BOOK XXV.

THE GOVERNMENT OF LORD DORCHESTER,

1786-1796.

THE CANADA ACT, 1791.

THE GOVERNMENT OF LIEUTENANT-GOVERNOR SIMCOE,

UPPER CANADA,

1791-1796.

1786]

LORD DORCHESTER.

255

CHAPTER I.

Lord Dorchester, for as such hereafter must Carleton be mentioned, landed at Quebec on the 23rd of October, 1786. Addresses were immediately presented to him in French and English. He wrote privately to Nepean that every proceeding bore the impress of good humour, and the addresses generally were characterized by good sense. Among those sent were several from the newly settled townships. They expressed gratitude for the consideration the loyalists had received, with the hope that the same advantages would be extended to them as to other settlers; which was construed to be an allusion to the tenure of land. He wrote to Parr, the governor of Nova Scotia, stating his intention to visit cape Breton and Prince Edward island, then known as Saint John's island, to learn their actual situation, so that the interests of the two colonies could be understood, and a system for their government established, equally advantageous to the inhabitants and to the mother country.

Dorchester held office as governor-general on a tenure different in character from the powers hitherto granted. Until this date, Nova Scotia, the elder British province, possessed its own governor, for the last few years with a lieutenantgovernor of cape Breton. It was thus brought into direct correspondence with the colonial office. Dorchester's appointment, in addition to constituting him governor of Canada, extended to the other provinces. He received separate commissions as governor-in-chief, not only of Canada but likewise of Nova Scotia and of New Brunswick, established as a province in 1784; and the same provisions were followed on the constitution of Upper Canada as a province in 1791. The titles of the governor of Nova

Scotia and of New Brunswick were changed to that of lieutenant-governor, with the same pay and allowances; their position, however, became subordinate to that of Dorchester as governor-in-chief, a position he assumed by right of his commission, when present in any province.

William Smith, the newly appointed chief justice, had accompanied Dorchester to Canada. He was born in New York in 1728, the son of a lawyer of reputation, who subsequently became one of the associate justices of that province. Smith, the eldest son of a large family, had himself, in 1763, been appointed chief justice. United States writers have represented, that, when the revolutionary movement was approaching its final development, he was uncertain which cause he would espouse, and that he retired to his country house on the North river for five months, as if waiting to see which was the winning side. He was, however, suspected of attachment to the royal cause, and was confined on parole, being left in possession of his property. As it remained unconfiscated, it has been held that he was considered not unfriendly to the revolutionary party. In 1778 he proceeded to New York and openly took the British side. His position as chief justice obtained for him full consideration; nevertheless contemporary writers have mentioned his name with suspicion and with much unfriendliness. He thoroughly obtained Dorchester's confidence, and, after the peace in 1783, accompanied him to England. Apparently, it was owing to the governor-general's influence that he was nominated chief justice of Canada. At that date he was fifty-eight years of age.

Mr. Smith arrived at Quebec with theories of the supremacy of English law. In one of the first cases submitted to him he reversed a judgment of the common pleas, which had held that the Quebec act brought every action before the court under the provisions of the laws that had been in operation at the time of the conquest. The chief justice laid down the decision at some length,* that in cases where

1786]

CHIEF JUSTICE SMITH.

257

French law would apply, it should be followed in accordance with the Quebec act. On the other hand, where the litigants were purely English, as in the other case they might be French Canadian, English law should prevail, and that an exclusive adoption of either system would be ruinous in its consequences.

In 1787 he proposed to the council the continuance of the ordinance passed two years previously, which established trial by jury in civil affairs, between merchants and traders, and in disputes involving personal wrongs for which damages could be demanded. Some clauses were added by the governor to make the act more comprehensive. The measure was regarded by the majority of the council as too limited. in its application, and it was rejected. Those who had given it their support entered their protest on the journals. The majority who voted against the act introduced a measure, and it was urged against it that, although the term “jury" was retained, it was only in a limited sense. The proposed ordinance called forth much opposition on the part of the limited numbers engaged in commerce, and a petition was presented against it, with the prayer that the signers might be heard by council. The petitioners were represented by the attorney general, Monk, who spoke for six hours against the measure. He dwelt on the necessity of determining what laws had been retained by the Quebec act, and enforced the necessity of clearly establishing the principle of law which should be followed. He also advocated the propriety of restraining the judges within a prescribed code, with clearly defined rules of court, by which in all cases their decisions should be governed. In support of his argument, he cited cases which, from the contrary character of the decisions rendered, as shewn by the records of the court, to use the words of one present," astonished his audience."

Some days afterwards, in accordance with the instructions of the council, Monk submitted a statement of the facts, received by him from the committee of merchants, which had formed the basis of the charges made by him against the

R