GEORGE V., A. 1913 Reign of King William the Third, to be taken by Governors of Plantations, to do their utmost that the Laws relating to the Plantations be duly observed. 3. You shall also administer or cause to be administered the Oaths appointed in the aforesaid recited Acts to all Persons, except as hereafter mentioned, that shall be appointed to hold or exercise any Office, Place of Trust or Profit, in Our said Province, previous to their entering on the execution of the Duties of such Office, and you shall also cause them to make and subscribe the Declaration mentioned in the aforesaid Act of the Twenty fifth year of the Reign of King Charles the Second. But in cases where any such Office, Place of Trust, or Profit within Our said Province of Upper Canada shall be conferred on any of Our Subjects who may profess the Religion of the Church of Rome, You shall, as often as any such Person shall or may be admitted into any such Office, Place of Trust or Profit, administer, or cause to be administered to him, the Oath prescribed in and by an Act of Parliament passed in the 14th year of Our Reign, intituled, "An Act for making more effectual provision for the Province of Quebec, in North America;" and also the usual Oath for the execution of such Office, Place of Trust or Profit, in lieu of all other Tests and Oaths whatsoever. 4. Whereas We have thought fit that there should be an Executive Council for assisting you, or Our Lieutenant Governor, or Person administering the Government of Our said Province of Upper Canada for the time being, We do hereby by these Presents, nominate and appoint the undermentioned Persons to be of the Executive Council of Our said Province, vizt. William Osgoode,1 William Robertson, Alexander Grant, and Peter Russell' Esquires. And Whereas by an Ordinance passed in the Province of Quebec, the Governor and Council of the said Province were constituted a Court of Civil Jurisdiction for hearing and determining Appeals in certain Cases therein specified; And whereas by an Act passed in the present Year of Our Reign, it is declared that the Governor, Lieutenant Governor, or Person administering the Government of the said Province, together with such Executive Council shall be a Court of Civil Jurisdiction, within Our said Province for hearing and 1. William Osgoode was born in England in 1754. He was called to the bar in 1779 and on the division of the Province of Quebec was selected as the first Chief Justice of the new Province of Upper Canada. At the same time he was made a member of the Executive and Legislative Councils and was subsequently appointed first speaker of the Legislative Council. In 1794 he succeeded to the position of Chief Justice of Lower Canada rendered vacant by the death of William Smith. As a member of the Executive Council of Lower Canada he came into conflict with Lord Dorchester, Prescott and Milnes and as a result his resignation was submitted to the Duke of Portland in 1800. He returned to Britain in the summer of 1801 though his resignation did not take effect until May of the following year. He died February 17, 1824. 2. Concerning Robertson, Simcoe, writing to Dundas, August 12, 1791, says "He is now in London, I have some slight acquaintance with him, and he seems to be a person of very good manners and g od sense. He is a merchant and was adverse to the opposition which the merchants made to the Division of the Provinces. He resides at Detroit." Q. 278, p. 298. In November, 1792 Simcoe reports having received Robertson's resignation from both the Executive and Legislative Councils. Q 279, p. 8. 3. Alexander Grant was descended from a prominent family of Invernesshire, Scotland. He was born in 1725 and in his early years served in both the army and navy. In 1759 he was with Amherst in the movements about Lake Champlain and was later transferred to the command of the fleet on the Lakes between Niagara and Mackinaw. He held this position at the time of the creation of the Province of Upper Canada. On the death of LieutenantGovernor Hunter in August, 1805, Grant became President of the Council and administered the government of the Province until the arrival of Lieutenant-Governor Gore in August, 1806. He died in 1813. 4. Peter Russell, of the family of Russell of Bedford, was born in Cork, Ireland, and educated at Cambridge. He entered the army and in 1778 was given a Commission as Captain in the 64th Regiment of Infantry. He served in the expedition against Savannah and Charleston in 1779-1780. When the civil establishment of the new province of Upper Canada was being formed he was very highly recommended by Simcoe and was appointed to the Executive and Legislative Councils. Later he was made Receiver General of the Province. On Simcoe's retirement in 1796 he administered the government of the Province as President of the Council. He died September 30, 1808. 5. See Constitutional Documents, 1739-1791, Shortt and Doughty, 1907, p. 464. SESSIONAL PAPER No. 18 determining Appeals within the same, in the like cases, and in the like manner and form, and subject to such Appeal therefrom, as such Appeals might have been before the passing of the above recited Act, heard and determined by the Governor and Council of Quebec.1 In order therefore to carry the said Act into execution, Our Will and Pleasure is, that you do in all Civil Causes, on application being made to you, for that purpose, permit and allow Appeals from any of the Courts of Common Law in Our said Province, unto you and the Executive Council of the said Province of Upper Canada, in manner prescribed by the abovementioned Act, and you are for that purpose to issue a Writ, as nearly in the accustomed manner before the passing of the abovementioned Act, in respect of such Appeals, as the Case will admit, returnable before yourself and the Executive Council of the said Province, who are to proceed to hear and determine such Appeal, wherein such of the said Executive Council, as shall be at that time, Judges of the Court from whence such Appeal shall be made to you Our Captain General and to Our said Executive Council as aforesaid, shall not be admitted to vote upon the said Appeal, but they may nevertheless be present at the hearing thereof, to give the reasons of the Judgement given by them, in the Causes wherein such Appeal shall be made, provided nevertheless, that in all such Appeals, the Sum or Value appealed for, do exceed the Sum of Three hundred Pounds Sterling, and that Security be first duly given by the Appellant to answer such Charges. as shall be awarded in case the first Sentence be affirmed, and if either Party shall not rest satisfied with the Judgement of you and such Executive Council as aforesaid, Our Will and Pleasure is, that they may then Appeal unto Us, in Our Privy Council provided the Sum of Value so appealed for unto Us, do exceed Five Hundred Pounds Sterling, and that such Appeal be made within Fourteen days after Sentence and good Security be given by the. Appellant, that he will effectually prosecute the same and answer the Condemnation, as also pay such Costs and Damages as shall be awarded by Us, in case the Sentence of You and the Executive Council be affirmed; Provided nevertheless, where the matter in question relates to the taking, or demanding any Duty payable to Us, or to any Fee of Office, or Annual Rents, or other such like matters or thing where the Rights in future may be bound, in all such Cases you and the said Executive Council are to admit an Appeal to Us in Our Privy Council, though the immediate Sum or Value appealed for be of a less value; and it is Our further Will and Pleasure, that in all cases, where by your Instructions, you are to admit Appeals unto Us in Our Privy Council, execution shall be suspended until the final determination of such Appeal, unless good and sufficient Security be given by the Appellee, to make ample restitution of all that the Appellant shall have lost by means of such Decree or Judgement, in case upon the determination of such Appeal, such Decree or Judgement should be reversed and restitution ordered to the Appellant. You and Our Executive Council are also to permit Appeals unto Us, in Our Privy Council, in all Cases of Fines imposed for Misdemeanors, provided the Fines so imposed amount to, or exceed the Sum of One Hundred Pounds Sterling, the Appellant first giving good Security, that he will effectually prosecute the same, and answer the Condemnation, if the Sentence, by which such Fine was imposed in Your Government shall be confirmed. 5. And that We may be always informed of the Names and Characters of Persons fit to supply the Vacancies, which may happen in Our said Executive Council, You are in case of any Vacancy in the said Council, to transmit to Us, by one of Our principal Secretaries of State, the Names and Characters of such three Persons, Inhabitants of Our said Province of Upper Canada, whom you shall esteem the best qualified for fulfilling the Trust of such Executive Councillor. 6. And in the choice and selection of such Persons proposed to fill such Vacancy in Our said Executive Council, as also of the Chief Officers, Judges, Assistants, 1. See Article XXXIV of the Constitutional Act. 3 GEORGE V., A. 1913 Justices of the Peace, and other Officers of Justice, you are always to take care that they may be Men of good Life, well affected to Our Government, and of Abilities suitable to their Employments. 7. And whereas We are sensible that effectual Care ought to be taken to oblige the Members of Our Executive Council to a due attendance, It is Our Will and Pleasure, in order to prevent the many inconveniences, which may happen for want of a Quorum of the Council to transact Business as occasion may require, that if any of the Members of Our said Executive Council, residing in Our said Province shall hereafter wilfully absent themselves from the Province and continue absent above the space of Six Months together without leave from you first obtained under Your hand and Seal, or shall remain absent for the Space of One year without Our Leave given them, under Our Royal Signature, their Places in the said Executive Council shall immediately thereupon become void. And We do hereby will and require you, that this Our Royal Pleasure be signified to the several Members of Our said Executive Council, and that it be entered in the Council Books of the said Province as a standing Rule. 8. And to the end that Our said Executive Council may be assisting to You in all Affairs relating to Our Service, You are to communicate to them, such and so many of these Our Instructions, wherein their Advice is mentioned to be requisite; and likewise all such others from time to time, as you shall find convenient for Our Service to be imparted to them. 9. You are also to permit the Members of Our said Executive Council to have and enjoy Freedom of Debate and Vote in all Affairs of Public concern, which may be debated in the said Executive Council. 10. And whereas We have thought fit to declare by Our Order in Council bearing date, the 24th day of August last,' that the Division of Our Province of Quebec shall commence on the day of December next, and that from thenceforth the Lands and Territories therein described, shall be two separate Provinces, and be called the Province of Upper Canada, and the Province of Lower Canada; You are as soon as may be after such division shall take place to summon, by an Instrument under the Great Seal of Our Province of Upper Canada, to the Legislative Council of that Province, the following Persons, whom We hereby authorize and direct You, to to summon to Our said Legislative Council of Upper Canada, vizt. William Osgoode, Richard Duncan, William Robertson, Robert Hamilton, Richard Cartwright Junior, John Munro, Alexander Grant and Peter Russell Esquires. 11. And whereas by the aforesaid recited Act passed in the present year of Our Reign, it is provided that the Seats of the Members of Our Legislative Council shall become vacant in certain Cases mentioned in the said Act,2 It is Our Will and Pleasure, that if any Member of Our said Legislative Council shall at any time leave Our said Province and reside out of the same, You shall report the same to Us, by the first opportunity, through One of Our Principal Secretaries of State; And you are also in like manner to report whether such Member of the said Council is absent by your permission, or by the permission of Our Lieutenant Governor, or Commander in Chief of the said Province for the time being; And you are also in like manner to report if it shall come to your knowledge, that any such Member shall at any time, take, or have taken any Oath of Allegiance, or Obedience to any Foreign Prince or Power, or shall be attainted for Treason, in any Court of Law within any of Our Dominions, that We may take measures thereupon, as We shall think fit: And you are to take especial Care, that the several Provisions of the said Act, respecting the several Cases in which Persons may, or may not be entitled to receive Writs of Sum |