A history of Canada, 1763-1812

by Sir Charles Prestwood Lucas

It is difficult to imagine how a responsible minister could have been at once so ignorant and so unfair as Germain showed himself to be in this communication. To suppose that the movement or want of movement on Lake Champlain could have had any real connexion with the cutting off of a detachment on the Delaware river, which was within easy reach of the rest of Howe’s forces, overpowering in numbers as compared with Washington’s, was at best wilful blindness to facts. To supersede Carleton in the supreme command of the troops on the Canadian side was an act of unwisdom and injustice. It is true that, already in the previous August, while Carleton was still on the full tide of success, it had been determined to confine his authority to Canada, and apparently, in order that his commission might not clash with that of Howe, to place under a subordinate officer the troops which were intended to effect a junction with Howe’s army. But in any case Personal relations of Germain and Carleton. it is not easy to resist the conclusion that Germain had some personal grudge against the governor.[116] From a letter written by the King to Lord North in February, 1777, it would seem that, had Germain been given his way, Carleton would have been recalled, and, writing to Germain on the 22nd of May, Carleton did not hesitate to refer to the reports which were set abroad when Germain took office, to the effect that he intended to remove Carleton from his appointment, and in the meantime to undermine his authority. In his answer, dated the 25th of July, 1777, Germain gave the lie to these allegations, assuring Carleton that ‘whatever reports you may have heard of my having any personal dislike to you are without the least foundation. I have at no time received any disobligation from you’; he stated categorically that the action which had been taken for giving Burgoyne an independent command was by ‘the King’s particular directions’, and he added that the hope that Carleton would in his advance in the previous autumn penetrate as far as Albany was based upon the opinions of officers who had served in the country, and was confirmed by intelligence since received to the effect that the Americans had intended to abandon Ticonderoga, if Carleton had attacked it.[117] But, whatever may have been the facts as to the personal relations of Carleton and Germain, it seems clear that the small-minded minister in England was bent on ridding himself of the best man who served England in America.[118]

The case of Chief Justice Livius.

As Germain superseded Carleton in his military command, so he set aside his advice, and over-rode his appointments in civil matters. Reference has already been made to the evil effects produced by appointing unfit men to legal and judicial offices in Canada. The climax was reached when Germain in August, 1776, appointed to the Chief Justiceship of Canada a man named Livius, whose case attained considerable notoriety in the annals of the time. Peter Livius seems to have been a foreigner by extraction. Before the war broke out, he had been a judge in New Hampshire; and, his appointment having been abolished, he came back to England with a grievance against the governor and council, with whom he had been on bad terms while still holding his judgeship. A provision in the Quebec Act had annulled all the commissions given to the judges and other officers in Canada under the Royal Proclamation of 1763, which that Act superseded: and the English ministry seems to have taken advantage of this provision to displace men who had done their work well, and whose services Carleton desired to retain, substituting for them unfit nominees from England.

One of the men thus substituted was Livius, for whom they saw an opportunity of providing in Canada. Lord Dartmouth wrote to Carleton in May, 1775, notifying the appointment of Livius as a judge of Common Pleas for the district of Montreal; and in August of the following year he was promoted by Germain to be Chief Justice of Canada. Livius succeeded Chief Justice Hey, who had held the office since 1766, and had in August, 1775, requested to be allowed to retire after ‘ten years honest, however imperfect, endeavours to serve the Crown in an unpleasant and something critical situation’.[119] Hey was a man of high standing and character, and had been much consulted by the Government in passing the Quebec Act. Livius was a man of a wholly different class. Carleton’s Carleton’s description of Livius. unflattering description of him in a letter written on the 25th of June, 1778,[120] was that he was ‘greedy of power and more greedy of gain, imperious and impetuous in his temper, but learned in the ways and eloquence of the New England provinces, valuing himself in his knowledge how to manage governors, well schooled, it seems, in business of this sort’. ‘’Tis unfortunate,’ he wrote in another and earlier letter, referring apparently to Livius, ‘that your Lordship should find it necessary for the King’s service to send over a person to administer justice to this people, when he understands neither their laws, manners, customs, nor their language.’[121]

He dismisses him from office.

Livius’ appointment as Chief Justice apparently did not take effect till 1777, and he lost no time in making difficulties. Though paid better than his predecessor, he protested as to his emoluments and position; he claimed the powers which had been enjoyed by the Intendant under the old French régime, and both in his judicial capacity and as a member of the council, constituted himself an active opponent of the government. As Chief Justice, he espoused the cause of a Canadian who had been arrested and sent to prison for disloyalty by the Lieutenant-Governor Cramahé, and in the council, in April, 1778, he brought forward motions directed against what he held to be illegal and irregular proceedings on the part of the governor. The result of his attitude was that on the 1st of May, 1778, Carleton, before he left Canada, summarily, and without giving any reason, dismissed him from office.

Livius appeals to the King.

Both Livius and Carleton went back to England, and in September Livius appealed to the King. His appeal was referred to the Lords Commissioners of Trade and Plantations, whose report on the case was in turn referred to the Lords of the Committee of Council for Plantation Affairs, and with their recommendation was brought before the King in Privy Council, Livius having in the course of the inquiry stated his case fully both in person and in writing, while Carleton declined to appear, and contented himself with referring to his dispatches and to the minutes of council. On technical grounds Livius had a strong case. Appointed by the King, he had been Merits of the case. dismissed by the governor without any reason being assigned in the letter of dismissal. His conduct in a judicial capacity had not been specifically impugned, and the two motions directed against Carleton, which he had brought forward in the Legislative Council immediately prior to his dismissal, had, at any rate, some show of reason. The first was to the effect that the governor should communicate to the council the Royal Instructions which had been given him with respect to legislation, and which by those instructions he was to communicate so far as it was convenient for the King’s service. The second referred to a committee of five members of the council, which Carleton had constituted in August, 1776, a kind of Privy Council for the transaction of executive, as opposed to legislative business, in which Livius was not included. Livius contended, and his contention was upheld, that the instruction under which the governor had appointed this board or committee, did not contemplate the formation of a standing committee of particular members of council, but only authorized the transaction of executive business by any five councillors, if more were not available at the time.

The appeal upheld and Livius restored to office. His subsequent career.

The result of the inquiry was that the Chief Justice was restored to his office, but he never returned to Canada. In July, 1779, a mandamus for his re-appointment as Chief Justice was sent to Governor Haldimand, Carleton’s successor, and in the same month he was ordered to go back at once to Quebec. But he remained on in England on one pretext or another. In March, 1780, he was still in London asking for further extension of leave, to see his brother who was coming home from India. Two years later, in April, 1782, he had not gone, though he alleged that he had attempted to cross the Atlantic and had been driven back by stress of weather; and he pleaded with rare audacity that it was advisable that he should still prolong his absence from Canada, as otherwise it would be his duty to oppose the high-handed proceedings, as he deemed them to be, of General Haldimand. So matters went on until Carleton, now Lord Dorchester, returned to govern Canada in the autumn of 1786, when a new Chief Justice was at once appointed, and Livius finally disappeared from history.[122]