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TESTBANK
to accompany
BUSINESS LAW
3rd edition
Prepared by
Nickolas James
Bond University
Updated by
Verity Greenwood
Macquarie University
© John Wiley & Sons Australia, Ltd 2014

Testbank to accompany Business Law 3e by James
Chapter 7
Dealing with Agents
Multiple Choice Questions
1. Solicitors are:
*a. Commonly but not necessarily agents of their clients.

b. Always agents of their clients.
c. Never agents of their clients.
d. Universal agents of their clients.
General Feedback:
See Chapter 7, 'Getting someone else to do it'.
2. A 'special agent', in a legal context, is best defined as someone who:
*a. Has limited authority to act on behalf of the principal.

b. Has unrestricted authority to act on behalf of the principal.
c. Has broad general authority to act on behalf of a principal.
d. Drinks martinis, drives fast cars and defers to no authority.
General Feedback:
3. A mercantile agent is never:
a. A person appointed to sell property on behalf of a client.

b. A factor who sells the principal's property in his own name.
c. A broker.
*d. A factor who sells the principal's property in the client's name.
General Feedback:
4. Brokers are in the business of:
*a. Selling property that is not in their possession.

b. Selling intellectual property.
© John Wiley and Sons Australia, Ltd 2014
7.2
Chapter 7: Dealing with Agents
c. Selling stock, insurance, finance, cars etc. that they have purchased.
d. Selling stock, insurance, finance, cars etc. that they own.
General Feedback:
5. A mercantile agent is called a 'factor' if:
a. They are not in possession of the principal's property.

*b. They are in possession of the principal's property.
c. They are an insurance broker.
d. They are a stockbroker.
General Feedback:
6. Which of the following statements is false?
a. An insurance broker is an independent intermediary between an insurance company

b. An insurance broker usually acts for the insured.
c. An insurance agent is engaged by and represents the insurance company.
*d. An insurance agent is engaged by and represents the insured person.
Feedback:
a) See Chapter 7, 'Getting someone else to do it'.
and the client.
7. Del credere agents are generally paid a higher commission than other agents because:
*a. They agree to indemnify the principal in the event of non-performance by the third
party.
b. They have special skills and experience.
c. They agree to indemnify the principal in the event of negligence on their part.
d. They work in at the upper end of the stock market dealing with high volumes of
premium stocks and shares.
General Feedback:
8. Which of the following statements is not true of an enduring power of attorney?
a. It is sometimes called a living will.

b. It generally takes effect when and if the principal loses intellectual capacity.
*c. It generally lapses when and if the principal loses intellectual capacity.
d. Like a general power of attorney it is a written grant of express actual authority.

7.3
General Feedback:
See Chapter 7, 'Scope of authority'.
9. Which of the following is not a requirement for establishing that an agent has apparent
authority?
a. The agent did not have actual authority.

*b. The third party knew that the agent did not have actual authority.
c. The principal 'held out' the agent as having authority to act on their behalf.
d. The third party relied upon that holding out and assumed that the agent had actual
authority.
General Feedback:
See Chapter 7, 'Scope of Authority'.
10. In which of the following circumstances will an agent's act not generally be binding on
the principal because the agent has no authority (leaving aside contexts in which the agent
has apparent authority)?
a. When the agent was given verbal authority by the principal to do the act.
b. When the principal has ratified the act verbally.
c. When the act was something necessary or appropriate given the scope of the
agent's actual authority although they had no express authority.
*d. When the agent's authority was given verbally in circumstances in which
legislation required the authority to be given in writing.
General Feedback:
11. The nature and extent of the implied authority of a company director to act on behalf of
the company:
a. Is usually expressly granted by the board of directors as a whole.

b. Is not affected by the position of the director on the board.
c. Tends to decrease with the seniority of the director's position.
*d. Tends to increase with the seniority of the director's position.
General Feedback:
12. An agent will have 'authority by estoppel' to bind the principal in circumstances in which
the agent:
*a. Does not have actual authority but has apparent authority.
b. Does not have actual or apparent authority but has behaved in good faith.
c. Has not behaved in a manner that was unconscionable.

7.4
d. Has implied authority.
General Feedback:
13. When a principal tells an agent not to enter into a contract or behave in a particular
manner and the agent does so regardless, the principal will still be liable for the legal
consequences of the agent's act provided that, among other things:
*a. The principal has done something which has the effect of holding the agent out as
having the necessary authority.
b. The third party has suffered detriment and damages are an inappropriate remedy.
c. The third party knew that the agent did not have actual authority but thought on
reasonable grounds that the agent had apparent authority.
d. The principal ought to have foreseen that the agent would do the act or enter into
the contract.
General Feedback:
14. Freud Fallis, an organisational psychologist with the Australian Tax Department ('ATD'),
has long been complaining to management about the drabness of the ATD's offices and its
detrimental effect on staff morale. Weary of his persistence in championing unorthodox ideas,
ATD's management decide that Freud's contract will not be renewed. After this decision is
communicated to Freud, as a 'last hurrah' and without express authority, he moves ahead his
plans to engage the producers of a 60 minute makeover television show to revamp the ATD's
offices on a weekend. To Freud's surprise the ATD's management is not happy with the erotic
sculptures, strobe lighting and psychedelic wallpaper the decorators use. Which of the
following would mean that the ATD is not liable to pay the show's producers?
a. The producers of the show did not have actual or implied authority to transform the
offices of the tax department.
*b. It was not reasonable for the makeover show's producers to assume that Freud had
authority to make such outlandish renovations, and at the time they were engaged,
they did not believe that he had such authority.
c. Freud was not an independent contractor but was an employee of the ATD.
d. The ATD was not intending to renew Freud's contract and thus could not have
authorised the renovations.
General Feedback:
15. James Pierce is a Sydney pet shop owner who frequently orders litters of pedigree
puppies from interstate. These are delivered by rail to a local station where James collects
them. On one particular occasion, due to industrial action in Sydney, James cannot make it to
the station to collect a litter. Jeff, the manager of the rail yard, sees the train arrive and, after a
time, takes the liberty of arranging for the litter to be put into a nearby pet hotel for the
7.5
weekend, fearing that they will not survive at the rail yard in the summer heat. James, upset at
the high cost of the pet hotel, refuses to honour the contract Jeff has made with the hotel
owners. Which of the following matters is not relevant in determining whether or not James
must pay the hotel bill?
a. Whether Jeff could have contacted James at the time of the delivery to get express
instructions.
b. Whether Jeff acted in good faith.
c. Whether Jeff effectively had possession and control of the pets.
*d. Whether Jeff was authorised by his employer to take the puppies to the pet hotel.
General Feedback:
16. To ratify an act is to:
*a. Approve or authorise the act retrospectively

b. Denounce the act in strong terms.
c. Authorise the act in advance either verbally, in writing, or by course of dealings.
d. Give express or actual authority for the performance of the act prospectively.
General Feedback:
17. Which of the following is not true of ratification?
a. It may be express.
b. It may be implied.
*c. It may take place before the act to be ratified has occurred.
d. A new company ('the principal') can ratify acts made by its founders ('the agents')
before the company came into existence.
General Feedback:
18. Authority by necessity is the authority of an agent that:
a. Arises when something has to be done in an emergency situation on behalf of a

principal that is within the scope of an agent's pre-existing implied authority.
*b. Arises when someone, whether or not already an agent of the principal, needs to do
something to protect the property of the principal.
c. Exists regardless of whether or not good faith is present on the part of the agent.
d. Is expressly or impliedly given by the principal to their agent in a situation in which
the principal's property is under threat.
General Feedback:
7.6
19. Generally speaking, when will a person become expressly authorised to act as agent for a
principal?
*a. When the principal grants such authority verbally or in writing.

b. When the agent has an enduring power of attorney.
c. When the agent's actions can reasonably be seen to be within the scope of their job
description.
d. When the principal becomes incapacitated and the agent has a general power of
attorney.
General Feedback:
20. What is the relationship between the concepts of 'agent' and 'employee'?
a. All employees are agents.

b. All agents are a kind of employee.
c. Not all agents are employees but all employees are agents.
*d. Not all agents are employees and not all employees are agents.
General Feedback:
21. An agent who does something that they were not in fact authorised to do, but had
apparent authority to do, will:
*a. Have breached the duty to follow the principal's instructions.

b. Not be liable to the principal.
c. Be liable to criminal prosecution.
d. Be liable to the principal and to the third party, if either has suffered damage.
General Feedback:
See Chapter 7, 'The agent's duties'.
22. If an agent does an act that they were expressly instructed by the principal not to do, and
the act is beyond the scope of their express or apparent authority, what will generally happen
if the act is a tort that causes harm to a third party?
*a. The Principal will not be liable for the agent's actions and the third party will not be
able to sue the principal in respect of the tort.
b. The Principal will be entitled to terminate the agent's employment and have them
prosecuted.
c. The Principal will be liable for the agent's actions and can be sued for the tort.
d. The agent will be an independent contractor.

7.7
General Feedback:
23. If a principal's instructions are vague or ambiguous the agent:
*a. Will not be in breach of the duty to follow instructions if they have interpreted the
instructions honestly.
b. Has a duty to seek to clarify them before acting, or they will breach their duty to
follow instructions.
c. Is not obliged to follow the instructions.
d. Has a lower standard of care to the principal in respect of the task that is related to
the instructions.
General Feedback:
24. The agent has a duty to pass on to the principal:
*a. Any information they learn in the course of acting on behalf of the principal that a
reasonable person would think to be of interest to the principal.
b. Only information expressly requested by the principal.
c. Only information required to be passed on to the principal by the legislation
governing their relationship.
d. Any information they learn in the course of acting on behalf of the principal.
General Feedback:
25. A real estate agent who learns that a property comparable to their client's property, in the
same street, sold for a price well above that for which their client's property is listed on the
market should:
*a. Pass this information on to their client.

b. Suggest to their client that the asking price be increased.
c. Advise their client not to sell their property.
d. Disregard the information.
General Feedback:
26. An agent in Queensland who fails to carry out their job with due care and skill will not be
liable in negligence if:
*a. They are a professional and they acted in a manner that is widely accepted in
Australia by peer professional opinion to be competent professional practice.

7.8
b. They have exercised the level of skill and competence that they and their peers
would exercise in their own affairs.
c. They are not a professional.
d. They are a gratuitous agent and therefore owe a lesser standard of care to the
principal.
General Feedback:
27. A gratuitous agent is:
a. An agent who is not known to the principal.

*b. An agent who is not paid by the principal.
c. Required to exercise a higher standard of care than a professional agent.
d. An agent who is not an employee of the principal.
General Feedback:
28. The test for determining whether or not a gratuitous agent has breached their duty of care
to the principal is:
a. A subjective test which entails consideration of what the agent thought was
reasonable action in the circumstances.
b. A subjective test which entails consideration of the degree of care a professional of
reasonable skill and competence would exercise.
c. An objective test which entails consideration of the degree of care that the agent
ordinarily uses in attending to their own affairs.
*d. An objective test which entails consideration of the degree of care a reasonable
person would exercise.
General Feedback:
29. An agent has a fiduciary duty to exercise their duties in a way that:
*a. Is not contrary to the interests of the principal.

b. Is mutually advantageous.
c. Puts the interests of the principal beyond all other considerations.
d. Promotes the interests of the principal amongst third parties however possible.
General Feedback:
30. The receipt of a secret commission by an agent is not:

7.9
*a. Prudent.
b. Conduct that conflicts with the agent's fiduciary duty.
c. A crime.
d. A bribe.
General Feedback:
31. If an agent is found to have received a secret commission from a third party, the principal
is not entitled to:
a. Recover the secret commission and report the matter to the relevant authorities.
b. Refuse to pay any commission owed to the agent.
c. Terminate the contract with the agent and the contract with the third party.
*d. Sue the agent in the tort of passing off.
General Feedback:
32. An agent must keep the funds of the principal at all times:
*a. Separate from their own.

b. In a bank account.
c. In a jointly held account.
d. In a trust account.
General Feedback:
33. The agent's duty of confidentiality is a duty that prevents the agent from:
a. Ever disclosing to others information about the affairs of the principal or using for
their own benefit information about the principal.
b. Disclosing damaging information about the affairs of the principal.
c. Ever using information about the principal for their own benefit.
*d. Disclosing to others or using for their own benefit information about the principal's
Feedback:
*d) See Chapter 7, 'The agent's duties'.
affairs without consent.
34. An agent's right to remuneration is:
a. Inherent. A right of payment is essential to establish a relationship of agency.

*b. A term of the contract between principal and agent.
c. Determined by law.

7.10
d. A right to a commission only.
General Feedback:
See Chapter 7, 'The agent's entitlements'.
35. Generally speaking, agents are entitled to be indemnified by the principal:
a. For payments, expenses and liabilities specifically agreed upon either verbally or in
writing.
b. For payments, expenses and liabilities contemplated by both parties at the time of
entry into the agency agreement.
c. For all payments, expenses and liabilities covered by the terms of their agreement.
*d. For all payments, expenses and liabilities incurred by the agent as a necessary result
of carrying out the principal's instructions.
General Feedback:
36. The word remuneration is closest in meaning to the word:
*a. Payment.
b. Gratitude.
c. Indemnity.
d. Damages.
General Feedback:
37. The indemnity a principal ordinarily owes to an agent extends to:
*a. All payments made, expenses incurred and liabilities assumed as a necessary result
of carrying out the instructions of the principal
b. All of the agent's business expenses.
c. All of the expenses and liabilities of the agent however they arise.
d. All payments made and expenses and outlays incurred while the agent is carrying
out the instructions of the principal, but not liabilities to third parties.
General Feedback:
38. If the principal owes money to the agent and the agent holds some of the principal's
property, the agent may:
a. Sell the property or hold the property until the money is paid.
b. Sell the property and recover the amount of money owned to them.
*c. Hold the property until the money is paid.

7.11
d. Hold the property until the principal asks for it.
General Feedback:
39. Which of the following circumstances is not an exception to the rule that an agent is not
personally liable for liabilities incurred on behalf of the principal?
a. Where the doctrine of the undisclosed principle applies.

b. Where custom or usage establishes that the agent will be personally liable.
*c. Where a tort has been committed by the agent.
d. Where there has been a breach of warranty of authority.
General Feedback:
See Chapter 7, 'Liability of agent and principal'.
40. If a third party learns that an agent was acting for an undisclosed principal, the third party
has the right to:
a. Enforce the contract against the principal and the agent jointly.
b. Enforce the contract against the principal only.
c. Enforce the contract against the agent only.
*d. Enforce the contract against either the principal or the agent but not both.
General Feedback:
41. Where a third party contracts with an undisclosed principal via an agent, the principal will
still be able to enforce the contract with the third party unless:
*a. The agent did not have authority to act for the principal or the agent told the third
party that they were acting on their own behalf.
b. The agent did not act in good faith.
c. The third party chooses not to proceed with the contract.
d. The terms of the contract are unfair to the third party.
General Feedback:
42. Which of the following is not a requirement for establishing a breach of warranty of
authority on the part of an agent?
a. The agent claimed that they were making a contract on behalf of the principal.
*b. The agent claimed that they were making a contract on their own behalf.
c. The agent did not in fact have authority to act on behalf of the principal.

7.12
d. The third party relied on the agent's representation and would not have entered into
the contract but for the representation.
General Feedback:
43. The legal term 'principal' means:
a. An ideal or value.
b. The head of a school or organisation.
*c. A person represented by an agent and legally responsible for that agent.
d. A person who is the employer of an agent and legally responsible for that agent.
General Feedback:
44. The legal term 'agent' means:
*a. A person who is authorised to act on behalf of a principal.

b. A person who is employed by a principal.
c. A person with whom the principal has entered into a contract to do important work.
d. A person who is engaged by the principal as an independent contractor.
General Feedback:
45. Once a relationship of agency has been brought to an end:
a. The agent may still have actual authority to act on behalf of the principal.
*b. The principal may still be liable for acts of the agent that are committed whilst the
agent is acting within the scope of their apparent authority.
c. The principal may still be liable for acts of the agent that are committed whilst the
agent is acting within the scope of their implied authority.
d. The principal will be liable to third parties in respect of acts of their agent in any
case in which they have not notified the third party in writing that the agent is no
longer acting for them.
General Feedback:
See Chapter 7, 'Concluding the agency'.
46. If an agent appointed under a power of attorney acts on behalf of a principal after the
principal dies but before the agent has been informed of the death, power of attorney
legislation in each state provides that:
a. The agent's act will not bind the principal's estate and any contracts entered into by
the agent on the principal's behalf are void.

7.13
b. The agent will be personally liable for any contracts entered into.
*c. The agent's actions will bind the estate of the principal.
d. Any contracts entered into on behalf of the principal by the agent are voidable and
may be terminated at the discretion of the executors of the principal's estate.
General Feedback:
47. Complete loss of intellectual/legal capacity on the part of the principal will:
a. Give the principal the right to elect to terminate the agency agreement.
b. Automatically terminate the agency unless the agent was appointed under the
authority of a general power of attorney.
*c. Automatically terminate the agency unless the agent was appointed under the
authority of an enduring power of attorney.
d. Increasing the standard of care owed by the agent to the principal and broaden the
scope of their duties.
General Feedback:
48. If an agent is appointed to engage in illegal acts on behalf of the principal:
a. The agent's appointment can be terminated by principal or agent without notice.

*b. The agent's appointment is automatically terminated.
c. Any contract negotiated by the agent on behalf of the principal, while enforceable in a civil
court, will attract criminal penalties.
d. The third party will not be bound to honour the contract with the principal but the agent's
appointment will be valid.
General Feedback:
49. Felicity Featherstone is appointed by Giovanni, the owner of the restaurant The Purple
Palace ('TPP'), to arrange cleaning contractors to clean TPP. Before she has had a chance to
take any step toward hiring cleaners, TPP is totally destroyed by flood. What is the effect, in
law, of this event on the agency agreement between Felicity Featherstone and Giovanni?
a. That is something for Felicity and Giovanni to decide.

b. The agreement has been repudiated.
*c. The agreement has been frustrated.
d. There has been a fundamental breach of the agreement
General Feedback:

7.14
50. A 'special agent' is an agent with:
*a. Limited authority to act on behalf of the principal.

b. Unrestricted authority to act on behalf of the principal.
c. Broad general authority to act on behalf of a principal.
d. No authority to act on behalf of the principal.
General Feedback:
51. A mercantile agent is an agent who:
a. Is authorised to act on behalf of the principal in commercial matters.

b. Sells the principal's property in the agent's own name.
c. Is authorised to act on behalf of the principal in private matters.
*d. Sells the principal's property in the principal's name.
General Feedback:
52. A broker is:
*a. An agent who is authorised to sell the principal's property without being in
possession of the property.
b. An agent who is authorised to sell the principal's property while being in possession
of the property.
c. A principal who is authorised to sell the agent's property without being in
possession of the property.
d. A principal who is authorised to sell the agent's property while being in possession
of the property.
General Feedback:
53. A 'del credere' agent:
*a. Agrees to indemnify the principal in the event of non-performance by the third party.
b. Is usually not entitled to a commission.
c. Agrees to indemnify the principal in the event of negligence.
d. Is authorised to do anything on behalf of the principal that the principal can do.
General Feedback:
54. An enduring power of attorney:

7.15
a. Is implied rather than express.

b. Is, strictly speaking, not a form of agency.
*c. Continues even if the principal loses intellectual capacity.
d. Is no longer permitted under current law.
General Feedback:
55. A is engaged as the personal assistant for P, a famous celebrity. A regularly hires luxury
cars on behalf of P, for which P regularly pays. One weekend, without P's permission, A hires
a Porsche in P's name for A's own personal use. Is P entitled to refuse to pay for the hiring of
the Porsche?
a. Yes. A was not authorised to hire the car on P's behalf.

*b. No. A had apparent authority and P is bound by A's order.
c. No. A had the express authority of P.
d. Yes. The supplier should have checked that A was authorised by P before hiring the car to
A.
General Feedback:
56. Implied authority of a company director to act on behalf of the company:
a. Does not exist.

b. Is usually set out in the company constitution.
c. Includes authority to hire employees.
*d. Tends to increase with the seniority of the director's position.
General Feedback:
57. An agent may have apparent authority to act on behalf of the principal:
*a. Even in the absence of actual authority.

b. Even if the third party did not know they were an agent.
c. Even in the absence of a 'holding out' by the principal.
d. Even if the third party has not acted in good faith.
General Feedback:
58. P, the manager of a DVD store, tells A, a sales person, not to sell a particular DVD
because it has been set aside for another customer. A accidentally sells the DVD to T. Can P
recover the DVD from T?

7.16
*a. No, because A acted with apparent authority.

b. No, because damages would be an appropriate remedy.
c. Yes, because A acted without actual authority.
d. Yes, because A acted negligently.
General Feedback:
59. P enters into a contract with A according to which A is to deliver a crate of P's
watermelons to a customer in another State by a certain date. The delivery is delayed by
flooding, and rather than allow the watermelons to perish, A sells them to local buyers along
the way. P sues A for compensation. Could A successfully argue that they had the authority
to sell the watermelons on P's behalf?
a. Yes, because A had express authority to sell the watermelons.

b. No, because A did not have actual authority to sell the bananas.
*c. No, because A should have tried to contact P to get instructions.
d. Yes, because A had authority by necessity to sell the watermelons.
General Feedback:
60. Authority by ratification exists if the principal:
a. Authorises the agent's act retrospectively.

*b. Denounces the agent's act.
c. Authorises the agent's act in advance.
d. Authorises the agent's act in writing.
General Feedback:
61. Authority by necessity exists if:
a. Something has to be done in an emergency situation on behalf of a principal that is

within the scope of an agent's implied authority.
*b. The agent lacks actual authority but needs to do something to protect the property
of the principal.
c. There is no good faith on the part of the agent.
d. The agent is compelled to act on behalf of the principal in order to protect the
interests or property of the agent.
General Feedback:

7.17
62. T makes a written offer to A to lease certain property to P, which A accepts on behalf of P.
A did not have actual authority to accept the offer on behalf of P. T withdraws the offer. P
then ratifies the A's acceptance. Does T have an agreement with P?
*a. Yes. The ratification will operate retrospectively.

b. No. Ratification does not operate retrospectively.
c. Yes. At the time of acceptance A had actual authority.
d. No. At the time of acceptance A did not have implied authority.
General Feedback:
63. Which of the following statements about employees and agents is correct?
a. All employees are agents.

b. Not all employees are agents but all agents are employees.
c. Not all agents are employees but all employees are agents.
*d. Not all agents are employees and not all employees are agents.
General Feedback:
64. The relationship between a principal and agent is:
*a. Fiduciary.
b. Non-contractual.
c. Platonic.
d. Equal.
General Feedback:
65. An agent who acts without actual authority but with apparent authority is likely to be:
*a. In breach of the duty to follow the principal's instructions.

b. In breach of the duty not to delegate.
c. Prosecuted.
d. Personally liable.
General Feedback:
66. The agent must pass on to the principal:
*a. All information they learn during the period they are acting as an agent that a
reasonable person would think to be of interest to the principal.

7.18
b. All money acquired during the period they are acting as an agent.
c. All money paid by the third party including any commission payable by the
principal to the agent.
d. All information they learn during the period they are acting as an agent.
General Feedback:
67. An agent will breach their duty to act personally if they:
a. Delegate administrative aspects of the task to an employee.

b. Arrange for another to carry out the task, even if the principal gives their permission.
c. Keep to themselves information they learn that is of obvious interest to the principal.
*d. Appoint an agent to carry out the principal's instructions on behalf of the agent, without
informing the principal.
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colonies, and yet by that loss, it may fairly be said, Great Britain has
achieved a more stable and a more world-wide colonial dominion.
But this result would not have been attained had not the lesson
taught by the American war sunk deep into the minds of Englishmen.
It is true that for a while the moral drawn from this calamitous war
was that self-governing institutions should not be given to colonies
lest they should rebel, as did the Americans, and win their
independence: but, as the smart of defeat passed away and men
saw events and their causes in true perspective, as Englishmen
again multiplied out of England but in lands which belonged to
England, and as the old questions again pressed for solution, the
answer given in a wiser and a broader age was dictated by
remembrance of the American war, and Lord Durham’s report
embodied the principles, on which has been based the present
colonial system of Great Britain. It was seen—but it might not have
been seen had the United States not won their independence—that
English colonists, like the Greek colonists of old, go out on terms of
being equal not subordinate to those who are left behind, that when
they have effectively planted another and a distant land, they must
within the widest limits be left to rule themselves; that, whether they
are right or whether they are wrong, more perhaps when they are
wrong than when they are right, they cannot be made amenable by
force; that mutual good feeling, community of interest, and
abstention from pressing rightful claims to their logical conclusion,
can alone hold together a true colonial empire.
Though the United States, in the war and in the Its effects on
treaty which followed it, attained in the fullest possible Canada.
measure the objects for which they had contended, it is a question
whether, of all the countries concerned in the war, Canada did not
really gain most, notwithstanding the hardship which she suffered in
respect of the boundary line between the Dominion and the United
States. For Canada to have a future as a nation, it was necessary, in
the first place, that she should be cut adrift from the French colonial
system as it existed in the eighteenth century. This was secured as
the result of the Seven Years’ War. In the second place, it was
necessary that she should not be absorbed by and among the British
colonies in North America. This end was attained, and could only be
attained by what actually happened, viz., by the British colonies in
North America ceasing to belong to Great Britain, while Canada was
kept within the circle of the British Empire. Had the United States
remained British possessions, Canada must eventually have come
into line with them, and been more or less lost among the stronger
and more populous provinces. The same result would have followed,
had the British Government entertained, as their emissary Oswald
did, Franklin’s proposal that Canada should be ceded to the United
States. It would have followed too, in all probability, if Canada had
been left at the time independent both of Great Britain and of the
United States, for she would have been too weak to stand alone.
The result of the war was to give prominence and individuality to
Canada as a component part of the British Empire; to bring in a
strong body of British colonists not displacing but supplementing the
French Canadians and antagonistic to the United States from which
they were refugees; to revive the instinct of self-preservation which
in old days had kept Canada alive, and which is the mainspring of
national sentiment, by again directly confronting her with a foreign
Power; and at the same time to give her the advantage of protection
by and political connexion with what was still to be the greatest sea-
going and colonizing nation of the world. The result of the War of
American Independence was to make the United States a great
nation; but it was a result which, whether with England or without,
they must in any case have achieved. The war had also the effect,
and no other cause could have had a like effect, of making possible
a national existence for Canada, which possibility was to be
converted into a living and a potent fact by the second American war,
the war of 1812.
FOOTNOTES:
[58] Shortt and Doughty, p. 195.
[59] Shortt and Doughty, pp. 196-9.
[60] Ib., pp. 205-7.
[63] See above, p. 67 note.
[65] Letter to Shelburne, December 24, 1767, Shortt and Doughty,
p. 203.
[66] Shortt and Doughty, p. 454. See also note to p. 377. Carleton
had a much better opinion than most people of the administration
of justice under the old French régime. In his examination before
the House of Commons on the Quebec Bill, he was asked, ‘Do
you know from the Canadians themselves, what sort of
administration of justice prevailed under the French Government,
whether pure or corrupt?’ His answer was, ‘Very pure in general. I
never heard complaints of the administration of justice under the
French Government.’ Egerton and Grant, pp. 56-7.
[67] See above, p. 79.
[69] In 1775 the population of the whole of Canada was according
to Bouchette’s estimate 90,000 (see the Census of Canada,
1870-1, vol. iv, Statistics of Canada). On the other hand Carleton,
in his evidence given before the House of Commons at the time
when the Quebec Act was being passed in 1774, estimated the
number of the ‘new subjects’ at ‘about 150,000 souls all Roman
Catholics’ as against less than 400 Protestants, excluding in the
latter case women and children. Egerton and Grant, pp. 51-2.
[71] Referred to by Carleton as ‘The Suffolk County Resolves in
the Massachusetts’. Shortt and Doughty, p. 413.
[72] Carleton, however, after the war broke out, sternly repressed
any attempt of the Indians to act except under close supervision
of white officers. See Colonel Cruikshank’s paper on Joseph
Brant in the American Revolution, April 3, 1897. Transactions of
the Canadian Institute, vol. v, p. 243, &c.
[74] See above, p. 67.
[76] See the letter and the note to it at p. 451 of Shortt and
Doughty. Sir William Johnson had died in July, 1774; his nephew
and son-in-law, Colonel Guy Johnson, had acted as his deputy for
Indian affairs, and continued to do so for a while after his death,
but in 1775 Major John Campbell was appointed Superintendent
of Indian affairs.
[77] The reference is to the raising of a body of 300 Canadians in
1764 for service under Bradstreet in Pontiac’s war. See above p.
24. It seems doubtful whether the complaint to which Carleton
refers had any foundation. See Kingsford, vol. v, p. 76.
[78] Carleton’s account of the above, given in a letter to
Dartmouth, dated Montreal, June 7, 1775, is that on May 19 he
received news from Gage of the outbreak of hostilities, i.e. the
fight at Lexington, coupled with a request that he would ‘send the
7th Regiment with some companies of Canadians and Indians to
Crown Point, in order to make a diversion and favour his (Gage’s)
operations’. The next morning news reached Quebec ‘that one,
Benedict Arnold, said to be a native of Connecticut, and a horse
jockey, landed a considerable number of armed men at St.
John’s: distant from this town (Montreal) eight leagues, about
eight in the morning of the 18th, surprised the detachment of the
26th doing duty there, consisting of a sergeant and ten men, and
made them prisoners, seized upon the King’s sloop, batteaus,
and every other military store, and a few hours after departed,
carrying off the craft, prisoners, and stores they had seized. From
this party we had the first information of the rebels being in arms
upon the lakes, and of their having, under the command of said
Arnold, surprised Ticonderoga, Crown Point, the detachment of
the 26th doing duty at these two places, and all the craft
employed upon those lakes’.... ‘The same evening another
express brought an account of the rebels having landed at St.
John’s a second time, in the night, between the 18th and 19th.’
Shortt and Doughty, pp. 453-5.
[79] This seems to have been an under-estimate. There were
apparently at the time three British regiments in Canada, the 7th,
the 8th, and the 26th.
[81] Chief Justice Hey to the Lord Chancellor, August 28, 1775.
Shortt and Doughty, pp. 456-9.
[82] Chief Justice Hey saw what a strong position Canada held,
from a military point of view, in regard to the other North American
colonies. In his letter to the Lord Chancellor of August 28, 1775,
he wrote, ‘It appears to me that while England has a firm hold of
this country, which a good body of troops and nothing else will
give her, her cause with the colonies can never be desperate,
though she should not have an inch of ground in her possession
in any one of them: from this country they are more accessible, I
mean the New England people (paradoxical as it may seem),
than even from Boston itself.’ Shortt and Doughty, p. 457.
[83] ‘A few of the gentry, consisting principally of the youth,
residing in this place (Montreal) and its neighbourhood, formed a
small corps of volunteers under the command of Mr. Samuel
Mackay, and took post at St. John’s.’ (Letter from Carleton to
Dartmouth as above. Shortt and Doughty, p. 454.)
[85] This may probably have been the Major Preston referred to in
Horace Walpole’s letter to the Countess of Upper Ossory,
December 27, 1775. ‘Adam Smith told us t’other night at
Beauclerk’s, that Major Preston, one of two, but he is not sure
which, would have been an excellent commander some months
since, if he had seen any service.’
This and other quotations from Horace Walpole’s letters are taken
from Mrs. Paget Toynbee’s edition, Clarendon Press, 1904.
[86] The general view seems to have been that Chambly might
have held out longer, and that the commander, Major Stopford,
was shielded by his aristocratic connexions, but the Annual
Register for 1776 (p. 5) says that it ‘was in no very defensible
condition’, and Carleton seems to have found no fault with its
surrender. See the entry on p. 110 of Parliamentary Paper, Cd.
2201, 1904, Historical MS. Commission, Report on American
manuscripts in the Royal Institution of Great Britain, vol. i. Sir Guy
Carleton to (Lord Barrington), May 21, 1777, ‘has nothing to
charge either the garrison of Chamblee or St. John’s with.’
[87] The Annual Register for 1776, p. 12, makes Montgomery’s
advance from Montreal to Quebec a kind of repetition of Arnold’s
march. ‘Their march was in winter, through bad roads, in a severe
climate, beneath the fall of the first snows, and therefore made
under great hardships.’ He seems, on the contrary, to have come
down the river in the captured British vessels.
[88] There is or was a dispute about the date. Kingsford makes it
the night of December 31 to January 1, but there seems no doubt
that the attack took place on the previous night, that of December
30-1. See Sir James Le Moyne’s Paper on the Assault on Quebec
in 1775, in the Proceedings of the Royal Society of Canada,
1899.
[89] Letter to Sir Horace Mann, June 5, 1776.
[90] Letter to Sir Horace Mann, August 11, 1776. It is not clear
why Horace Walpole thought poorly of Carleton’s writing. His
dispatches are as clear and straightforward as could be wished.
[91] Horace Walpole to Sir H. Mann, March 22, 1776.
[92] p. 15.
[93] Parliamentary History of England, vol. xxix, p. 379. Debate of
May 6, 1791.
[94] Annual Register as above.
[95] The letter, in which Montgomery complained of personal ill-
treatment of himself by Carleton, concluded—‘Beware of
destroying stores of any kind, public or private, as you have done
in Montreal and in the river; if you do, by Heavens there will be no
mercy shown.’
[96] Annual Register for 1776; State Papers, p. 255. Carleton’s
kindness to the American prisoners was so great that when some
of them returned on parole, they were not allowed to
communicate with the American troops serving at Crown Point for
fear that they might cause disaffection. See Stone’s Life of Brant
(1838), vol. i, p. 165.
[97] There is an interesting account of the incident at the Cedars
in Stone’s Life of Brant (1838 ed.), vol. i, p. 153, &c. Stone says
that Forster had with him one company of regulars and nearly 600
Indians, led by Joseph Brant, the celebrated Mohawk chief. But in
spite of the note to p. 151 there seems no doubt that Brant, who
had gone to England on a visit in the previous autumn, did not
start on his return voyage till late in May or June, and did not
arrive at New York till July, long after the event at the Cedars. See
Colonel Cruikshank’s paper on ‘Joseph Brant in the American
Revolution’, April, 1897, Transactions of the Canadian Institute,
vol. v, pp. 243, &c., Colonel Cruikshank says that Brant sailed
from Falmouth early in June, 1776, and reached New York on
July 29, where he fought under Howe. Probably the affair of the
Cedars was confounded with the fighting at St. John’s and the
attack on Montreal when Ethan Allen was taken prisoner in 1775.
Brant seems to have been present in these actions.
[98] See the letter of Ebenezer Sullivan abstracted in the 1890
Report on Canadian Archives, State Papers, p. 78.
[99] Ibid. p. 74.
[100] Annual Register for 1777, p. 2.
[101] See Carleton’s letter to Germain of September 28, 1776,
quoting Germain’s of June 21, 1776. Shortt and Doughty, pp. 459-
60.
[102] The letter is quoted in extenso at pp. 129-32 of the sixth
volume of Kingsford’s History of Canada.
[103] History of England in the Eighteenth Century, vol. iii, 1882
ed., chap. xii, p. 447.
[104] Clinton was named to act instead of Sir William Howe, in the
event of his succeeding Howe in command of the army; this
contingency happened, and he, and not Howe, acted as
commissioner. Under the Act any three of the five commissioners
were empowered to treat with the Americans.
[105] Howe was a pronounced Whig. Burgoyne was more or less
neutral until his later years, when he threw in his lot with Fox and
his friends. Clinton belonged to a Whig family, but seems to have
been a supporter of the Ministry; Cornwallis had voted with Lord
Camden against taxing the colonists.
[106] Influence of Sea Power on History, chap. ix, pp. 342-3.
[107] See above, pp. 90-1.
[108] It is given in Lord E. Fitzmaurice’s Life of Lord Shelburne.
[109] p. 20.
[110] As to Lady Betty Germain’s bequest of Drayton to Lord
George Sackville, see the letter from Lord Vere to Earl Temple of
December 19, 1769, in the Grenville Papers (edited by W. J.
Smith, 1853, John Murray), vol. iv, p. 491. See also various
references in Horace Walpole’s Letters (Mrs. Paget Toynbee’s
edition, Clarendon Press, 1904). In a letter to George Montagu,
July 23, 1763, Walpole gives a description of Drayton, and refers
to Lady Betty Germain as ‘its divine old mistress’. Drayton
belonged to the Earls of Peterborough, the Mordaunt family. The
daughter and heiress of the last earl married Sir John Germain,
and left him the property. He married, as his second wife, Lady
Elizabeth Berkeley, the Lady Betty Germain in question, and left
Drayton to her, expressing a wish that if she had no children, she
should leave it to one of the Sackvilles, which she accordingly did.
Lady Betty Germain, whose father was Viceroy of Ireland, was a
friend of Swift.
[111] Letter to Sir H. Mann, February 20, 1764. The other four
were Pitt (Lord Chatham), Charles Townshend, Conway, and
Charles Yorke.
[112] ‘I think nobody can doubt of Lord George’s resolution since
he has exposed himself to the artillery of the whole town. Indeed I
always believed him brave and that he sacrificed himself to
sacrifice Prince Ferdinand.’ Letter to the Countess of Upper
Ossory, November 23, 1775. The letter was written just as
Germain was about to take office.
[113] To the Honourable Henry Seymour Conway and the
Countess of Ailesbury, January 15, 1775.
[114] Quoted by Horace Walpole in his letter to Sir Horace Mann
of March 5, 1777.
[115] Carleton’s letter was dated May 20, 1777. It is quoted in full
at p. 129 of the sixth volume of Kingsford’s History of Canada, as
well as in the Report on the Canadian Archives for 1885.
[116] One reason alleged is that Carleton had given evidence
against Germain at the latter’s court-martial.
[117] This letter, with Carleton’s letter of May 20, 1777, will be
found in Mr. Brymner’s Report on the Canadian Archives for
1885, pp. cxxxii-vii, Note D.
[118] The note to p. 474 of Documents relating to the
Constitutional History of Canada (Shortt and Doughty) condemns
Carleton’s conduct to Germain.
[119] Chief Justice Hey to the Lord Chancellor, August 28, 1775.
Shortt and Doughty, p. 458.
[120] Quoted in full at pp. 457-9 of the sixth volume of Kingsford’s
History of Canada.
[121] October 15, 1777. See Canadian Archives Report for 1890,
p. 101. It is not absolutely clear that the reference is to Livius.
[122] The records as to the dates of Livius’ appointment are
somewhat confusing. There is a printed pamphlet in the Colonial
Office Library giving Livius’ petition and the proceedings which
followed in England. It is dated 1779, and entitled ‘Proceedings
between Sir Guy Carleton, K.B., late Governor of the Province of
Quebec, and Peter Livius Esq., Chief Justice of the said Province,
&c. &c.’. The note to p. 476 of Documents relating to the
Constitutional History of Canada (Shortt and Doughty) is
favourable to Livius and unfavourable to Carleton.
[123] See also below, p. 238.
[124] One cause which reduced their numbers was that in the
seventeenth century the Jesuits converted a considerable number
of Mohawks and induced them to settle in Canada. They were
known as the Caghnawagas.
[125] As regards the Six Nation Indians, Joseph Brant, and the
Border forays in the War of Independence, see Stone’s Life of
Brant, and two papers by Lt.-Col. Ernest Cruikshank, on ‘Joseph
Brant in the American Revolution’, in the Transactions of the
Canadian Institute, vol. v, 1898, p. 243, and vol. vii, 1904, p. 391.
The papers were read in April, 1897, and April, 1902. See also
The Old New York Frontier, by F. W. Halsey. Scribners, New York,
1902.
[126] On Pownall’s map of 1776 is marked at the spot ‘The great
portage one mile’, but the distance between the two rivers was
rather greater.
[127] St. Leger’s dispatch to Burgoyne, dated Oswego, August
27, 1777, and written after his retreat, forms Appendix No. XIII to
A State of the Expedition from Canada as laid before the House
of Commons by Lieutenant-General Burgoyne. London, 1780.
[128] St. Leger reported it to be twelve miles distant.
[129] St. Leger says definitely, ‘Sir John Johnson put himself at
the head of this party.’ Stone, on the other hand, makes out that
Sir John Johnson remained behind in the camp and was at that
part of it which was surprised by Willett (See Stone’s Life of Brant,
1838 ed., vol. i, p. 235, note). St. Leger says that he ‘could not
send above 80 white men, Rangers and troops included, with the
whole corps of Indians’, but all the accounts seem to agree in
placing the number of Indians at 400 and no more.
[130] The details of the fighting at Oriskany, and Willett’s sortie
from the fort, are more confusing and contradictory even than
those of most battles and sieges. The American accounts make
Oriskany an American victory, and Willett’s sortie a taking
possession of the whole British camp, the contents of which, after
the defenders had been put to flight, were carried off to the fort in
seven wagons which made three trips between the fort and the
camp. St. Leger, no doubt minimizing what happened, reported
that the sortie resulted in no ‘further advantage than frightening
some squaws and pilfering the packs of the warriors which they
left behind them’. From the contemporary plan of the operations
at Fort Stanwix it seems clear that Willett surprised only the post
at the lower landing-place and not the whole British camp.
[131] See above pp. 96-7 and note.
[132] Junius to the Duke of Grafton, December 12, 1769.
[133] Walpole to the Honourable Henry Synan Conway,
November 12, 1774.
[134] Letter to the Countess of Upper Ossory, June 14, 1787. See
also letter to the same, January 16, 1786. ‘General Burgoyne’s
Heiress, I hear, succeeded extremely well, and was besides
excellently acted.’
[135] Letter to the Rev. William Mason, October 5, 1777. In this
letter Horace Walpole, apparently without real ground, says that
Burgoyne was the natural son of Lord Bingley.
[136] Letters of August 8, August 11, and August 24, 1777.
[137] Not to be confounded with the Wood Creek mentioned
above, p. 147, &c., which was a feeder of Lake Oneida.
[138] Letter to Sir H. Mann, September 1, 1777.
[139] See State Papers, p. 97, in Mr. Brymner’s Report on
Canadian Archives for 1890.
[140] State of the Expedition from Canada Narrative, p. 12.
[141] Kingsford makes the number to have been 746: History of
Canada, vol. vi, p. 216, note.
[142] From Burgoyne’s dispatch it appears that Baum was
beginning a further advance when the attack was made. His
words are, ‘Colonel Baum was induced to proceed without
sufficient knowledge of the ground.’
[143] The American accounts put the British casualties at nearly
1,000.
[144] It may probably have been to the disaster at Bennington
that Horace Walpole referred when he wrote to the Countess of
Upper Ossory on September 29, 1777: ‘General Burgoyne has
had but bad sport in the woods.’
[145] Benjamin Lincoln was the American commander charged
with the duty of attacking Burgoyne’s communications. He was
afterwards in command at Charleston when it was taken by the
English in May, 1780.
[146] It is not easy to make out the details of the fighting. After the
battle of September 19, the two armies were said to be only about
half a mile distant from each other, but on October 7, according to
Burgoyne’s dispatch, after advancing for some time he formed his
troops within three-quarters of a mile of the enemy. The advance
was apparently not direct but diagonal against the extreme left of
the Americans. The main English camp near the river, where
there was a bridge of boats, does not seem to have been at all
molested, though it was presumably drawn back in the following
night. Breyman’s camp which was stormed is shown on the plan
appended to the State of the Expedition from Canada, as well in
the rear of the extreme right of the English line.
[147] Horace Walpole, writing to the Countess of Upper Ossory
on November 3, 1777, seems to be referring to reports of the
battle at Freeman’s Farm. ‘If your angel would be seeing, why did
he not put on his spectacles and hover over Arnold, who has
beaten the vapouring Burgoyne and destroyed his magazines?
Carleton, who was set aside for General Hurlothrumbo, is gone to
save him and the remains of his army if he can.’ On November 13
he writes to the same, ‘General Swagger is said to be entrenched
at Saratoga, but I question whether he will be left at leisure to
continue his Commentaries: one Arnold is mighty apt to interrupt
him.’ Authentic news of Burgoyne’s surrender did not reach
England till December 1. Writing to Sir Horace Mann on
December 4, Walpole says: ‘On Tuesday night came news from
Carleton at Quebec, which indeed had come from France earlier,
announcing the total annihilation (as to America) of Burgoyne’s
army.... Burgoyne is said to be wounded in three places, his
vanquisher, Arnold, is supposed to be dead of his wounds.’ It will
be noted that Arnold is made the hero on the American side, and
that there is no mention of Walpole’s godson, Gates. Walpole
contemplated invasion of Canada and possible loss of Quebec as
the result of the disaster.
[148] The above account has been taken almost entirely from the
original dispatches, documents, and evidence published in A
State of the Expedition from Canada as laid before the House of
Commons by Lieutenant-General Burgoyne. London, 1780.
Burgoyne, in a private letter to Howe of 20th October, attributed
the surrender in part to the fact that his troops were not all British.
See Report on American Manuscripts in the Royal Institution
(1904), vol. i, p. 140.
[149] Article 6 of the Treaty of Paris between France and the
United States, dated February 6, 1778, ran as follows: ‘The most
Christian King renounces for ever the possession of the islands of
Bermudas as well as of any part of the continent of America
which before the Treaty of Paris in 1763 or in virtue of that treaty
were acknowledged to belong to the Crown of Great Britain or to
the United States heretofore called British colonies or which are
at this time or have lately been under the Power of the King and
Crown of Great Britain.’ (Annual Register, 1778, p. 341.)
[150] Stone’s Life of Brant, and among recent books, Halsey’s Old
New York Frontier, give good accounts of this border war from the
American side. Fortunately the subject lies in the main outside the
scope of the present book. It would probably be fair to say that
there were undoubtedly great and horrible barbarities, not
confined to one side only, and on the other hand that there was
much exaggeration as, e.g. when Campbell in Gertrude of
Wyoming made Joseph Brant, who never took any part at all in
the raid, one of the monsters of the story.
The Wyoming valley had been colonized from Connecticut and
was claimed by and at the time actually incorporated with
Connecticut, though geographically within the state of
Pennsylvania. The settlers had sent a considerable contingent to
Washington’s army and their homes were in consequence but
slenderly guarded.
On Pownall’s ‘map of the Middle British Colonies in North
America’, published March 25, 1776, on the western side of the
east branch of the Susquehanna river, appears the following:
‘Colony from Wioming Connecticut.’
In the ‘Topographical Description’ attached to the above map
there is the following note at pp. 35-6: ‘This Place and the District
is now settled by a populous Colony, which swarmed and came
forth from Connecticut. The People of Connecticut say, that their
Charter and the grant of Lands under it was prior to that of
Pennsylvania; that the grant of Lands to them extended within the
Latitudes of their Grant (except where possessed by other powers
at that Time) to the South Seas. They allow New York and New
Jersey to have been so possessed at the time of their Grant, but
say, that their right emerges again at the West boundary of those
Provinces. Mr. Penn and the People of Pennsylvania who have
taken Grants under him say, that this District is in the very Heart
of the Province of Pennsylvania. On this State of Claims the Two
Colonies are in actual war, which they have not even remitted
against each other here, although united in arms against Great
Britain 1775.’
The note is interesting as showing how very far from amicable
were the relations of the colonies to each other when the War of
Independence broke out, cf. the case of the Vermont settlers and
New York referred to at the beginning of this chapter.
[151] This is the date given on p. 10 of Sir Frederick Haldimand,
by Jean N. McIlwraith in the ‘Makers of Canada’ series. The
notice in the Dictionary of National Biography gives the date as
1756. The life states that Haldimand as a young man possibly
took service with the King of Sardinia, and certainly served under
Frederick the Great. The Dictionary of National Biography states
that there is no record of his having been in the Prussian army.
[152] For Du Calvet’s case see Mr. Brymner’s Introduction to the
Report on Canadian Archives, 1888, p. xv, &c., and also Note D.
This valuable Introduction and the equally valuable Introduction to
the 1887 volume should be consulted for an estimate of
Haldimand and his administration, the Haldimand papers being
catalogued in these volumes.
[155] Ibid., p. 498.
[156] Ibid., p. 486. See also above, p. 92.
[157] 24 Geo. III, cap. 1, see Shortt and Doughty, pp. 499, 501
and notes. See also above, p. 88, note.
[158] Shortt and Doughty, p. 486. ‘The session’ must have been a
later session than that of 1775, as Livius was not in the Council in
that year. See above, p. 141.
[159] Shortt and Doughty, pp. 476-7 and notes, also 487, 488-9
and notes.
[160] Shortt and Doughty, p. 488. It will be remembered that
Livius was not in Canada at this time.
[161] See above, p. 134.
[162] See above, p. 182.
[163] Preface to Annual Register for 1782.
[164] Horace Walpole to the Rev. William Mason, April 25, 1781.
CHAPTER IV
THE TREATY OF 1783 AND THE UNITED EMPIRE
LOYALISTS
In the War of American Independence the English had no one to

match against Washington. In the negotiations for the peace which
ended the war they had no one to match against The Treaty of 1783.
Benjamin Franklin. The outcome of Franklin’s
astuteness was the Treaty of 1783,[165] by which Great Britain
acknowledged the independence of the thirteen United States, and
which alike for Great Britain and for Canada was rather the
beginning than the end of troubles.
The first words of the second article of the treaty, which purported
to determine the boundaries of the United States, were as follows,
‘That all disputes which might arise in future on the subject of the
boundaries of the said United States may be prevented, it is hereby
agreed and declared that the following are and shall be their
boundaries.’
The words were no doubt used in good faith; but, as The boundary
a matter of fact, nowhere in the world has there been disputes.
such a long series of boundary disputes between two nations, as in
North America between Great Britain and the United States.
The disputes were to a certain extent inevitable. In 1783 the
When the Treaty of 1783 was signed, half North geography of North
America was little
America was unknown; while within the colonized or known.
semi-colonized area, the coast-line, the courses of the rivers, the lie
of the land, had never been accurately mapped out. There were well-
known names and phrases, but the precise points which they
designated were uncertain. It was easy to use geographical
expressions in drawing up a treaty, but exceedingly difficult, when
the treaty had been signed, to decide what was the correct
interpretation of its terms. The matter was further complicated by the
fact that in 1783, and for many years afterwards, until the Dominion
Act was passed, Nova Scotia was a separate colony from Canada;
while in the year after the treaty, 1784, New Brunswick The disputes were
was carved out of Nova Scotia and also became a between provinces
as well as nations.
separate colony. Similarly the United States, though
federated, were still separate entities, and Maine was in 1820
separated from Massachusetts, just as New Brunswick had been cut
off from Nova Scotia. Thus on either side there were provincial as
well as national claims to be considered and adjusted; and it resulted
that the Treaty of 1783, which was to have been a final settlement of
the quarrel between Great Britain and her old North American
colonies, left an aftermath of troublesome questions, causing
constant friction, endless negotiations, and a succession of
supplementary conventions. A summary of the controversies and
conventions, out of which the International Boundary was evolved,
will be found in the Second Appendix to this book. There is more
than one reason why such a multiplicity of disputes arose, why the
disputes were so prolonged and at times so dangerous, and why the
issues were as a rule unfavourable to Great Britain and to Canada.
First and foremost, not only was the original Treaty The Treaty of 1783
of 1783, in the then state of geographical knowledge, made a precedent
for future American
or rather of geographical ignorance, necessarily both successes in
inadequate and inaccurate, but in addition those who diplomacy.
negotiated it on the British side, in their anxiety to make peace, were,
as has been stated, completely outmatched in bargaining by the
representatives of the United States. The result was that the weak
points of the treaty, and the conspicuous success of the Americans
in securing it, infected all subsequent negotiations. The wording of
the document was played for all and more than it was worth, and
there grew up something like a tradition that, as each new issue
arose between the two nations, the Americans should take and the
English should concede.
In the second place, Great Britain was always at a Great Britain was
disadvantage in negotiating with the United States, more weighted by
foreign
owing to her many vulnerable interests and her complications than
the United States.
complicated foreign relations. The American
Government was, so to speak, on the spot, concentrating on each
point exclusive attention and undivided strength. The British
Government was at a distance, with its eyes on all parts of the world,
and remembering only too well how the first great quarrel with the
United States had resulted in a world in arms against Great Britain.
At each step in the endless chaffering British Ministers had to count
the cost more anxiously than those who spoke for a young and
strong nation, as a rule untrammeled by relations to other foreign
Powers and as a rule, though not always, assured of public support
in America in proportion to the firmness of their demands and the
extent of their claims.
Lastly, it has often been said that Canada has grievously suffered
through British diplomacy. This is to a large extent true, but one great
reason has been that Canada, as it exists to-day, was not in
existence when most of the boundary questions came Canada was not
up for settlement. The interests of a Dominion—except one nation.
in potentiality—were not at stake, and there was no Canadian nation
to make its voice heard. For two-thirds of a century after the United
States became an independent nation, in the North-West the
Hudson’s Bay Company or its rivals in the fur trade, on the Pacific
coast the beginnings of a small separate British colony, were nearly
all that was in evidence. Boundary questions in North America
between Great Britain and the United States could be presented,
and were presented, as of unequal value to the two parties. Any
given area in dispute was portrayed as of vital importance to the
United States, on the ground that it involved the limits of their
homeland and their people’s heritage. The same area, it would be
plausibly argued, was of little consequence to Great Britain as
affecting only a distant corner of some one of the most remote and
least known of her many dependencies. This was inevitable while
Canada was in the making. Yet in spite of errors in diplomacy, and in
spite of what on a review of all the conditions must fairly be judged to
have been great and singular difficulties, the net result has been to
secure for the Canadian nation a territory which most peoples on the
world’s surface would regard as a great and a goodly inheritance.
The second article of the Treaty of 1783, which attempted to
define the boundaries of the United States and therefore of Canada
also, was by no means the only provision of the treaty which affected
Canada. The third article was of much importance, giving to
American fishermen certain fishing rights on the coasts of British
North America; but the fourth, fifth and sixth articles require more
special notice, inasmuch as, though Canada was not actually
mentioned in them, their indirect effect was to create a British
population in Canada, to make Canada a British Provisions in the
colony instead of a foreign dependency of Great 1783 treaty which
referred to the
Britain, and to strongly accentuate the severance Loyalists.
between those parts of North America which held to
the British connexion and the provinces which had renounced their
allegiance to the British Crown.
The fourth article provided ‘that creditors on either side shall meet
with no lawful impediment to the recovery of the full value in sterling
money of all bonâ fide debts heretofore contracted’.
The fifth article, while discriminating between those who had and
those who had not borne arms against the United States, was to the
effect that Congress should ‘earnestly recommend’ to the several
states restitution of confiscated property and rights, and a revision of
the laws directed against the Loyalists of America. The sixth article
prohibited future confiscations and prosecutions in the case of
persons who had taken part in the late war.[166]
In the negotiations, which preceded the conclusion Bitter feeling in the
of peace, no point was more strongly debated United States
against the
between the commissioners of the two countries than Loyalists.
the question of the treatment to be awarded to those who had
adhered to the British cause in the American states during the war.
The British Government was bound in common honesty to use every
effort to safeguard the lives and interests of those who had remained
loyal under every stress of persecution. On the American side, on
the other hand, there was the most bitter feeling against the Tories,
as they were called, a feeling generally shared by the members of
the revolutionary party from Washington downwards. As in all cases
of the kind, Loyalists included good and bad, worthy and unworthy,
interested placemen or merchants as well as men who acted on and
suffered for principle alone. There were men among them of high
standing and reputation, such as William Franklin the Loyalist
Governor of New Jersey, only son of Benjamin Franklin, and Sir
William Pepperell, grandson of the man who besieged and took
Louisbourg in 1745. There were also men of the type of Arnold, who
deserved to be held as traitors. Many of the Loyalists had fought
hard, and barbarities could be laid, directly or indirectly, to their
charge. Their record was associated with the memories of the border
war, of Wyoming and Cherry Valley; but equally on the American
side could be found instances of cruelty and ruthlessness. The war
had been a civil war, long drawn out, spasmodic, fought through
largely by guerilla bands. It did not lie with either side to monopolize
claims to righteousness or to perpetuate bitterness against their
foes.
There were two special causes which made the The sufferings of
hard lot of the Loyalists harder than it might otherwise the Loyalists were
increased by the
have been. The first was the unfortunate action of the spasmodic
English in occupying cities or tracts of country and operations of the
English in the war,
then again abandoning them. When Howe evacuated
Boston, over 900 Loyalists are said to have left with him for Halifax.
When the British army was withdrawn from Philadelphia in June,
1778, 3,000 Loyalists followed in its train. But the misery caused by
the uncertain policy of the British Government or the British generals
cannot be measured merely by the actual number of refugees on
each occasion. A very large proportion of the American population
was at heart neutral, and they suffered from not knowing whom to
trust and whom to obey at a given time and place. In the autumn of
1776 New Jersey was brought under complete British control. The
disaster at Trenton supervened, and in about six months the whole
country was given up. Much the same happened in the southern
states; at one time the English, at another the Americans were
masters of this or that district. The result was that bitterness was
intensified by prolonged uncertainty and suspicion. Numbers of
citizens, who only asked which master they should serve, suffered at
the hands of both. There would have been far less misery and far
better feeling if from the beginning to the end of the war certain
areas and no more had always remained in British occupation,
instead of towns and provinces being bandied about from one side to
the other.
The second special cause of suffering to the and by the
Loyalists was the separate action of the several separate action of
the several States.
states. England was not fighting one nation but
thirteen different communities; and it may be said that in each of the
thirteen there was civil war. The smaller the area in which there is
strife, the meaner and more bitter the strife will be. With a great
national struggle were intertwined petty rivalries, local jealousies,
family dissensions. Men remembered old grudges, paid off old
scores, reproduced in the worst forms the features which in quieter
times had disfigured the narrow provincial life of the separate states.
Had the states been one instead of many, there would have been a
wider patriotism and a broader outlook, for Congress with all its
faults was a larger minded body than a state legislature. Had they
again been all one, there would not have been a series of
unwholesome precedents for persecution of the minority. As it was,
each state passed law after law against the Loyalists, and each in its
turn could point to what its neighbour had done, in the hope of
making a further exhibition of patriotism, more extravagant and more
unjust.
How helpless the central body was in the matter, as Powerlessness of
compared with the separate sovereign states, is Congressmatter.
in the
shown by the wording of the fifth article of the Peace.

All that the American commissioners could be induced to sign was
that Congress should ‘earnestly recommend to the legislatures of the
respective states’ a policy of amnesty and restitution. It does not
seem to have been anticipated that the state legislatures would
comply with the recommendation. At any rate it appears that the

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Multiple Choice Questions

*a. Commonly but not necessarily agents of their clients.

2. A 'special agent', in a legal context, is best defined as someone who:

*a. Has limited authority to act on behalf of the principal.

3. A mercantile agent is never:

a. A person appointed to sell property on behalf of a client.

4. Brokers are in the business of:

*a. Selling property that is not in their possession.

5. A mercantile agent is called a 'factor' if:

a. They are not in possession of the principal's property.

6. Which of the following statements is false?

a. An insurance broker is an independent intermediary between an insurance company

8. Which of the following statements is not true of an enduring power of attorney?

a. It is sometimes called a living will.

© John Wiley and Sons Australia, Ltd 2014

a. The agent did not have actual authority.

a. Is usually expressly granted by the board of directors as a whole.

© John Wiley and Sons Australia, Ltd 2014

d. Has implied authority.

16. To ratify an act is to:

*a. Approve or authorise the act retrospectively

17. Which of the following is not true of ratification?

18. Authority by necessity is the authority of an agent that:

a. Arises when something has to be done in an emergency situation on behalf of a

*a. When the principal grants such authority verbally or in writing.

a. All employees are agents.

*a. Have breached the duty to follow the principal's instructions.

© John Wiley and Sons Australia, Ltd 2014

23. If a principal's instructions are vague or ambiguous the agent:

24. The agent has a duty to pass on to the principal:

*a. Pass this information on to their client.

© John Wiley and Sons Australia, Ltd 2014

27. A gratuitous agent is:

a. An agent who is not known to the principal.

*a. Is not contrary to the interests of the principal.

30. The receipt of a secret commission by an agent is not:

© John Wiley and Sons Australia, Ltd 2014

*a. Separate from their own.

34. An agent's right to remuneration is:

a. Inherent. A right of payment is essential to establish a relationship of agency.

© John Wiley and Sons Australia, Ltd 2014

d. A right to a commission only.

35. Generally speaking, agents are entitled to be indemnified by the principal:

36. The word remuneration is closest in meaning to the word:

37. The indemnity a principal ordinarily owes to an agent extends to:

© John Wiley and Sons Australia, Ltd 2014

d. Hold the property until the principal asks for it.

a. Where the doctrine of the undisclosed principle applies.

© John Wiley and Sons Australia, Ltd 2014