II.

CHAP. movement was to induce Gates to take a new position, and to bring on an action. This Gates as studiously avoided, with a view of attacking Burgoyne's right, which had he accomplish d it, he would have surrounded him on all sides. As soon as Burgoyne was apprised of Gates's intentions, he adopted the only alternative left, by making an instant retreat. At nine o'clock of the evening of the eighth of October, the army left the heights, and moved on towards Saratoga, with their baggage and artillery. The hospital, with the sick and wounded, was left behind, and being recommended to General Gates's humanity, they were well treated, and taken care of. The next step, in this hopeless situation, appeared to be a retreat back again to Lake George, and in this intention, artificers and workmen were sent to repair the bridges on the route to Fort Edward, to facitate the passage of the Army. This detachment, however, had no sooner proceeded a short distance on its march, when the Americans appeared in considerable force on the heights, which induced the General to order their immediate return. His situation at this moment, became tru'y distressing; abandoned by the Canadians and Indians, weakened by losses and desertions of his own troops, unsupported by Sir Henry Clinton, at New-York, reduced to three thousand five hundred fighting men, with a scanty allowance of provisions, and without any hopes of a fresh supply, in the face of an enemy four times their number, no alternative was left but a surrender of the army under his command. A Council of War was called, which was extended to Captains commanding corps. Their opinion was, that the present situation of affairs justified a capitulation, on honorable terms. A messenger was sent to transact this business. To General Gates's sixth propo ition, That the British should ground their arms in their

encampment, General Burgoyne replied, "This arti- CHAP. H. cle is inadmissible in every extremity; sooner than this army will consent to ground their arms in their encampment, they will rush on the enemy, determined to take no quarter." This article being rescinded, a Convention was at length agreed on. The troops to march out of their Camp with the honors of war, and the artille ry of the entrenchments, to the edge of the River, where both the arms and artillery were to be left; the arms to be piled by word of command by their own Officers. A free passage to be granted to the army under General Bourgoyne to Great Britain, upon condition of not serving again in North America during the present war. And the port of Boston to be assigned for the entry of the transports to receive the troops, whenever General Howe shall so order. The army under General Bourgoyne to march to Massachusetts by the easiest route, and to be quartered near, or as convenient to Boston, as possible. The troops to be supplied at the same rate of rations as the troops of General Gates's Army. All officers to retain their carriages and bat horses; the officers, as far as circumstances will admit, not to be separated from their men; the officers to be quartered according to their rank; all corps in General Burgoyne's army to be included in the above articles: all Canadians, and persons belonging to the Canadian Establishment, and other followers of the army, to be permitted to return to Canada, but not to serve during the present contest. Passports to be granted to three officers, to carry dispatches to General Howe, Sir Guy Carleton, and to Great Britain. The officers to be admitted to their parole, and to be permitted to wear their side arms.

X

CHAP.

II.

BEFORE intelligence had been received in England of the disastrous catastrophe of General Burgoyne's expedition, on which the Government at home, had chiefly founded its hopes of a successful termination of the war, enough was known respecting its progress, to convince men that very erroneous estimates had been made with regard to the services to be performed, the force which it required, and the manner in which it was to have been executed. It was also thought to have been a great error in the Minister of the day, that the conduct of the Northern Expedition had not been committed to Sir Guy Carleton, a General who, together with distinguished military accomplishments, had, from his residence in Canada, acquired a knowledge of the Country and its Inhabitants, which few possessed. Common sense recommended this appointment. He had deserved the patronage of the State, by the services he had rendered: but more powerful motives recommended the appointment of General Burgoyne, whose military talents were not assisted by the circumstances essential to the services of such an enterprize. And the consequence was, that Sir Guy Carleton, thinking himself injured, resigned the Government of Canada.

General Burgoyne was a Member of Parliament, says the Historian of the American War," and it was one of those miserable expedients, which the Minister substituted for grandeur of design, to bestow some of the most important employments, both Military and Naval, on men who were in the habits of opposing the measures of Administration."

THE

HISTORY

OF

CANADA.

CHAPTER III.

From the Convention at Saratoga, in 1777, to the Esta

blishment of the Constitution, in 1791.

III.

1778.

THE first sitting of the Legislative Council, after the CHAP. passing of the Quebec Act, was in the Spring of the year one thousand seven hundred and seventy seven ; the Council passed sixteen Acts, and among them, one for the establishment of Courts of Justice: a Court of King's Bench was created for the Trial of Criminal Causes, only in this Court the Chief Justice presided alone; a Court of Common Pleas for each of the Districts of Quebec and Montreal. Three Judges were to preside in each of these Courts, and two necessary to transact business. A Court of Probates, was established for Testamentary affairs and Successions The whole Council was also constituted a Court of App als, and any five of them, with the Governor, Lieutenant Governor or Chief Justice, were declared competent to proceed to trial and judgment of all causes brought before them in appeal. From the above establishment it will appear, that there was only one Court of original jurisdiction for the trial of Civil Causes, namely, the

CHAP.

III.

Court of Common Pleas. The "Laws and Customs
of Canada," established in the Province of Quebec,
by the Act of the fourteenth year of George the Third,
were generally understood to consist of the Custom of
the "Prévoté de Paris." Such of the French King's
Edicts and Ordinances as were registered in the Superior
Council of the Province: the Regulations and Ordinan-
ces of the Intendant: the local custom of the Country:
and (though on what authority is not known) the Roman
or Civil Law: in addition to these, the Acts passed by
the Legislative Council of the Province, and the Crimi
nal Law established by the Quebec Ast. These Laws
will appear sufficiently extensive and complex to re-
quire years
of intense study to understand them proper-
ly and yet Judges have presided in these Courts, who
had not been brought up to the study of the Law, or
who could not be supposed properly acquainted with the
rules or practices of Courts of Law or Equity. The
consequence of which has been, that anarchy and confu-
sion prevailed in the administration of Justice in the Pro-
vince, by which real property was rendered insecure ;
trade was clogged, and that good faith, which ought
to, and should subsist among the people, and which is
the life and support of commerce, was totally destroyed.
Sir Guy Carleton, who had been dissatisfied with the
Ministry in England, in having appointed General Bur-
goyne to command the expedition from Canada, to
reduce the rebellious Colonies to obedience, had desired
his recall the year before: on his obtaining it, the Go-
vernment of Canada was committed to Major General
Frederick Haldimand, who arrived at Quebec in the
course of the Summer. Various have been the opini
ons respecting this gentleman's administration: If we are

*

• Commission dated 18th September.