Moral of the case.
It has been worth while to give at some length the details of this somewhat squalid incident, because it is a good illustration of the difficulties which may arise from one of the most valued and valuable of English principles, the independence of the judicature. In the distant possessions of Great Britain, even more than at home, a great safeguard and a strong source of confidence is and always has been that the judges are in no way dependent on the Executive; and yet the case of Livius is by no means the only case in which serious mischief to the public service has resulted from this very cause. There can be no doubt that on technical grounds the Privy Council were right in upholding Livius’ appeal. What weighed with them most of all was that Livius had not been dismissed for judicial misconduct; and short of such misconduct, flagrant and proved beyond all shadow of doubt, it would still be held that a judge should not be removed from office by the King himself, much less by the governor. Carleton, like other men cast in a large mould, did not sufficiently safeguard his action. A mischief-making adventurer was placed in high office for which he was clearly unfit. At a time of national crisis he used his powers of making mischief, and feeling secure in the independence of his judicial position, sought to undermine the authority of the Government. Unwilling to leave the difficulty for his successor to solve, the outgoing governor, fearless of responsibility, summarily dismissed the man, and contemptuously refused to justify the grounds of dismissal. He acted in the best interests of the public service, but, in doing so, he placed himself in the wrong, and the restoration of Livius to his office must be held to be justified, while his original appointment admits of no excuse.
Carleton resigns.
In June, 1777, Carleton sent in his resignation, but a year passed before he was able to leave Canada, and a bitter year it was for the English cause in America. Germain’s letter to him of the 26th of March, to which reference has already been made, gave a minute account of Germain’s plan of campaign for 1777. the plans for the year’s campaign. Carleton was to remain behind in Canada with 3,770 men. He was to place under command of General Burgoyne 7,173 men, in addition to Canadians and Indians, and after providing him with whatever artillery, stores, and provisions he might require, and rendering him every assistance in his power, ‘to give him orders to pass Lake Champlain and from thence, by the most vigorous exertion of the force under his command, to proceed with all expedition to Albany, and put himself under the command of Sir William Howe.’ In an earlier part of the same letter the phrase is used that Burgoyne was ‘to force his way to Albany’, leaving no doubt of the writer’s intention that at all hazards Burgoyne was to effect a junction with Howe. Carleton was further to place under Lieutenant-Colonel St. Leger 675 men, also to be supplemented by Canadians and Indians, to give him all the necessaries for his expedition, and to instruct him to advance to the Mohawk river, and down that river to Albany, where he was to place himself under Sir William Howe. St. Leger’s force was to be supplementary to Burgoyne’s: as phrased elsewhere in the same letter, he was ‘to make a diversion on the Mohawk river’.
Minuteness of the instructions.
It is noteworthy how this remarkable letter purported to settle all the details. The exact number of men for each service are counted, the particular regiments and companies of regiments are told off, no discretion is left to Carleton or to Burgoyne as to whom they should send forward to Lake Champlain or the Mohawk, and whom they should keep in Canada. No mention is made of the reinforcements which Carleton had written were necessary. Nothing is allowed apparently for sick or ineffectives. All is on paper, concocted by the man at a distance who persisted in knowing better than the far more capable man on the spot. But the most damning passage in the letter is as follows, ‘I shall write to Sir William from hence by Germain fails to communicate with Sir W. Howe. the first packet, but you will nevertheless endeavour to give him the earliest intelligence of this measure, and also direct Lieutenant-General Burgoyne and Lieutenant-Colonel St. Leger to neglect no opportunity of doing the same, that they may receive instructions from Sir William Howe.’ Sir William Howe’s Narrative of his operations, given to a Committee of the House of Commons in April, 1779, states explicitly that the promised letter was never sent to him by Germain; that it was not until the 5th of June that he received from Carleton a copy of the letter which has been quoted above, unaccompanied by any instructions; and that, before Burgoyne left England, Germain had received Howe’s plans for the Philadelphia expedition, and had written approving them. Such was Lord George Germain’s conduct of the war in America.
click here for larger image.
Map to illustrate THE BORDER WARS
to face page 145