SESSIONAL PAPER No. 29c necessary and as inconsistent with the dependence of the Colony upon the Mother Country which it is so much the interest of both to preserve,-and as calculated to secure to the Officers of His Majesty's Government a protection from the possibility of Colonial Persecution;-Those Officers hold their situations in the Colony during pleasure; they are appointed by and are the servants of the Crown, and may be suspended or removed from office whenever the Crown may think proper;-Such is the situation of Mr Foucher who might at the present moment be removed from office by an exertion of the prerogative;-it would therefore seem to be the undoubted right of the Crown to use this Prerogative in such way as to His Majesty may seem best conducive to the Public good and at the same time give security and every just protection to his servants. His Royal Highness has therefore in the exercise of this prerogative thought proper to declare, "that in this and in all similar cases of Impeachment by the Legis"lative Assembly the adjudication of the charges preferred against the party accused. "shall be left to the Legislative Council;-and that under such an arrangement His. "Royal Highness feels no disposition to Question the right of the Assembly to submit articles of Impeachment against any Individual whose public conduct may appear to "them deserving of animadversion." His Royal Highness has thus graciously devised a mode of investigation the least burthensome to the accusers and accused, but in so doing has not given a power to the Legislative Council as it would appear to me to proceed to trial and punishment, but to adjudge whether the charges which may be submitted to them by the Assembly are or are not well founded to the end that upon such adjudication the ultimate dismissal from or continuance in office of the accused Individual may be determined by His Majesty. Aware, may it please Your Excellency, of the importance of the subject. I have endeavoured to discharge my duty to your Excellency by avoiding a hasty consideration and opinion, and I cannot view the dispatch of Earl Bathurst in any other light consistent with my ideas of the principles of constitutional Law, than in the manner before submitted to your Excellency;-nor does it appear to me that the Crown can issue a Commission for the trial of persons impeached;-Such an accusation is purely parliamentary and cannot take any other than a Parliamentary course; the right of accusation in the one Branch is founded upon the right of trial in the other; they are so united that they cannot constitutionally be separated; the strict right of Impeachment does not therefore in my humble apprehension exist in the Colonial Assembly; this privilege alone exists in the Commons of the United Kingdom, and through that body the accused Individual might be impeached before the King in Parliament;—I do not conceive the charges of the Provincial Assembly to be strictly and legally articles of Impeachment, but to have been considered by His Royal Highness merely as a complaint on the part of the Assembly to the Crown, of an improper exercise and abuse of the duties of Office in one of its servants and praying for redress by his removal from office; and thereupon His Royal Highness with that sense of justice so strongly marked in every line of the dispatch of Earl Bathurst has been anxious to devise a mode of investigation of the charges against Mr Foucher and has in his wisdom adopted that, which, while it affords relief to all parties, is eminently calculated to preserve as much as possible and as constitutionally he could the honour of the Provincial Parliament by directing that the investigation of the charges or complaint should be left to the Legislative Council,-not as a Court for the trial and punishment of the accused but as a body entitled to participate in all matters agitated in the Provincial Parliament and as the Branch best calculated from its rank in the constitutional scale to inform the conscience of His Majesty of the truth of the charges or complaint of the Assembly. 1. This is a quotation from Lord Bathurst's despatch of July 7, 1817, see page 511. 29c-331 4 GEORGE V., A. 1914 It is obvious that the Imperial Parliament may give to the Assembly the right of Impeachment and to the Legislative Council the right of trial as fully as it is possessed by the Lords and Commons of the United Kingdom, but the expediency of such a concession might be well doubted;-and if I might be allowed respectfully to submit my sentiments to your Excellency upon the Subject I must declare that I do not consider that it would be sound policy to adopt such a course as it would tend to weaken the ties of the Colony to the Mother Country and render the former more independent of the latter than the welfare safety and general interests of the Empire will admit; The relative situation of the Colony to the Country which fosters and protects it must never be lost sight of; one concession is only the fore-runner of a claim for others; and the consequences which would result from such concessions would more fully occur to your Excellency's mind than I could possibly represent them. The draft of a Commission which has been submitted for your Excellency's consideration is the first of it's kind; as it is for the trial of an Individual under what has been styled articles of Impeachment; now it cannot be found that the Crown has ever interfered by Commission in cases of Impeachment, except so far as regards the appointment of a Lord High Steward to preside at the trial, who, as Hawkins observes must be a peer of England, "as no one under the degree of nobility is capable of so "honourable a Post," and this officer is now appointed by Special Commission pro hac vice which recites that the appointment is made upon the application of the Lords, as will appear to Your Excellency on reference to the Commission in the case of Lord Lovat [9th Vol. of State Trials. p. 622.]-the words being, "and for as much as the Lords Spiritual and Temporal in our present Parliament assembled have most humbly besought us that we would vouchsafe to appoint a Steward of Great Britain for this time," Thus far His Majesty appoints, as of right, an officer to preside but does not create a Court or vest in the Lord High Steward any Judical functions;-nor can the Crown stop the Proceedings on an Impeachment by granting a Pardon to the accused.— In Foster, Your Excellency will find the following remark, "In the trial of a Peer "indeed for a capital offence, it hath been usual to appoint a Lord High Steward during the trial, and until Judgment is given, for the sake of order regularity and dignity;— “But this appointment does not alter the constitution of the Court,”—and he further adds that "Such an Officer is usually though not necessarily appointed." The proposed Commission therefore only resembles that issued during the recess of Parliament to the Lord High Steward for the trial of an Indictment found by a Grand Jury of a County and returned into the ordinary Courts against a Peer of the realm for treason or felony or misprision of either and which is removed by certiorari; None but Peers can be thus tried and only for the offences above mentioned, as in cases of misdemesnors they have no such privilege but are tried in the ordinary Courts and according to the course of the Common Law. There exists therefore no precedent for the proposed Commission, and where none exists I should be strongly inclined to doubt its legality; from the well known principle that the King cannot grant any new Commission which is not warranted by ancient precedents, however necessary it may seem and conducive to the Public Good. [3. Hawk. p. 3.]-and from the observation of Lord Coke in treating upon Justices of Oyer and Terminer. "That all Commissions of new invention are against Law until they have allowance by Act of Parliament. [4. Inst. 163] Indeed it does not appear from the dispatch of Earl Bathurst to have been a measure contemplated or deemed necessary by His Royal Highness the Prince Regent; -for the power of investigating the charges, it would seem, has alone been authorized, and which the Crown for the reasons before submitted to your Excellency would have 1. See also on this point the opinion of the Judges of the Court of King's Bench for Quebec, page 527. SESSIONAL PAPER No. 29c a right to direct and authorize in the exercise of the Prerogative quo ad its officers, against whom complaints have been preferred. Before it has been ascertained whether the House of Assembly [admitting for a moment the right of Impeachment in that Body,] will submit it's Charges to the Legislative Council, it would seem at any rate to be risquing too much to issue a Commission which might become nugatory in its effect;-as a primary consideration would appear to me necessary whether the execution of such a Commission can be enforced; And I feel confident that Your Excellency would not be disposed to give an opportunity to either branch of the Legislature to call in question the authority of the King's Commission. Certain privileges have been conceded, and it is for the two houses to give effect thereto by discharging the important duties which will thus respectively devolve upon them;-If they will not accept the tendered privileges and give effect to the arrangement and mode of investigation devised by His Royal Highness it will induce him to adopt such other mode of investigation as in his wisdom he may deem right. It has been observed that the proposed Commission like that issued to a Lord High Steward upon an Indictment, is in the nature of a Commission of Oyer and Terminer; --and it must be admitted that they do in some particulars agree;-But a view of the two Commissions is only necessary to decide upon the wide difference between them and that a power to issue Commissions of Oyer and Terminer, does not imply a power to erect a Court similar to that of the Lord High Steward: whose proceedings are not according to the course of the Common Law which is that which governs the Proceedings in the King's ordinary Courts of Justice;-It is certainly essential that the course to be adopted should be strictly legal and correct, as any error can only give rise to future and endless difficulties, disturb the Peace of the Colony,-and occasion great trouble and embarrassment to His Majesty's Government. I must request your Excellency's pardon for this lengthy and I am afraid imperfect explanation of my motives and reasons for declining to concur in the proposed draft;— I have conceived it my duty fully to disclose them, and do most respectfully submit them for your Excellency's consideration, and have the honour to be etc. etc. etc. [Signed] Quebec 1st Dec 1817. GEORGE PYKE Ad. Gen'. L.C. 4 GEORGE V., A. 1914 DRAFT COMMISSION FOR THE TRIAL OF JUSTICE FOUCHER.1 (a) Quebec Act, 34 Geo. 3, c. 83, s. 11. GEORGE THE THIRD by the Grace of God of the United Kingdom of To our much beloved and faithful The Honourable Jonathan To our much beloved and faithful the Right Reverend Father in God Jacob Lord Bishop of Quebec, another Member of our said Legislative Council; To our much beloved and faithful Thomas Dunn & (naming each of the Legislative Counsellors) and to all others to whom these presents shall come or may in any wise concern, Greeting WHEREAS Louis Charles Foucher, Esquire, one of the Justices of our Court of King's Bench of and for our District of Montreal in our said Province of Lower Canada, before Us, by the Assembly of our said Province, in the name of the said Assembly and of all the Commons of our said Province, in our Provincial Parliament of our said Province, hath been and is and Stands impeached and accused of divers high Crimes and misdemeanours, by him the said Louis Charles Foucher committed & perpetrated: We considering that Justice is a most excellent virtue, and being willing that the said L. C. Foucher should in our Legislative Council of our said Province according to the Criminal Law of that part of our United Kingdom of Great Britain and Ireland called England and of our said Province (a) be heard, sentenced, and adjudged, touching and concerning the said high Crimes & misdemeanours whereof he stands impeached and accused as aforesaid: and that all other things which are necessary in this behalf should be in due manner done and executed; and very much confiding in the Fidelity, Prudence, provident circumspection, and Industry (a) Lord Lovat's (a) of you the said (such member or members as may be selected to Commission 7 St. Tri. 422 & many others. (b) Commissions fill the office of Steward) have by and with the advice of our Executive Council of and for our said Province of Lower Canada for this cause ordained constitute and assigned and hereby do ordain constitute and assign you the said our Justice Commissioner and Steward (b) of in and for our said Province of Lower Canada to bear, execute, and exercise for this time the said office, with all things to the said office in this behalf due and belonging: and the said high crimes and misdemeanours whereof the said L. C. Foucher so as aforesaid stands impeached and accused, to hear and determine by the Oaths of good and lawful men, being Members of our said Legislative Council of our said Province of Lower Canada, as to Justice doth belong according to the Criminal Law of that part of our United Kingdom of Great 1. From the copy in the Canadian Archives, Duplicate Despatches, Lower Canada, 1818. 2. Simon, Lord Loval, was impeached by the House of Commons in 1746, the charges arising out of his alleged connection with the Scottish rebellions of 1743 and 1745. The trial took place in Westminster Hall in March, 1747, and the proceedings are reported in State Trials, (Ed. of 1813) Vol. XVIII, page 530. The commission to the Chancellor, Lord Hardwicke, as Lord High Steward may be found at page 541. SESSIONAL PAPER No. 29c (c) Ordinary & Terminer : Britain and Ireland called England and of our said Province of Lower Canada (c) and therefore We command you the said our Justice Commissioner and Commissn of Öyer Steward as aforesaid that you diligently set about the premises, This being but and for this time do exercise and execute with effect all those things in the nature of which belong to the said office, and which are required in this Foster 142. behalf (d) And by the tenor of these Presents We do Command and do give and grant unto you the said ... our such a Commission. (d) Ld Lovat's and Ld Morley's Commissns. (e) See Foster 142 will be in Session (a) As the Council this seems to be necessary: There is however no such form to my Justice Commiss" and Steward as aforesaid full and sufficient power and authority at certain days and times during the now next ensuing Session of our said Provincial Parliament and at a place certain within our City of Quebec in our said Province of Lower Canada (which you the said our Justice Commissioner and Steward as aforesaid and you the said (naming all the rest of the Legislative Counsellors) (e) in our said Legislative Council for the purposes before and hereafter mentioned shall appoint (a) the said high crimes and misdemeanours whereof the said L. C. Foucher so as aforesaid is and stands impeached and accused, and the articles of accusation concerning the said L. C. Foucher adopted by the said Assembly of our said Province, and by the said Assembly unto us presented and pre- knowledge. ferred, and by which, before us, the said L. C. Foucher in our said Provincial Parliament, of the high crimes and misdemeanours aforesaid hath been and is and stands impeached and accused, and each and every of the said Articles of accusation, and the matter thereof (b), To hear and determine by the Oaths of good and lawful (b) Foster 142. men, being Members of our said Legislative Council of our said Province of Lower Canada as to Justice doth belong (c) according to the Criminal Law of that part of our United Kingdom of Great Britain and Ireland called England and of our said Province of Lower Canada: Further the Articles of accusation aforesaid against and concerning the said L. C. Foucher so as aforesaid adopted and so as aforesaid presented and preferred unto us by the said Assembly of our said Province, which We have this day sent unto and delivered into the Custody and Keeping of our trusty and well beloved William Smith Esqr. our clerk of our said Legislative Council by precept under the hand and Seal of you the said .... our Justice Commissioner and Steward as aforesaid to him the said (c) Common Commission of Oyer & Terminer. (d) Ld. Morley's case 7 St. Tri. 423 |