Digitized by the Internet Archive in 2010 with funding from The Library of Congress http://www.archive.org/details/lowercanadawatchOOchis lan LOWER-CANADA W A T C H M A Wt Pro Patria. BCnsstow, 2a. <^. 1829, '«>\ • * < • •» • •• ' «• • • James Macfarlane, Printer. DEDICATED, Without^ither solicitation or permission, ©reorse, feati of Z^aljouisfe, IiATE GOVERNOR-IN-CHIEP OF BRITISH NORTH AMERICA, NOW Commander of the Forces IN INDIA; AS A MARK OF THE AUTHOfe'S^^^PRCT FOR STERN UNYIELDING PATP.,I0TISM, STRICT FIDELITY TO PUBLICK TRUST, AND THE GENUINE GENEROSITY OF A BJIAVE SOLDIER. PREFACE. The original publisher of the following pa- pers iu the Kingston Chronicle, having expressed a wish to collect and republish them in a small volume, I willingly embrace this opportunity to testify the readiness with which I comply with the request of a gentle- ian whoki I greatly esteem ; but who seems me to possess more ardour for the publick *veal than care for private emolument. I cannot help adding, that an individual of such public spirit deserves well of his coun- try. At a time when every other Press was mute : at a time when the natural timidity of Office shrunk from the scowl of Authority ; and when the genius of Cowardice reigned triumphant over that Press, this man alone had the intrepidity to brave popular ven- geance and publick obloquy. He was not, and could not, be gagged. He knew that, as a man entrusted with the superintendance of a periodical Press, he was responsible to his country and posterity for a faithful discharge of his duties. Having performed these du- ties, he is ready to answer for them. I have but little to add for myself. The task v/hich I have undertaken was in defence of the liberties of my country, and ia support 1* VI of that Constitution which is a counterpart of the noblest production of the mind of man. How I have performed this task is not for me to determine. But I assure all Canada, that there is not an individual within, her bounds who is more ardently attached to her interests, or more zealously devoted to her rights and liberties. I have no motive for being oiherwise disposed. I have broke in upon private engagements, and disturbed the repose and even tenor of domestick life for the sake of ray Country. To the best of my abilities, I have warned that country of its danger ; and it only remains for me to pray for its welfare. I admit that, in doing so, 1 have made use of strong language on various occasions, and towards several individuals. But how is in- solence to be checked, and public crimes pu- nished, but through the medium of persons ? Like the assassin and the highway robber, they are themselves alone to blame who have become obnoxious to publick censure. If/ have assumed to myself the scales or the sword of justice, it is beeause ray country has called me to an ofiice as yet unoccupied by an abler man. Therefore, the sentences which I have given, are not the decisions of a frenzied imagination, nor of an arbitrary and vindictive heart; but the plain dictates of reason, and the imperative voice of the law. I am, or, at least, ought not to be, no more obnoxious to odium or personal malignity, than theermined Judge who pro- nounces doom oil the most abandoned male- vn - ^qtor. I ba~e not gone in search of vic- tims to offended justice. Tliey have volun- tarily, presented themselves before me at the bauofpablick responsibility. I am not a stranger to the cant which has of late become so fashionable with respect to ^strong language; but nothing, be it ever so " popular, will ever drive me out of my course, if it interfere with the principles of true honor ^ or the salvation of my country. 1 have ac- cordingly used the language which T conceiv- ed most applicable to the nature of the work; and I feel no conipunctioa for having done so. Should the Criticks deign to notice this humble production, I beg leave candidly to inform them, that though I respect their ingenuity, I entertain hut little dread of their ill nature. I have declared tow^ards the con- clusion of th^ volume, that I wrote neither for fame nor pi'oftt. 1 therefore hold myself a- menable to no tribunal whatever, save the judgment-seat of patriotism and true love of British liberty and justice. This is the only tribunal that I shall ever respect as a public writer ; and to none else shall I ever bow with submission. Upon the whole, I am not without my hopes but this work will produce some good effects, even in a country where there is but little public opinion, and where the influence of the press itself is but feeble and instable. I shall therefore conclude in the words of Junius : — " When Kings and Ministers are forgotten, when the force and direction of personal satire is no longer underslood, and J** VIII when measures are only felt in their remotest couscqnoncos, this book will, I believe, be Ibuud to coutaiQ principles worthy to b^ trausmitted to posterity." T. L. C. W. 1st Juae, 1829. THE LOWER CANADA WATCHMAN. No. I. However slightly the circumstances attending the dissolution of the late Provincial Parlia- ment may have been viewed, and whatever degree oliniportance may have been attached to the cause of that dissolution, and the unpa- ralleled situation of this Province in general, it Avas impossible to look forward to the meet- ing of a new Parliament otherwise than with expectations of the deepest and most fervent interest. lu truth, the history of this Pro- vince, fertile as it has been of incidents calcu- lated to rouse the feelings and excite the pre- judices of a mixed and unharmonizing popu- lation, never presented a period which can be compared to the present, either as to the raag- uitude of the prize at stake, or the dangers which beset either its attainment or final a- bandonraent. It was, therefore, with feelings of no ordinary satisfaction that we beheld e- veu the most iudiirereutto public affairs look- ing forth with an eye of eager anxiety to the twentieth of November, the day appointed by his Excellency the Governor in Chief for meeting the Provincial Parliament. If the result has unhappily been found to disap- point the real friends of the Country, there still remains behind the pleasing consolation, that, in a government like ours, the native inherent powers of the constitution are suffi- ciently sound and healthful to withstand whatever attacks may be made upou them iO either from foreign force or internal corrup- tion. The style and form of opening our Provin- cial Parliaments must be familiar to every one; but as it is our intention to preserve some record of the one which has just been congregated, and to make such remarks now and hereafter as its proceedings may justify, and the situation of the country may require, we shall give a concise but correct detail of the proceedings attending the open- ing of the first, and we fear the last, session of the Thirteenth Provincial Parliament of Lower Canada. The 23th of Nov. being the day appointed for this purpose, the Governor in Chief went down in state to the Legislative Council Chamber, and being seated on the Throne, the gentleman Usher of the Black Rod was ordered tc desire the attendance of the house of Assembly ; and that house being come up, the honorable Speaker of the Legislative Council informed them, that he was com- manded by bis Excellency to say, that he did not think it fit to declare the cause of sum- moning this Provincial Parliament until there should be a Speaker of the house of Assem- bly ; and that it was, therefore, his Excel- lency's pleasure, that they should repair to the place where their sittings were usually held, and there make choice of a fit person to be their Speaker, and to present the person who should be so chosen to his Excellency in that house, the next day at 2 o'clock, for his approbation. At the time appointed, IJ. his Excellency again went down to the Legislative Council Chamber, and being seated on the Throne, and the Menabers of the Assembly being in attendance below the Bar, Louis Joseph Papineau, Speaker elect, announced that the choice of the Assembly had fallen upon him. The usual terms of this annunciation we believe to be as fol- lows : " May it please your Excellency, "In obedience to your Excellency's com* mands, the house of Assembly of the Province of Lower Canada, have proceeded to the election of a Speaker, and I am the person upon whom has fallen the honour of their choice. " The extent and importance of the du- ties attached to that exalted station being far above my powers, and my zeal, however ardent, not sufficiently compensating for my incapacity, / most respectfully implore the ex- cuse and commands of your Excellency.''^ On Mr. Papiueau's pronouncing this ha- rangue, the hon. Speaker of the Legislative Council answered as follows : Mr. Papineau, and gentlemen of the Assemhly, *' I ana commanded by his Excellency the Governor in Chief to inform you that his Ex- cellency doth not approve the choice which the Assembly have made of a Speaker, and in his Majesty's name his Excellency doth accordingly now disallow and discharge the said choice. "And it is his Excellency's pleasure that you gentlemen of the Assembly do forthwith 12 again repair to the place where the sittings of the Assembly are usually held, and there make choice of another person to be your Speaker — and that you present the person who shall be so chosen to his Excellency in this House on Friday next at 2 o'clock for his approbation. "And I ana further directed by his Excel- lency to inform you, that as soon as a Spea- ker of the Assembly has been chosen with the approbation of the Crown, his Excellency will lay before the Provincial Parliament certain communications upon the present state of this Province, which by his Majes- ty's express command he has been directed to make known to them." Though this is the first instance in this Province, and, with the exception of one in Nova Scotia in 1 806,* the first in British Amer- ica, as at present constituted, of the exercise of this particular prerogative of the Crown ; yet, neither the Country, nor the house of Assembly, nor Mr. Papineau himself, beheld such an event either unanticipated or with surprise. It is true that, with reference to the long subsisting and daily increasing Legis- lative difficulties of this Province — the pub- lic misery and domestic heartburnings in which it has for years been involved— the necessity which has now become absolute of adopting some effectual plan for preserving the integrity of the Province — and the gene- ral hope entertained that the deliberations of * See Appendix No. L 13 the new Assembly would lead to some- final adjustmeot of our present most unnatu- ral and destructive dilemma, induced many well-disposed persons to think, that with wdiateverjusiice the prerogative of negative upon the Speaker of the house of Assembly might be exercised in referrence to Mr. Pa- pineau, in the event of his being elected, the rudeness of the man himself, and the vain and insolent folly of bis friends in the Asseni- bly, might once more be passed over in si- lence as the eJServescence of over-acted party zeal, in order to come as speedily as possible to some point of adjustment of our protrac- ted difficulties. But there are others, and we candidly confess ourselves to be one of the number, who, witnessing with disgust and abliorrence that tissue of loathsome defamation, vulgar abuse, mean insolence, daring libel, seditious menace, and black- guard scurrility, with which the Government of this Province, and especially the distin- guished individual who represents his Majes- ty iti it, have been incessantly assailed for some time back, by a party and a set of low unprincipled scribblers, of whom Mr. Papi- neau has become the head leader, and organ, came, without hesitation to the conclusion, that, not only would the dignity of Majesty itself be compromised, but the very source of honour sullied, and of justice corrupted, if one of those legal checks, so wisely prescri- bed by the constitution, were not at the pro- per time put in force against an individual w^hen exalted to a situation whicb brought 14 him in immediate contact with the objects of his abuse and slander. It was, therefore, with the most unfeigned and heart-cheering satisfaction that this respectable and stable majority of all that is sound and healthful iu the political constitution of the country, be- held the exercise of a prerogative which, however much it may be despised, contem- ned and rejected by those whose ambition it curbs, or whose insolence it destroys, is one of the most sacred and unimpaired of all the rights and privileges entrusted by tht Consti- tution to the King's prudeoce and discretion. The tha.iks of the country are due to his Excel- , lency for the manly and decisive manner in which he exercised the prerogative in question, and for that calm tone of dignity and self-pos- session with which he placed himself betAveen theCrown and one of the most bloated and destructive inroads upon government and the constitution that ever was devised in a British Colony. We have no doubt but the appro- bation of the Imperial Government and of the Mother Country at large, by whom the rights of King and people are better under- stood and more liberally interpreted than by a certain class of persons in this Province, waits so honest and faithful a public servant. As to the Speaker elect, it is very evident, that, however much he may have endeavour- ed on this trying occasion to quell the tu- multuous emotions which arose in his soul, and to conceal from himself the despicable and degrading figure which he cut in the eye of his countrvj hs felt the full force of his 15 fallen condition. The scene was indeed a most humbling one ; and such as no man of honor, virtue, or true patriotism, would ever wish to be placed in. But perhaps we do Bot say too much when we assert, that it was an element congenial to the sentiments and disposition of Mr. Papineau. This much is certain, if we may judge from his past con- duct, in which we have never been able to discover any thing borderiog on what is either great or dignified, that the more he embroils himself with the constituted autho- rities of the country, and the deeper he in- volves himself in the vain and fruitless at- tempt to elevate himself by the degradation of his betters, the morehis self-complaceocy gets the better of his judgment, and the lower he sinks in the opinion of those who can forma proper estimate of the dignity of hu- man nature. There he stood, however, under the contemptuous but well-meritted ban of his Sovereign, a scathed and misera- ble monument of indiscretions and follies, if not of political crimes which, for the honour of our country and mankind, we would fain con- ceal, but which, for the sake of truth and justice, it is our duty and intention to make as public as the rising and setting of the sun. For the present, however, we shall content ourselves with the enumeration of such of them as we conceive to have been a well- grounded reason for denymg to him the ap- probation of his Majesty as Speaker of the house of Assembly during the present Parlia- ment. 16 We shall say nothing of Mr. Papineau'a anti-British prejudices — of his natural and a- vowed antipathy to British customs, manners,, language, laws and government ; neither shall we trace him into those dark and retired circles where bis influence is most felt, and bis fiat more readily obeyed. His public acts are sufficient for our present purpose. Is there then any man in the country who does not know, that Mr. Papineau, inherit- ing from a long line of ancestry, which he himself and his ready scribes and flattering satellites throughout the country describe as haviag been noble, but which no indi- vidual living can trace beyond the limits of Dr. Johnson's forefathers, which, notwith- standing all his learning, he admitted he could not do beyond his grandfather, all the prejudices and antipathies natural to so obscure au origin, has many years since for- med and put himself at the head of a party whose sole object it is to create such a dis- tinctiou between his Majesty's old and new subjects in this Province, as will pave the way, if not to their ultimate separation, at least to such a state of thiugs as will place in the hands of the part;^ in question the entire manag-ement and admiuisrration of public affairs? With this disgraceful project before his eyes, which could scarcely excite the am- bition of a Cauihal Caffre Chief, he has never ceased, since he has become a public character, to pour forth, by means of declamation, as tumid as it is insidious and irrational, the most dangerous doctrines that can possibly 17 he listened to in a Province like this, com- posed, as it uufortunately is, of a population much divided in political opinions, and the majority of which is in a high and alarming cleg:ree inflamable when the brand of com- motion is applied by a hand whose com- munity of birth, language, and manners, is tantamount to the imperative voice of legal authority. Few countries, however peace- ful and happy, but are cursed and disgraced by characters of this description ; but in no country that we know of is the evil likely to produce such destructive aod desolating con- sequences as in Lower Cani da,if not chec- ked and absolutely put down in pr«/per time. Generally speaking, the Demagogues of Eu- rope act on their own insolated responsibili- ty until their projects are ripe for action, and derive no other authority from law or other public institutions than is the birthright of every member of the community. In this Province, however, the case is very different. Here, from the peculiar construction of socie- ty, our Demagogues, and they are neither few nor small, are also our Legislators I Our chief Demagogue has been Speaker of the house of Assembly for six successive Parlia- ments! It is thus that the poor Canadians are deceived. — Their simplicity and ignor- ance are so great, that they believe Mr. Pa- pineau and his bandits to be acting under public authority, and with the express ap- probation of a constitutional government. — None need be told how propitious and ad- vantageous such a st^te of things naust be for 18 carrying cq the machinations of the party opposed to government and headed by Mr. Papineau ; nor how dextrous these gentle- men are on all occasions, in availing them- selves of it. Even the journals of the house of Assembly bear witness to the insolence of this party, and of Mr. Papineau in particu- lar, in defaming and libelling the most neces- sary and legal acts of government ; and it is equally his disgrace that the walls of Par- liament have re-echoed times without num- ber declamation the most personally abusive of the noble and exalted individual who at present administers the government oftho Province. Many proofs might be given ia support of this assertion ; but we deem it suf- ficieat at present to refer the rejider back to some debates which took place in the house of Assembly in the Session of 1825, when the Governor in Chief was in England, and with regard to whom expressions are said to have been made use of which would disgrace the lowest pot-house in Quebec. The reso- lutions passed last year in the Assembly, with respect to supplies and despatches^ bear ample testimony to the contempt with which Mr. Papineau and his gang have ever been disposed to treat the constitutional communi- cations emanating from the present head of the Provincial government. Out of Parliament, the conduct of Mr. Pa- pineau has been equally glaring and uncon- stitutional. No sooner was the last Parlia- ment prorogued, than he published a Mani- festo^ breathing not only revenge and deft- 19 ance to the Governor in Chief personally, but teeming with a tissue of the grossest prevari- cation and the foulest abuse that ever fell from the tongue or the pen of any individual of the least pretensions to education or genteel so- ciety. In that well known production, pub- lished in the face of all the laws of decency* and every principle of a constitutional go- vernment like ours, and rendered eternally infamous by the well-applied castigation of our friend, a fellow labourer. Delta, Mr. Pa- pinoau not only charges his Excellency with, altering what was false, in his proroguing speech, but the King himself, and the imperi- al government, with having confirmed and sanctioned an act granting supplies in 1825, which they had been actually disallowed and disapproved of {;i Council/ But there are a few more items in our ac- count against Mr. Papineau. Fearing, as he had just cause to do, that his own Manifesto would not have the effect of rousing what his Chief Scribe at Montreal calls the ^'slumbering energies of the country,^* he prepared a num- ber of resolutions, disapproving of tl>e proro- gation of the late Parliament and the gene-» ral conduct of the Governor in Chief, which, he circulated to his numerous emissaries throughout the province ; begging of them not to lose a moment in calling public meet- ings to adopt these ready made declarations of his own and his party's purity, to the mter disgrace of the Gowrnor — not the go- vernment. In a few places, where the time and the vanity of the people exceeded their 20 good sense, this brantl of discord took eflect ; but to the honour of the people in general, and the consternation of Mr. Papineau, this ■method of embroiling the country in an open rupture with the govermueut that protected its rights and independence, did not succeed. For a time Mr. Papineau was left to his own resources; and, in justice to his zeal and ac- tivity in the cause of anarchy, it must be ad- mitted, that he made the best possible use of them. His address and speeches to the e- lectors of 31outreal may be placed in com- petition with the most chaste and eloquent productions of Hunt and Cobbet, for awaken- ing the people to a sense of their degradatioa imder the present system of things, and in inducing them to throw aside that respect, at- tachment, and gratitude, which they owe to the government under which ihey live, and, we have no hesitation to add, live contented and happily too. in despite of Mr. Papineau and his loatiisome popular harangues. In any other country but this, the Husting harang:uts of this man would degrade the individual who uttered them far beneath those venders of eloquence which we so fre- quently tind congregated amidst the haunts of the w'eaviug and cobbling politicians of the manufacturing towns of England. They did uoi contain a single patriotic sentiment, nor one passage worthy of rehearsal by the lowest and most ignorant blockhead that stood gaping at theii utterance, if we except, and except them we must, in such an inquiry as the present, those sublime passages which '21 heaped such a depth of odium and disgrace OQ the admininistratoi* of the provincial go-^ vernmeot. As to the address of thanks, it in oueofthe most unfgj/e thiugs we have ever perused. There it stands before us as copied into the Canadian Courant, confirmatory, to use its own words, of" the sentence ofco7idt}7in- natiornvhich has been already -passed by the lohole country from end to end against the claim of the Executive ;" and the disgrace equally of the author and those to whom it is addressed. One charge more, and we have done for the present with such of Mr. Speaker's elect delinquencies as legally debar him from being the organ of communication with his Majesty's representative in either or any branch of the legislative body. There are three newspapers published in Montreal, which we scorn to name, as they are utterly beneath even the most contemptuous regard. It is the sole business of these journals to belch forth every species of abuse and defama- tion that w^ords are capable of conveying agaiust his Excellency the Governor in Chief of this province, in his public as w ell as in his private conduct and character. As a proof of their outrageous and insolent conduct, the anthoisofone and all of them have been lately presented by the Grand Jury of the District which they contaminate with their scandalous vulgarity for libels upon the most sacred institutions of civil society. Mr. Pa- pineau is the chief patron and supporter of all these journals I ! Need we say any more? 22 Who DOW, we boldly ask, will dare to blame the Governor in Chief for refusing to convey bis Majesty's approbation of the choice made by the Aessembly of Mr. Papi- neau as their Speaker? If there be any such, let them take their stand with Mr. Pa- pineau and his colleagues, for it is high time that the people of this Province should rank themselves for or against the constitution, that the good may be distinguished from the bad, that the loyal may be known from the disloyal, and true Britons, known from their enemies. It is evident that the members of the house of Assembly, upon the refusal of the Govern- or to sanction the man of their election as prolocutor, departed to their own apartment under feelings of high and unusual irritation, and of this we desire no better proof than the tumultuous and disorderly manner in which they conducted their proceedings on arriving at their usual arena of debate. Their exit from the Legislative Council (chamber might not inaptly be compared to a pack of tarriers just unkenneled with their leashes ready to be slipped for the purpose of beginning the sports of the day, but who had been in an unauspicious moment countermanded by their Lord, and sent back to their den how- ling with rage and disappointment. And there we leave them for the present, intend- ing, before we proceed to the investigation of their ulterior conduct, to consider the b-isis upon which the prerogative of the croAva was 23 founded and exercised upon the present oc- casion. Before doing so, however, we may be per- mitted to state, as a piece of antiquarian lore, that authors are not agreed either as to the period when the Speaker first appeared in the house of Commons, or the individual who first filled that important and distinguish- ed situation. This office, like the constitu- tion itself, dawned upon mankind amidst those clouds of fe^udal barbarism which still hung heavily over England even towards the middle of the thirteenth century ; and when, like the Astronomy of the Chaldeans, though there might be many to study and admire, there was no hand to record so invaluable a privilege. It is peremptorily stated in the Parliamentary history, that Sir Peter de le Mare, Knight of the Shire of Herefordshire, who was chosen Speaker in the first Parlia- ment of Richard II. is the first Speaker on record. Yet, upon the authority of the 51st of Edward III. 1376. a year before his death and the accession of his grandson, Richard II. it appears, that Sir Thomas Hungerford, is mentioned on the last day of the Parlia- ment as being Speaker of the bouse of Com- raoDs : The words of the Roll are, 'Qi avoit les Paroles fur les Communes d' Engkterrt en cest Parlement.'''' In the discussion of this point, it seems, however, to be forgotten, that in presenting a petition to Edward III. to remove from his person the celebrated Alice Pierce, the favorite of his dotage, and others, Sir Petei' de la Ma^'e appeaned as 24 Speaker of the Commons ; and though it is asserted that he was not Speaker, ** but a con- siderable Knight of Herefordshire, both for jprudence and eloquence,^' yet it seems unac- countable how he should undertake the du- ties of Speaker on so delicate an occasion without having been legally inducted in the office. Be this as it may upon the death of the Black Prince, the favourites were recal- led to court, and poor Sir Peter was imprison- ed for a twelve month for the discharge of the Speaker^ s duty. The first instance on record of the exer- cise of that branch of the royal prerogative which empowers the King to dissallow the' choice of Speaker of the house of Commons, took place in 1450, and in the reign of Henry VI. Sir John Popham was chosen Speaker, but his excuse was accepted by the King, and he was discharged in these words : — ■ " Rex ipsara suam excusationem admisit, et ipsum de occupatione predicta exoneravit."* On the same day the Commons presented William Tresham, Esq. for the same purpose, who was allowed. On the 22d of Feb. 1592, Sir Edward Coke, in his disabling speech, says, " this is only as yet a nomination and no election, until your Majesty giveth allowance and approbation.^^ On the 6ih of March, 1678, the Commons * See Appendix No. II. which contains in ample detail a host of precedents from such authorities as it would be more than Q,uix- otick to attempt to combat. choise Sir Edward SeymOur, Speaker; but on his being presented to the King, — Charles II. on the 7th, the Lord Chancellor, by his Majesty's command, disapproves of him, and directs them to proceed to another choice. It appears from Hatsell, who records these precedents, that Seymour knew, that it bad been determined at a Council tlie night pre- vious to the meeting of the Parliament, to accept of his excuse, on account of some dis- pute he had at the time with Lord Danby, a mere minister of the Crown, and in no shape representing the King, purposely avoided making any, in order to puzzle the Lord Chancellor in refusing him. However, it is certain, that notwithstanding this stratagem, that his election was disapproved of, and that he was excused, as above stated, by the Lord Chancellor from performing the duties of Speaker. The account which the histori- an Rapin gives of the whole of this matter is worthy of being transcribed and perused at length. *' The Parliament," says he, " began with a warm dispute between the King and the Commons, about the choice of a Speaker.— The Commons chose Mr. * Edward Sey= mour, the King, who knew Seymour, was a particular enemy of the Earl of Dauby, re- fused his approbation, and ordered the Com- mons to proceed to a new choice. The House was extremely displeased with this re- * He is designed Sir elsewhere. He was Treasurer of tiieNavy at thistirne^ 2** 26 fusal, alleging, that it tvas never "known that a 'person should be excepted against, and ' no rtason at all given, and that the thing itself of presenting a speaker to the King was hut a bare compliment — The King, oa his side, ia- sisted qn the approbation or refusal of the Speaker when presented to him, as a branch of the prerogative. During a six day's dis- pute the Commons made several represen- tations to the King, to which he gave very short answers. At last, as the Commons would not desist from what tbey thought their right, the King went to the Parliament, and prorogued it from the 13th to the 15th ; that is, for one day's interval between the two Sessions. The Parliament meeting on the 15th, the King ordered the Commons to proceed to the choice of a Speaker. Then, to avoid a revival of the dispute, they chcse Mr. William Gregory, Sergeant at Law, who 'vas approved by the King." It thus seems to be the undoubted and inhe- rent prerogative of the crown, that, in all cases, and under all circumstances, no Spea» kercan legally act as such until his election, or rather his " nomination,''^ as Coke terms it, be approved and confirmed by the King,— Our great constitutional lawyer, Blackstone„ speaks concisely but decidedly on this point : The Speaker of the House of Commons,'^ says he, vol. 1. p. 181, " is chosen hy the House^ hut MUST he approved hy the King." But the question at present at issue is. whe- ther this prerogative extends to the King'i Kepresentatlves in the Coloi^ies, without be- ing specially and in express terms conferred by letters patent or by law t So far as re- gards these Provinces, the constitution of which is modelled with great care and precision on that of the Mother Country, the best and safest answer that (^n be given to this question is, that if His j^lajesty's repre- sentative cannot exercise this particular pre- rogative in common with those which stand on a similar basis, so neither can our Houses of Assembly make choice of a Speaker. The constitutional act, though it \ authorises the Governor lo appoint the Sjpeaker of the Legislative Council, is nevertrieless silent as to the right of the Assembly to make choice of its own Speaker. It may, indeed, be pre- sumed, from the twenty -seven§i section of that act, that the Assembly are entitled to have a Speaker ; but his powers are thereby wholly confined, like that of his colleague of the Legislative Council, to the casting vote in case of an equality of voices. If, there- fore, the Assembly have a right, without the express authority of the constitution to elect a Speaker, surely the Governor, as the re- presentative of the King, has an equal right to exercise every legal prerogative of the Crown, the one in question as well as all the rest. The one privilege is contingent upon the other ; nor can the one in our system of Government, exist without the other. In a word, if the Assembly have a right to elect a Speaker, the Governor has an equal right to coaiirm or reject their nomination as he may 28 ^ think most conducive to his own dignity, and tlie interests of tlie country. That this special prerogative has been ex- tended to, and actually exercised in the British Colonies, there cannot be a doubt ia the mind of any one who has read their his- tory. The Nova- Scotia case before referred to, ought to carry great weight along with it. There is, however, a more reniarkabe, and, perhaps, a stronger case now lying before us, the particulars of which we shall state in a few words. A short lime after the accession of Geo. 1. to the Crown of Great Britain, he appointed Colonel Shuie, a highly respectable officer, who had served under the Duke of Marlborough, to the Government of New-EnglunJ. The conduct of Colonel Shute was l.ighly meritorious ; but, as has almost unifoi'mly been the case with every Governor coming to the Colonies, he failed in gaining the cordial co-operation of the Legislature; and the Assembly gave him so much trouble, that he was at last forced to carry over to England a complaint against them ; a coustituiionul practice which we could wish were practiceil more frequently ia our own times. Mr. Cook, the agent for the llepresentatives complained of, admitted the charges to be true, except the second and fourth, which consisted of '* Refusing the Governors Nesative of the Speaker," and " adjourning themselves for more than two days at a time." With respect to these two articles not acknowledged, an '-rplanatory charter was made out ia the 12th ^of Geo. 29 n. which contHins the following cifSuse— - ♦' Whereas, in their Charter nothing is di- rected concerning a Speaker of the Rouse of Representatives, and of their adjourning themslves, it is herehy ordered, that the Go- vernor or Commander in Chief shall have a NEGATIVE in the election of the Speaker; and the House of Representatives may ad- journ themselves not exceeding two dars at a time." But we find that we must postpone the further consideration of this very important question till our next. No. II. The niain object of our last was to establish, by precedents, usage, and history, the unin- terrupted existence till this day of one of the most ancient prerogatives of the Crown — the power of confirming or rejecting the indivi- dual nominated by the House of Commons as its Speaker ; and, by consequence, the right of the King's Representative not only in this, but in every other British Province in the enjoyuneat of a representative government, to exercise similar prerogatives. This import- ant constitutional point established, our pur- pose at present is to enquire, not whether—' for that can never be made a question in the mind of any one who has studied the British Constitution for an hour — but how deeply and dangerously the majority of the House of As- sembly of this Province have involved them-> selves iu au attempt to abrogate a preroga- tive, which, although the factious spirit of party may have sometimes repelled and ques- tioned it, has never been abrogated in that country and government from which we not only have received our political existence, but profess to borrow every constitutional maxim necessary to the preservation of so popular, but so permanent a species of government, la order, however, to avoid all recurrence 31 in future to a right established on so firm, and, we hope, so lasting a basis, and which no man will ever dare to question except he who is ready to combat every principle of good government, we deem it necessary to put down in this place such additional proofs and precedentsof the existence of the prero- gative in question, as the industry of our con- temporaries and our own researches have placed at our command. We shall thea discuss the matter fully armed ; and think that by bringing the facts and reasoning of the one side into visible, direct, full, and de- cisive conflict with the other, we shall be able to withdraw from the contest with all the laurels that can be won in such a field of controversy. We have already given at length Rapin's account of the circumstances which attended the election and rejection as Speaker, of Seymour, in 1678. Hume's account of them is equally interesting, and uo less worthy of perusal : But the King soon found that, notwith- standing this precaution, notwithstanding his concurrence of the prosecution of the Popish plot, notwithstanding the zeal which he ex- pressed, and even at this time exercised a- gainst the Catholics, he had nowise obtained the confidence of his Parliament. " The refractory humour of the Lower House appeared in the very first step which they took upon their assembling. It had ever been usual for the commons in the se- lection of their Speaker to consult the iucii- 32 aations of their Sovereign, and even the long Parliament io 1641 had not thought proper- to depart from so established a custom. The King now desired that the choice should fall on Sir Thomas Meres ; but Seymour, Speaker to the last Parliament, was instantly called to the Chair, by a vote which seemed unanimous. The King, when Seymour was presented to him for his approbation, reject- ed him and ordered the Cora; onsto proceed to '<; new choice. A great flame was excited. The Commons maintained that the King's ap- probation was merely a matter of form, and that he could not, without giving a reason, reject the Speaker chosen. The King, that, since he had the power of rejecting, he might, if he pleased, keep the reason in his own breast. As the question had never been before started, it might seem difficult to find principles upon which it could be decided. By way of compromise it \vas agreed to set aside both candidates. Gregory, a Lawyer, was chosen, and the election was ratified by the King. It has ever since been understood that the choice of the Speaker lies in the House, but that the King retains the power of rejecting any person disagreeable to him." ^Pocket Edition, Vol. IX. p. 238. The Notes subjoined to this text are very important : — " In 1566 the Speaker said to Q,ueen Elizabeth, that without her allowance the oleciioo of the House was of no signifi- cance.— D' Ewes' Journal, p. 97. In the Parliament of 1592— 93, the Speaker, who was Sir Edward Coke, advances a like po- 33 siiion.—D'' Eives, p. 459. Townshend, p. 35. So that this pretension of the Commons" — that is, of persistiog in their choice * >f Speak- er — "seems to have been somewhat new ; like many other powers and privileg,es." Bolingbroke, writing of these times, accounts in a manner for the usurpations of the Com- mons in Seymour's case, by saying of the Commons—" that they lost their temper oa some particular occasions must not be denied. They were men, and therefore frail." We copy the following cases from the Q,wibec Mercury and the Montreal Gazette, by Authority. Woodeson says, (vol. !. p. 57,) *' The Commons cannot sit without a Speaker af- ter their first meeting," and this is also laid down in the 4th Institutes, pp. 7 and 8. In the mode of appointing the Speaker, some change has taken place since the revo- lution, but the leading principle that the Royal approval is necessary to give effect to the choice of the Commons, has never been disputed. The manner of electing the Speaker is ex- plained by Whitelock, vol, 1. p. 224. " Then the Commons repayre to their house, and usually some of the members be- fore acquainted with the King's mind doth nominate one among them to be chosen for their Speaker whereon there is seldom con- tradiction. Coke saith (4 Inst. p. 8) that af- ter their choice the King may refuse him, and that the course is, for avoiding expense cf time and contest, as m the Conge d'Elsre 34 of a Bishop, tbat tlie King doth uarae a dis- creet and learned man whom the Commons elect ; he adds that the Speaker is so neces- sary that the House of Commons cannot sit without him.''— JFhitelock, vol. 1. p. 224. " In 1778—79, on the meeting of the then new Parliament, Charles Wolfran Cornwall, Esq. was proposed by Lord North as Speak- er, in preference to Sir Fletcher Norton (afterwards the first Lord Grantley,) who had filled that office during the preceding Parliament, and Lord North gave as one of the reasons for this extraordinary step, that it would be useless to elect Sir Fletcher, in- asmuch as he was personally obnoxious to" the Sovereign, and that this feeling would operate as a cause for his rejection and dis- allowance. The event is familiar to every one acquainted with the Parliamentary an- nals of that period, and is therefore unneces- sary for us to lengthen our remarks with the cause of the objection to Sir Fletcher. In consequence of this intimation from the Mi- nister and perhaps for other motives, Mr. Cornwall was chosen, and afterwards allow- ed." We are indebted to the Quebec Official Gazeffe, for the following important informa- tion. The Nova-Scotia case alluded to, in conjunction with the New England one de- tailed in our last, forms a remarkable con- necting link between the mother country and the Colonies in regard to tliis royal preroga- tive. "■ Just one hundred years ago, Speaker 35 Onslow, when lie was elected by the Cora- mons to that Chair which he filled for 33 years with unequalled ability, and in which, says Hatsell, the distinguishing feature cf his conduct was ' a regard and veneration for the British Constitution as it was declared and established at the revolution,' this emi- nent Pariiaraentary authority thus addressed bis Sovereign, ' Happy is it, Sir, for your Conamons, th'dty our jyjajestij''s clisapfrGhation will give thera an opportunity to reconsider what they have done. I am therefore to im- plore your Majesty to command your Com- mons to do what they can very easily per- form, to make choice of another person more proper for them to present to your Majesty.' " In Nova-Scotia, in the year 1806, a Speaker chosen by the Assembly was disap- proved by the then Lieutenant Governor ; the Assembly proceeded to another election and chose the other candidate who had been be- fore unsuccessful, but who was more accept- able to the Governor, and was accordingly approved. The only notice which the As- sembly thought it proper to take of this re- jection, was in the following paragraph of their address in answer to the Speech : While we lament that your Excellency has been pleased to exercise a branch of His Majesty's prerogative long unused in Great Britain, and without precedent in this Pro- vince, we beg leave to assure your Excellen- cy that we shall not fail to cultivate a good understanding," &c. &c.* See again Appendix No. 1. 36 It DOW becomes our painful but necessary duty to detail the conduct and question the right of the House of Assembly in refusing to acknowledge the exercise on the part of the Crown of this prerogative, established, as we have seen it has been, on the same basis and by the same authority as the most sacred privileges claimed by the Assembly itself. When the Assembly returned to the Cham- ber of its deliberations, in obedience to tho directions of the Governor in Chief, the Speaker elect, contrary to all precedents, es- pecially the remarkable one of Sir Edward Seymour, who did not assume fhe chair, and as if that were necessary to fill to the brim the cup of his hostile feelings, insolence and malignity Jtowards the King's representative, to whom, for once at least, he was compelled to succumb, took, without any hesitation, the chair, and caused the mace to be laid on the table. Nor could the voice of the constitu- tion, declared by several members of the House in a manner that might force convic- tion upon any understanding but his own, pre- vail upon him to retire from it, until he had intimated to the House the terms in which his election as Speaker was disapproved of by the Governor in Chief ; thus rendering him- self in the eyes and the ears of his country the herald of his own degradation and down- fall. No man possessed of a spark of mo- desty, or the least notion of thut respect cul- tivated by every man of honour and virtue towards the constituted authorities of his couQtrj could ever have assumed a statioa 37 fit only for brass or marble. But Mr. Papi- neau differs from other men on a variety of subjects -, but on none more than that great and useful maxim of private and public so- ciety, which enjoins a respect for others by a diffident respect of ourselves. Sir Edward Seymour's example might, in this instance at least, be followed to great, creditable, and lasting advantage. We stated in our last that the debate which took place on the return of the Assembly to its own place of sittings, so far as regarded the majority, was tumultuary and uncon- stitutional. This has since been denied ; but the denial came from a source unworthy of a moment's hearing, when the united voice of our contemporaries and of many respectable individuals present, loudly and emphatically declare otherwise. It is, therefore, unworthy of being detailed at length in this place, though, in the sequel, some of the principles laid down in it may be adverted to, in order to be confuted. We shall here content our- selves with what may be termed the official results of this debate; and the first before us is the resolutions proposed to the House by Mr. Cuvillier — ^resolutions If-hich, from the information we have received, and many concurring circumstances, we have no hesita- tion to assert, were prepared at Montreal long previous to that and the other member's simultaneous embarkation for Quebec, in the full anticipation of Mr. Papineau's rejec- tion as speaker elect, by the Governor in Chief. These resolutions will long be 3 In remembrance, no less on account of the studied strain of insult in which they are couched with respect to the King's repre- sentative, than for the daring novelty, gross ignorance, presumptive insolence, and mena- cing unconstitutional principles which, from end to end pervade the whole. " Resolved : — "1® That it is necessary for the dis- charge of the duties imposed upon this House, viz : to give its advice to His Majesty in the enactment of Laws for the peace, welfare, and good government of the Province, con- formably to the Act of the British Parlia- ment under which it is constituted and as- sembled, that the Speaker be a person of its free choice independently of the will and pleasm-e of the person entrusted by His Ma- jesty with the administration of the local Government for the time being. «< 2 ® That Louis Joseph Papineau, one of the Members of this House, who has served as Speaker in six successive Parliaments, has been duly chosen by this House to be its Speaker in the present Parliament. *' 3 ® That the act of the Pritish Parlia- ment under which this House is constituted and assembled, does not require the approval of such person so chosen as Speaker by the person administering the Government of this Province in the marae of His Majesty. «t 4 o That the presenting of the person so elected as Speaker to the King's Represent- ative for approval is founded on usage only, and that such approval is and has always been a matter of course. >' 5 ® That this House doth persist in its choice, and that the said Louis Joseph Pa- pineau, Esq. ought to be and is its Speaker.'" These Resolutions, after an interval of adjournment, having been sanctioned and agreed to by a majority of thirty-nine to four, the following address to His Excellency, copied from that which the Commons pre- sented to the King in Seymour's case, ia 1678, was voted, and a committee appointed to wait on His Excellency to learn when he would be pleased to receive it. " May it please your Excellency, " We, His Majesty's dutiful and loyal sub- jects, the Assembly of Lower Canada, in Provincial Parliament assembled, having taken into our most serious consideration the communication made to us by the Speaker of the Legislative Council, by order of youi' Excellency, respecting our choice of a Speaker, humbly request your Excellency to be fully assured that we sincerely respect the rights of His Majesty and his Royal prero- gative, which we acknowledge to be annexed to His Imperial Crown for the benefit and protection of his people. We are fully as- sured that your Excellency could intend no- thing which could destroy or diminish our constitutional privileges, without which we cannot fulfil our important duties towards his Majesty and his people of this Province, and in this persuasion we in all humility submit to your Excellency that it is the incontesti- ble.ight of the Commons of this Province to have the free election of one of their mem- 40 bers to be their Speaker, and perform the duy of their House ; that the speaker so e- lecied and afterwards presented to the King's Representative, according to usage, ought always by uniform practice to be con- tinued as Speaker, and fulfil his office as such, unless he be therefrom excused from corpo- real infirmity, alleged by himself or on his behalf in full Provincial Parliament , that, accordiug to that usage, Louis Joseph Papi- neau, Esq. has been duly elected, and chosen in coDsideratien of his great ability and fit- ness, of which we have had experience dur- ing several Parliaments, and has been hy us presented to your Excellency as a person worthy our confidence, and who we conceiv- ed \\ ould be agreeable to your Excellency ; for %vhich reasons we humbly hope that your Excellency, after having considered the old pr-^cedeots, would be pleased to remain sa- tisfied with our proceedings and net deprive us of the services of ihe said Louis Joseph Papineau as our Speaker, but, that your Ex- cellency would be pleased to give us a favor- able answer, such as His Majesty and His royal predecessors have ever given to their faithful Commons in such case, in order that we may be enabled to proceed without fur- ther delay to the disjaatch of the important and arduous affairs for which we are con- voked in which we hope to give con- vincing proofs of our affection for the King's service, and of our solicitude for the peace and welfare of the Province." The firm and constitutional determination of his Excellency ia refusing to recognize 41 either the House of Assembly or their mes= senders UDtil the House should be lej^.dly con- stituted by the appointment of a Speaker ap- proved by the Crown, and his subsequent prorogation of the Parliament, rather than be longer menaced and insulted by a despe- rate and enraged party, whose characteristic it has ever been to bear none in power but themselves, closed this remarkable scene ; a scene which, for headlong fury and determin- ed violation of a fundamental principle of the constitution, is unparalleled in the history of every British colony, save those which have shaken off the supremacy of the Mother country. We scarcely know one principle of the constitution where an assault would be attended with more alarming consequen- ces than the one which has thus been assail- ed, if not resolutely defended and repulsed as it has been on the present occasion. If this point were once taken by force or tamely surrendered, the whole fabrick would fall to the ground. If his Excellency had given way at this point, there is scarcely another point within the whole compass of the edi- fice committed to his care at which he could make a stand. The peculiar construction of our constitution very frequently renders its defence a task requiring no ordinary powers of intellect and presence of mind. But its tacticks are fortunately for us very simple. They consist only of a steady and undevia- ting adherence to the rules laid down, and a resolute determination on the part of those entrusted with its maintenance, King as well 3* 42 £is people, never to yield any single ou& of its kuowQ and practised rights wits'out the unauimous consent of all interested. Now, to follow out the simile, Avheu a certain sys- tem of defence has been successful! .- practi- sed for a series of years, and has been found to secure us against encroachments of what- soever nature, whether of popular excesses on the one hand, or of sovereign despotism on the other, does it not consist with reason, with fortitude, and, above all, with true patriotism, that the same system should be persevered in, either until it has been found useless, or until another and a better one has been adopted by the unanimous consent of all concerned ? Shall we then blame the in- dividual, or the setpf individuals, who, bound by authority and law to follow the plans laid down before them, refuse to saucuoa the schemes of the first bold usurper who takes it into his head to violate the first prin- ciples of our social compact? In one word, is it to be endured, that either the King's Kepresentative or the House of Assembly, jio matter from what motives, may establish for themselves at every meeting of the Legis- lature, a new system of procedure neither sanctioned by our constitution, nor practised in tl:iat country by which we not only affect, but are bound to be guided in every thing that concerns our public welfare ? As for the King's Representative, we think that we are quite safe in assertiug, that he has never hitherio overstepped t!je bounds of any one of those rights and prerogatives with which he - 43 is eutrusted, and may with equal safety ex- press our coofideDce, that he never shall he fouod to do so. We regret that we cannot say as much for the House of Assembly. — We have not exactly arrived at that point of the present enquiry at which we have deter- mined to investigate such parts of their con- duct as have been deemed unconstitutional ; but'if we may judge of the future by the past, the sooner their career of usurpation shall have been arrested, the happier and the bet- ter for the country. Of late their progress in iniquity has indeed experienced a few checks ; but the misfortune is, that these checks, though they may serve to ward off from time to time the impending blow, and pi-event the citadel from being sacked by the enemy, are, nevertheless, but the partial sallies of a brave and resolute Governor cal- culated only to preserve his charge from des- truction until the arrival of a more potent force from the Mother country. Nor need we fear that this assistance will be long in arriving. The general misfortunes of the Province demand it ; and the people call aloud for assistance, and a termiu;' ion to a statrf of politcal anarchy which must end in their ruin, if not, once for all, destroyed. — Meanwhile, let us proceed to a more minute examination of the question now at issue, which is one equally interesting to Govern- ment and people. We find, however, that we must postpone this investigation till our next number ; the present having swelled into a prolixity which we did not anticipate. No. III. It is of the last import;tace ia all constitu- tional tliscussioQs or political disputes, that proper ootioDs be eutertaioed noi only of the subject luatier of debate, but the source nhmce it sprung, and the consequences to uliicli it nip.y lead ; otherwise, the comliatants will eternally be floundering iu a path that will never bring them to a proper uuderstandiag or amicable adjustnient of their differences. It is true, indeed, that it is seldom wc find political disputants travelling on the s<«mc road towards the attainaient of their objects ; sonae take a short and more direct way, while others imagine that a circuitous, though the longest, is always the surest route to the cud in view. But there ought, and there ever must be a starting point ; and it is principally on this that the fairness of the race and the value of the prize will depend. If there be no legitimate starting point, there can be no legal winning one ; and the parties must return to their original stRti(:iikin^ in a crusude ai^aitis-t the proro^a- livesoftho Crowu, witliout either a star or com|> iss to guide thera ou their dangerous voyage, it is reasouahlo to thiuk they never woul i liave launched in such a tumultuary ma 1 I'-T, itiid have placed at their head an individual who had already exliibiiod such glaring proots of his iuc.ipacity to dischargo with credit to himself, or profit to his coun- try, rhe important duties of so hi^h and dis- tinguished a stmion. — 'They never would havo placed at thtnrhead an individual who, instead of being a mediator, became a par- tisan in the contest — who, instead of assist- ing with might and main to guide the vessel of the state into some safe heaven or com- modious ha.bour, lent all the powers and faculties of his mind to lead her out of the proper course into the irresistible current of popular commotion, there to drift with the tide, and be finally sunk or shattered to pieces amidst the rocks and quicksands of overwl'dming anarchy ; who, instead of being the bearer of the fair flag of truce and peace, hoisted the banner of exterminatory hostilities, and, to use the forcible language of i>[r. A. Stuart — language, to which we re- gret to say littlejustice was done in the re- ports of our contemporaries \vho haV'ord *' ^^'ar'' imprinted on his forehead ; and who, to complete ihe climax, insteaosiug his ouo council, and of nominating all tho great ollicers of the state. In tho exercise of these prerogatives, the King is irresistible aud ab- solute, according to tiie forms of the constitu- tion ; *• for otherwise," adds Blackstone, " tne power of the Crown would indeed be but a name and a shadow, iu>utUeieut for the ends of government, if, wliere its J risdiclion is c eorlij tstabliskeil ami olloivtil, any man, or hodij 0/ men, were permitted to disobey it, ia the ordinary course of law ." The customs and usages of Parliament, previous to tlie revolution, must have h( eu too well known and too geuerallv prnetised to lead us to suppose, that if they coutaiuetl 49 any tliiug prcjiulicial to the interests, or at variance, with the lipjhts of the people or their representatives, they sht)uhl not at that eventful perioil, which pre>euted the fairest opportunity that ever occurred for doing themselves justice, be retrenched or totally cancelled. Yet, in the thrteen incinorablo coudiiious made hy the Lorils S|>iritiial and Temporal,. and Commons v/ilh the Prince and Princess of Orange, not one is to bo found tleclaratory of the rig;hts and privi- Ici^es of Parliament, as a pnrlictinerit. except ► the ninth, which declares, '* That the fretilom of ap'jech, ant debates, or proceedings in Par- lianunt, ought not to be impeached or ques- tionadin tin>/ co irt or place out ofFarliam-nt.''' It is. therefore, very evident, that if all the other privileges peculiar to the commons, Buch as the freedom from arrest, the ri^lit to arrest, and punish such as impeached or questioneil their proceedings and the fiomi- uation and final appointment of Speaker, were iuliereutiu t'leir own body, without any reference whatever to the crown, such inher- ent rigiits and privileges would be declared and insisted on in the Bill of Rights, along with the assertion of all their other ancient rights and liberties. This, however, they did not do ; and whether it is totherr wisiloni or their folly that we are indebted for the perpetuation of a prerogative as ancient as their own constitutional existence, it is not for us or even a branch of the legislatiu-c, to impugn it until duly abrogated by the united legislative authority of the state. The ucw 50 monarch, to use the words of Smollett, re- tained ihf old re«^al power over parliament in its full extent ; and, so far as the particu- lar prerogative in question is concerned, has handed itdown to his successors unimpaired and unimpeached. There cannot be a stron- ger proof of the intention, if not the determi- nation, of parliament to continue the old customs, with respect to the source and ex- ercise of its privileges, than what took place at the revolution. When the convention parliament met and chos? its Speakers — the Marquis of Halifax by the Peers, and Mr. Henry Powle by the Commons — there was no authority in the Kingdom to confirm such elections ; the source of all public offices and employments having ceased to flow in con- sequence of the desertion of the ill-fated James, the last monarch of the ill-fated Stuarts. But the instant that the conven- tion was converted into a parliament, or, at all events, as soon as the new parliament met, the old customs and usages of parlia- ment were resorted to. though William was no great stickler for prerogative, provided the means were furnished for carrying into effect his warlike and foreign projects. As usual, the Speaker of the House of Lords ■was appointed by the King ; and he of the Commons, though nominated by that body, could not act until confirmed by the same autiiority. The Commons by the mouth of their Speaker thus approved of, demanded ■ their ancient privileges ; and, upon conipar- ing the proceedings of parliament at each 51 new meeting after the revolution with those prior to it, it was found that no alteration or innovation whatever had been . lade upou them. It is, tliercfore, highly foolish, stupid and absurd, to assert, that the current, of these usages, which has flown in one uninterrupted channel from the revolution down to the present time, gathering additional force and strength in its course, can be diverted at tho pleasure of any one branch of the legisla- ture without the consent of the whole. These usages now form part and parcel of the con- stitution. They are as deeply injirafted on the King's prerogative as the right to call together, prorogue, and dissolve parliament itself. No power can annul them except the united voice of parliament in all its consti- tuent parts. The Commons will not. and dare not attempt it on their o^^ n strength ; and we all know, that thougli tho Commons have the right to maintain, they have no power to alter or destroy the constitution. Besides, the Speaker of the Commons, with regard to whose nomination and confirma- tion our present inquiries arc principally di- rected, is a magisterial and judicial ollicep ; possessing power not only over certain rights and liberties belonsiug to the members of the body over whom he presides, but also over the persons and liberties of his iMajesty's subjects in general. Can the Commons en- dow him with such extensive authority ? No", they possess it not themselves : it is not in- herent in them. The constitution restricts their powers to legislation only; aad it is one of the first and greatest and best maxims of that constitution, that tho legislative and judicial powers canuothe uuited without the destruction of the whole fabric. They can- not even assemble without being summoned by the King; for they are not, like him, a self-existing power in the State. They can- not clothe themselves with the smallest ves- tige of executive authority ; and, without the consent of such executive anthority, how can it be supposed that the mere election of their speaker can confer upon him judicial powers scarcely inferior to those of our highest courts of justice ? The idea is absurd ! Such pow- ers can only flow from that common foun- tain ofjustice whence all jurisdiction over persons and property proceeds ; and the Commons might as well take it into their heads to appoint the Lord High Chancellor of England, as appoint their own Speaker without the consent and approbation of the King. If the authority of the Speaker were restricted to the mere overseeing of the in- ternal proceedings of the House ; to the read- ing of messages ; to the maintenance of or- der and decency in debates ; to the putting of questions from the chair ; to the preserva- tion of silence ; to the rehearsal of precedents; and to pronouncing the casting vote in case of an equality of voices, the thing might do very well ; and neither King nor people, we are sure, would be much inclined to disturb him in the exercise of his dry and monoton- ous duties, nor interest themselves more in 53 his nominaiioa than they are accustomed f& do hi the appoiuimeut of the chairraau of a committee for inquiriug into the best means for improving turupike roads. But when we find him, ia the full plenitude o( his Judicial powers, exercising a lordship and jurisdictiou as extensive as the kingdom itself, issuing liis n arrant for taking into custody some scribbler or popular speechifier — who has been unguarded enough to commit a breach upon the privileges of the house, and pro- nounce doom depriving him of his liberty during several months, it is high time to look into the authority whence such potent power proceeds; for, however imperious force may be, no Briton is bound to submit to power without law. We have already said that guch judicial powers are not indigenous to to the Commons. Indeed they have never laid claim to them as such. Ilow could they? They have hitherto had tho good sense to know, that without the sanction of the su- preme executive magistrate, from whom all judicial power emanates, no privilege of thi? descri])tion could bo inherent in a popular eccentrical body, whose very existence de- pends upon the nod of that distinguished per- sonage. They, therefore seek it where alone they can obtain it — at the foot of the throne. Whether as a boon or as a matter of right, they always claim it, and dare i3ot act upon it, nor even anticipate its assumption, until conferrred upon them. — Can we then sup- pose for a moment that such an enlightened body ais th« Goniraons of Great Britain and 64 liolanil Imvo ever been, wouUl coiulesceiul to iin|>liMe ami ititriMt iVoiii iiis Majesty, as ihev routiiUHMl to tli) at the eoinnieiicenient of every parliatuont, the privilege of acting;- in any jiulieial eapacity, ifsiieh privilege had boeu co-«xistent uith parliameut, and that they had tiie ri};ht of cxereisitig and enfoieiiig it at their t)\vii will and by their own sole anihority independent of any other eonstilu- CMit part o<" the suproujc lej^islaiive power .' AVhal simpletons they must be ittliey possess powers and privileges iuhcreut in themselves, and have not the courage to enforce them ■withont heniling the knee to any other autho- rity on earth I \N liai has l)eeonio of the daring of OKI England ! What has beet>me of the spirit that extorted Maun a Chakta at the point of the sword ! Has the blood that ovorllowed the nation in defence of law, jusnco anil liberty, been spilt in vain I What has become of the boKl but mistaken zeal that brought a monarch to the block in defence of liberty ! What has become of the llampileus, the Kussels, the I?idnoys, the (^hathams, the ritts, th«i Foxes, and the Burkes, that have shell their blood and spent their lives to pre- serve our liberties and constitution.' Have they already been forgotten; or w ere they the mere phantoms of tne brain that passed in shadowy ])ageauts before our feverish imaginations ! Could such events and such men pass into oblivion and not l^avo one solitary token be- hind tliom of their disapproval of the custom of seeking the Commons' Speaker, and pri- vileges from iho Crowu, ifsuch were contra- 55 ry to tlioir rights; and atvariancc with all tho known principles of the constitution ! Could suck men crouch for a boon wlien there exis- ted a right ? Was it for them to ask what they had already been in possession of? Could such men stoop and cringe and fawn at the footstool of the Bel and Nebo of unde- fined prerogative, and beg from the crown rights and privileges inherent in the repre- sentatives of England ? Surely that man is not in possession of his faculties, who can for a moment believe, that if the House of Com- mons have a right to the fidl and free exer- cise of iho extensive privileges which they now enjoy, and to the election of tho Speaker without tho intervention of tho Sovereign, they would not long before now lay claim to them, and maintain them with as fearless and dauntless a brow as ever they spoke or fought in the cause of rational freedom. It is therefore most vain, most presumptuous to imagine that they can at pleasure assume rights "which were never reserved to them be- fore ; that they can now establish in them- selves precedents and principles which were neither set up nor sanctioned at the revolu- tion. Bui even if they did, such is the na- ture of the regal prerogative as now limited and bounded, that the wheels of government must cease to revolve, and the whole ma- chine of legislation cease to operate, until such a claim should be finally set to rest, either by the positive refusal of the Crown to sanction it. or the united voice of the legisla- ture admitting and confirming it. lu short, 4 56 matters must remaia as t4:iey«are, until alter etl by the consent of ctll the constituent parts of the legislature. It is not the individual pretensions of the Crown or of the Cora- mons than can alter the constitution. They may and they have at times destroyed it, each in their turn ; but it is impossible that they can eiiher amend or remodel it with- out the consenting voice of the whole. As to the right of the Crown to exert a rogal faculty wliich has lain dormant for years l)ecause no corresponding event lias occurred to demand its exercise, nothing can be more absurd than to deny the actual ex- istence of such a faculty and power. There is a very material diiierence between a state of torpidity and activity ; but surely that fool does not live who will say, that a torpid animal has ceased to exist because it has ceased to move— tliat it has ceased to feel because its pulse can scarcely be felt, or be- cause the heaviugs of its bosom are not visi- ble. Approach it in its lair ; watch it nar- rowly and minutely, and you will easily dis- cover all rJie symptoms of existence. Probe it, and it may awaken and turn upon you, and, if strong enough, perhaps overwhelm you. It was once attempted to be proved by the emissaries of despotism, that because a parliament had not been summoned for ten or a dozen of years, the right to do so had been lost by the Crown. Shortly afterwards this whim, for it war nothing else, went en- tirely out of fashion, and one directly the reverse came into vogue, uaniely, that par- 0/ iiament ouce assembled could sit as long as It ]»lcased. Tlie consequence was that anar- chy ensued ; and there v.'as neither peace, justice nor liberty in the land until the proper authorities agreed among themselves upon certain rules and principles which should for the future guide them in the ad- ministration of public affairs. It was not stipulated that, if any of these rules should fall into disuse it should immediately become obsolete and of no effect, but on the contrary declared that they should forever continue in. force as the law of the land until altered hy the undivided consent of the same national authority. Let us not therefore suppose, that because the King has not since the revolu- tion refused to confirm the Speaker nomi- nated by the Commons, his right to do so has ceased. No doctrine could he more dan- gerous ; no doctrine could be more futal to the mutual rights of Sovereign and people ; for there are rights and j)rivileges on both sides which have not been enforced for up- wards of a century, and these we could ea- sily enumerate were they not too obvious to be heyoud the view of the most careless look- er-on. Thereis one, howover, which is so much in point that v.e cannot forbear allud- ing to it. It is a standing rule of the House of Commons, that no report can be published of its proceedings without a breach of its pri- vileges ; and with the exception of one re- markable instance not many years ago, we do not reracmher the enforcement of this rule for upwards of half a century. Now, 58 IV ill auy one say, that the right lo cxerciso this privilege is not now as stioutily iiuplaut- etl iu lUv Coimuons as it was the da\ at'tor ilseuaclmeui .' ThoKighi Houoiahle iSpeak- er ^voiilii look rather surly uuil imligiiant nveic you to tell him anythiug to the con- trary, ami perhaps desire the Sergeaui at ;unis to take you iui« cusJlody. howtver luueh he might he ineliued, to ilisseniuate useful p«)liiieal iutorniatiou auil niauly l^riiish eloqweiiee : The Speaker therefore ami the juati«)U .It lar^e must panloii us, if we expect the same eoneessions from them with je- siH 1 1 to that hraneh of the prerogative of the Crowo whieli preserves, though uot exer- cised a negative upou the Speaker of the Commons. This iMings us down to the cousidorntiou of the preri>- ^tive aud privileges inherent hy miah gy in our provineial coustiiution rtmi their application ; hiii this we must postpone til] auother opportunity. Xo. IV. HwiNG thn?, bv reasouablo argumeuls and iuevitable dcauction, cstabliaicd tbo importaut truth, that, by the coustmitiou ot the mother country, uo branch ot the royal provoj^atlve is established on a firiuer basis than That which aUows a negative in the ap- pointment of Speaker of the House ot Com- mons, we now proceed to trace the analogy which subsists, or. at least, oug^ht to subsist, in the tree constitution of this Province, in common with all our other colonial posses- sions, whether what has been termed pro- vincial establishments, proprietary govern- ments, or charter governments. No one need be told the general form of liovernment established throughout the Bri- nsh Colonies. It is in all of them borro^^ed from that of Great Britain. It is impossible that it should be otherwise : for all the power that exists among them, either judicial or legislative, is bestowed upon them by the kTuj; and Parliament, whose prerogatives nnd Privileges they may indeed imitate, biu cannot overstep, as declared by the statute 7 and 8 William III. c. "2-:!. and, so far as re- gards this Province, by the second section of The constitutional act of 1791. But Avhatever inav be said of the want of prosptctiit' pru- dence and policy which gharacieriied the 4* GO extensioD of a free representative goveiii- jr.ent to this Province, in none of the Colonics have the general outlines and most pronii- iieut features of the British Constitution heea so closely imitated as in the Canadas. V\ hat- ever powers and prerogatives are enjoyed by the King in ihe metropolitan state, he pos- sesses in this Province ; and he is as much King of O.nada as he is of Great Britain and Ireland. He can come into the Province whenever he pleases, and exercise all tho sovereign functions lielouging to tlse Imperial Crown, civil and military, as well as eccle- siastical, lie may summon and convoke," prorogue and dissolve, the Provincial Parlia- ment at pleasure. He can reject such Le- gislative provisions as he judges improper to be passed, lie can delegate iiis judicial pow- ers to whomsoever he pleases ; and appoint such civil and military ofliccrs as he may think proper. He may confer such honours am! digujties as he may deem advisable. Ho may pardon what oflooces he pleases ; and, in a word, may, as already said, exercise all the sovereign povve:s of Constitutional King of the British Empire. Nay, more, he can appoint whomsoever he pleases to perform all these regal functions, as fully and freely as he could do himself; and tlierefore, though not personally present, ought always to be considered as tlie spring and regulator of every royal transaction. Su<;h arc the rights, powers, and prerogatives of Ilis Ma- jesty in this Province. ^ "^Vith respect to the other branches of our 61 Legislative Governraent— the Legislative Council onil the House of Asseaibly— their powers are couiined b)' the Constitution to giving advice and consent to His Majesty in making " Laics for the peace, welfare, and good goveniment,'' of the Province ; sucli4aws not being repugnant to that act, or the Con- stitution of the Mother Country. If, how- ever, in the performance of these express de- clarator\- powers, the two lower branches of the Provincial Legishiture found it necessary, for the maintenance of their dignity anJ au- thority, to imitate the proceedings and as- sume the privileges of the corresponding branches of the su|>reme Imperial Legisla- ture, that could only be done by following the same plan wihch had been immemorial- ly adopted by ihc object of their imitation. We have already' seen what that plan is. All their privileges with the exception of those claimed and maintained by the Bill of Rights, are only obtained by humble verbal pe'ijionto the throne, without which proce- dure they can neither be assumed nor exer- cised ; for no power is self-existent by our constitution except that of the Crown. Ac- cordingly, when the Legislature of this Pro- vince was organized, in virtue of the powers conferred by the constitutional act, both Houses, but the House of Assembly in parti- cular, proceeded without hesitation or delay to considor the best means of securing to themselves the rights and privileges enjoyed by the Parliament of England. In so doing they had the good sense to perceive, that, aa 4** 62 the CoiiJlltution had boon entirely silent in rel:itu)n to such matters, their views coiihl on- Iv he accomphshed by tVdh)\ving throughout the example laid down in the mother coun- try ; and to assume bnvi manu any privi- Ie;^es resembling those of the Commons, without being legally conferred and confirm- ed, would be usur|)ing at once an authority which the constitiiiou could not possibly re- cognise or sanction. The deliberations and proceedings of the Lej^islaturc, with respect to the Speakcrof the House of Assenibly, in tlie first session of the first J*roviucial Parlia- luent, is worthy of being noted, both as mat- ler of iiiteresting historical detail, and as the best criterion by which the extraordinary pro- positions laiil down in the resolutions of Mr. Cnvillier can be canvassed and juinportaut a duty as that of the first Speaker of ih'6 ConVniou^ House of Assembly of tfio Kcpresentatives of Lower Canada bo fulfilled, I most respect- fully implore the excuse and command of your Ivxcelltncy, in the name of our So- vereign Lord the Kinj;." IF TUE ELECTION OF SPEAKER IS APPROV- ro OF, he may say, *' I most humbly claim, in the name of the samo Assembly, the freedom of Speech, ancf generally, all the like privileges and liber- ties as are eujoycd by the Commons of Urcat Britain our moiher couulry;" ^Jvc. &c. In conformity with these claims, sanction- ed by the Governor in the name and belialf of His .Majesty, and the factual exercise of 9-ome of them during the next session of the rroviucial Pariiameu:. the House of Assem- bly resolved, *• That in all unprovided cases, resort sJuiU ke had to the rules, usages, and (J4 forms of the Parliament of Great Britain, which .shall be followed witil the House shall think ft to makt a rule or rules applicable to such.improvided cases.'" AdcI according;!?, avc i'ncl, that ever since the commelbcemeiit of the coustitution, both the prerogatives of the Crown and the privileges of Parliament have been maintained and exercised in tliis Pro- vince on the same footing that they are es- tablished in the mother country, till the House of Assembly, in the last session, thought it .proper to deny the prerogative at the same time that they persisted in tlie exer- cise of their own privileges; thus annihilating rights and powers wliich, if permitted to ex- ist at all, can only bo exercised mutually and reciprocally. IJut it is time to advert to ■what jMr. Cuvillier and the other gens TOGATA of the Assembly say upon the sub- ject. We shall take up their Kesoluiions seriatim ; and their first decree runs thus : " Resolved, 1. That it is necessary for the discharge of the duties imposed upon this ouse^ viz. to give its advice to His Majesty in the mactment ofknvsfor the [Jtace, ivelfare, and good goi'emment of the Province, conformably to the Act of the British Parliament, under which it is constituted and assembled, thoi its Speaker be a person of its free choice, indepen- dently of the will and pleasure of the r. rsou entrusted by His Majerty, with the adniinis- tralion of the local government for the time being.'' We scorn to comment on the disrespect- ful terms iu which this resolution is express- C»5 ctl. Those nlio can treat the reprcsentativo ofhis Hr'.taimiok Majesty in tijis Province as a"rEns!i)>,* without title or digiiiiy, arc themselves unlit to be treated like gcWtle- men; far less like wisd*antl prudent lejj,isla-^ tors, sincerely desirous of their country's welfare hy those salutary means p)-escribed by liie constitution. No wonder if men un- acquainted with the ordinary rules of decen- cy and good manners, shoukl also he stran- gers to the maxims of the British constitu- tion. But if it bo true, ns It is here for the first time asserted, tliathi?. iMajesty's repre- sentative, or rather ilsc Kinj; himself, v hoso prerogatives are now called in question, has no voice in ihe constitutional appointment of the Speaker of the House of Assembly, the choice of whom is independent of the " will anil pleasure'' of the Crown, then it is equal- ly true, that every House of Assembly, from the first w hich met on the 17th of December, 1792. till that notable one which met on the '20th Nov. 1S27, has been unfaithful to its ilulies as representatives of the people, and compromised its own rights and privileges iu manner most disgraceful to any branch of constitutional Legislature. If the priuci- ] 'is laid down in the foregoing resolution be w\.il founded, the various Houses of Assem- bly »f this Province have not acted like men of honor, worth, and independence, but like cra\;jn hearted cow ards any His Majesty with the admini- stration of the local government," that its S|)eaker was a person of its own free choice ^' Indepaidi^ntly'' of his " will and plea- sure?" Why did they not then anticipate the glories of 18*37/ But why, Oh ! why did they hint in their deliberations at tbo bare possibility of the rejcclion of their Sj)ca- ker by recording those ominous words, " IF the election of the speaker is appro- ved OF ?" Why, moreover, when that ap- proval h.jppily took place, did the Speaker " Mo.^thuiiihlj/ claim in the name of the same Asstmhlji, the freedom of speech, and geiie- ral y all the like privileges and liberties as are er>jot/ed hy the Commons of Great Dntain, our mother country?'^ Why did all the succee- ding Assemblies follow the same course ? Why, if tlicir general privileges and the e- lection of their Speaker existed in their own right " Independent if of iho Crown, did they thus become a party and the chief actors in a mere theatrical pantomime that could only entail disgrace upon theii- proceedings, ■and load their own memories with the con- tempt of future ages ? But, to the praise and honor of the Jirsf House of Assembly, be it seriously spoken, they understood the con- stitution which brought them together, and its relation to its Imperial model, as well, if not much better, than any Assembly by whom they have been succeeded. Finding that the Constitutional Act contained uopro- vision with regard to the rights, privileges, imrj. unities, and usages, necessary in the preservation oftiie dignity and authority of a free representative Parliament, but rather that these were permitted to spring up as a concomitant plant of the new Constitution, as they had before done in the mother coun- try, they nurtured it with the greatest possi- ble care and attention, and procured shelter for it where alone they could find it — in the ivide-spreading branches of constitutional prerogative. They did not imagine, like our modern theorists, that, as a matter af course, all these privileges were inherent in themselves without the sanction of higher authority, or that they could innovate at pleasure the forms and proceedings so long practiced in the mother country. The en- joyment of the right was enough for them, without the dang:erous power of destroying it in whole or in part. They were happy to embrace it as they found it, and to exercise it as had been done to such advantage be- fore thetii. In particular, they looked upon their Speaker as an officer of the Crown as well as their Chairman ', deriving considera- ble emoluments, dignity, and honour, from the Crown ; and, therefore, as much in the choice ard approbation of the Crown as in their own. At all events they sought his confirmation from the Crown, and received it; and, if we may judge from their temper and talents, as well as their proceedings, would have admitted his rejection as aright which they had neither the incliDatioa nor 69 the power to controvert. Their successors must be jud};ecl by the same rule; autl it is equally to the hoaour and the disgrace of the Proviuce, that it is almost ihe same iodivi- dunls who have denied ttie just preroj^atives of the Crown, and, by their general uucoq- stitutioual conduct, plunged a liappy and loyal people in troubles which their children's children may not live to see appeased. Resolved, 2. That Louis Joseph PapineaUy Esq. one of the Members of this House, ivho has Served as Speaker in six successive Parlia- ments, has been duly chosen by this House to be its Speaker in (he present Parliament. Our only object in extracting this resolu- tion is to introduce Mr. Papineau as one who not long ago thought diflerently than him- self and his colleagues do on the present oc- casion with respect to tDc legal election of Speaker, and to prove that the boasted ex- perience of " six successive Parliaments'* has failed to mature liis judgement on one subject at least. All Canada remembers the proposal made in the Imperial Parliament to unite the Provinces of Upper and Lower Canada, and the stir which the intelligence created in this country, as well among those who were favorable as unfavorable to what, we must not conceal was at that time, but is still more so notv, a most desirable measure. It may also be remembered, that Mr. Papi- ueau, being a noted orator and Statesman, was one of the delegates whom the anti- union fraternity sent to England to plead for filiem. The Provincial Parliament beipg a^ 70 bout to meet in the meaa time, it became necessary for him to intimate his absence from the Speaker's chair. This he did by adih-essing a letter to the Clerk of the House of Assembly, in which, contrary to all usage and precedent, he took occasion to express his sentiments on tivo topics which, in all probability, will be equally memorable iu this Province. The one related to the coq- templated union, and the other had refer- ence to the appointment of Speaker of the House of Assembly. The first of these not being under discussion at present, all wo deem it necessary to say is, ti'athadife been the" PERSON entrusted by His Vlajesty with the administration of the local government," the man who had so unnecessarily libelled the Imperial Government and Parliament, should never afterwards be allowed to place himself in the Speaker's Chair. As to the second point, we shall extract Mr. Papineau's own words; and think they will not only speak but cry aloud for themselves : — " It is not, tkere/ore, to avoid fulfllitig the duties of that honorahle station ivith which it lias pleased his Excellency the Govenior-in-Cliii^ and the House of Aysemhhj to honor me, and in the ex- ercise o f" which theii constant kindness has s p- plied mi/ insujjicienci/, that I absent myself,^* &c. &c.* If, we will simply ask, His Ex- ce lency the Governor-in-chiefhnt], in 1823, a co-e^-'lent or co-equal voice in the noinina- * Viile Journals of the House of Assengi- bly for 1823. 71 lion of Speaker of the House of Assembly, as here admitted by Mr. Papineau lumselt, bv what authority— 111 vh-tue ol wuat law has his right and prerogative been lost m 1827 ? How can the Speaker of IbJ./, to use the words of the resolution, be " did ij chosen without the approbation of the Governor, ^yhlch is asserted to be a mere piece ot tawdry f()rm, if that approbation \Yas necessary in l^-<^ ; or if the Speaker had kvf.r been appointed by the united voices of the Governor and As- sembly 1 The inconsistency of some men ib astonishing ! ^ , i-, •,• i. '' Resolveih 3- That the Act of the British ParUament under which the House is consti- tuted and assembled, docs not require the ap- proval of such person so chosen as Speaker, by the person administering the Government oj this Province in the name of His Mojcstij.'' This we hold to be the most important re- solution of the whole series, because it ap- peals to the highest and last resort. '* Hast ihou appealed unto Cffisar ? Unto Casnr shall thou go." It is very true that the Act nftl'.e British PailiaineuL under which the House is constituted and assembled, does not REQUIRE the approval of such person so chosen as Speaker; but does it deny the light of such approval ? If not, the propo- sition is null and void ; and the House of Assembly, in demanding the approbation of the Governor, acknowledge the right of rc- jection as well as approval. They afllrm 'the former to be uncoustitutiooal : if so, we ailirm the presentation for approval to be 4'4. equally so ; and moreover, that every time the House of Assembly have exercised what they term their liberties and privileges, they have acted unconstitutionally, and without the authority of a siugle section, clause, ex- pression, or word, in *' the Act of the British Parliament under which the House is con- stituted and assembled." Whence, then, the authority of those Parliamentary rights and privileges which the House of Assembly has daily exercised since the commencement of the constitution, and ofwh«ch they seem so singularly tenacious/ For our own part wo can discover none, except the inherent powers and prerogatives of the Crown. — Here they are asked and here they are con- ferred. Yetthe Assembly deny to the Crown, iht source of all their own privileges, the cor- responding prerogatives ; without thcjenjoy- ment of which the Crown would want that constitutional check and balance which are so necessary to controul the undue exercise of these privileges. The Assembly, like hungry mendicants, are ready to receive all the privileges that they can possibly exercise; but when you tell them that a corresponding prerogative has been kept in reserve, they suddenly turn upon you, and answer, *' such things must not be ; we indeed are entitled to our privileges, notwithstanding the con- stitution is silent on the subject; but the Crown cannot lawfully retain or exercise any prerogative, especially the negative in the choice of our Speaker ; for " the Act of the British Parliament under which the 73 House is constiiuted and assembled, does j20t require it !" No, as already observed, it does not require it; but at the same time that it does not deny it, does it require that the House of Assembly, who are but a branch of an inferior and subordmate legislature, should possess all the privileges of the Su- preme Legislature ? No, it does not. The King can exercise his lawful prerogatives in any part of the Empire and so may the com- mons their privileges; But when the King chooses by himself or by commission to ex- ercise these prerogatives in Canada, where Is the power that can controul him ? If tho commons of England hav# not the jurisdic- tion, surely the commons of Lower Canada cannot pretend to it. The King and Parlia- ment is the only power on earth that caa limit and restrict the royal prerogatives. Not having done so in Canada, whether they re- late to the Speaker or to any other question, they may and ought to be exercised when- ever occasion may require it. Seeiuji that no privileges whatever are conferred on the House of Assembly by the Constitutional Act; and that consequently all the privileges that they enjoy are derived from the Crown, •would they annihilate every prerogative ex- cept that which confers these privilege*?— Yet this is what in practice they have at- tempted to do. Never did this or any other country witness so parricidious an act of po- licy. No mind but a frantic one could en- tertain ; no arm but that of a democrjtt rnnid strike the blow. 5 74 Wo Iiave said lliat the House of Assenibiy h;iv0 on various occ:isions exercised privi- leges similar to those enjoyed imniemoriably by the Commons of England : and we have seen that such privileges Iiave not been de- rived from the constitutional act, but from the CrovvQ, which alono had the rij;;ht of giving them away in the absence of all legis- lative enactments. If wo can prove iliis, wo can on very just grounds and with a very bold countenance ask, how dare the assera- ])ly apply a rule to the prcrogaiivo of the Crown Avhich they rcuI.^c to adopt with re- spect to their own privileges ? During the second session of the first parliament a mem- ber of the house having been arrested for debt on the eve of embarkation for Europe, complained of a breach of privilege in a let- ter to the Speaker, who, strange to say, was himself the professional man who had sued out iho writ. The terras of the complaint are so re- markably applicable to the general strain of our argument, that "we cannot help usiug its own words, which arc, "That on opening the viusT session, ho (the Speaker) in tho iiarao of the house, liad claimed such privi- leges and liberties as are enjoyed by the com- mons of Great Britain, and the Lieutenant GovERNOK, in his answer, had recognized the enjoyment of all just rights and privi- leges." It was voted, " that the member hud been arrested in direct violation cfthe rights and privileges of the house ; and tlsat tho Speaker, as the Attorney, the creditor and the Sherill "wero sevcially guilty of a . ; each of privilege ;" aud these persons apologised accordiogly at the bar. During the second and third parliaments Charles Baptiste 13ouc v.'as twice expelled by a vote of the House of Assonibly in consequence of beiag convicted of a conspiracy to defraud one of His Majesty's subjects of various sums of money ; Avhich, beiug a great stretch of privilege, could not be carried into cilect without the sanction of an act of the legisla- ture, nhich was accordingly introduced and passed. In the secord session of the fourth parliament, a Montreal newspaper having jiublishcd some toasts given at a public din- ner at that place, reflecting on a party in the Assembly, the chairman of tho dinner iiud the printer of the paper were voted guilty of a high breach of the privileges of the House, and ordered to be taken into custody. In tho same session, it was resolved, '• That Tho- mas Carey, Editor of the newspaper entitled ' The Quebec 3Iercury,' for undertaking in his paper of yesterday, to give an account of the proceedings of this house, to be takeu into custody of the sergeant at arms attending this house.'' On the t20th February, 1808, it was resolved, '• That Ezekiel Hart, Esquire, professing the Jewish religion, cannot tako a scat nor vote in this house." In the samo session it was also resolved, " That to send for a member of that liouse, when in his place, attendant on tho duties thereof, aud on his withdrawing in consequence into an apart- ment thereof, or appendage thereto apper- taining, to servo upou hiiu a sammous, or 76 other civii process, is a breach of the pri\i leges of this house," and " That John John- son, a Baihfl' for the Court of King's Bench, for such breach of the privileges of this house, be taken into custody by the sergeant at arms, and that Mr. Speaker do issue his warrant accordingly." The fith provincial parliament was dissolved in consequence of the Assembly having attempted, by a mere vote, to disfrauo4iise certain classes of His Majesty's subjects. " The House of Assem- bly," said Sir J. H. Craig, in dissolving thp sixth Provincial Parliament, " the House of Assembly has taken upon themselves with- out tiie participation of the other branches of the Legislature, to pass a vote that a Judge of His Majesty's Court of King's Bench, cannot sit nor vote in their House." la 1812-13, the Assembly commanded the at- tendance at their l>ar of the Otficors of the Legislative Council, without leave being pre- viously asked for the purpose. In 1814, the Governor in Chief, Sir George Prevost, having thought it inexpedient " to suspend the Chief Justice of the Provin< e and the Chiet Justice of the District of Montreal, fro'H their offices, upon an address to that efleet from one branch of the Legislature alone, founded on articles of accusation on which the Legislative Council had not been consulted, and in which they had not con- curred," the House resolved, " That His Excellency the Governor in Chief, by his said answer to the address of this House, has violated the cou'^tiiulional rights and privil- eges of this House." To conclude, in 1826, the printers aud publisliers of tho Canadiaft Times were voted {guilty of a breach of tlio privileges of the House, and ordered to bo taken into custody for merely saying that the composition of the majority of the House was8 anti- British ; a term than which nothing could be more applicable. Now, without going into further particu- lars, what can be more inconsistent, perverse and factious, than the late attempt ti» deny- to the Crown tho exercise of one of those just and lawful prerogatives which is almost annually practised in tho mother country, and which has also been practised in this Province ever since the commencement of the constitution, while such extensive rights and privileges have been claim'Hl and exer- cised by the Assembly itself ? Is not this setting up for law the sole dictum of the House of ssembly ; and telling the King, " Sire, you must not, and cannot, by the con- stitution, exercise in this Province any branch of the prerogatives enjoyed in the mother country, except conferring upon us our usual privileges ; which privileges we may and tan enjoy, even to the denial of your Majesty's authority, whenever we think it proper !" If such an act is not a direct at- tempt on the part of the Assembly to destroy the just balance of the constitution, we know not what is ; and scarcely remember any thing resembling it, except that memorable vote of the Commons of England, in 1648 ** that whatever is enacted or declared for Jaw bv the Commons in Parliament aisem- bled, hath the force of law ; and all the peo- j)Ie of this uationare couchuled thereby, al- though the cousent aud coucurreiice of the Iviug or House of Peers be not had thereto." To do themselves justice, aud be conbisient, the House of Assembly ought to iiave cou- liuued the parallel aud made it good. But, l)oor maniacs I though t!iey had the audacity to aiteinpt the destruction of the constitution, they wanted the courage to carry their de- sires into execution. Like most innovators, it may bo presumed they entertained the am- bition, but dared not adopt the means. That wise saying of Cato becomes, therefore, very, applicable : " Nae tu stultus homuncio cs, qui malisveniam 'precari quain non peccare. •• Resolved, 4. That the presenting of the person so elected as Speaker to the King's re- presentative for ajiproval, is founded on usage onJi)^ and that such approval is, and hath al- ivaijs been, a matter of course.'^ ',' Resolved, 5. That this Hoiise doth per- sist in its choice, and that the said Louis Joseph Papineau, Esq. ought to he and is its Speaker.'" Our observations on the other Resolutions having embraced these two last ones, it will only be necessary to remark, that even if the " approval is foundtd on usage onli/," the right would be equally good, until the united voice of Parliament bad declared otherwise. But what is usage ^. Is it not the basis of our whole system of government ? Is it not the foundation of all our laws and all our rights ? Is it not the palladium of the 79 British Parliament, and the corner stone of our Courts of Justice 7 Whence the most sacred pillar of the whole edifice — trial hy Jury? Yet, t!je House of Assembly of Low- er Canada, set their own will up in opposi- tion to usage, and declare their own votes as superior to the wisdom and practise of cen- turies !* We thusconclude our observations on the pretensions of the House of Assembly in re- gard to the appointment of their Speaker. — We are aware that we have not done the subject that justice which its impoitance merits. But feeble as we are, we trust we have said enough to convince every reasona- ble man that truth and justice are on our side, while nothing but folly and falsehood characterize the other. We shall now turn our attention to other topics of paramount importance. That the country is in danger need not be concealed : it would be childish. It tiiereforc becomes every loyal subject to il& all in his power to preserve unimpaired the ancient rights and liberties of Hritons. We are not indeed in open warfare with foreign enemies ; but we are in rupture with a foe equally dangerous, foreig^n laws, manners, priuciples, and sentiments. If, in acting owr part in this warfare, we should at any time make use of energetick langunge, we entreat those to wI;om it mny apply to believe that we mean nothing pcrsonallj/ hostile. Person- allilies we despise and abhor ; but should f5ee Appendix No. IV. m p.ny iDclividual fall under our weapon \s\ica brandished only in self-defence, tlie intruder, and not us, can aloue be to blame. To con- clude, we are not, like Mr. Papiueau and his gang, warriors ad internecio ; but will lay down our arms the moment the enemy leaves our borders. In the mean lime, the inscrip- tion of our banner is Pro Patria, and blighted be the patriotism that does not a- dopt and follow it. «r No. V. To Louis Joseph Papincau, Esq. SIR, Seeiug that the most unwarrantable aud unprecedeuted proceedings have attended the opening of the present session of the Pro- vincial Parliament,! cannot refrain, what- ever may be the consequences to myself or to others, from raising my voice, single and feeble though it be, in reprobation — express and fearless reprobation — of such proceed- ings. It covers me with shame and confu- sion, that a country like this, where the free- dom and practice of the Jiritish Constitutioa are enjoyed in their fullest extent, shouM, ill the first place, by conduct which has been on all liands declared unconstitu- tional, subject itself to a state of anarchy, and confusion almost witliout example in Colonial history ; and, in the second place, Yi'ith the view of retrieving what had been so recklessly and thoughtlessly lost, expose itself to such animadversions as are only ap- plicable to deeds of corruption and breaches of trust. How sincerely do I regret that such language as this should ever have been applicable to this portion of his Majesty's dominions, fostered as it has been by every civil and religious indulgence. Would to God, in the words of that honest man and fcravft soldier, sir james kempt, that *' an 82 vhllvion of all past jealousies and dissensions,^^ inny be the result of the present session of the Provincial rarliament. But ho^vsver much so great aud enviable a blessing is to he desired by all, I will tIkis early most can- didly declare, that I shall be tjje last nir.n in the country who shall seek my end, or ac- cept any boon that may have been obtained through illegal or uucocstilutional means. I blush lor my country : I blush for the good people of this Province : lUitmore especially do 1 blush for their Representatives, when I reflect, that, in no Constitutional measure that has ever engaged their attention, has that wisdom or forethought been emj)loyed T\ hich was necessary to carry it to a finally hapyy issue. I blush for my country : I blush for the good people of this Province ; But more especially do 1 blush for their Represen- tatives, when I reflect, that even when con- trouled by constitutional authority, mellowed by indulgence, or tempered by experience, they have never been able to regain one false step Avithout plunging deeper into an- other. Finally, I blush for my country : 1 blush for the good people of this Province : But more especially do I blHsh for their Re- presentatives, when I reflect, that, at no period of our bistery, have these charactcr- isticks been more conspicuous than during the proceedings attending the meeting of the present Session of the Provincial Parliament. To treat of those proceedings is the sole object of this communication ; and as you, Sir, have ever been, aud still are, the pivot on which almost the whole mnchiuery ol our late Legislative d'lTerences turn, 1 cannot Conceive to whom I can more properly ad- dress my observations than to yourself, un- fortunately branded and distinguished as you thus have been. In doing so, I do assure you, that I shall have little to do either with theory or theoretical deductions. I shall set down nothing but simple and recorded facts ; and whatever conclusions may be drawn from them can only be attributed to the ne- cessary consequences of such facts, and not to the ingenuity or imagination of any indi- vidual whatever. Shall I extend the right hand of fellowship to the man who has in- jured me, except, instead of grasping it vio- lently from my side, or seizing it clandes- tinely from behind my back, he beg it by those forms instituted by society ? Is stolen property to be stolen again in order to re- store it to the owner ? Js it not rather to bo recovered by the rules prescribed by law, and by those alone ? By what rule is tra- duced or tarnished honour to be retrieved .' By traducing or tarnishing that of the tradu- cer? By no means. But by the law of honour alone, which, while it prescribes forms to regain that which has been already lost, in the most ample and satisfactory way, will never sanction a 7i€iv breach upon the rights of another, merely to gratify the pas- sion or the revenge of the suirercr. " Let all things be done in order,'^ was a notable maxim of one of the greatest orators of au- lifjuity. And, indeed, nothing can possibly 64 1)0 nunc fatal and ruinous to the rules niul itisritulious, as well ol" j)rivjuo ns of puUlic life — as wolJ of civil us of rtiij^ious bodies — lliau nu nttompt to break throujili them with inipuiiity, and the unmanly and indecent ns- suiuptioii of power by undue and ille|^al moans. JJut to the point. No man can be ij^uorant of the circumstan- ces wliicli atteuded ilie meeting and proro- guing^- of tiio parliamout called for the dos- pateli of business on the !20ih of November, lS*i7. Of these, lu)wever, it becomes neces-'' sary for my pre!>oiuaker of the Houi'e of Assembli/.^^ Accordingly, the Assembly were ordered to repair to their usual place of sittings, and tliere to make choice of a Speaker, and present him next day for the npprobatioQ of His Excellency. This was done ; and you Louis Joseph Papineau, being presented as Speaker elect, and mak- ing the usual and prescribed excuse, that ex- cuse was sustained by the Speaker of the Legisl.itive Council in the following words : '• Mr. Papintau, and Gtnilemcn of the As^'tinhli/, ** I am commanded by His Excellency tbt 85 < .overnor-iu-Cliicf to inform you, that His i^xecllency doth not approve the clioico ^vb\('Ai the Assembly have made of a Speak- er, and in His Tvlajc^'ty's name His Excellen- cy doth accordingly now disallow and dis- charge the said choice. " And ii is His Excellency's pleasure that you, Gentlemen of the Assembly, do forth- with AGAi>' V.F.PM11 to the place where the sittings of tlio Assembly are usually held, and there make choice of axotj/er person to bo your Speaker — and that you present the per- son who shall be so chosen to His Excellency in this House on Friday next at two o'clock, for his approbation." But this corjnraand, which was the last command of Hia Majesty to the House of Assembly until the appearance of the Black Rod on the. 21st inst. was disobeyed. In- ^ stead of proceeding to the election of" aiso- THEPv PERSON," you, Sir, and the majority of the Assembly, proceeded to declare the FIRST election legal ; and the following me- morable Resolutionrj are the Decree by which you pronounced it legal : " Resolved, 1. That it is necessary for the discharge of the duties imposed upon this house, viz. to give its advice to His Majesty, in the enactment of laws for the peace, iveffare and good government of the Province, conformahiy to the Act of the British Parliament, under which it is constituted and assembled, that its Speaker he a person of its free choice, indepen- dently of the will and pleasure of the person en- trusttd by His Majesty with the administra- 8G lion of the local g-overnment for the time being. *' '2. That Louis Joseph Papineau, Esq. ontof the Mtinhers of Ihis House, who has sirvt d as Speaker in sir successive Parliaments, has been dull/ chosen bif this House to be its Speaker in tht present Parliament. " 3. That the Act of the British Parlia- inent, under ichich this house is constituted and assembled, does not require the approval of such pei. government of this Province in the name of His Majesti/. '* 4. That the presenting of the person so elected as Speaker, to the lving\s Representa- tive for opproral is founded n usage o/j/j/, and that such approval is and hath alwatjs been a matter of course. *' 5. That this house doth persist in its choice, and that the said Louis Joseph Papi- ncau, Esq. ought to be and is the Speaker. ^^ J will abstain from any remarks upon these Kesoluiiotis, because I liave already proved tliat tliey nero violent, illegal, and iincoustitutioual, in the highest degree. I only rehearse them to enable me to prove in fewer words and iu clearer terms than I couM otherwise have done, these two im- portaut propositions : 1st That the commands of His iNlajesiy to elect " another person," different, m all respects, from you, were not obeyed, contrary to your statement to the pi'esent Governor on theSlst iust. and, 9dly, That the honour and integrity of the llouso of Assembly, of w^hichyou are now Speakor, 87 have been compromised ; their faith broken, and their Journals falsified ! I. When, in ohedioricfj to the commaodi} of His [present] Kxcellency, you nud the House of Asseifibly weul up to the Legisla- tive Council Chamher, it was there intima- ted to you, that His Excellency did not see fit to declare the causes for which he had Burnmoned that Provincial Parliament, until thero should he a Speaker " duly elected and approved.'' Your reply, sir, is no less ex- traordinary now than it will he memorable hereafter: — " May it pltase Your ExccAkncy, "In obedience to His JMnjesty's (/om- manda, the House of Assembly has procee- ded to the election of a Speaker, and 1 am the person upon whomc their choice has fallen. I respectfully vray that it may please your [Oxcelleucy to give your appro- bation to their choice !" Here you say, sir, that it was " in ohedi- once to His Majesty's commands" the House proceeded to the election of a Speaker, and that their choice had fallen upon you. I respect your station very much, sir, hut I respect the honour of my countiy, an House, as iw^a] l>y Mr Biatichtt, Avitliiuit such npprobiitiou .' WIku uow bc- coiuos of the " coir.inon vNY/ks'?*' of that Unumu'iI giMUk>uian ; ami what lio liis ** sound .s»7Kvhat has becouie of Mr. I'allieres' *' ///e." Has it, beou '•/<)?/( j7((/" or not ? for ho declared, in his plact*. that he wouUl as seen lose his life as foresio his priviU^j;es. These, sir, havo tiow, indeed, become very iinportaut t|ues- tiiuis for you and your friends in tiio Assem- bly to ponder upon, and to answer, if you ">vill. Mif object will have been attained by the mere recital of them ; because I am con- viiu'Ovl. that every man of sense or discretion ■who peruses them, will unite his sulVrages ■with njine. and declare the whole ct»nduct of yourself and the present Assembly on th© subject o\' S}>eaker, no less a {;ross insult oa the dijiuitv of the Crown, than a stiu;ma ou the publick. character of the Pioviuce. From what I have ;«()»' said, and I am not at present iiisposed to touch upon any other to]>ick, it appears perfectly eviileut. that you, sir, and the beily which you lead, or, to speak, more proptrlv, Avhich you serve, havo com- pleti^lv abandoned Coustitntional principles for interesteJ and tiuu -serving s\ stems; these svstems like the Indim* Mhilo«:oi>l>»' •'•^'- 91 ifj^ neither foundation nor rule of action, ex* cept the caprice, the passion anvliicli wo liino uN roaily |»t)iiUtnl out as olmractori/.in|;' tlio com- nunioiMuont dI'iIio prostmt session of our l*ro- vim'iiil I'arliatiuHit, wo |>o, onco a sit- ting; lia»I luHMi actually I'lVeotoil. that soiuo lulvaiitajAO to tlio oor.utry ini^lit ullii\ia(eiy l)0 tlio iTsiilt ; at all ovoiits. wo llaitorod our- scIyos \> itli tlio oxpootatioii, that soiuo pro- {ii'oss uoultl liavo boon niado towards an ad- justmont of thoso tlitVoroncos wliich liavo so lonj; injmod tlio intorosts and dis^raood tlio oliaiaotor of tlio rrovinoo. Indooil suoli an issuo was not only to be expectod, but alim»st confulontly rolioil u|)on, iVoni tlio gruoious and coiioilialin^ inaunor of ilio spoooli from tlio throne, which, above aud boyoiid all thinjis. onjoinod *' An oblivit>n of all past joaloiisios aiui dissensions. " Hut wo hoped, ami lialtorod oiirsolvos in vain. \\'o i>u^ht to have rocolloctoil; that lu) iljstompor is so inveterate as uational Jealousy, party prejudice, anil factious ambition : that noth- ing; can tak^ a deeper aud firmer hold of the heart antl t'le uiulorstaiulin^. than self-con- veivcd pow*»r cherished by iguorunoc : and 97 that no iulvittc, no prccopf,, no rnuxim, how- ov';r wJKftly corjcyivcfJ, or f-jitfiiiilly ur^ml, can ever ru'^ko a proper impres^iiori on ibc fool, tho hij;ot, or the cnlhuniant. It 'i%, there- fore, with //'u;f 'iud (lhtnH.y that we look on- whpJh. 'i ho vJKtH of the futuro nee oh dark aofJ uhhfuro to our Hi^rhl :, for we c-in now perceive no f)hjeet, discern no point, on which li> fix thone i'opon and anliciprtionn for our country which late events taujrht uh to cheri«h. We can frM« Jiriti»h afleetio.i : after having paralyzed the strong and legitimate am; of governrn<;fjt hy fearn ufjwoMhy of rnen nnd preteoHion-j unworthy of I eg is hi tors : «fler havii»g uKurped powerrs which solely heiong to the execnuve ; after having completely stopped the whole machine of our i/rovjocial government; after f aving poured out their compl'iintH at ihe foot of the throne, and in t^e pfe-i'-oc?^ nnl /ioyring of the supremo I. ' Jturc of the KiMpire : after »eein;; thewo co.i. -. int maturely weigfied and con!>;dered; and after receiving thf clear aod impartial &3 RDswcvs «S:. .'leclsions of tho greatest & gravest authorities of the State, who coukl do other- vise thao hope-— who coukl do otherwise than believe, thatau end would irnmedir.toly be put to the political fends and dissensions ■which have so long retarded tlio prosperity of the Province ; and that the Assembly, in- stead of again renewing the disgraceful con- test, would be tho Mrst to retire to that legiti- mate ground of cordial peace and good will which should ever characterize a free and happy people. But alas! the olive brancii was held out in vain. Jt has been not only rejected and iramj)led under foot, but the torch of discord has been raised in its place midst the shrieks and bowlings of a furious and discontented party, proclaiming " ever- lost! ng- warfare, ^^ in place of '" a?i ohlivion of all past jtatousies and dissensions.''^ It now becomes, of necessity, our painful task to recapitulate how this has been done. Wo shall add such observations as must ap- pear obvious to the understanding of every man in the country who is not blind to its true ond most important interests. We may be alone in these observations. Viux we care not. We have a deep stake in the pros- perity of the Province. We have a rever- ence for her institutions, modelled as they are, or, at least, were intended to be, on those of tho parent State; and should con- sider ourselves as the most abject and worth- less of parasites if we did not raise our voice against the course which is now about to be pursued for the dcstiuction of all that i« V'J dear to a Briton's feelings, fii the meaa time, wc must waro the rrovince agniust en- tertaining any expectations of the present session of the Asyembly. When the core and the stem of the tree are unsound and rotten, can the fruit be good or plentiful ? It is difficult to stop the career commenced iQ inquity. It may terminate in virtue; but the issue must Gver be precarious; and our hopes always feeble. The first bad feature in the character of the present Assembly which we shall point out, is, the manner in which the address, iu answer to the speech from the throne, was proposed and got up. That there was a ileviation froni, and an innovation upon, the (established rules of the }[ouse, all must ad- mit ; but no one can justify. It was usual, in conformity to the practice of the House of Commons, to refer the speech to a commit- tee. On the present occasion, when new forms of procedure, new rules, and new maxims are so much in vogue, a committee of a i'aw members would not do — could not do; having entirely forfeited the esteem and respect of the Assembly. There must be a committee of the " ivhole house.'''' It is a pity the wliole country, and the whole world, could not be added ! The ostensiiiie reason assij.;ncd for this innovation and deviation, "WPS, that '• it ivould afford lo all the members of ihe House an opportunity of expressing^ their sentiinents, and of furnishing the grounds or Jfoundationfr the Address'"'^ But this was a30t the real reason ,; and if it had been so, it IdO would ulToi'd but a rtimsy and oxecrahle ex- cuse for deviating tVoiu a rulo ♦?stabli>lied nt the comnienceuient of the Cunstitution ; for every uietnber of the House had iho same right when the report of the cornniitteo "wovdd be bron<;ht up. The real reason was this, that Mr. Uourdages and his circle had matters in cogitation which they were afraid^ to use their own words, to trust to a commit- tee. They could depend, they said, upon a viajoiiti/ of the " whoh' house ;'* but as. in thp appointment of a committee, respect must ueces.sarily be paid to au appearance (\fimpar' tialitij ; and as, consequently, individuals of the f/«c stamp, might be named members, deemed it an easier affair to fight one battle than two, which they must iueviiabiy do, had a committee been appointed, and any one or more reasotu ble and enlightened men made members of it. -'r. Bourdages, therefore, came up to his phu r with the Reso- lutions preparatory to the address cut and dry in his pocket, where they had been snug- ly deposited the preceding night to the no small satisfaction of himself and those in the secret of his intentions to insult as well as to innovate. As to the matter of the Address itself, it is certainly worthy of the manner ; ami this is tbo first instance in tl>e annals of the country of a legislative body, either me- tropolitan or provincial, having introduced matterinto an address which liid not corres- pond with the subject of the speech. What can possibly exhibit in a more glaring light tbe spirit whieb pervades ih« Assembly I ]0i What can moro distinctly point out their wnnt of true gf^ntlemanly respect fwu] feeling , in form, and want of principle ir' action ! [ . And what, in short, could he more shocking- ly insulting to [lis Majesty than the Ion;;; and cxt.-ancous tiradeintroduced into the Address \ against Hiii Majesty's late administration in this Province. Did His M^ijesty ever disa- vow or disapprove of that o-dniinistralion ? Did His Majesty recall the head of that ad- ministration because he disapproved of it? (luho the contrary; and of this the Journals of the present Asserahly already bear aniplo testimony- But even had His Majesty done this, and dechircd so to his ^'- J-.iith.fo'L Com- mons'' of Lower Canada, was it fit, was it res- )>cctful, was it decent, in ansv. er to a speech from the throne, breathing conciliation throughout, and enriched with a vein of the );urest spirit of paternal affection and good- ^viil, thus to cast reflections on liis Alajesty's administration in this IVovince ! Was it con- stitutional to interlard and beslubber a State document of mere form and compliment with complaints of imaginary grievances, while oiher opporlunities and other r eans remain- ed behind for conveying r;ucb unwelcome scj'timents to the foot of the throne! Was every cliannel shut against complaint hut the address! Nay, was it loyal thus at on'-e to declare to His Majcyti/s Rf.prf^sentativfu that altiio'igh he took it upon [linnself to ^^njoia " A /I oh ivion uf oil pa: t p/'Xilov?if:S and dis- scnclons, ii v/sisby no mchus iheir iiitcc ion to do so while a vestige of them dwelt upon 106 ». tholr remembrance : and in order to con- viiico liJm they were in earnest, that they had embraced the very Jirst opportunity of stating; a fact so clear to them? Tiio {:;ross ignorance and presumption of a le}i;ishuive body t!iat could stand up and act such a part as this, is amazing. They suppose, wo pre- sume, that there is not on the face of the •whole earth, any power — foeimj; — interest — passion — prejudice or sentiment to be con- sidered but what belongs lo thomsflves. Wo sincerely wish them joy ofthe tlitiorijg idea;- but we regret, at the same time, iluit thero are vaiiotis other powers on theearih, whom, ns we respect more, we shall consult th6 of- tener. As to the tirade itself introduced into the Address so unnecessarily, extraneouslv, iuid indecently, it is truly wn/^uf?, and, to all in- tents and purposes, like every other ihing that IS great and wonderful, forms a class by itself. We know not, however, whether ii is not intended more as a panegyrick upon the past conduct of the Assembly tliemselves, than as a rellection upon Majesty; for they have ever been famous for the bombnstick egotism and adulation with which they ovor- "wliclmed thern:^;olves. But be thai as it may, we scarcely e or met with a i»;ore striking specimen of potty, shallow, powerless, IVcblo, declamation — ct puny, puerile, low scurrilous ♦' sound, and fury signilying nothing." It falls greatly bcsow tl;e couimou-placo taw- dry, insane, rhapsodies ofthe tools, emmi- sai-ies, demagogues, auii idolators ofthe As- 103 sernbly out ofdoors. It is as worthy of the authors a' of their cause. IJut however cod- ternfrtible it tnaybe in itself — nod that it is coDtemptible who will cJctiy ? — it forms part of the address of the House of Assembly of Lower Canada to His Majesty's Represen- tative; and, as such, exhibits in rich and luxuriant profusion both the characteris'.ics of the party whence it emanated, and the ul- timate object of their mistaken ambition. It Avill, therefore, in conjunction with other notable instances of the mad fervour of the Assembly, be of use in directing our aitentioa to their present wayward path ; and to which we would also seriously recommend the ob- servation of all our loyal and constitutional readers. j\o one can pass by the observations of the minority on this question without being struck with their siogularjustico and proprie- ty. Well might Mr. Stuart challenge the risible fortitude of the gravest individual^ upon witnessing the style and matter of the extraneous matter introduced into the Ad- dress ; and, upon Mr. Vallicres' justifies tioa of the bombastick fervor of the language made use of, well might he add, " that those who wrote fervidly were apt to write foolish- ly.'' Never was any apothegm more faith- fully realised than this one, for never before were such folly and loathsome insanity intro- duced into a state document ; never did an intended compliment to Majesty carry in its train such insulting malignity ; and never was the'path to the throne strewed w'ltb such filiii, impurity, and reptile slime. Wc know 104 not how we should have borne to be of the same party with those who acted thus. It is bad enough, God knows, to be of the same species. But we approach matter of still graver im- portance — matter in which the dearest and best interests not only of the Province, but of the Empire at large are involved. We al- lude, as may be readily perceived, to the Message sent down by His Excellency and the Resolutions voted by the Assembly ia. answer to it. His Excellency, rightly con- sidering the great anxiety that existed in, the Province for a declaration of His Majes- ty's sentiments with respect to our present condition, and the importance of an early discussion of them by the Legislature, with the view of alleviating the miseries of the country, lost no time in making these senti- ments public the moment that the prelimina- ry business of the session could admit of |it ; and the thanks of ihe people are due to His Excellency for his promptness in acceding to their wishes. The Message is, indeed, a document which ought to be studied by every individual in the country It is a direct emanation from His Majesty ; and is a free, clear, and candid ex- pression of his sentiments with respect to the various questions of importance which have so loui: agitated, and retarded the prosperity of this Province. It is, at t.!)e same time, the result of the frequent and mature delibera- tions of His Majesty, surrounded by all his legal and constitutional advisers. It is the 105 only authentic record in existence of the real., unbiased opinion of that au^just council on the public state of affairs in this counlry ; and of consequence, bf comes to the people, of this Province, as well as to its lejrislaiure, their only rule of conduct and guide — their only polar-star in leading to a definitive ad- justment of all our past disputes and differen- ces. There are some persons who will be guided by no authority however exalted — - who will bo swayed by no rule of conduct, however prudent and wise — except the dic- tates of their own vain and inflated imagina- tions. But with such persons, we would warn the loyal and the good of this Pjovince to hold no communion ; for they — the true and the lojal-— are as good judges of the rights of free-men as the loudest declaimer anci most brawling demagogue amongst their opponents. Let the honest and true, there- fore, think and feel, that the dorumeut in question is a direct appeal by His Majesty to their loyalty and good sense. It does not flatter our vanity, nor draw upon our ima- gination : neither does it yield one point with the view of cajoling us into a ready com- pliance with another. It sets forth the rights and privileges of all parties ; maintaining with a firm and manly grasp those belong- ing lo one side, and pointing, with a candid generosity worthy of its source, to the course which ought to be pursued by the other, in order to attain that cordial peace and perma- nent happiness which all seem to desire. It is not the manifesto of any party or faction. 10(3 It is neither the Creed nor the decalogue of an administration : nor is it the Circular of a proud unyielding minister, ready to tram- ple on right and justice for the attainment of iiis own ends. But it is the voice of the !aw itself, uttered by the Crown and its minis- ters, as the organs of the Constitution and government of the Empire— -it is in truth the law of the Empire, the dictates and prin- ciples of an Act of the Imperial Parliament, which neither the Crown itself nor any other individual power in the state can controul or alter. Knowing it to be such, it is our duty, ivithout hesitation or delay, to receive it in the spirit of enlightened men and loyal sub- jects ; ready to obey the law when the law speaks, and willing to yield when it is nei- ther our right nor to our advantage to con- tend. It is not our intention at present, to par- ticulHrize the general principles and posi- tions laid d6wnin the Message. We shall restrict our observations to that part of it alone wherein a judgment and decision is pronounced on the Financial Q,uestion---tho great question which has given birth to all those difficulties by which we are at present surrounded and menaced. Our observa- tions will also necessarily embrace the Reso- lutions voted by the House of Assembly in reference to this question. The position laid down in the Message is very simple and easy to be understood. His Majesty after stating his ronvicliou that the Provincial Legislature will cheerfully ac> 107 quiesce la every effort to reconcile past dif- ferences, looks forward with the hope, pecu- liar to his great mind and generous dispositi- on, to a period when no other subject will engage or engross the attention of the legis- lature, but " the best methods of advancing the prosperity and diiveloying the resources of the extensive and valuable territories comprised within His Majesty's Canadian provinces.^' With this vicAv, and the view of " obviating all future misunderstanding," His Majesty referring to the " serious attention" which he has bestowed on the discussions which have taken place in the province, " respecting the appropriation of the revenue,''' sets forth " in ivhat manner these questions may be finally ad- justed loith a due regard to the prerogatives of the Croicn as well as to their{the Legislature's) Constitutional privileges, and to the general welfare of his faithful subjects in Lower Cana- da/' Ills Majesty then states, " that the Sta- tutes passed in the 14th and 31st years of the reign of his late Majesty, have imposed up- on the Lords Commissioners of His Majes- ty's Treasury the duty rf appropriating the prociucc of the jevcnue granted to his Majes- ty by the first of tliese Statutes, and that wliilst the I^aw shall continue unaltered by the same authority by which it was framed, l}i3 Majesty is not authorized to place the Re- venue wn.. I cr th-?controulofthe Legislature of the province. '• The proceeds of the Revenue arising from the Act of the Imperial Parliament, 14. Geo. Ill, together with the sum appropriated 103 by tlio Provincial Statute. 35, Goo. TIT, and the duties levio<^ limited for the eurrent year at the sum of i.'M4,7(H). "The produee of tlio casual and territori- al revenue of the Crown and of fines and for- feitures may he ostimatoil for the same peri- od at the Slim of jL'3100. " The^e several sums makin{i- together tho sum of ,C\S<. 100, constitute the nhole esti- mated revenue arisinj;in this l*roviiict\whicli the Law has placed at the disposal of the Crown. ** ffis ^faicstff has hccn plcasano direct that fioin this coUtrtivc trvftmr o/' £38,100 tht sa- larif of the ojjiccr a({minist( > j/iir the i;-ojrm- inento/thc l^rorincv ivul the salaries of the ju(fges should be defrai/ed."' What can he more concise — more explicit -—more candid. Hut what renders this com- munication of threefold value to the loyal in- hahitants of this rrovince is, its great and remarkahle consistency — its singular, its ex- act uniformity with every despatch, commu- uication and declarttiou that has ever been made to the Provincial Legislature on the subject of the financial question. This is no new or timeserving doctrine. It has not been got up to please a minister or a party — to keep the one in otlice. or screen the other from publick obloquy. It is the dictates and principh'sof our constitution. It has its foun- dation in acts of the Imperial anil i^rovincial Parliaments ; its interpretation in the solemn opiuiou of the highest legal authority of tho 109 State ; and its execution in the orders and instructiousof Mis Majesty ; aud these orders and instructions ever were, aod wo hope, ever will be, acted upon, to use the wordsof the Message, "Whilst the law shall continue unaltered hy the same authority by which it was framed." Unhappily for the country, however, the Ilouye of Assembly think, or at least sayg otherwise. Blinded by a sottish and brutal ignorance worthy of the darkest aji^es and raost barbarous people that ever iohubifed the face of theearth ; and goaded by an am- bition which can only bo satiated by the compleio and uncontrolcd possession of all the powers of government, this body denom- inating themselves a Legislative body, and the Representatives of a free and enlighten- ed people — contradict His Majesty, the law, and the Imperial Parliament, and contend that the control and appropriation of these jjrovincinl funds belong to them — and them alone ! To establish their unjustifiable posi- tion they have travelled over and over again all the rounds of the statue-book : they hfivo denied the plainest and clearest letter of the law ; they have rejected the most evident principles of the constitution : they have dis- torted facts : they hyve raked up the very kennels of oblivion for the remains of all those unnatural abortions which the stupidest of legislators — the most unprincipled of lawyers — or the most ignorant of polititirtns may have begotten in their wildest and mostfau- tastick reveries ; they have spurned the ad- 7 110 vice and rocommcijdjition of IVTajesty itself; thoy liavo tlisbelioved aiul discrodited tlio dosj)<»t('lies of tho iuiiiiseration in his own mind on some given preceding night — write down his law or his resolutions — carry them in a corner of his pocket up to the Assembly — stand up bare- paied in hig |)lace— -read them— -and presto, the business isdonel 'J'he ears of the sage and patriotick gentleman is immediately and clamorously assailed by the "ot;is" — Anglice " yt.ah" — of almost every inrlividual in the liouse. it is quite unnecessary for the learn- c The sZ/y/e, however, we pass over wiih that silent scorn and iniii{lace for and towards defraying the necessary expense of Government, and the necessary charge of mnn;igiog the revenue under his care ; remitting home by good bills of exchange the surpluses of the monies which from time to time should remain in his hands after payment of those expenses, in order that the saiiie nnght be applied to the reimbursing the publick here, (in Great Brit- ■• Thomas Mills, Esq. was the first apf)oin- lod to this oHice, and his commission is dated the lOthof Julv, 17G5. aio,) the monies that had been necessariiy a'vanced for that purpose, by reason that t.>o aforesaid duties and taxes had not been levied within the two years last past." In this way the above duties coniiuued to be levied, collected and appropriated or applied till the year 1774, when the celebrated act, 14th Geo. III. cap. 88., was passed by the Itiiperial PHrliament. This act is entituled *' An act to establish a fund towards further defraying the charges of the administration of justice, and support of the civil govevnment within tJie province of (Quebec in America.'''' — By This act all the duties which were imposed on floods imported into, or exported from, ibis province untler the authority of His Most Christian Majesty, were discontinued from and after the 5th day of April, 1775 ; and in lieu thereof the several rates and duties there- in mentioned, were ordered " to be raised, levied, collected, and paid unto His Majesty, his heirs and successors lor and upon the res- pective goods herein-after mentioned, w'bich shall be imported and brought into any part of the said province over and above all the other duties now payable in the said province by any act or acts of parliament," It was then enacted " That all the monies that shall arise by the said duties (except the necessa- ry charges of raising, collecting, levying, re- covering, answering, paying and accounting for the same) shall be paid by the collector of His Majesty s customs into the hands of His Majesty's Receiver-General in the said prov^ iucefor the time being, and shall be applied 118 ill tlio fust place iu makiiip; a nioro cci'taiii aiul ;i(Uu]uato provision low.irds tlclVayinp, tho expensos of tlio Civil Adniitiistratiou of Justice and of tho support of iho Civil (lov- erninout of tho said proviuco ; and that tho Lord Treasnror or Counnissiouers of llis Majosty's Treasury or any two or throe of theui for the time hoing, shall be, aud is or are iierchy iinpovvored from time to time hy any warrant or warrants under liis or their hand or hands to cause such money to be ap- . plied out of the said |)roiluce of tho said du- ties towards defraying tho said expenses ; and that the residue of the said duties shall remain aud he reserved iu the iiauds of tho said Kecoiver-General, for the future dispo- sition of Parliament." J5y this law the Lords Commissiouors of His Majesty's Treasury hecame fully invest- ed with the uncontrolahle power of applying or appropriating tho duties imposed iu virtue of its euactmeuts towards deirayiug the ex- peuces of tho admioistratioQ of justice, aud of the support of the civil Covernmeut of the Trovinco, so far as the amount of these du- ties Kould admit of such appropriation.— But these Commissioners have always dele- gated their authority to the Governors of tho Province, all of whom, in tho execution of such authority, and iu obedience to the con- curriug commands aud instructions of His Majesty, have always appropriated the rev- enues iu question for the purposes described in the act itself, without beiug subjected to tho coutroul of any authority whatever iu the 119 Province. Indeed, until the passing of the (.'onsti'ulional act, in \7l'l, there existed no power or authority in the Province which liad the niiUt to call into question these ap- propriations ; and even then, as %vill present- ly he seen, ifio new conslitulional hodies cre- ated hy thai act neither arro^iated to thf:m- selves, as some of ihern have since done, nor received fVom Parliament any the srnal!t-st rij^htto interfere with the delegated powers of the Lords Conimissioncrs of the Treasury. In 1/9.5, however, four years after the pas- siii;^ of the Con.itilutional act, it was discov- ered, that the perrnaneni revenue created, as ahove, by the act of 1774, wa.-» inadequate to the purpofees for which it had been raised ; and the provincial legislature of that day not wishing like the present, that the arms of the government should he shortened, or any of their powers dissolved, pas^.ed an act of which this is the title :-— " An act for grant- ing to lli.j Majesty an additional and newdu- ties on cert&ia goods, wares, and merchan- dizes, and for approj;riating the same tow- ards further dff raying the charges of the ad- Uiinistr-itiou of Justice, and support of the civil governnricnt within this Province, 'ujd for other purposes therein mentioned." The sum con-iigued armually into the hand-, (»(^ His Majesty by this act, was/n/C thouaaiid pf/vnds stfirling; audits authors, imitating the words and intentions of its imperial prot jtypo of 1774, ordained, that *' th'O due application of all such moniespursuaut to the direcfions of this act, shall be accouatcd for to His Ma- 120 josty, liis lieirs, and successors, tlirough the jordtt commissioners of His Majesty's Treas- ury, in sucIj manner and form as His Majes*- ty, his heirs and successors shall direct." It will hero be observed, that the Leg;isla- latnre of 1795, so far from claiminji; the " in- herent righV^ of appropriating the revenue created by the imperial act of 1774, added, by a free and voluntary enactment of their own, a considerable sum to it, to be applied and accounted for in the same manner as the orginal act of the Supremo Legislature : thus ---not tacitly, nor constructively, but openly and spontaneously— declaring their own in- capacity to interfere with the rights of their Sovereign. Is it possd.de to adduce stron- ger or more conclusive evidence of the ab- surdity and injustice of the claims of the present Assembly, than this abstinence from executive intervention on the part of their j)redecessors of 1795/ The assembly of that time were in possession of every legal and constitutional right that can possibly be kcnjoyed now ; and surely we cannot thin so meanly of them as to believe, that if they really possessed any authority over the Crown revenues, they were destitute of sidiicient courage to claim and exercise it. The act of 1771 was then as much in force as it is now ; and the provisions of the subsequent constitutional act of 1791, were then as ex- tensive and as well understood as they are now. His Majesty was therefore left in the peacea )!e enjoyment and disposal of his rev- enue, which he augmented still further by 121 the casual and territorial revenue of the Crown, and fines and forfeitures ; making together, as stated in the Message of the 29th of Novemher last, the sum of £38,100. This far, then, it is pretty clear, that the " preten- sion put forth to the disposal of a large por- tion of the revenue of this Province," was not the act of the *' late administration." Towards the year 1810, another spirit and more dangerous principles were infused into the House of Assembly hy the introductioa of new members, pretending to wiser heads and more courageous hearts than any of their predecessors. These gentlemen, instigated by along-cherished conviction that no barrier remained between them and the entire pos- session of all the powers of government, as ■well executive as legislative, except the right to control and apply ihe whole public revenue of the Province, prevailed upon the House of Assembly to make an offer to the King of " Ihe necessary sums for defraying the civil expenses of the government of this Prov- ince/^ This step having been taken ofa sud- den by a dark and intriguing majority of the Assembly, without any motion or suggestion of the Crown, or the concurrence of the Legislative Council, its unconstitutional as- pect was perceived by all men, whjie but few were able to penetrate into the ulterior and real objects of this majority. His Ex- cellency Sir James Henry Craig was one of these few ; and the answer of this stern but constitutional Governor to the Assembl3% ■when they approached him with their novel , 122 offer, can never be sufficieatly admired. His Exceileocy firmly and candidly told them, that their offer was not constitutional, inas- much as the usage of the Imperial Parlia" ment forbade all steps on the part of the people towards grants of money which were not recommended by the Crown ; and that, although by the same parliamentary usage, all grants originated in the Lower House, yet they were ineffectual without the con- currence of the Upper House. For these reasons His Excellency conceived the ad- dress brought up by the Assembly to be un- precedented, IMPERFECT IN FORM, and being merely founded on the resolutions of that House, without the sanction or concurrence of the Legislative Council, must be ineffectu- al. His Excellency thought it right, how- ever, to apprize His Majesty of their present proceedings and offer, however imperfect in- form and unconstitutional in matter. Con- sidering the views of the Assembly, it may be easily imagined that this answer acted upon them some*ivhat similar to the effects of a first discovery upon the nocturnal delibera- tions of a band of assassins or resurrection- men. The plot was evidently discovered, and the first step taken towards its accom- plishment utterly destroyed. They thought the road to the sole and complete controul of the public revenue, and by consequence, to all the powers of government, entirely open. The guardian of the public welfare, who met them so sternly in the path and pushed them back to their original ground, was therefore, 123 and forever declared a public enemy ; and no wonder if the administration of Governor Craig was afterwards one of unprecedented aggression and turbulence on the part of the House of Assembly, Had the Assembly at this time imposed upon themselves the bur- then of any 6a/«:7Mce that might be necessary for the support of the civil government and administration of justice in aid of the per- manent funds cdready at the disposal of gov- ernment the oifer would have looked and sounded better, however unconstitutionally mcide ; and would have proved that the As- sembly both studied and understood the true interests of their country. But to have come thus up with an offer to defray the whole ex- penses of the government, in hope that Hjs Majesty and Parliament would at once fore- go their pre-existing rights and revenue, ex- hibited them in the character of the greatest asses and blockheads that everexisted. How- ever, that man must be either exceedingly simple and stupid, or exceedingly wicked and hypocritical, who never exhibits symptoms of mortified ambition ; and we accordingly find, that the leaders of the x'\ssembly have ever since become at once more openly loud and clamorously urgent in their demands, whether they relate to the finances of the Prov- ince, or other qaestious of constitutional gov- ernment. In the meantime, down till 1818, the permanent revenue continued to be ap- plied by the Crown as usual ; and the claims of the Assembly to that revenue continued anmooted for eight years loBger,duriBg which. 124 neither was any step takea by Govern meat to encourage their pretensions. On the 7ih of January, 1818, the Legisla- ture met. Sir John Coape Sherbrooke, was Governor, In the opening Speech His Ex~ ceZ/fr^wc?/ informed the Assembly, that he was commanded to call upon them " to vote the sums necessary for the ordinary annual ex- penditure of the Province." When, in pur- suance of these commands, the estimates for the civil list were sent down to the Assem- bly, the purport of the word " necessary" here maJe use of, became more obvious. The estimates amounted to £73.646 8 9. From this sum, however, there were deduc- ted £33,383, being the average for the last three years of the amount ofthe funds already provided by law for the support of the ad- ministration ofjustice and the civil govern- ment. The balance of £40,263 8 9 was consequently left to be provided for by the Assembly. Ovserve that they were not cal- led upon to provide for the £73,646 8 9 the •whole and entire sum necessary for the civil list, but for the £40,263, 8 9; the difference being already provided for by acts ofthe Im- perial and Provincial Parliament, namely, the 14 Geo. III. cap. 83. and the P. S. 35 Geo. III. cap. 9. with neither of which the Assembly had now nothing to do, either di- rectly with themselves, or indirectly with the funds created in virtue of their authority. And to do the Assemblyjustice, they for once, at least, understood the matter in this light. Their vo(e on the occasion, though uncoasjti- 125 tutlonal in point of form, not having the con- currence of the Legislative Council, is a me- morable record of the fact. It states, " that the Kouse having taken into consideration His Excellency's recommendation on the subject of the expences of the Civil Govern- ment of this Province, for the year 1818, have voted a sura, not exceeding £40,263 8 9 currency, towards defraying the expence of the Civil Government of this Province, for the year 1818, exclusive of the sum ah-eady appropriated by law ; but that the peculiar circumstances which have prevented the House from receiving at an earlier moment the estimate of the civil list revenue and pub- lic accounts ; and the advanced state of the Session not admitting the passing of a bill of appropriation for the purpose, they pray His Kxcellency will be pleased to order, that the said sum, not exceeding £40,263 8 9 curren- cy, be taken out of the unappropriated monies which, are now, or hereafter may be in the hands of the Receiver General of this Pro- vince, for the purposes aforesaid ; and assur- ing His Excellency, that this House will make good the same at the next session of the Proviucial Parliament." The act passed next session to fulfil this engagement, directed the above supply " to be charged against the unappropriated monies in the hands of the Keceiver General of this Province, which may have been raised, levied and collected under and by virtue of any act or acts of tho Legislature of this Province." This far tho House of Assembly acknow- 126 ledgetl aad recognized the provisions of the 14th and 35th of the King, above recited. Not only so, but the vote of 1818, and the cor- responding act of 1819, are to all intents and purposes a declaratory law upon this sub- ject; for that vote and that act clearly and explicitly acknowledge a fund " already ap- propriated by law, and expressly reaounce all right of interference with any monies in the hands of the Receiver General, except those raised, levied and collected under and by virtue of any act or acts of the Legislature of this Province." There being no change either in these laws, or in the general or con- stitutional circumstances of the Province, it appears, therefore, passing strange to every intelligent mind, upon what foundation ia common sense, equity, or justice, the House of Assembly have ever since been endeavour- ing to rear such a buge and shapeless fabrick of pretensions to the disposal and control of the entire funds of the Province without dis- tinction. Every honest man, who views the subject impartially, is amazed at such pro- ceedings ; and naturally concludes, that, as there appear no good or just grounds for such presumption, some bad and erring principles must inevitably be at work. " Nevertheless," from the year 1819, to the year 1829, the house of Assembly have never ceased nor slackened in their endeavours totally to throw aside the authority of the 14th Geo. III. cap. 88, and to invest themselves in the entire re- venue of the Province. That they have been resisted and obstructed In their seditious and 127 rebellious march — that they have been cor? responded with, argued with, and reasoned with, by every power in the state, from the King on the throne to the humble individual who now addresses them — alas the journals of the legislature and the press of the country bear ample evidence. Nor has this resistance been confined to certain periods or individu= als. The Duke of Richmond, who succeed- ed Sir John Coape Sherebrook, as Gover- nor, adhered to the principles laid down id the estimates of his predecessor; but his pre- tensions, though borne out by the Legislative Council, who very properly threw out aa infamously unconstitutional bill of supply sent up to them by the Assembly, failed ia receiving the concurrence and approbatioa of the Assembly. In the last speech of that excellent and high-minded nobleman to the Legislature, he plainly and candidly stated, *' It is with much concern I feel myself com- pelled to say, that I cannot express to you, Gentlemen of the Assembly, the same satis- faction, nor my approbatioa at the general result of your labours, (at the expense of so much valuable time) and of the public prin- ciples upon which they rest, as recorded ia your journals. You proceeded upon the documents which I laid before you, to vote a jiart of the sum required for the expenses of the year 1819 ; but the bill of appropriatioa which you passed was founded upon such principles, that it appears from the journals of the Upper House, to have been most con- stitutionally rejected." Was this, let us 8 here again ask, ^^ a ■prcfnision put forth ty the late Administration V Wc uow approach tho '* commencement of the talc administration ; those of Mr. Monk and !Sir Peregrine Maitland being too short to admit of squabbles on the subject ofli- iiancc, though impossible to be so much so as not to admit oi' any topick of Legislative dif- ference. Lord Dolhcusie arrived in Canada in ]8'20, on the anniversary of the Battle of Waterloo! We are not superstitions— no, not wc ; but this was an event u hich no have always considered as ominous, if, in- deed, of bad, still of good. The great con- queror of Waterloo had arduous physical and scieniifitk duties to perform, lint he who attempts, like Lord Dalfiousie, to eradicate French ignorance, and conquer French prej- udice, will have a still more difficult task to execute. However, now that the two he- roes are once more tojjether, let us hope, they will between them, at least put an end to the legislative diiiereuces of this Province, if not 10 the whole dilliculties that surround us. What the ''laie administration'" itself said, or did, or pretended, with respect to the pub- lic revenue oi this Province, we shall not re- fer to, but appeal directly to those supreme and acknowiciiged authorities in the state which all parties aflect to respect, however reluctant to obey. On the instructions and despatches furnished to Lord Dalhou^ie in IS'iO, and I8til, were founded all his meas- ures on the financial question. Whatever may have been the individual sentiments of 129 His Lordship on that subject — and we have reason to know that they were as soand as they were constitutional— f/te^ were not oh- truded on the legislature ; no communica- tion having been made to that body, especial- ly the House of Assembly, which was not the counterpart of instructions received frorti His Majesty's Imperial Government. Hfid the case been otherwise, and had his Lordship acted from no other construction of the con- stitution than his own, and obeyed no com- mands but the dictates of his own mind, he was exceedingly happy in the constant and unhesitating approbation of his Sovereign. As it was, his conduct could not be other- wise than approved of by the same source whence both his instructions and the whole basis of his public conduct emanated. The extent and importance of this approbation, we shall now consider. The first intimation which reached the As- sembly of the real sentiments of the. Imperial Government on the subject of the financial disputes, was contained in a despatch from the Colonial Minister, Lord Bathurst, to the Lieut. Governor, Sir Francis Burton, dated the 23d November, 1824.* These despatch- es are accompanied by the official opinion of the law-officers of the crown, to whom were referred a report made by the Assembly uj-oa the provincial accounts," in which a ques- tion is raised as to the right of government * Lord Dalhousie, was in England on leave of absence at this time. ISO to apply the proceeds of the revenue arising froTD the 14th Geo. III. cap. 88, as they have invariably been since the passing of the act, towards defraying the expenses of the ad- Mioistration of justice, and the support of the civil government of his Majesty, without the intervention of the Colonial Administra- tion ! His Majesty's Law-Officers, who were the present Lord Chancellor and At- torney General, then go on to state : " Incompliance with your Lordship's re- quest, we have taken the same into our con- sideration, and beg leave to report for the in- formation of His Majesty, that by the 14tb Geo. III. cap. 88, tlve duties hereby imposed are substituted for the duties which existed at the time of the surrender of the Province to His Majesty's Arms, and are especially ap- 'propriated by the Parliament to defray the expenses of the Administration of Justice, and of the support of the Civil Government in the Province. " This Act is not repealed by the 18th Geo. III. cap. 12, the preamble of which de- clares that Parliament will not impose any duty, &c. for the purpose of raising a reve- nue ; and the enacting part of which states, that from and after the passing of this act, the King and Parliament of Great Britain will not impose and accept only, &c. the whole of which is prospective, and does not, as we thmk, affect the provisions of the Act 14th Geo. III. cap. 88. It may be further ob- served, that if the 18tb Geo. HI. had repeal- ed the 14th Geo. III. the duties imposed by 131 the latter act must immediately have ceased; and the Act. 18th Geo. III. caonot affect the appropriation of the duties imposed by the 14th Geo. III. since the 18th Geo. III. is con- fined to duties thereafter to he imposed, and imposed also for purposes different from those which were contemplated by the Legislature in passiuiSf the 14th Geo. III. viz. the regula- tion of commerce alone. " We are further of opinion, that the act 14tb Geo III. cap. 88, is not repealed or af- fected by the 31st Geo. III. cap. 31. It is clear that ii is not repealed ; in fact, as we observed, with respect to the 18th Geo. III. if the act had been repealed, the duties must immediately have ceased ; and as to the ap- propriation of the duties, or the control over them, nothing is said upon the subject either in the 46lh or 47th section, or in any other part of the Act 31st Geo. III. cap 31.' " With respect to any inference to be drawn from what may have taken place in Canada, "within the last few years, as to these duties, it may be observed, that the duties having been imposed by Parliament at a time w hen it was competent to Parliament to impose them, they cannot be repealed, or the appro- priation of them in any degree varied, ex- cept by the same authority. We have the honour, &c. ,„. ,. J. S. COPLEY, tcjigneci) ^^^g WETHERELL." Earl Bathurst, S^c. 8>fc. Colonial Department, Downing Street, 2Qt/i June, 1823. 8* Nothing can be more distinct ami explicit than this. It is the highest legal authority in the nation; and when sanctioned by along course of practical operation of the law it- self, and the general opinion of sensible men, ought to be irresistible. Nor was it hid in a corner ; for upon the nneeting, in 1824, of that session of the Legislature in which the Lieutenant Governor presided. His Excel- lency gave verbal communication of it to the Speaker and many Members of the Assembly. But the Assembly were not to be driven from a position so long and tenaciously maintained by a mere declaration of the opiaion of the law oflicers of the crown. The interests of the Province, ihey said, were at stake ; and their own ideas, they thought, were fully adequate to the maintenance of those interests. In proceeding, therefore, during that session, to discuss a Bill of Supply, they entirely over- looked this communication, and passed a bill, founded on their old claim of exclusive right to the disposal of the permanent reve- nue of the crown, and calculated to raise th© greatest alarm among the friends of the con- stitution. How this bill passed the Legisla- tive Council we shall leave to bo explained by those who are better acquainted than our- selves with the intrigue by which the meas- ure was effected ; having no curiosity to pen- etrate into the sanctuary of state chicanery, especially when the results do not reflect credit on the public business of the country, la the despatch which accompanied this bill to ED{?lan(l, the Lieut. Governor expressed Jiis " infinite satisfaction, that the differen- ces which had so long subsisted between the legislative bodies on financial matters, had been amicably settled," and " that the As- sembly had decidedly acknowledged the right of the crown to dispose of thie revenue arising out of the 14th Geo. III." It is very evi- dent, from the whole strain of this despatch, that the Lieut. Governor thought sincerely what he wrote. But upon perusing the bill, the Colonial Minister was of a very different opinion ; and in his long explanatory des- patch of the 4th of June, 182.5, to the Lieu- tenant Governor, and communicated by mes- sage to the Assembly by Lord Dalbousie, on the 14th March, 1826, the Minister says, — " / regret that it is not in my poiver to consider this arrangement as in any degree satisfactory. The special instructions which had been giv- en by His Majesty's command to the Govern- or General, in my despatches of the 11th of September, 1820, and 13tb September, 1821, had imposed upon him the necessity of re- fusing all arrangements that went in any de- gree to compromise the integrity of the rev- enue, known by the name of the permanent revenue ; audit appears to me, on a careful examination of the measures which have been adopted, that they are at variance with those specific and positive instructions. " The minister goes on to say, " the appropri- ation of the permanent revenue of the crown will always be laid by His Majesty's com- ] 3 ''J maud boforo the Uoiise of Assembly, as a rovidod for by ihc crown, and what ix'niains; lo bo provided for by the Legislature, and they will be thus assin-ed, that the proceeds of the revenue of the crown, (whether nioro <)r loss, or from whatovor sources derived) will exclusively and invariably be applied under the (li.srrction of tho Jving's {j,overn- luent, for the benefit of the I'rovince." IJis Lordshi[) concludes thus-— " As tho bill is liiuited to one year, I shall not think it ne- cessary to reconmiond to His Majesty to disallow it, but conlino myself to insiructing his JMnjesty's re])resentativo in the Provinco of Lower (>anad;i, not to sanction any meas- ure of a similar nature." Again, " iras this a prt'tenson set forth at the coniinencemcnt of the late ailministration V But this is not all— The Assembly and their friends out of doors, fmding by thesteru determination of Lord Oalhousie to al)is in the integrity, wisdora and liberality of the Imperial parliament, and resting satisfied with the mere truth and justice of the cause which they espoused, be- ing that of the King's Representative, pro- ceeded no farther than a simple expression of their sentiments in addresses to that dis- tinguished nobleman ; approving generally of his conduct, but especially applauding his unswerving per=everance in resisting the pretensions of the Assembly. Matters were now at issue before the Imperial Parliament. Mr, Huskisson, whilst there slating the views of His Majesty's Ministers on the legislative difficulties existing in this province, and so- liciting a select committee lo take them into consideration, with respect to the question under discussion, explicitly stated, that the duties levied by the act of J 774, in lieu of the old French ones, were hryaa fide, the jjerma- ry-nt rtvfMUc. of the Crovm. lie then goes on to say :— " I believe there is no lawyer in this country, noriudeed any one in the least 136 acqufiinted with the relative situation of the parlies, who will deny, that as long as the Crown appropriates that revenue to the ad- ministration of justice in Canada, and to its civil government pursuant to the act of 1774 —as long as it fulfils all the conditions re- quired by good faith towards the Canadians, no one, 1 say will deny its right to prescribe the mode in which the revenue, consistently with that act, shall be expended. There is, I am sure, none who will not say that the pretensions of the Legislative body lo take the whole management of this money into its own hands, are neither founded in law nor practice." — There was not an individual ia the House of Commons who could contra- dict this. Nor did the Canada Committee, as it has been called, venture on opposite grounds, however much disposed, from party views, to side with the House of Assembly. The reportofthe Committee on this subject, is ia these words : — " From the opinion given by the law officers of the crown, your committee must conclude, that the right of appropriating the revenues arising from the act of 1774, is vested in the crown." And, founded on all these legal and legislative opinions, the late message to the House of Assembly distinctly declares, that ** His Majesty is not authorised lo place the revenue under the control of the Legislature of the Province.''^ More we will not, and need not say upon this subject. All we ask of the candid, the generous, and the unprejudiced, is, to peruse our narrative ; aad brief and incomplete as 137 il is, "we have no manner of hesitation to a- l)ide by their judjiment ; assuring ourselves they cannot do otherwise than say with us, that the '^pretension''' said in the Resohitions of the Assembly to have been ^^ put forth at the commencement of the late Administration,^^ was not the pretension, if pretension it may be called, of that administration, or any par- ticular period of that administration ; but of the Kin^, the Imperial Parliament, His Ma- jesty's Ministers, and of every Administration of this Province since the conquest ! It has, however, been asserted by the ad- vocates and partizans of the Assembly, that the house have never denied either the exis- tence of the 14th Geo. III., the interpretation put upon it, or the powers with which its enactments invest the Crown ; and that their > claims only extend to the appropriation and control of the whole revenue of the Province when a vote of supply is solicited by the Crown ; or, in other words, that when the Governor lays the accounts and estimates of the year before them for the purpose of ob- taining supply, they have the undoubted right ofsayiug, " we cannot vote a supply unless you permit us to appropriate the whole rev- enue ; for we find, that of the duties levied under the 14th Geo. III. you have been too lavish, and might have made a far more proportionable and economical use of these funds. You have taken too much to your- self; you have given too much to the Chief Justice and the other Judges : the salarv of 138 your Secretary is, by far, too high ; and, iu short, your Excellency has been much more liberal with the revenue at your disposal than the services of the public officers deserve. We can get the business done on a nouch lower scale ; and the less we give of the per- manent funds of the Crown, the less also it ■will be necessary to supply from our ow a funds." With respect to the first part of this posi- tion which affects not to deny the existence of the 14th Geo. III. and the consequent right of the Crown to appropriate the funds created by that act, it is so far correct, that when in 1826, Lord Dalhousie laid the des- patches of the Colonial minister and the opinion of the Crown Lawyers before the x\s- seitibly, their committee reported, that they were '•'■not aware that the truth of these 'prop- ositions had ever been contested.^'' But the misfortune is, that all the votes and resolu- tions of the Assenably upon this subject have been mere cobwebs; manufactured to gratify the excited disappointment of the moraent,and anon to be broken through for the purpose of facilitating a more ambitious and important object. VVe have carefully perused all the recorded resolutions of the Assembly upon this subject, and here declare that we have not seen the report of any committee which does not contain less or more resolutions as- serting the non-existence of the J 4th Geo. IIL We could cite every one of these reso- lutions ; but it will be sufficient at pre!?ent to stats, that Mr. Cuvillier, the father of almost 139 all of them, strongly maintained, during the late debate, that this act did not exist. His words are important: "When the 14th Geo. III. was passed, the country was too poor to supply the deficiencies in the reve- nue ; and it is only a few years since it has risen to such a state as to be able to provide for its own wants. During that time it would have been absurd to repeal that stat- ute ; it was the only provision we had ; but he would contend it was virtually repealed* not only by the act of 1774, and the consti- tutional act, but by others." We shall not certainly place Mr. Cuvillier's opinion ia competition with that of the law-officers of the Crown, or any of the other authorities which we have already cited and detailed. As to the last postulatum with regard to the mode of voting the supplies, it will only be necessary to observe, that if, as we are cer- tain we have made out a case with respect to the existence and force of the 14th Geo. III., nothing could possibly he more absurd than the pretension to any powers, of what- ever nature, not authorised by the act itself; and nothing more at variacce with the prin- ciples of our constituti»n, than transferring the rights and prerogatives of the Ci-own to a popular and clamorous Assembly. In one word, if this act be still in force, let it be obeyed, and its dictates held sacred to their purposes : if it be in force, and is neverthe- less unconstitutional, let its formal repeal be prayed for at the proper bar in a legal and constitutional way ; and not by inference. 140 inuendo, misapplfcation, and forced con- struction, as has unfortunately been the prac- tice in this province for the last ten years. As to a voie of supply this session, we have no hopes of it. How can we? The Mes- sage declares that the permanent revenue is by "Law placed at the disposal of the Crown ; but the Resolutions declare this to be a per- sisting in the " jpretensions^^ of the " late Ad- ministration,^^ and of consequence illegal ; and, ergo, a supply would be a legal sanc^ tion of jhis illegality. " What then, is to be done T" say a thousand tongues, and not a few publick officers. Nothing, our well-be- loved friends, but simply this : The Govern- or, by message— T%e Message— has already informed the Asseiiibly, that he has £38,100 at his disposal. If the government stand ia need of more, which it will unquestionably. His Excellency will call upon the Assembly for the balance-— say, thirty or forty thousand pounds. If the*Legislature vote this supply, without any questions as to the appropria- tion of the £38.100, good aud well ; and their doing so will be one good symptom of a turn- ing back to a sense of duty and constitution- al conduct. If not, the Governor must do as he best can, pay away his 38.100, ae far as it will go ; and then tell the poor unfortun- ate devils who call afterwards, that they are too late ; for that the House of Assembly have locked the door of the Treasury ! We now come to the Declaration of Inde- pendence— by far the most important ques- tion that can be agitated in a British Colony. 141 The Resolution involving this declaration, is couched thus : " 5. Tiittt no interference of the British Legislature ivith the established Constitution and Laivs of this Province, excepting on such points as from the relation between the Mother Country and the Canadas can only be disposed of by the paramount awhority of the British Parliament, con in any way tend to the final ad- justment of any difficulties or misunderstand- ings which may exist in this Province, but rather to aggravate and perpetuate them.'''' The only good that can be said of this Res- olution, is, that although it was intended to assert a denial of the supreme legislative au- thority of the Mother Country in every re- spect,it had neither the courage to avow such revolutionary sentinrients in plain terms, nor tojoiu the hue and cry of the demagogues outof doors, who themselves fearlessly deny, and teach — -industriously teach— Xhe'w more peaceable neighbors also to deoy,lhe supreme legislative powers of the Imperial Parliament. It is, indeed, we are sorry to say it, only in an ignorant and illiterate colony, like Lower Canada, disturbed as it at present is, by an infamous and revolutionary faction, exposing by every step the rotten malignity of its men- tal barbarism, that such unworthy sentiments could for a moment be entertained. But we have ourselves alone to blame ; at least the British government will alone be responsi- ble, should the evil consequences of such sentiments ever come to maturity, which God forbid. We have no earthly desire to 142 tHirowoilitim olllior on irionor mliuHtors ; hut this uiiK'li wc iiiusl Hiiy — and say it hohlly — that if over ihrro (ixisrciio thoni with ido^js ofcontornpt of (ho au- thority and stahility of thu principles of tho British };ov(!rnineut-— an«l tnoholden them to deeds «d'irre|>ularity and vi(denco, they have been tlie ealioiiH, timid, viscillatinp,,vvaveiing, und unjiisliliahly conciliatory eondn(*t of («ieat liiiiain to\varovernmetit, and ultimately secure to us the tranlyirig protec- tion and ohediencc, but the Uiclates of the declaratory act, <>tli (j!eo. HI., and the Con- Btitutional act of this Province. The first cx[)rcs8ly declarcH, "that the said colonies have heen, are, and ol'ri^^ht ou^ht to he, suh- ordiuato unto, and dependent on, the Impe- rial (y'rown and Parliament of CreatlJritain ; and that the King and l*arliament of Great IJiitain, had, hath, and of right ou{iht to have, full power and authority to make IaHWH and Siaiules of sullicient force to hind tho Colonies and Ilia Majesty's subjects in them, in all casts whatsoever. And it iw further de- clared, that all llesolutions, votofi, orders and ))roccedit)j^K in any of the «aid Colonies, whor( by tho power and autfLorilij of the Kin^, Lords and Commons of Great Britain, iu Tarliament assembled, is denied or drawn into (juestion, are, and are hereby declared to he, ulUrbf null and void to all intents and purposes whatsoever." No one will assert that this act has been repealed. ConHe(|uent- ly, the Kesolutifin above rehearsed, drawing the authority of the Imperial Parliament into question, is ispo facto, null and void. If, there- fore, tlic Asseml)ly wish to enforce and fol- h)vv it up, they have only to rally their parti- zans around them, and do so with knives and daggers at men's Throats. Our own consti- tutional act is no less explicit; and through- out its whole enactments implies the right to amend, tiltcr, arid eveu tiike away, as weli 144 Us conror rights niul innnuiillioi3. The socoud sortioii of llinl not (lorhircs, that, tho pnwoi's tliorehy roil lb ire (.1 on His IVlajosty and tho liO^islatiiro tcMnako liaws, shall only exist ^^ (litrina; Hie ('onliiUKiiiCf of this ocl.'' l)oc3 this not imply llio ri^ht to annul and tornii- uuto our (>(»nstiiutional act ilmolf, iinoccssa- ry, quite contrary to tho whole scope and tonor oCthe Kesolufions ol" tho Assenddy ? liCanud and ftoiunirdhlf j^ontlonmn ouji,ht al- so lo recollect that this act pivhich must ho taken hofoio they are porniit- tod to sit in tho As8end)ly ; and that this oath imposes f'iiiih and allegiance upon them to their Kinj;, " as lavvi'ul sovereign of tho Kin};d(Mn of <»reat Hritain, and of ihcso l*rovinc(>s, dependent on, and helonging to, the ; aid Kinf;dom." Now, this is an oath ^vhich is taken in no part of tho I'impire, ex- cept in tho Colonies. 'JMio inhahitants of 10n;;land, Scotland, Ireland and Wales, nev- er take such an oath as this, hecause ueither of these countries is ^'' (hpcmlcnt on, and he- longriif:;, tOf thv said KiHixdoni, hut, united one with the other, form that Kingdom up- on which this Province is declared to ho *' (Ujxndrnt.'^ To deny, therefore, the de- pendency of this Province upon (Jreat Brit- ain and the supreme authority of Parliament (o alter or amend our (Constitution, is not only an act of tho hasost contempt and in- gratitude, hut downright perjury and trea- son. Nothing can possihly he more ahsurd than to sup|)ose the I'arliament of (Jreat Britain possessed of powers of legislation, }4.i wfiic'h, liko ihft laws of iho Mednw nrnl Per- wians, thoy roulrl noiflu;!' Jim(5nr|, <'lKiri(.^o, not* aliroj^aU). 'J'liis would Ik; inJdUihifitij witli a von^onrice ; and which no eidii^htcuod comriiuniiy or hody politick will < vnr, wo arc Hiirc, jisKnrno, without ;jt otjcc .inrjihihit- inj';; tfio host int,oi(*sts of socioty. Yet this is what the [{(!SohjtiorjH conlornplnte. liut happily lor the country, tho authoih of the CoiiHtitutional act coniorriplatcd no Huch thin^ ; anft,hc (Colonies. 'I'he great- est statesmen of the day — among whom was Sir James Mackintosh — ^icdned in this opin- ion, the Kuhstance (tf which was, *' Shall they the colotnes — dare to resist the authority of Parliament ? Ifthey do, we shull teach them a lesson hy doing for them hy compulsion what they refuse to do hy persuasion." We shall here ask tho Mousoof Asscndily and their partizaus a aimpic fpjesliofi ; " Arc the pow- 9 14(5 cr and authority of the Imperial Parhanient over the Colonics, less or more now than they were in 1791, when the Constitutional act was passed /" Neither the one nor the other, our good friends, hut just the samesu- Frome omnipotent authority that ever it was. f less, hy wliat circumstance have they heen lessened ; for nothing, you will — you 7nust acknowledge, could have heen more fortu- nate to this Province than that this domina- tion of authority did not take place previous to the ahrogation of the 14th Geo. III. cap. 88 — the first Constitutional Act of the Prov- ince ; and an actio which the " Nation Can- adienne,^^ still cling with a fond grasp, similar to that of the sinking mariner, when all is nearly over, and his ho|)es ahout to perish forever. It'more, surely the same extent of authority may now he granted to them which they possessed at the time of destroying aa old constitution and creating a new one. By the king's proclamation of 17G3, the English laws and Constitution were guaranteed to those " lovins: suhjects^' who " wore or should become inhahitants" of this Province. Lot us ask whether the breach of this royal prom- ise under the great seal of Great Britain, is a greater stain in the imperial character of (Ireat Britain, than the abrogation of the Qunboc act of 1774, or any other act that has si«if:o been j)asse(l / Assuredly not! and Eng- land, whdst she his a colony to claim and own her sway, will have cause to regret and deplore a cruel and unnatural act, by which British boru subjects have beeii rendered /or- 147 eigners — (so they have ever heen called ly the French Canadians) in laws, Innguagc aud manners, in a colony won l>y l?ritish blood and British bravery. In refuting the insane doctrine laid down by the majority of the House of Assembly on the subject of the abovo resolution, Mr. Ogden, the Solicitor General, stateil that '■'there were duties as well as rights''* imposed upon the colonies. " I am well aware," said a great statesman, " that nicn love to hear of their power, but have an ex- treme disrelish to be told of their duty." This is, of course, because every duty is a limita- tion of some power. Wo shall, therefore, in this place, and in conclusion, lay down a few of those principles which have been pointed out for the guidance of the colonies by the greatest philosophers and statesmen that ev- er flourished in any country. That great authority. Sir Wm. Blaclcstone^ in discussinc; the authority of the Mother Country over tho colonies, says :-— " What shall be admitted, and what rejected, at what times, and under what restrictions, must, incase of dispute, be decided in the first instance by their owa provincial judicature, subject to the revision aud control of the King in Council : the whole of their constitution being also liable to be n€w-*nodelled and reformed by the gen- eral superintending power of the Legislature of the Mother Country." In a note it is ad- ded, "The bare idea of a State, without a power somewhere vested to alter every part of its laws, is the height of political absurdi- ty." There can be no gainsaying of this 148 doctrine, especially in a conquered colony like this one : for says Lord Mansfield, in deciding, in 1774, the iwiportaut caseCainp- bol! versus Hal!, '* A country conquered by. the British arms, beconfi<"s a dominion of the Kiiig in right of the crown ; and therefore necessaHhi p.uhjtct to the legislature and par- liament of Greai Britain." ''I ain no eour- tier of Ame. ica" Sriid the great Chatham, •'! ain ,00 courtier of America : I stand up for this kingdom. I maiuruiu that the parlia- ineat has a right to hind, to restrain Ameri- ca. Our Legislative power over the colonies is Sovereign and Supreme. When it ceas- es to be Sovoreiga and Supreme, I would ad- vise every g-^^ntieman to sell his lands, and embark to that country. When two coun- tries are connected together, like England and her colonies, without being incorporat- ed, the one must necessarily govern ; and the greater must rnle the less." In another place he adds, " At the same time, let the sovereign authority of this country over the colonies be ass^r.ed as strong as terms can be devised , And he made to extend to every point of legist 'tion." On the same occasion, Mr. Grenville, while he reprobated the general conduct of minis- try, said, "that this kingdom has the sove- reign, the supreme legislative power over A- merica, is granted; it cannot he denied." *' When I proposed to tax America, T repeat- edly asked the house, if any objection could be made to the right ; but no one attempted to deny it. Protection and obedience are 149 reciprocal. Great Britain protects Ameri- ca. America is bound to yield obedience. If not, tell me when the Americaus were emancipated. When they want the protec- tion of this kingdom, they are always ready to ask it : that protection has always been afforded them in the most full and ample manner. Mr. Burke, in his celebrated speech, in 1774 ; on the motion for the repeal of the duty on tea, said, " The parliament of Great Britain sits at the head of her extensive em- pire in two capacities : one as the local leg- islature of the island, providing for all things at home, immediately, and by no other in- strument than the executive power. The other, and I think her noblest capacity, is what I call her imperial character; in which, as from the throne of heaven, she superin- tends all the several inferior legislatures, and guides and controuls them all without annihi- lating any. As all these provincial legisla- tures are only co-ordinate to each other, they ought all to be subordinate to her. It is ne- cessary to coerce the negligent, to restrain the violent, and to aid the weak and deficient, by the over-ruling plenitude of her power." " I have held, and ever shall maintain to the best of my power, unimpaired and undimin- ished the just, wise, and necessary Constitu- tional superiority of Great Britain. This is necessary for America as well as for us. I never mean to depart from it. Whatever may be lost by it, I avow it." " He that ac- cepts protectioa" says Dr. Johnson, *' stipu- 150 lates obedience. We have always protected the Americans ; we may therefore suhject them to government." In short all great statesmen, and political writers of note, are unanimous in declaring that the mother country possesses— not a casual or eccen- trick— hut a true constitutional and incon- trovertible supreme legislative authority over her colonies at ail periods and in all points "whetherexternal or internal; and, without pur- suing the subject further, we flatter ourselves - we have satisfactorily proved that it is so. If any reader have honoured us with his company this far, we have to apologize for detaining him so long upon the last subject. But, as nothing can bo of greater conse- quence both to the mother country and the colonies, than a proper notion of their rela- tive duties and situation ; and, in particular, as ttothing is so apt to promote the prosperi- ty of a colony as a just understanding of its real rights, and a distinct knowledge of the limitations of its legislative capacity, we trust that no man will condemn our efforts to ef- fect this desirable object on the present im- portant occasion, however rudely the task may have been executed. Upon the whole, like the elder Cato, who- is said never to have concluded a speech but with the ominous words " Delcnda est Car- thago,^^ we think wecanuotclose the present > essay, as well as those that may follow, bet- ter than with a prayer for A le^hlatim xinion t> flipper and Lower Canada. ' Wlh Deceviber, 1828. 0^ NO. VII. " JValchman, what of the night ?" • Perceiving that a great deal of discussion lias already arisen, and is likely further to arise, on the suhject of the dilFerenee hctweca the English and Frtnch laws existing in this province ; and knowing that the former ought, and should, and shall ultimately, pre- vail in this Province, we here think it proper to give a historical sketch of iheir introduc- tion immediately after the conquest ; shew- ing, as wo go along, the right and the power of the conquering country so to itjtroduce and iTjaiutain them. JJy acts of parliament, whoso folly and ignorance can never he sufficiently iro{l with this noble soniinjent, we iiave taken up our humble pen, in tho hope of be- in^ able to ()ri>ve, by the mere recital of a few phiin facts, that nothing can be more destructive of this beautiful fabrick, than the hateful and unnatural practice of ingrafting on its present pure and unsullied stock, the barb;n'ous and dospotiek systems of foreign governments. In pnrticidar, that nothing can bo less conpjenial with each other ihan the Brilish Bulwark of universal freedom, cemented and iriatured as it hns been by tho blood of the brave and tho wisdiun of the sajj;e, and those gothick ruins from the midst of which, like the Phoenix, it has soared on high, the envy and admiration of the civil- ized world ; and, consequently, tluit nothing could be more impolitick than conferring tho privileges of our free utid generous constitu- tion mi the French popidation of Canada, and permitting then) at thesiitne lim tho full and iVeo exercise of those slnvish and anti-com- rnorcial laws and customs which their lineal ancestors, the Salian I'ranks, built on the prostrated jnonuments of Koman grandeur; laws and customs which have l.appily been banished from almost evory other cpiarter of the >Yorid, as totally mifit, iu tho pruseui ca< 9** 153 lij^litoufid (MM, to rof^ulnte the conducr, seciir© l\\v iiilorcsts, or urcsecvo llio liluMtics of any class ol pooplo. llithctruo that the I'l-oiicli ol" Canada, liko the anclont inhahilants of" It- aly, of li'(daiitl, and of NV'ales,havo hecncon- qiioiod into tho tiiijoyrno.it of true lih(Mty, tfiat conquest ou^hl to havo he(;n conipUlcd : at least, some |n'ospecl ou/i,lit h)nj; a};o to Ijuvo hern hehl out to thoseuhoso fortunes are no J«>ss conuccted with the fate of this Piovinco, than their alfoetions are sineero, anti their prayers ardent, for the }i,h)ry and welfare of the iMothor country, that some system simi- lar to rliat which had heen adopted so suc- cessfully in gradually a;uaf;e, and general p"lity of the con(|ueriug state, shoidd also he foIlovv(M! with jespeit to Lcnmr Canaila. iUjually uu- fortKuate for ihe happimvss of the province, as deiriinental to the naval and commercial prosperity of the Empire at large, a line of policy, diamofricnUy the reverse of this hns f a despotic sovereign; and the inhal>iiantH in a condition more ro- semhliug slavery than a (vi^e and intlepend- cnt people, hiiving rights to maintain and jiroperty to de-fend. Iteyond the food which nourished them, and the clothes which shel- tered them from the iuclenu^ney of the weath- er, they had no desires ; and with these, per- haps, that igQoranco of civil and political 154 hnppiuoss whieli tlioy inhoi-ilocl from tljelv nnocstors, tauftht ilunn to be contcntoil. Tlioir rules ol" inhoritniieo and tenure were feudal to the core ; ami t!io gloomiest fea- lures of that barbarous code which arose in the forests of (lerin.uiy. jxuieir.Ued into iho ■wild* ol" Canada, whore they were dtujpiy nnd indelibly iinpressetl by the power of tlio sword. In tho niakinji; of tlieir own laws they hnd no voice, Tlieso were furnished ready-made from France in the same way that the manufactures of that fann>us et)un- try were brouj^ht to them : with ihis dilVer- ence, that they f^enorally came \\ ithout be- ing asked for, sometimes overstocking, but more frequently of a character quite unsuit- able to the maiLrt. The rid ministration of justice bore all tho characieristicks of tho basis on which it was founded. All that caa be said in its favour, nnd that is no common recommendation in these days of delay and procrastination, is, that it was expeditious, ■which may bo easily conceived when we recollect, thut the sword, nnd putting tho question by torture, were the principal in- strujnents employed in putting tho laws into execution.* It is well known, that letters t/e Cachet wore in use throughout all the French dominions, without any opposition whatso- ever on tho part of tho people, or any imag- *.Tt was only in 1780 that the torture, a bru- tal custom which had been so established by the practice of ages, that it seemed to bo au inseparable part of the constitution of the ijj inatlon tlj?*l any remedy could be had against them by an application to any court f»f jus- tice. And it is certain, that under the I'lench OovernrjfKrnt in Canada, the pcojde were cornpel!<;d to (inj^Mjie as Holdiern v\'b«;tb<;r they would or not, and to march to the most dis- tant points of the country, even as far an Acadia and the Ohio, to make war upon the JJritiHh or the Aborijrines. The essence of the French la'v, as pracli;ied, and formerly enforced in tiiis province, was well urjder- gtood to be contained in tbcie significant tfi.on- osyllables, si veut h to!, hi vcut h, lot ; i. e. thai, whkfi t.'ie KinfrwiU, the Urw nrdaina. If it w.vi ffis Mjijesty'spleatiure that a man ob- noxious fo him should be iniprisoned in a j)articular castle, or fortress, or monastery, for any length of time, be fiad nothing to do but gign bis letter dc cMrMl for that purpose, and away went the unfortunate individual to tho place of hi-; confinement by a Cornet of bor^e, with a proper number of troopers tf> support him. No body ever thought of applying to tlie courts of justice to procure his release, nor did be himself ever venture to bring an. action of false imprisonn»ent against the per- sons who executed the letters dt cachH a- gainst fjim, nor against those who detained courts of rr-'juce, was abolished by the hu- mane but unfmtunale Louis XVI. I'be con- quest gave Canada twenty years preceden- cy of the "Mother State, but it cannot be said which country haa bceu most cvnspicuous for itu gratitude. liiin ill confinomcnt.f In latter times, bow- over, (U)()o-4) a };rcnt sovereign council, sim- ilar in its constitution lo the parlian^ent of Paris, with suhordinaio triltuuals and juris- dictions, vvas instituted. But the sovc eign- ty of France not being yet able, if inclined, to ilivest itself of those despotick attributes al- most indisputably enjoyed for centuries, all those courts of justice necessarily )>artook of the })olicy, which is unavoitlable to all na- tions that have made slender advances iu" refinement, such as tlic norlherti conquerors, as well as the more early Greeks and Ro- mans ; and in all of tlieiu were united the civil jurisdiction with tiie military power. To use the expressive wt)rds of <^harlevoix, (vol. i. p. ^^z"^^, vit'o infra) they were tribunals of the sword. t Such is a faint and brief sketch of the civil and political condition of (^auada previous to its conquest by the l>ritish arms. That despotism was the ruling power, as well iu the province as in the parent country no one can possibly doubt. 15oth the one and the other boro the impress of that most hateful and degrading system of (jJoverumcnt. Iu f See Ma/.cre's Collection. i"Telles ont etc les attentions du feu Roy, ]>our procurer a ses sujets de la Nuuvellc France uncjustice promptc et facile, et c'est sur Ic modcle du couseil superriour de Que- bec, qu'on a depuis etnbli ceux de la JMartiu- ique, de Saint Dominique, et d© la Louisi- »ne. Ttd CCS conseilsJ)'Epcc,'^ 157 'a both the subject was told that he had no rigpjts ; thai he could not possess any prop- erty, iodependeiJt of the niouricniary will o* his prince. Tliese doctrines are founded oq the maxims of conquest ; they must be in- culcated with ihe whip and the sword : and are best received under the terror of chains and imprisonment. Fear, therefore, is the principle which qualifies the subject to occu- py his station ; and the sovereign, who holds out the ensigns of terror so freely to others, has abundant reason to give this passion a principal place with him.self.|| How fatally those priociples in political science have beea realized in France, we are sure we need not touch upon. But how, upon the conquest of Canada, it ever became a question, whether this state of things should be continued in whole or in part, or, in other words, whether the inhabitants should be restored inintegrum to all their ancient laws and usages, or these mixed up with a reasonable proportion of English laws, in such a manner as should suit the circumstances of both the old and the new inhahitants, is a thing not so easily to 1)0 accounted for. This is a matter of which history has preserved no record, at least beyond the secret unapproachable pre- cints of the cabinets of ministers. If the evil consequences which have ensued were only to lighten the heads of those who urged such a discussion, we have no doubt the world in general would be as little inclined to pry into j[Ferguson on civil society, p. 107, 15S their closets for information on this subjeci% as the good people of Canada would be dis- posed to relieve therh of the burden thus brought upon themselves. True it is, how- ever, that the latter alternative was that "which, after much procrastination, more vascillatjon, and a great deal of unstatesman- like conduct, was in an evil hour pitched up- on ; and sure we are, that since chaos re- signed his sceptre, mankind have never been cursed with such a confusion of ail those laws and customs which preserve alike the civil and political interests of society. We shall here briefly rehearse the system which was pursued in legislating for Cana- da, from the conquest till the granting of the present constitution ; and we are convinced, that every person who will take the trouble of perusing our provincial history during that period, will agree with us in opinion, that a more bloated, a more absi»rd, a more uncon- stitutional or impolitick system, never dis- graced the annals of the British Empire. It was on the 13th September, 1759, that *' The bloody die was cast on the heights of A- hrahamy From that period, till the peace of Versailles, which took place on the lOlh of February, 1763, the Province was neces- sarily subjected to military law. Upon the conquest, the commander of the forces in America established Courts in the^ several Districts into which the Province was then divided, for the purpose of administer-* ing justice to the inhabitants. Of these in- stitutions His Majesty was pkased to signify 159 his Royal approbation, and to command the same to subsist and continue until a civil gov- ernment could be legally settled in the Prov- ince. These tribunals continued to exercise their functioiis from the 8th of September 1760, thtr date of the capitulation of Montre- al, until the 10th of August 1764, when civil government was established throughout the Province. On the 20th September folio w- iner, an ordinance was passed by the Govern- or and Council approving, ratifying, confirm- ing, and giving full force and effect to all or- ders, judgments and decrees of these Courts denominated in the ordinance, " The Mili- tary Council of Quebec and all other Courts of Justice in said Government." There was however, an exception to such cases where the value in dispute exceeded the sum of three hundred pounds sterling : in which ease either party might appeal to the Governor and Council of the Province.* Upon this subject it seems to be agreed among writers on inter-national law, that til! there be an absolute surrender, military law must prevail in every country, and supersede the common law ; but the moment the new Sovereign is in peaceable possession, the me- Tuni imperium, or power of the sword, or the haute justice, as the French Civilians call it, to be exercised accordiiig to common law, takes place : and this power must ex'end to all crimesthat concern the peace and dignity of the crown. These ave mala in se, crimef§ * Fide Ordinance dated to 20th Sept. 1764* 160 in themselves, and universally known in eve- ry nation. Those crimes which arise from prohibitions are not known, and therefore they are not governed by penal statutes an- tecedent to the conquest. The mixium im- perium of personal wrongs and civil property must be promulgated before the ancient laws are understood to be altered. f This is the first step or era in our legislative system. In the condition above sketched, Canada by the definitive treaty of 1763; was ceded to the crown of Great Britain absolutely, and, to use the words of the treaty itseif,J " that fMariott. j" IV. His Most Christian Majesty renoun- ces all pretensions which he has heretofore formed, or might form to Nova Scotia or Acadia, in all its parts, and guarantees the whole of it, and all its dependencies, to the King of Great Britain. " Moreover, his Most Christian Majesty cedessand guarantees to his said Britannic Majesty, in full right, Canada, with all its de- pendencies, as well as the Island of Cape Breton, and all other Islands and Coasts in the gulf of the River St. Lawrence, and in ge- neral everything that depends on the said countries, lands, islands, and coasts with the sovereignty, property, possession, and all rights acquired by treaty or otherwise, which the most Christian King and the Crown of France have had till now over the said coun- tries, islands, lands, places, coasts and their iflhabitants; so that the Most Christian Ring 161 iu the most ample manuei* and form, with- out any restriction, and without any liber- ty to depart from the said guarjlnty under any pretence, or to disturb Great Britain in the possession above mentioned." In conse- quence of the powers thus vested in His Majesty, the well-known rights of the Crown, constitutionally as well as imperially, and the reservations and conditions of the capitula- tion for Montreal and Canada, his Majesty, on the 7th of October, 1763, issued a proclama- tion,* by which those who were, or should Se- cedes and makes over the whole to the said King and to the Crown of Great Britain, and that in the most ample manner and form, without any restriction, and without any li- berty to depart from the said guaranty under any pretence, or to disturb Great Britain in the possessions above mentioned. *' His Britanic Majesty, on his side, agrees to grant the liberty of the Roman Catholic religion to the inhabitants of Canada. He will consequently give the most effectual or- ders, that his new Roman Catholic subjects may profess the worship of their religion, ac- cording to the rights of the Romish Church, as far as the laws of Great Britain permit.''* *This proclimation refers indiscriminately to Canada, East Florida, and Granada. " And whereas it will greatly contribute to the speedy settling our said new Govern- ments, that our loving suKjects should be in- formed of our paternal care for the security of the liberty and properties of those who «re^ 162 come inhabitants of Canda, were assured, on the royal word, thai for the security of their and shallbeconie iahabitantsthereof ;we have thought fit to pubhsh and declare by this our proclamation, that we have in the letters patent under our great seal of Great Britain^ by which the said governments are constitut- ed, given express power and direction to our Governors of our said colonies respectively,, that so soon as the state and circumstances of the said colonies will admit thereof, they shall, with the advice and consent of the members of our Council, summoa and call general assemblies within the said governments respectively, in such manner and forms as is used, and directed in those colonies and provinces in America, which are under our immediate government : and we have also given power to the said Governors, with the consent of bur said council, and the representatives of the people, so to be sum- moned as aforesaid, to make, constitute, and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of the said colonies, and of the people and inha- bitants thereof,as near as may be to the laws of England, and under such regulations and re- strictions as are used in other colonies; and in the meantime, and until such assemblies can ba called as aforesaid, all persons inhabiting in or resorting to, our said colonies, may confide in our royal protection for the enjoyment of the heneft of the laivs of our realm of England ; for which purpose we have given power im- 16^ liberty and property, express power and di- rection should be given to the governor of the province, as soon as circumstances would ad- mit of it, to summon and call a general as= sembly, with power, in conjunction with the governor and council, to make laws, statutes and ordinances for the peace, welfare and good government of the inhabitants as near as might be agreeable to the Laws of England, and in the meantime, and until such Assem- bly could be called, all persons inhabiting op resorting to the province, might confide in the Royal protection for the enjoyment of the benefit of the law of the Realm of England. In con« sequence of this publick and, I may say, na- tional guarantee^ that not only the English laws and judicial proceedings, but a free re- presentative government, modelled upon that of the conquering country, had already, or, at least, were about to be established in their full derour great seal to the governors of the said colonies respectively to erect and constitute with the advice of our said councils respect- ively, courts of judicature and public justice within our said colonies for the hearing and determining all causes, as well criminal as civil, according to law and equity, and as near as may be, agreeable to the laws of Eng- land, with liberty to all persons who may think themselves aggrieved by the sentence of such courts in all civil cases, to appeal un- der the usual limitations and restrictions, to us in our privy council." 10 164 force and vigour in Canada, many hundred Oiitorprijiing families of boili ngricultnral and conuuercial eapilal resorted to the province, in the firm faith, and full belief, thai the change of their native for a strange and dis- tant clime, nith a few years of iudustrious hartlship [leculinr to the settlement ofanew coiHitry. woiikl complete the catalogue of their trials; and that their birth-rights, the laws and govcrnmeDt of Eughuul, would ever be maiutaiued in the terras set forth in the above recited proclamation. f l>ut, to the dishonour of l^nglaud. and the confusion of the Colony. they were deceived: and therefore some very imjiortauf questions soon after- wards arose with respect both to the general powers of sovereignty over a conquered peo- ple already in possession of laws and civil institutions of tlieir own. and the efilcacyof the proclamation of IToS. in introducing the laws of Euglauurtinouth, prciserved by Mascrcs. 155 the province, as a matter of course, wholly and In reality superseded. With regard, io the first place, to the right of the king, on the general principles of the laws of nations, as well as of the empire, to alter and change the laws of conquered or ceded countries already in possession of iaws of their own, there seem to exist no doubts whatever ; and indeed, it is impossible there could be, as in all the conquests of England this right has uniformly been exercised to the entire exclusion of every other right of inter- ference. But with regard to Canada in par- ticular, if any doubts could at all be enter- tained, tliey are completely obviated not only by the uncoLulitioual terms in which by tho treaty of peace the couutrj'^ was delivered over to Great Britain, but also by the capit- ulation with the inhabitants themselves ; both of which are sacred ami inviolable according to their true intent and mejining. In the forty second article of this capitulation,* tho demand was that ''the French and Canadi- ans shall continue to be governed according to the custom of Paris, and the laws and usa- ges established for this country." The ans- wer was " //?t\y become subjects of the King.''^ The inevitable consequence was, that their laws were liable to be changed by their ow ii act as well as by the inherent rights and *Art. XLI. The French Canadians, and Acadians, of what stale and condition soev- er, who shall remaiti in the colony, shall not be forced to take arms against His Most 166 powers of the new Sovereign. f There is no gainsaying this self-evident fact. A country conquered by the British arms, be- comes a dominion of the King in right of his crown ; and therefore necessarily subject to the legislature and parliament of Great Brit- ain. The conquered inhabitants once re- ceived under the King's protection become subjects, and are to be universally consider- ed in that light, not as enemies or aliens. The law and the legislative government of every dominion, equally affects all persons and all property within the limits thereof; and is the rule of decision for all questions which arise there. It is left by the constitution to the King's authority to grant or refuse a capitu- Christian Majesty or his allies, directly or indirectly, on any occasion whatsoever. The British Government shall only require of them an exact neutrality. Answer. They become subjects of the King. Art. , XLII. The French and Canadi- ans shall continue to be governed according to the custom of Paris and the laws and us- ages established for this country. And they shall not be subject to any other imposts than those which were estabished under the French dominion. Answer. Answered by the preceding ar- ticles ; and particularly by the last. fCowper's Reports, 1774--8. Campbeli vs. Hall. lation ; if he refuse and put the inhabitants to the sword or exterminates them, all the lands belong to him. If he receive the in- habitants under his protection and grant them their property, he has a power to fix such terras and conditions as he thinks prop- er. He is entrusted with making the treaty of peace : he may yield up the conquest or retain it'upon what terms he pleases. These powers no man ever disputed : neither has it ever been controverted that the king might change part or the whole of the law or po' litical form of government of a conquered dominion. The history of the conquests made by the crown of England, is a practical illustration of this position. At the conquest of Ireland, the inhabitants were governed by what they called the Brehon law, so styled from the Irish judges, who were denominat- ed Brehons. The conquest of the island and the alteration of the laws by the King of England, in the twelfth and thirteenth cen- turies, have been variously and learnedly discussed by lawyers and writers of great fame, at different periods of time : but no man ever said that the change in the laws of the country was made by the parliament of England ; no man ever said the crown could not do it. The fact in truth, after all the researches which have been made, comes out clearly to be, as laid down by Lord Chief Justice Vaughan,* that Ireland received the laws of England, by the Charters^and com- *Rep. 293. 16« mamls of Ilcury H. Kiiip; John, Ileiirylll. niul ho atlils iiii (7 cct-ra to take in lOtlward 1. anil tho sul>so(|iioMt kiiijis. Ami lie shows clearly the niistaUe of" iioap;iniue; that tho Ciuirtors of the \'2\U oi' John, l>y Avhioh, it was ordainod anvere either suhniined or assenieil to by a parliaintMit of Iroland. as suriniseil by Sii" iaiward l^oke.* Whenever the first parlia- ment was called in Ireland, the ehaiijie w as introduced without tlie interposition of the parliament of England, and must thereforo liavo been derived from the crown. The statute ofWales. rJth I'dward I. i«i no more than rci^ulaiions uiaile by the Kinji in his Council for the p,ovornment of \\ ales, which the preamble says w as then totally subdued. Tlunijih for various political causes, he feign- ed Wales, to bo a feotV of the crown :f yet I'.e j^ovcrned it as a conquest. The town of Heiwick upon Tweed was originally a part of the kingdom of S^cotland :X and as such, >vas for a lime reduced by Edward 1. into M lust. 141. f These are the woitls of the statute of Rluultdau. as i^uoted by l>lackstone : •* Terra Walliae cum iacolis suis. prhis regi jure podali subjecta.jam in proprietatis dominium totaliter et cunt intogritate con- versa est. et coronae rigni Augliae tauquaiu piirs corporis eiusilcui annevaet unita." Uilackslone! Vol. 1. p. ;>S. 10» 109 tlio possession of the crowu of Eiiglaiul : aiut thiriiig its subjection, it received from that priuoe a (^barter, \vhich was coniiriued by Edward III. with some additions. Fioiu that time till tho rci^u of James I. it was governed by Charters from the eroAvn with- out rhe interposition of parliament. All the alterations in the laws of (lascony, (uiienne and Calais, must have been under the king's authority ; because no acts of parliament relative to them are extant. The king has always exercised legislative powers in Mi- norca. At the conquest of N'ew-York. ( UiG4) in which most of the old Dutch inhabitantsi remained, Charles II. changed tlie form of tiieir constitution and political government; by granting it to the Duke of York, to hold of his crown under all the regulations con- tained in the letters initent. It is remarka- ble that although the King never exercised any legislative authority in Canada notuilh- stnniiiug tlie promises held out in tiie ])rocla- niatiou of 17b'3. and the powers conferred by the letters patent containing the commission to the Governor in the same year, jet a dif- ferent system was pursued in Creuada to which the proclamatitui indiscriminately re- ferred. There tiie Commission of General IMelville, as goveriior.is dated in April, ]7(U. The Governor arrived in Grenada on the 14th of December, I7G4 ; and before the end of 17l55, an assembly liad actually met iu that island. No qnesiiou. says Loid Mansfield, was ever started belbrebut that the King has a right to legislative authority over a cou- 170 quered country. It was never denied in Westminister Hall ; it never was question- ed in parliament. Coke's report of the ar- guments and resolutions of the judges io Calvin's case lays it down as clear. Ff a King, says the book, comes to a kingdom by conquest, he may change and alter the laws of that kingdom ; but if he comes lo it by title and descent, he cannot change the laws- of AmseZ/without the consent of parliameut. In the year 1722, the Assembly of Jamaica being refractory, it was referred to Sir Phil- ip York, and Sir Clement Wearge, to know, " What could be done if the Assembly should obstinately continue to withhold the usual supplies?" They reported thus: "If Ja- maica waSjStill to be considered as a conquer- ed island, the king had a right to levy taxes upon the inhabitants ; but if it was to be considered in the same light as the other Co- lonies, no tax could be imposed on the in- !» bitants but by an Assembly of the island, or by an act of parliament." I shall only add, that, with the exception of Canada alone, the legislative and judicial authority in all the colonies planted by Great Britain in America, arose from grants and commis- sions emanating directly from the King. Having thus generally, and with respect to Canada in particular, clearly established the right of the king to abolish the laws of a conquered country and replace them either by those of the paramount state, or such others as may deemed most advisable, w© 10** in proceed, in the next place, to inquire how far the proclamation of 1763, aud the subse- quent acts of the imperial and proviocial governments, succeeded in accomplishing the great object in view. In doing so we may be tempted into some detail ; bwt how- ever feebly executed, we hope it will not prove altogether uninteresting to those who may be anywise concerned in the welfare and happiness of the British Colonies. We have already alluded to the proclama- tion, and made such quotations from it as may convince the most obdurate, that, at the time of its publication, it was intended not only that it should form the basis of the Bri- tish Sovereignty and supremacy in Canada, but the palladium of the rights and liberties of the old as well as the new inhabitants, *' agreeably to the laws of England.^ ^* This ho^vever has been questioned by very high authority. In a report made on the 14th of April, 1766, by the Attorney and Solicitor General, Mr. Yorke and Mr. De Gray, it was attempted to be proved, as the basis of their statement, that this proclamation was only meant to be introduclive of select parts of the law of England, and not of the whole body of laws ; and that the criminal laws of England, and of personal wrongs, were almost the only laws that came under the terras made use of in the proclamation ; and that the laws of England relative to the descent, alienation, settlement, and incum- *Vid. Proclamation. 172 brances of lands, and the distribution of per- sonal property in cases of intestacy, and all the benefical incidents of real estate, in pos- session or expectancy, were not comprehend- ed under the proclamation. It is very re- markable, that in pronouncing such an opi- nion — an opinion which involved the happi- ness of millions, and, perhaps, the peace of empires — the learned reporters did not cite one principle or maxim of national or muni- cipal law in their own justification. They merely proceeded on the abstract principle, that to change at once the laws and manners of a settled country, must be attended with hardship and violence ; and therefore wise conquerors, having provided for the security of their dorai.tion, proceed gently, and in- dulge their conquered subjects in all local customs, which are in their own nature in- different, and which have been received as rules of property, or have obtained the force of laws. These observations might serve as a text to a very large volume upon national law and justice ; but we shall rid ourselves of them by a very few remarks. The reason- ing made use of by the learned gentlemen might indeed suit a purpose when the procla- mation first became a topick of discussion at the council-board, or at any other time or place previous to its being issued. But this ex post facto reasoning came rather too late after hundreds and thousands had left their native country with all their resources and emigrated to Canada, where they purchased lands, planted, settled, and carried on trad« in and commerce to n very great, and, iu Cana- da at that time, a very wonderful extent,* on the faith of the king's royal proclamation, guaranteeing to those who might resort to the new province " The enjoyment of the be- nefit of the Laws of England.'''' As to tlie honour which the learned gentlemen have done Canada by placing it in the rank of set- tled countries at a lime when the popula- tiouf scarcely exceeded that of some manu- facturing villages in England,! shall only ob- serve, that even if it had been a settled coun- try at the time of the conquest — and, alas ! the greatest part of itstill remains unsetiled, and so will ever remain until the present sys- tem both in laws and general polity be chang- ed — such a circumstance could neither justi- fy the erroneous view taken of the procla- mation by the Attorney and Solicitor Gene- ral, so widely different from that of every other individual in the empire ; nor destroy those rights which, as we have seen, the law" pla- ces so firmly within the grasp of the king. And, lastly, with respect to those wise con- querors, who we are told proceed gently ia *Vid. Memorial from the English inhabi- tants of Quebec to Lord Dartmouth. fThe following progressive view of the po- pulation of Lower Canada may not be unia- ieresting : — 1663— 7,000, 1775— 90,000. 1714—20,000, 1784—123,727, 1750—70,000, 1814—335,000. 1825—420,179. 174 the imposition of tkeir own laws upon their eoiiquered subjects, and iutlulge tlieni iu iheir iooal customs, we shall only observe, that we should on all occasions sit down to the study of history, with increased and increasing pleasure, if we were assured that her stores contained a single page which exhibited the conqueror as more disposeil to sanction the customs and prejudices of the conquered, than to gratify his own vanity and ambition. But, with the exception of the solitary and unfor- tunate instance now under consideration, the whole course of history is a standing evidence against the assertion ; and it is good that it is so, for otherwise mankind would never have emerged from the rudeness and barba- rity in which they had been origiuallj' sunk. The arts, the eloquence, and the poetry of Greece and Rome would never have arisen, as they have done, like the sun in his glory, on the other benighted nations of the world, and spread knowledge and elegance through the uttermost parts of the earth ; seducing in their course the savage from his cannibal re- velry, the barbarian from his never-ceasing wars, the robber from his plunder and his den, and the assassin from his nocturnal ma- raudings. The sacred names of Liberty, Justice, and Civil Order, which now resound through the universe, would have been buri- ed amidstthe ruins of Jerusalem, Athens, and of Rome; still, perhaps, leaving man the dupe of his folly and the victim of his pas- sions. Let us, however, listen for a few mo- ments to history on so important a subject. 175 The Grec7t'.9 not only imposed their laws upon the provinces subjected by their arms, but compelled the unfortunate inhabitants^to rej)air to the capital of the conquering state to obtain justice. In truth, there never ex- isted in civil society such pitiless tyrants as those who composed llie Democracies of Greece, in respect both to their conquests and natural colonies, terms more frequently syoonymtius than distinct. Any prctonco served them to rob their Allies, as they some- times affected to call those victims of their ambition, of almost every blessing that they enjoyed, whether consisting of pecuniary riches, doraestick comforts, or publick splen- dour ; and tl'.cir rapacity could not be ex- ceeded by the most avaricious Turkish Pasha that ever existed. For a number of years they continued to raise six hundred talents annually from the Asiatick Colonies: yet not a single talent of this enormous and unjusti- fialile exaction was ever expended for the be- nefitof those upon whom it was levied ; but, on the contrary, sent to fill the coffers of the parent or conquering state in order to minis- ter to her coriuption and extravagance- Thus, Plutarch informs us, the sum levied on the colonies, all of whom came under the de- nomination of tributary provinces amounted to thirteen hundred talents. Yet when these states revolted, which these unfeeling and unjustifiable exactions frequently induced them to do, they wore punished by the Mo- ther City Avith the utmost severity. The au- thors of the insurrection were put to death ; 176 their property was confiscated; and a heavy fine imposed upon the w/ioZe community. By what process of trial all this was done, we leave to the decision of those who still admi- nister justice by hard blows rather than by the dictates of truth and reason ; and thank our stars that, however much indebted to the arts and learning of Greece, we are none of her dependencies. In the fifth year of the Pelopouesian war, the territory of the island of Lesbos was, on an occasion of this kind," partitioned among the Athenian citizens. Oa the breaking out of a similar mutinous hu-- mour, the inhabitants were condemned to pay two hundred talents. By such tyranni- cal exactions, Athens could at one time boast of a treasury of ten thousand talents. The high chivalriek, and in many instances, the mistaken notions which from childhood, we are accustomed to entertain of Grecian liber- ty and patriotism not only tend to prevent us f.om viewing with impartial severity the dark side of the picture which has been handed down to us of that nation's character, but go n great way in prevailing upon us to disre- gard even the assurance of well-accredited his* tory as to th.^ extent and enormity of the ty- ranny of Greece alike over her colonies and conquests. Yet such were the excesses com- mitted in this way under the sanction of the boasted popular institutions of the Grecian republics, that it were well if some modern patriots and politicians would seriously re- flect before holding up for our imitation go- verarnenta whose theory was always at va- 177 riance with their practice, and the ingenuity of whose patriots aad mioisters is ranch more to be admired, than either their morals of their manners. At any rate it is not for us to bor- row from Grecian polity. Their colonies and conquests instead of being fostered with the care and liberality of a wise and polite nation, and their necessary wants of every descrip- tion supplied when occasion required it, were harrassed with incidental levies and burden- ed with the most oppressive taxes. Their commerce and industry were also heavily as- sessed ; and their local institutions, alike ci- vil and religious, were frequently abolished, that tho attention of the people might bo more constantly directed to those of the mo- ther city, and that all pecuniary emoluments, and other advantages accruing from them might go to enrich and aggrandize the avari- cious parent. "The people of Athens," says Xenophon, *' desire to acquire at once all the wealth of their tributary states, and can hard- ly be pursuaded to allow their subjects to re- tain what is barely sufficient for their subsis- tence. They permit not their allies to have tribunals for deciding causes between one man and another, but oblige them to have re- course to Athens for their determination. Hence they govern them without any trouble to themselves and ruin in the Courts of Justice every one who appears to bear ill- will to the Athenian people. Besides this advantage, the particular citizens who hap- pen to be Judges, get a considerable increase of fees because they are in proportion to the 178 number of causes which they decide. They j>rofit also by letting their houses and ser- vants to such strangers as are obliged to re- sort to Athens for ohtaining Justice. The State itself is a gainer by an augmentation of tax called the hundreth, which is paid at the PireeuKi.* And ail the citizens in gen- eral obtain much honour and respect ; for if the allies were not obliged to plead their cause in Athens, they would pay regard to our generals, ambassadors, and sea-captains, and them only. But at present they obey honour and respect every Athenian citizen; they even kiss his hand as a mark o( submis- sio7i due to the man who at some future time may be their Judge." Sparta, when she be- came the paramount state, was no less st»*ict and imperious in imposing her ow^n laws and government upon those who fell in her pow- er; but I shall not detail the desolation and horror with which she filled all Greece after the Peloponesian war, as it will answer my present purpose simply to say, that she dis- solved the democratical governmenis in It- aly and Sicily, and established tyrannies ev- ery where in their room. To conclude, Isoe- rates, in his panegyrick, greatly extols his countrymen for their policy with respect to their conquered allies ; and adds these re- markable words : " JFe established, over all *ThePir8eum being the sea-port of Athens, it is very evident, that none but the maritime and transmarine dependencies were subjected to this slavish extoriion. 179 Greece, the same system of policy which we our^ selves enjoyed.''^ Such were the principles that actuated the Greeks in their conquests ! As to the policy of the Romans, in respect to f/ieir conquests, it is so generally known, and so completely subversive of the doctrine laid down by the Attorney and Solicitor Gen- eral, that we shall merely allude to it in as general terras as possible. It has been said of the Turks, that in the propagation of their religion, the sword is the only expounder of the Koran. Well may it be said of the an- cient Romans, that, in extending their em- pire, the same celebrated and irresistible lo- gician was the best definer of their laws. Where the sword of Rome gained possession, there her sovereignly, language, and laws took root. " Wherever the Roman conquers he inhabits. "f The security of the govern- ment, and the interests of individuals co-op- erated in seizing the strongest, or the most fertile, situations for the establishment of col- onies, to be occupied by Romans or their conciliated subjects who, in the capacities of soldiers, farmers, and traders, reaped the greatest advantages, which could be derived from the property of the soil in the conquered territories, while the original proprietors were compelled to cultivate their own lands for the emolument of their new lords. What laws but the laws of Rome conld be the rule of conduct in such settlements? All those unfortunate people who became subject to tSeu. CoDsol. ad Helviam, c. G, ISO the Romans were immediately exposed to every kind of iiardship. Their lands were seized and given to the veterans, among whom the Roman laws were introduced, for they knew none other. The inhabitants, strangers to the power which the arts of civ- ilization placed in the hands of an enemy naturally warlike, and %vhose most honorable profession was arms, soon experienced their own weakness and disproportion to the Ro- man forces, and reluctantly acquiesced in the dominion of their masters ; gradually incorporating as a part of that mighty Em- pire, whose laws, customs and manners they were compelled to embrace in silence, tho' in pain. Liberty, says Montesquieu, speak- ing of the Roman government, was at the centre, and tyranny in the extreme parts, meaning the Colonies or Provinces. While Rome extended her dominions no farther than Italy, the people were governed as con- federates, and the laws of each Republick were preserved. But as soon as she enlarg- ed her conquests, and the Senate had no lon- ger an immediate inspection over the Prov- inces, nor the M^isirates residing at Rome ■were any longer capable of governing the Empire, they wer^ obliged to send praetors and proconsuls. Then it was that the har- mony of the three powers was lost. Those who w^eresent on that errand were intrusted with power which comprehended that of «// the Roman Magistracies, rtai/ even that of the senate and the people. They made their edicts upoa coming into the Provinces. They IS I ■were despotick Magistrates. They exercis- ed the three powers of the metropolitan gov- ernriienl, and were the husbands of the E,e- publick. While the city paid taxes without trouble, or none at all, the Provinces were plundered by the Knights, who were the farmers of the publick revenues. All histo- ry abounds with their oppressive extortions, *' All Asia" says Miltiridates, " expects me as its deliverer ; so great is the hatred which the sapaciousness of the proconsuls, the con- fiscations made by the officers of the revenue, the quirks and cavils of judicial proceedings, have excited against the Romans.* Nothing, however, can convey a better idea of the con- quering policy of the Ilomans,than the account given by Tacitus of their conquests in Britain in his life of Agricola. "The Britons them- selves," says he, are a people who cheerfully comply with the levies of men, with the imposi- tion of taxes, and with all the duties enjoined by government ; nor have the Romans any farther subdued them than only to obey just laws.^'' But the best representation extant of the grinding and oppressive conduct of the Romans towards the Britons, is to be bound in the famous speech which the same author has recorded as having been made by Galgacus to his army previous to engaging with the Romans at the foot of the Gram- pian Hills. I shall make a short extract from it ; and whether actually spoken by "^ Montesquieu, L. XL c. 8. 11 185 Galgacus, or writien by Tacitus, it is in my opiaiou, equally a proof of the savage and merciless principles on which Rome exteod- ed her imperial yoke over the world : "■Al- ready the Romans have advanced into the heart of our Country. Against their pride and domineering, you will find it in vain to seek a remedy or refuge from any obsequi- ousness or humble behaviour of yours. They are plunderers of the earth, who, in tbeii*. universal devastations, finding countries to fail them, investigate and rob even the sea. If the enemy be wealthy, he inflames their avarice ; if poor, their ambition. They are general sp ilers; such as neither the eastern world nor the western can satiate. They only of all men search after ac quisitions botli poor and rich with equal avidity and passion. To spoil, to butcher, and to com- mit every kind fvf vii.lence, ihey style, by a lying name. Government, and, when they have spread a general desolation, call it P^ace. Dearest to every man are his children and kindred, by the contrivance and designntiofi of nature. These are snatched from ue for recruits, and doomed to bondage in other parts of the earth. Our wives and sisters, however they escape pollution and violence as from open enemies, are debauched under the appeju'unce and privilege of friendship and hospitality. Our fortunes and pt'Sses- sions ihtif exhaust for tribute, our grain for their provisions. ^^ The conquering system pursued by the Norman Usurper, is familiar to every reader ol* English history; and what was said of Clovis, not long since, may with truth and justice he applied to WilliHm---that he had been cast in the true mould of conquerors. I may add, that the latter was in every sense ns great a barbarian as the former; for lie who could neither appreciate nor respect the free and glorious institutions reared and con- secrated by the great Alfred, vvliich now hap- pily form the basis of that oiasterpiece of liuni'ju wisdom, the British Constitution, but demolished them in order to make room for his own gothicli system, was in truth more rude and ignorant than he who dis- puted the possessiitiotito gratify but his own, and no oth- er ti'-'fion of freedom than the power of en- slaving thousands that one man may shake the rod over all. He introduced into Eng- land the feudal law, which he found estab- lished in France and Normandy. He par- titioned all the lands, and conferred them, witli little reservation on his followers. Those who held immediately of the Crown, shared out a great part of their possessions to other foreigners, who paid their lord ths same duty and submission in peace anc' war which he himself owed to his sovereign. Thus was the feudal system of government established in England ; a system under ^ 184 which she groaned for centuries ; but from ■which she at last shook herself, rising in glo- rious triunnph, as from a new epoch, above the base thraldom and slavish subjection to arbitrary will and law, to Avhich she had been 50 long exposed. Yet this is the order of things which some are still desirous of per- petuating in Canada, at a time when it has Iseen pursued with all the contumely and re- venge of civilization from ^very other regioQ- of the world. We might here wind up this tedious but necessary episode with an account of ail the most splendid conquests of the world ; but wo think wo have said enough in practical confutation of the abstract proposition of the Attorney and Solicitor General. We shall only add, that it has been always laid down as a well-established principle by writers, cji the laws of nation?, that natural law estab- lishes neither distinction of persons not prop- :,erty, nor civil government ; it is the law of ^^ations which has invented these distinc- tions, and rendered aU tJiose ivho happen to be ivithin the territory of state, subject to the ju- risdiction of that state. When a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment, or mother country, naturally becomes a part of the state, equally with its ancient possessions. When- ever, therefore, the political laws or treaties make no distinction between them, every thing said of the territory of a nation ought also to extend to its colonies. We have thus, 185 we hope, satisfactorily proved, first, that power being; the natural consequence ofprop- erty,all nations have been guided in their con- quests by the same maxiois, and biive never scrupled to expel the ancient laws of avan- quisl'ed people in order to impose their own : secondly, that it is the undoubted and con- stitutional inherent right of the King of Great Britain to follow a similar plan, and give such laws as he may think proper to a con- quered country, having done so from the earliest periods ; and, thirdly, that he was therefore fully justified in issuing the proc- lamation of 1763, being the only mode then in use for establishing the constitutions of the colonies. It now only remains to be proved, that, in consequence, the laws of England had been absolutely and with scarcely any reservation introduced into Canada. We have already said that the proclama- tion was issued on the 7th of October, 1763. The commission to General Murray, as Gov- ernor, is dated the 21st day of November fol- lowing, the bill not being signed by the At- torney General, for the commission of letters patent till the 22d of October ; and on the 14th of November, the privy council made an order for interlineations of some necessa- ry words. On the 10th of August, 3764, it was published at Quebec.^ This comrais- * Quebec, August 16^^.— Friday the 10th instant, His Majesty's letters patent, consti- tuting and appointing the Honorable James 186 . slon, as well as the iastrnctions ivhich ac- companied it seemed every whereto pre-sup- pose that the laws of Eugland had already been in force in the Province since the con- quest ; beinjj;, as Marriot ol)serves, full of al- lusions and references to those laws ,'^n a variety of different subjects; and did'- not contain the least intimation of a reservation of any part of the old laws and customs of tiie Province. At the time of passing those instru/iieuts, His Majesty's Ministers appear to have been of opinion, that by the refusal of General Amherst to grant to the Canadi- ans the right of being governed by the cus- tom of Paris ; and by the reference made, in the fourth article of ihe definitive treaty of peace, to the laws of England as the meas- ure of the indulgence intended to be shewn them with respect to the exercise of their re- ligion, sufficient notice had been given to the Murray, Esq> Captain General and Governor in Chief in and over His Majesty's Province of Q,Me6ec, and vice admirul of the same, were read to a numerous concourse of peo- ple, in the square fronting his Majesty's Castle of St. Louis, where the troops were drawn up underarms; after which, the can- non from ttie ramparts was fired, and an- swered by the men of war in the harbour, and by volleys of small arms from the regi- ments in garrison here, and the day was con- cluded with the usual demonstrations of joy and universal satisfaction.— Q,M€6ec Gazette. 11* 187 conquered inhabitants, that it was His Majes- ty's pleasure, that they should be governed for the future according to the laws of Eng- land ; and that the inhabitants, after being thus apprized of the King's intention, had consented to be so governed, and had borne testimony to this consent by continuing to reside in the country, and taking the oath of allegiance, when they might have withdrawn themselves from the Province, with all their effects, and the produce of the sale of their estates, within the eighteen months allowed by His Majesty, in the treaty of peace, for that purpose. Thus formally installed, the Governor, without delay, proceeded to the execution of his high and important functions. The first thing done, was the nomination of eight Councillors, whom he was authorised by his commission and instructions to make choice of.* Thus constituted, the Governor and Council in virtue of the said commission and instructions, found themselves invested with powers and prerogatives of no ordinary mag- nitude. The most important of these was the power " to summon and call general as- semblies of the freeholders and planters" of *The gentlemen nominated were the fol- lowing : William Gregory, Walter Murray, Paulus Emilius Irving, Samuel Holland, H. T. Cramahe, Thomas Dunn, Adam Mabane, Francis Monnier. the Province, to he called the Assembly of the Provinco of Quebec; with tho advice and cousent of which Council and Assemb- ly, after being duly qualilied, the governor %vas empowered to make laws for the pub- lick peace, welfare, and good government of the Province, such laws " not to be repug- nant, but, as near as may be, agreeably to the laws and statutes of this our KingtU)m of Great Britain." Butitmay be asked, if tho. governor really possessed the power of con- voking a general assembly and enacting laws in the manner here set forth, why, instead of proceeding to do so in a legal and constitu- tional manner, did he restrict the whole leg- islative power of the Province to himself and his Council ; and seeing, that neither his commission nor instructions empowered him to make laws otherwise than with the a(jvico and consent of the Cou?icil and A^stmhlij, how could the laws actually made by the Gov- ernor and Council alone, being only two of the constituent branches of the prescrihed Legislature, be binding upon the people ? Thi« is, indeed an important inquiry, and ■which, considered abstractedly, might in- volve alike the fundamental principles of good government and tiie dearest rights of the peoj)le. But in so far as it concerns tho present disquisition, the objection cao easily be obviated. With respect to a general Assembly, the fact is, that though one had been summoo- ed and chosen for all the parishes but Que- bec, it was discovered upon reference lo the 11** 189 commission, that it could not sit, in conse- quence of the restrictions therein contained, arising from the Test Act of the 25ih Charles II. which prevented the measure of an As- sembly bein;; executed in a Colony where all the principal old inhabitants were of the Roman Catholic reli'don.* No discretion- ary powers were given to the Governor with respect to the administration of the oaths prescribed by this act ; and as the Assembly could not proceed to transact business with- out bein^ duly qualified agreeably to the commission and instructions of the Govern- or, it was deemed advisable to abandon the meas'.ire for the present, and await further and better defined instructions from thelm- periitl Government. Besides, as the gov- ernor, by his commission, was not enjoined peremptorily to summon a general assemb- ly, such a step being merely optional, " so soon as iho situation and circumst-ioces of the Province would admit thereof," it was thought advisable not to do so, the present circumstances of the Province rendering ihe measure by no means necessary. It woultL also be premature, it was thought, and r.t- tended with many great public inconvenien- ces ; as the people of Canada were then, as they still are to a proverb, extremely illite- rate, and not yet ripe for so great and' sudden a share of liberty and of legislative power; it being doubted whether there vere more than four or five persons in a parish in general "Marriott. who could read. It was. therefore, most reasonably apprehended, that the calling of an Assembly so c -mposed, instead of reme- dyinj; and regulatin;^ all iUe causes of com- plaint, would have created new ones, and become the source of di-fempered and igno- rant fnctions hij^hly injurlwu-- tu tf;e welfare and i);ippinf^ss of the people: : truth wl.ich wa> unhappily reriliged soon after the grant- ing of the present Constitution : producing evils wliicb oothinj^ hut the speedy iuterven- tioa, iower, and loj^isbitive wis(lom of the mother Country cau ever effectually cure. , As ro the legality of the ordinances and laws passf^d by the Governor and Council, thus eniiiossiug to themselves the wl.oie leg- islative poner of the Province, vvhaiever lawyers roijfht say of tWem on gener;! prin- ciples of ciustiiuiiooHi goveruineui, especial- ly siich of them as did not receive the express sanciiou t»f the King, no authority, except the highest in the state, could impugn the le- gality of the ordinr>uces njade for the estab- lishment of the laws of Englfind in the Prov- iuce, and tlie necessary tribunals and officers for ad ninistering them. The Governor's commission contained the most ample pow- ers nu c lis hend:---' AuJ we do by these presents give and grant unto you, the said James Murray, full power ani authority, ivith iheadv ce and consent of our said councily to erect, constitute, and establish such and so many courcs of judicature and publick jus- tice within our said Province under yooi* Government as you and they shall think fit 191 and necessary for the hearing and determin- ing all causes, a8 well critninal as civii," &c. Even if an assembly hnd been called, as originally intendetl, the powers thus confer- red could not be called in question ; for they are entirely and absoluti ly confined to tho Governor and Council ; and therefore, what- ever laws were made for the establishment of courts of justice in the Province, must be hold l>indiug on the people, atid looked upon as the fotindalion of their rights and the best security of their persons and property, until abrogated by the King or Parliament. Accordingly, on the 17th of September, 1764, a law, entitled *' An ordinance for regu- lating and eatahlishing the Courts of Judi- cature, J ustices (f the Peac', (Quarter SersionSj Bailiffs, and other matters relative to the dis- tribution o/' Justice in tins Province,'''' was pas- sed, part of which I shall make no apology for transcribing verbatim : •' Whereas iti^ highly expedient and ne- cessary for tho well-governing of His Majes- ty's good subjects of the Province of Que- bec, and for the speedy and impartial distri- bution of justice among the same, that prop- er Courts of Judicature, with proper powers and authorities, and under proper regula- tions, should be established and appointed : " His Excellency the Governor, by and with the advice, consent, and assistance of His Majesty's Council, and liy virtue of the power and authority to him given by his Majesty's Letters Patent, under the Great Seal of Great Britain, has thought fit to or. Jdinurn] (hrldir ; niidlli.s snid ExcoUoncy, hyniid with tlio mlvico, cunsoiit, nnd iissist- niu'o aCoiosiiid, iloth Itnrht/ ordain and dt- c/inr, " TliMt }i ^!ir|)r ( 'oiiii of .Iiidirulnro, or Court (d" King's Itonrli.ho rslahlished in t)ii« INoviiK'o, to KJt, linld tonns in the town of (liHilnM', twirn in luory yonr, vi^. ono to he- p;in on lh{> 21 h\ d.iy s( is ;d>ov(> tho valuo of jCM(M) Htorlini^ ; nnd from thn («ovornor and ('ouu- cil an appoal lies to tho King and Council whcrt^ dm mjitlor in conlost is of tho valuo *)f X'r>()0 S((Mling, or upwards. " In all trials in this Comt, all His Mnjoa- ty's ?^^d»ilM'ts in this Colony bo admiltod oil jiiiics without any distiin'lion. " And 1 1 is IVlaj(^sty's <^hiof Justice, onco in ry year, to hold a ('ourt of Assi/o and Conliv<'rior (/ourt, o.- Court of King's liench. VVIu ro the matter in eontosi in ihiw Court is ahovo the valiioof X.'JOO Sterlinj^, either par- ty may (if tiiey shall think prop(;r) apf)eal to th(5 Covf;rnor and Council iinirtediat«;ly, and from the (iovr;rnor and (Joiincil an aj^pcal lies to the Kinj;; and (Jouneil, wln;re tlie mat- ter in eoniest is of the- value cd' £500 Sterling or upwards. " TIh! Jud/^e« in this Court arc to vhat part of Paradise Lost to find a more apt j>arallel. You will there find your own counterpart as faithfully depicted', as .th'v found herself rellected when she first beheld her shadow in the pool. As to your Sciirrilit}/, Sir, it is worthy both of yourself and the cause which you advo- cate. In the vocation of scurrility, you ap- pear U) be exceediuj;ly well versed. It seems to be your native elecnent, as filth is that of vermin. You have been thouji!>t el- oquent. I think so too. 13ui it is oniv in scurrility. Did 1 not know, by your princi- ples, that you were brought forth and edu- cated in this Province, I should have nohes- itatiou, from i!u> styl<^ and oh iracter of your laUjiuage, to apply at l>iiliugs<;ato for a cer- tificate ofyoui' iKitivity. i>ut si rrility is a tr.ide so low, so gross, and so loathsome that uo man, however equivocal his reputation, can be injured by it : and it is only the grubs oftue earth that trartick in it. At the end of the session I prosiume yen will be able to tell us the amount of j/o»r gtiins. If your profits be equal to your industry, you will be able to lay up a capital that will enrich your poster- ity, without rendering them either the envy of others or respectable in their own ejcs. As to the principal object of your inveterate malice, his escutcheon is too j^urc, and his coronet too exalted to bo any Avays stained or disturbed by such ribaldry as you are uiasterof. If you intend that it should havo anv ellect, I would, therefore, advise you to 209 veiul your poison among 3'onr owu circle. There it may ilo good to all j)ariics. Whilst its use will serve to convict the utlerer of baseness, the circulators Aviil he punished as accessaries. Their punishment ^vill indeed, be dissimilar, but equally cRectual. The lat- ter will die an ignominious death and be for- gotten. The former will undergo an igno- minious death too ; but his memory will live to be deplored by his posterity, and execrat- ed by his countrymen. But who are you, Sir, who thus stand forth as the head and champion of nil the disaffect- ed and dissensious---ofalI the evil and igno- ble spirits in the Country ? By what rigii t of inheritance have ?/ou thus become at once the advocate of sedition and the calumniator of all men in legitimate authority ? If you have any other titles but those of a cowardly heart and a manevolent disposition, produce them, I entreat of you. But conscience whispers to you, that you cannot. She also tells you, that, with the exception of a few acres of ground, and a disrelish of British government and superiority, you have no other inheritance. Tou will not, of course, and the publick is not bound, to take my ■word for this. I shall therefore prove it. In doing so, I shall adduce as my first witness a gentleman whom I dare say you venerato very much, and whose veracity I presume you will not be disposed to call in question. All I know of this gentleman myself, is, that he is reported to be a rank democrat, and to have taught you the elements of your poH- 210 ticks. He was himself, too, iu his time a noted politician, aiul for some time held a scat in tliat branch of iho legislature of which you say yourself ---for I deny the fact---you are Speaker. In that capacity the veuera- hlo gentleman in question said something rudo and insulting to a brotiier representative. This representative was not to he overdone in acts of hcuevolehco of this kind, and ac- cordingly sent a civil message to the venera- ble and honourable member begging his com- pany at a certain place next morning to meet one or two frienugh this ad'air took phifo many years since, thai the vcner.^blo member, though imbued with the ehnracter- istick poHteuess of his countrymen, neither availed bimsclfof the invitation of bis friend nor sent any apology for his absence. It is sagely presumed that some fanuly concerns called liim away rather hurriedly, lie that as it may. ho was never again seen in his j)lace in the Assembly ; and his seat is now occupied by a descendant everyway worthy of the sire. ^Vhat relation you, Sir, hear to this vene- rable man lu" tbe proplo, I will leave yourself and others to uetormine. Lot me only add, that if you do not inherit his flying propensi- ties, you are fully his equal as well in giving ns in receiving invitations of honour. The whole province laughed at you when Mr. M. pulled you by the nose in the lobby of the IIouso of Assembly, and you had the courage iii to toH liim that you would prosecute liim i You may think iiie personal.* But do you really think that any thing can he more per- sonal, tliau tolling a man that he is deaf to every soutiniont hut pride, prejudice and des- potism. Do you not in eflcet and in fact call such a man a coward ? Do you not denounce him as a man destitute of every sentiment of bouour and principle of justice ? And what Loan of honour or courage would take taunt or insult from you, who iulicrit neither by birth, and upon whose heart no good exam- ple or custom can make any impression through life. Without doors, to use a parliamentary phrase, the province has yet to learn th« grounds of your pretensions to the invidious office of public censor, and still more infamous profession of general calumniator. Whence, tell us,this singular assumption of precedency. Whence this robo---these emblems of author- ity with wliich you have invested yourself; for that authority must, indeed, bo great which gives you a censuring and condemn- ijQg power over the highest and gravest offi- ces of government. Wiiat new dignity is *In a letter from Pope to Arbulhnot, dat- ed 2(>th July, 1734, he says : — " To reform, and not to chastise, I am afraid, is impossi- ble ; and that the best precepts, as well as the best laws, would prove of small use, if there were bo examples to enforce them. To attack vices in the abstract, without touching persons may be safe fightine:, m- this which you have exclusively appropriated to yourself. Produce your patent, I beg of you ; for it has hitherto eluded all our senses of touch and vision. From which of the great and virtuous actions of your lifo has it emanated ? I have known you for many years, and to none of those can I trace it. I know not what you esteem as acts of virtue and humanity, but I will tell you one or two that I do not consider in that light. I do not esteem it either virtuous, g'.*nt;'ms, or humane in you to have shut your neart and your purse against the claims of the sufferers from the New-Brunswick conflagration at a time when every other heart and purse in the province and in the empire were thrown open to their necessities, and when, as Speaker, you had pocketed many thousand pounds of the publick money. Their solici- tations, though made by gentlemen every way your superiors, were received with the cold juhuman remark that the sufferers were hutches Anglois, undergoing the pains of a terrestrial ordeal preparatory to an infernal one ! Deeds of charity ought to be done in private ; nor will I insult the leading object of your malice by contrasting his conduct on this occasion with yours. It will be suffi- cient to say, that were I to do so, the pub- deed, but it is fighting with shadows. My greatest comfort and encouragement to pro- ceed has been to see, that those who have no shame, and no fear of any thing else, have appeared touched by my satires." ^13 itek KOuUHh'' .u no loss upon >>lio:u (vMiv thesti^'iiiiA of i>iiili\ prt\)Uiiioo. auvl tlcspot- isni. laml Dalhousio's charity has «^vev been luimitveont. Youi-^ has always brrw cojituioil to a ro/f in ike House of Assomhly. Ho nhvays jiavo away bis own in elemosy- iiary gifts. You weiHJ contt^nted mul sivnti» fietlhy disposing;" of thf^ propony i>f I'ttun-s. P<> von ivtiuMubcr But why should 1 insult tho ptihhok with u iMtalo;;iio o( your Ciritt«*s f Are thoy noiulroatly well known?. Do we not fiutl nioplo proots of thent in every counteuiiuce nt the bare mention o( your nuMte ? Is not the naaio o\' l\iy'tu\r.) a by- ■^NoM nnil a [>roverb ." Is it not heUl in tleris- iou by all w hti wish well to the tountry I Is It not synonymous, not only with yide^ prtjHifict^ «m( tksiHHism* but with «rvery thiujs; thnt is ntHenb>«s. bijiolted luul obstinate? Aivnotthe very e/»< now oulletl l\tyn- eaus * But let us behold you in auother character: let us behoUi you tcithifi dth^rs^ as the plir.ise has it. You were btvu^ht up to ttie Liw : a most noble rtuii ivspecrable prt>fession in which, ilull as your foivnsick talents are. you mij;ht h.no succeeilcil ; ami iiraj;j;etl t)ut a hfe. if not of spleuiJoiu" orartUienee, at least of ct>mpa- rative innoeenee ami retirement. !*ut the eourts of law . were too eontraeted a fieltl (or a man of your an\bition : you found their tii};~ nity, ortler. ami suboixlination iueompatiblo witbyour views, an^^ destructive of your aspi rations. In uuevil hour ymi deserted the bnv. and betook yourself to the more precariou-o 214. trade of politicks. How you have hitherto succeeded io your new employment, an ig- iioraot and discontented people — an idle and famished peasantry — a disgraced and ruined couutry.bear ample testimony. Sir, the rest- lessness of temper which made you a legisla- tor has proved injurious to yourself; but the ambition which placed you in the Speaker's chair, has, I fear, destroyed your country. We shall be overwhelmed if you do not de- sert the senate as you did the bar, and imme-- diately retire to your original obscurity. Your career in the Assembly, but especial- ly as Speaker has been remarkable for a variety of strange circumstances. In what publick capacity does the province ever hear of you as a politician ? Your publick iden- tity is confined to the Hustings and the As- sernbly ; and the chart of your travels scarce- ly extends farther. We never behold you as a member of any literary or scientific society. We never see you mix with the gentlemen of the country in giving aid, countenance and encouragement to the youth of the times in their endeavours to store their minds with useful and ornamental knowledge. Neither our museums nor our Libraries owe you any donation : not even one of those speeches and pamphlets in whose praise yourself and your friends are so clamorously eloquent. No ; we never behold you, but in a dull round of plodding intriguing politicks. No scene has any charms in your eyes but the gloomy walls of the house of Assembly ; no station but the chair, the table and the floor of that 2i6 venerable fabrlck. Your oratory, too, liko your person, has its locale ; and we scarcely ever hear of you as a speaker, but when the mace and a thousand pounds are glittering in naiagnified rays before your eyes. Who over thought before that avarice had been a Constituent part of eloquence ! Sir, I know not whether you keep a mistress ; but if you do, you are much beholden to her for initiat- ing you so perfectly in the abandoned trade of prostitution. Have you not prostituted all the little talents that you possess to tho gratification of a party ? Have you not made it the object and study of your life to please that party in their endeavours to obtain tho mastery over the government of the prov- ince ? Have you not sacrificed with thera at the shrines of Bacchus, of Pluto, and of Mercury? Have you not, in fact, become the High-Priest of their political revelries? Have you and they not turned the House of Assembly into a house of bad fame ; in which the character, reputation, and circumstances of every honest man in the country are night- ly investigated and discussed ? But you have done worse than opening a banqueting house for scandal. Have you not established an inquisitorial tribunal over the lives, liberties and privileges of every British subject in the province? What man is safe from your il- legal and unconstitutional scrunity ? What private family is secure from your Jesuitical mode of procedure ? Is there a father in tho province who does not tremble for his ofT- spring if they are anywise connected ^vith 216 the publick business of the country ? Is there a son who does not do the same thing for his father? Who, that differs in opinion from the House of Assembly, is not made an ob- ject of insult and persecution ? Who, in the honest discharge of his duty happens to give oiSence to the Assembly, that is not dragged before them with every indignity, and com- pelled to undergo, not a fair and legal trial, but contumely, scorn, and disgrace ? In the name of British Liberty, what age and coun* try is this that we live in ? Britons / can you longer endure this! Do you live in a British colony, and submit to have your rights thus wrest-^^d from you! Can you live, and forfeit the liberties for which your fathers bled ? Is the cause of Sidney and of Hamp- den no longer yours ? You are loyal and brave. Be resolute and courageous ; and rest assured, that the evils you now complain of will soon have an end. I declare, in the face of my country, that the House of As- sembly, as at present constituted, is corrupt and an intolerable nuisance. The people have a right — a well defined constitutional right-— to recall such representatives. Let that be done. Let us peaceably and res- pectfully petition the Governor to dissolve the present parliament. There can be no right without remedy. There are limits to the privileges of the House of Assembly ; and when these limits are over-stepped, I main- tain that even the Legislative Council — that traduced and much abused body — have a constitutional right tojoin the people in pre- ;:i7 serving the coastitution. They are as much the guardians of the puhhc -welfare as the House of Assemhly ; and they are therefore bound to assist us when our rights and liber- ties are at stake. It has been said that dis- solutions do no good in this country. I care not. Let the forms and powers of the con- stitution be maintained when the rights of the people are in danger. Who is the phy- sician that would not administer medicine when the body is diseased and in danger, though he were assured that no benefit should result from it? But, Sir, I have lost sight of you for a lit- tle. Yet, were you a thousand times of more importance than you really are, who could preserve any remembrance of you when his country w as in jeopardy ? No wonder, then, if I have forgotten you for a moment. But though I forgoi you personally, the miseries which you have entailed on the province were fresh in my memory, and its real inter- ests deeply engraven on my heart. I had a right, therefore, to rally around me all the loyalty and sterling principles which I know ihe country to be yet possessed of. I did so ; and 1 have not so mean an opinion of myself as to think that my efforts will have beea altogether in vain. But I know not that I should,, at present, add any thing more to the truths which I have told you. I have convicted you of Falsehood, Defamation and Scurrility ; and I think that the transmission of this record to posteritv, will be ample 13 Ms |)UuishmeDt. 1 should be sorry, liowever, to send you down lo futurity who'ly unaccom- panied ; and therefore beg leave to introduce to you the very acceptable names of Viger and Vallieres— names connected by allitera- tion as well as by a community of feeling, priaciple, and profession :— " Two bookful blockheads ignoranlly read ^»Vilh loads of learned lumber io their head." They both participated with you in your as- sault upon the character of Lord Dalhousie • and it is but right and just that they shouM share in your punishment. Mr. Viger is also reported to have said, in the debate on Mr. Christie's illegal and unwarrantable expul- sion, that " for his part he felt it painful even to name such a man as Lord Dalhousie." No wonder ! He knew that Lord Dalhousie was a gentleman ; which he is not himself. He knew Lord Dalhousie to be a soldier ; which he also is not himself. The skulking ex- ploits of a Niger behind a tree in the battle of Chateauguay, have not yet been forgotten. They yet serve as an amusing tale to beguile the long w^inter nights in the neighbourhood of that famous field. As to Mr. Vallieres, the " damnable system,^' which he spoke cf on the same occasion, has served to give to the country a better opinion of his refigious principles than have been hitherto entertain- ed. This is the first intimation the publick liavehad of his belief either in heaven or hell. The province rejoices at the conver- iioD of so sreat a man : and tl»e clmrcb. that ■19 reared hira IVom a destitute orphau to i/is present exaltatioa and popularity, cannot, do otherwise than perform iiigh n>ass and Te Dtum for the return of so undutiful and long-lost a prodigal. However, were he now wearing, as he expected, Judge Tach- ereau's three-cornered hat, the publick will do hira the justice to believe, that, " be the administration of Lord Dalhousie" what it would, we should hear hira extolling it to heaven instead of sinking it to hell. Adieu, for the present, false and defama- tory Triumvirate ! Adieu, wretched calum- niators of a man of acknowledged honour, virtue, and integrity ! Adieu base slander- ers ! If you ever renew your work of malice and vindictiveness, depend upon it, that yoLU shall hear again from THE WATCHMAN. 58th February, 1899, m NO. IX. ^ j^ " The. ivell-bemg of a Stats is u-holly depend- ent on the character of a people.''^ To John Gait, Esquire. In fulfilment, my dear Sir, of my promise to communicate to you whatever iofoima- tion I might deem of importance respecting this distant, but interesting portion of Hrs Majesty's dominions, I have often revolved in vain on a subject befitting both your own superior talents for iaqi'iry, and those means of improving them which you could not fail to have enjovod during your residence in the country. This residence, however, though of the utmost consequence to the iuture glory and prosperity of the Empire, must nesessa- rily be too short to enable you to investigate with that truth and accuracy, for which your researches have ever been remarkable, every subject claiming the attention of the philo- sophick traveller ; and there being few to- picks which require a more penetrating eye, a keener spirit of investigation, or a more intimate acquaintance, in order to be able to draw a true representation of their various degrees and" shades, than the character and manners of a strange people. I have, there- fore, as an eye and an ear witness of seve- ral years, had the boldoess to attempt giving you a Sketch of the Manners and Customs of the French Canadians. But 1 beg of you al- •ways to remember, that it is only a Sketch, and the very feeblest of Sketches ; for, al ■ 221 though few, indeed, I may say no cue. has treated the subject as J, with due humility, propose to do, yet I shall only look upon my reminiscences as a sort of DEedaleati clue for extricating a greater stranger than myself out of that most intricate of all labyrinths, the erring and winding ways of man. It he- comes me at the same time, to assure you, that nothing shall be stated but with the ut- most possible deference to truth ; than no trait shall either be heightened or shaded in its colouring beyond the bounds of its legiti- mate and peculiar characteristicks ; that no sentiment shall willingly or maliciously be distorted or exaggerated ; that foibles and blemishes, if they do exist, being inherent to every class and denomination of mankind, shall not bo brought forth in order to be treated with contemptuous severity, but merely to elucidate more forcibly the sources whence they spring, and the evils to which they lead ; that folly and presumption will be pitied rather than blamed ; that if crime or immorality should unfortunately meet us on our way, they shall not indeed be either shunned or palliated ; but neither will they be treated in any other way than as the fatal engine of the ruin and destruction of society ; and, in a word, that however much the pen- cil may be wanting in art and dexterity, it will be my endeavour to make it up in an undeviating love of truth and persevering effort at accuracy, so far as the means of my information extend. 13^ AqJ hei-e I cannot help expressing my sur- prise at the extreme paucity of our informa- tion regarding the customs and manners of the French Canadians, who, with respect at least to the British publick, are, at this mo- ment, a people almost as much detached as they were when Wolfe planted the British ensign on the Heights of Abraham, or even as much so, in several instances, as it is pos- sible for the savages of the woods to be, whose estrangement is not so very uncon- querable as it is generally imagined, and whose aversion to Englishmen, in particu- lar, is not loaded with half the prejudices that are to be found among the Canadians. This want of information, insignificant as it may at first appear, has been the source of many national and local evils, as well as po- litical blunders. For had the love of free- dom, susceptibility of improvement, respect to British institutions, and, in numerous in- stances, docility of temper so natural to the Canadians, been better understood and brought into operation during that eventful period, from the conquest till the passing of the Canadian Magna Charta in 1791, our legislators and law-givers should not, at this Lite seasion, have to encounter so many stumbling-blocks as, you must be well aware, daily spring up in their way to reformation and improvement. The enlargement of the book of knowledge, would not only extend their views, but give an impetus and a prop- er direction to all their plans. But, without this, those who have the superintendence of iiatioaal aftairs, especially those ol'colouiei situated at a clistaueo from the mother coun- try, must always bo i^ropitig in the dark, and blind leaders of the blind, till Boine <'«arful catastrophe meet them in tiicsr wa^ and plunge them mto irretrieviihle ruin. It will then be too late to look for the proper path, or for careful guides to lead them through it, for the quagmires and vortices of the slough of political despond may have already swal- lowed them, with all their ambitious, but ill-directed, hopes and projects. I do not assert, that any thing of this has, as yet, taken place in Canada, and I sin- cerely hope it never may ; because I perceive many things going on around me uhich be- token the most auspicious improvements, nay, which, I trust, will ultimately avert the fears of the most solicitous regarding this part of the British empire. Yet who can look upon the beggarly fund of information which a Bnu^n can boast of with respect to this country, and the difficulty which he al- %vays experience in drawing upon it for how- ever small an amount, without absolutely hesitating as to the actual dependency of such u vast territory upon the British crown, and loudly exclaiming against that false and short- sighted policy which should thus, by a piece of the most cruel and culpable negligence, sacrifice the best interests of a large body of the finest people in the empire, and perhaps, the ultimate welfare of the empire itself! I am no stickler about voyages and cxpedi- 224 ijous to Tombuctoo, the sources of the Niger^ the north pole, or even to the moon, if such a trip could be aceompHshed, of which, by the way, we need not despair, considering the many wonderful thinjr^? that are done in this our day and generation, provided such expeditions and voyages W'ould either add to our knowledge of science, or serve to main- tain unsullied and undiminished British va- lour and intrepidity. But when I behold tome upon «orae, and quarto upon quarto fullof thrice-told savage wonders and Indian legends, and descriptive of rocks and stones ■ — of rare birds and wild animab with which the learned world has heeu familiar lor ages, while scarcely an authentic page can be pro- duced on the subject of the moral and phys- ical character of nearly half a million of British subjects — a subject of all ethers the most important to an enlightened uation — I positively marvel at the great want of judg- ment which it discovers in a quarter from W'heoce better things might be expected, and become really amazed, taat the consequent myopy has not been productive of far great- er evils than those which we so justly com- plain of. Let me ask you, if such a state of things be not for once, at least, an ample and decisive proof of the justice of a maxim in the last book of Aristotle's physicks, which says, that whatever was below the moon was abandoned by the gods, to the direction of nature, and chance and necessity ? You are of opinion, that whatever pre- ludices exist among the Canadians to the 22j general character, opinions, manners, and public institutions of their neighbours of the Uniteil States, ought to be fostered as the surest pledge in the time of need, that they will not fail in the most faithful discharge of their duty to themselves and their country. I believe I had the pleasure verbally of con- vincing you how cordially I agreed with you upon this point to a certain extent, and it wiirbe niy duty, in the sequel, to show you how far these prejudices at present obtain. But if you will maturely consider this impor- tant subject in all its bearings, I think you will, in your turn, agree with me in the con- clusion, that tho more you promote and fos- ter these prejudices, without at the same time inspiring those who entertain them with sentiments of national pride and patri- otism of wider bounds than those of Canada, and almost extending to the utmost verge of the British dominions, the higher and the thicker you will build thatfatal wall of parti- tion which has so long divided the interests of the English and French inhabitants of Canada, and entail upon the country those very evils which, by a more extended field of information, we assure ourselves would in- evitably and irremediably be destroyed. The prejudices of an enlightened people against foreigners, such, for instance, as those en- tertained by the British against all foreign- ers, but particularly against the French, do aot appear to me to arise so much from hatred .and contempt as from that conscious supe- 226 ■ rlority, that unalterable love of country, and that flattering self confidence which, as being the most acceptable unction to the vanity of human nature, it would be as easy as it would be prudent to instil into the minds of every independent nation. These preju- dices, if tliey may be called such, seem to be the true foundation of genuine patriotism. But how is this generous and chivalric pas- sion to be cultivated in the bosoms of a con- quered or collateral people, occupied with pe- culiar notions of their own at perfect antipo- des, perhaps, with those of the mother coun- try, and confined to what I may term the exclusive system of a corporation that has no interest, and desires to enjoy neither in- terest, nor influence beyond the bounds of its own contracted sphere ? Simply, in my humble opinion, by a strict and impartial in- quiry into the general character, springs of action, susceptibility of change, bias to any particular order or system of society, capa- bility of instruction, natural love of country, fondness of general knowledge and, in a word, into any prominent feature characterisrick of a free and industrious people. Such an in- quiry conducted, under the auspices of such agoverument as ours, by such men as your- self — no flattery, believe me — would aflbrd to the philosopher and the politician a sort of moral chart which would enable them to car- ry with safety and success into the bosom of the Canadians any measure calculated to promote the general welfare of society, or the political prosperity of the empire ; and '/Z« enable ihem to lay the fouadatiou of almos? ©very public and private virtue. By this means, without entering into naa- Dy particulars, the somewhat useful, but I fear rather dangerous prejudices to which I have been alluding, would certainly be eradi- cated ; but I hope yoo perceive, that they would gradually be replaced by prejudices far more important and enlightened, 'f I roay say so. We should exchange the prejudices of gross and barbarous ignorance for the more manly and useful ones of education cind real love of country. The one &})ecies of prejudices — that of rudeness and barba- rism~though deeply rooted can only be nourished by sloth and brought into Uiieful operation by flattery; while the other, be- cause it contains the principle of action with- in itself, is always ready to be brought into operation whenever circumstances may ren- der it necessary. The one, in short, de- grades, while the otherexalts human nature. The one debases the soul of man to a level with the brutes that perish, while the other cherishes every noble sentiment* and serves to raise the mind to the highest and the proudest pinnacle of the tern p'f> of fame. I have said that the prejudices of ignorance must always be flattered beff?re they can be made to produce any useful results. Let me be more plain, and say, that the prejudices of my fellow subjects, the Canadians, as they are of the worst possible kind, must always undergo this degrading operation in order to render them productive of any good effects, «neu such citiects as arc only calculated to inX' iniaister to their own personal interests and ieelings. But is not this a most melancholy foaturoin tlie character of any people ? Is it not a most t!e{)Iorable circumstance — nay, dlsg^racoiul to human nature itsclf---lo think, that, iu order to rentier any particular vice serviceable, and what is the prejudice of igno- rance, hut a vice, it is necessary to call it in- to active existence by the application of another vice equally, if not more debasing?' Yet who will deny the fact ? In cill the eventful emergencies of war and invasion to Avhich we have been almost unremitiingly exposed on this continent, either by our own folly, or the avidity and ambition of others, by what means did we prevail upon the In- dians to take an interest and a part in our af5;iirs ? Why, by imposing, iu the first place, on their credulity, and iu the next, flattering their vanity and and corrupting their native love of country. Their preju- dices were strong, but not so strong as to ena- ble them to resist the more powerful grasp of bribery. For our own sakes, and not oa account of any love we bore to them, we ap- proached them as we would a man out of liis reason or half distracted with rage, easi- ly seducing them from their own more natu- ral and legitimate allegiance by those means which gave to knowledge in all circ umstau- ces the superiority of ignorance. Thus the poor unfortunate creatures become a sort of Cis-Atlautic Swiss, ready to barter to the highest bidder those services which their 229 i'udeness, ignorance and prejudices prevent- ed them from applylag to the salvation of their country. It is just so with the Can- adians, whose prejudices, as I said before, are, in a many respects, as narrow and deep- ly rooted as those of the Indians ; and whose notions of patriotism if they have any no- tions at all upon the subject, are solely con- fined to their own narrow circle and circum- stances. The ridiculous jealousies of the Canadians prevent them from extending their views. This prevents them from associat- ing with their more enlightened fellow sub- jects, by whom alone they can be taught those generous sentiments by which all great na- tions are almost spontaneously actuated^ They are thus strangers to their most impor- tant duties, as members of this great empire. In time of danger, therefore, a sense of this duty must of necessity be forced upon them. But how is it possible to do this, except by that identical process which was used with respect to the poor savage ? It is therefore but reasonable to suppose, that a people of such confined views and such unseemly sen- timents should become, at times, the prey of those most dexterous in plying them with those hopes and fears most congenial to their prejudices. Indeed the strongest, whether friend or foe, will become their master ; and they will cry out like the Italians, God save the conqueror ; passing, in all probability^ from one allegiance to another in the course of a Campaign. Tbns our dntv at once to ourselves nnd tliis oQ sprightly but rude people, becomes plain aud evident. Theymiist be inspired with British sentiments and Bnfish feelings. Though permitted to retain the free exercise of their manners, language and religion ibey must bo taught to look upon themselves, not as a dis- tinct people having no community of inter- ests or feelings with the rest of the country, but as an integral, important and substantial part and portion of the nation. They must not be taught, as they have hitherto unfor- tunately been, by those claiming influence over them, to look upon EngHshmen as for- eigners aud invaders of their country, but as brethren whose rights are neither superior nor inferior to their own, and whose prosperity is not a whit dearer to government than theirs. They mustnot be allowed to ima- gine that the sole business of Englishmen in coming to this country, is to crush and ex- tinguish them, but, on the contrar}', to im- prove their own condition in life, and in do- ing which, they are always willing that the Canadians should go along with them side by side. They must be taught, that our laws are equitable, humane aud salutary ; that government, especially such a government as ours, and which we have most liberally imparted to them in its fullest vigour, is not the engine of tyranny or despotism, like that from which we have emancipated them,, but of freedom the most perfect, and of power the most extensive ; that our protection is, in every respect, unquestionable ; and that, jnstcad of loading them with public burden;? 231 for that purpose, we do it gratuitously, aad relieve thein from every imposition, except those calculated to promote their own imme- diate improvement and prosperity. Bur, above all, they must he mentally instructed. Th*i iron barriers of i<2:norance and supersti- tion must be broken down, so as to admit the gonial rays of education and learning. The mind must bo illuminated. If all this be done, we shall soon discover the Canadians to possess all the virtues that we can reasonably desire, and a strong dis- position to am.alganiate with every thing lau- da1)le in British sentiments and feelings. AVhen we have occasion for their services, in- stead of finding it necessary to address our- selves to the prejudices of a poor and selfish people in a state of seml-harbarisfn, we shall find them meeting us half way, mutuary fraught with indignation at the country's wrongs, and inspired by every sentiment be- coming a great and free people. We shall no longer be obliged to treat with them for their assistance as with foreigners whom wo wish to become our allies, in order to avert the approaching danger ; and it is not b}' trucking, higgling and bartering; for the ser- vices of her own sons, that England has at- tained her present elevated station, and, in a great degree, become the protectress of the civilization of the world. Lee the Canadians persevere in calling themselves a JSTition. If there is any charm in the title, let them enjoy itin its fullest extent. But let it be enjoyed as an integral part of that of Britain, in'thr; 23^ auie way that the inhabitants of the Roman j^rovinces, while they preserved their own national appellations, claimed, aodwere proud to obtain, the more important and dignified title of Roman Citizen. This, I dare say, you will say,is still ministering to those local prej- udices which I ara so anxious to see destroy- ed. It is so. But if we permit any kind of prejudices to exist — and there is no nation, and God forbid there should be any natioii without certain prejudices — this harmless one ought to be the first to be tolerated and fos- tered. There is, as you well know, a pecu- liar charm in the nicknames which dtfferent countries sometimes give themselves. With what electrifying emotions do the various ap- pellations o( John Bull, Saivney and Paddy, strike the ears of the different inhabitants of England, Scotland and Ireland ! No one will deny that this is a prejudice; but who would be so cruel as to seek its destruction ? If, there- fore, the Canadians can be made happier by an indulgence so common among their fel- low-subjects, let them enjoy it in the same manner that they do — the mere emblem of good humoured distinction, but at the same lime, of true hearts, united courage, and uu- deviating loyalt}'. But it has been objected to ihe mother country, that it is neither her Tight nor her policy, in any manner to interfere with the Canadians so as to force upon them any change of manners, customs, or laws, howev- er conducive to their moral and political im- provement. Nor is this the vague and idle surmises of a day. It has, as yuu partly know, become of laic the business of a very influential party — and a pariert, to draw a sketch of the state of par- ties in this province. When the Sovereignty of Canada was transferred from his INlost Sacred to hisBri- tanuick iMajesty, nothing couhi ho more vo- ciferous than the joy of tlie Canadians. It was like the emancipation of a CoU>uy of slaves. The chains of French despotism once struck ot!', i: was thought that no snhmisiou could be greater, and no gratitude more deep and lasting than those of this people towards their new Sovereign and Country. Every- voice was raised in lamenting tlie injuries which they Iiad so long endured under a mi- litary system of government, and in praise of the freedom which they breathed, and the protection which they felt from the influence of the B'ilish Constitution and laws. Such sentiments, worthy of a wise and prudent people, they were not only content to utter among themselves, hut frequently to convej^ to tho foot of the throne, as well as to every intervening power and authority.* This ox- cess of kindness," say they in a petition to the king from which an extract is given in the note below---*' This excess of kindness* towards us we shall never forget. These *»» Sire, vostres-soumis et tres-fidelesnouv aux sujets de la province do Canada pren- tient la liherte de se yrostencr au pied| du ihrone, pour y porter les sentiments de res- pect, d'ainour, et de souuiission donlleors ^onerous proot's of tlie clemeuoy ot our be- nign conqueror will be carefully preserved cceurs sout remplis envers votre auguste per- souue. ot pour lui rendre de tresliumbles ac- tions de grace de ses soius paternels. Notre rccounoissauce nous force d'avoner que le spectacle aflVayant d'nvoir eteconquis pnr les nrmes victorieuses de votrc IMajeste n'a pas lougteras excite nos reg;rcts et nos lar- raes. lis so soutdissipes a diesiire que nous e'v'ons oppris combien il tst doux de vivre sous Ics constitutions sages de I'empire Bri- taauique. En eflet, loin de rcscntir au mo- ment de la coaquete les tristes eflets de la gene et de la capture, le sage et vertueux General qui nous a conquis, digue image du Souver- ain glorieux qui lui confia le commandeuient de ses arnices, nous laissa en possession de DOS loix et de noscoutumes. Le libre exer- cise de notre religion nous fut conserve, et confirme par le traite de paix : et nos auciens citoyensfureut ctablis les juges de nos causes civiles. Nous 7i' ouhlirons jamais cct cxces de. bonte ces traifs genenu.v d'un si doux vainqueur seront conserves precieusernent dans nos fastes ; et nous les transmettrons d'age e7i age a nos derniers neveu.r. Tels sont, Sire, les doux liens qui dans le principe nous ont si forte- raent attaches a vorte majeste : liens iudis- solubles, et qui se reserrerontde plus en plus. Petition of the CatlwlicJ^' TnJwhitanfs of Can- pda to the King, Decemher. 'iTTS. 244 in the anuals of our history ; and we shall transmit them from gentration to generation to our remotest posterity. These Sire, are the pleasing ties by which, in the beginning of our subjection to your Majesty's govtrnmenty our hearts were so strongly bound to your Majesty; lies which can never be dissolved, but which time will only strengthen and draw closer." Similar to these were the sentiments uttered by the same people in Au- gust, 1764, to General Murray, the Govern- or in Chief: — " At last," say they, "■ouv most sanguine wishes are gratified ; we have been the faithful witnesses of the prerogatives granted to your Excellency by the greatest of Kings, in the commission of Governor in Chief of the ^ast Proviace of Quebec. Per- mit us to vent our joy, which is too great and too perfect to be contained. We are already certain, that we shall see peace, justice, and equity reign in our province : every circum- stance assures us of the freedom and security of trade. He is no more one of those con- querors of the province of Quebec, who formerly managed the thunder-bolt of war with so much skill in the conquest thereof : as mild in peace as dangerous in battle, his only occupation is to dispense happiness. Such is the pleasing idea we entertain of the happy government we are to enjoy under your Excellency : an idea founded on the unanimous testimony of all the inhabitants of the ancient government of Quebec."* *ViHe Quebec Gazette, 23d August, 1764. :^4j Such were the prrrise ./Grfay seuiimeuis expressed by the French population of this province for some time after the conquest. That they felt at that time what they utter- ed, we will do them the justice neither to doubt or deny. If ever a people experienced the advantages ofconquest, it was the Can- adians. If ever the people felt the benefits of the transition arising from a state of pe- nury, thraldom and misgovernraent to a state of freedom, industry, and wealth, it was the people of this Province. Nothing, therefore, could be more natural than their readiness to give utterance, on all occasions, to the sentiments which were uppermost in their hearts ; and nothing more honourable and becoming than the assiduity with which they cultivated the esteem and protection both of the new paternal state and the British popu- lation who came to reside amongst them. That they looked upon these as superior be- ings, carrying along with them the blessings and privileges of a free and generous mode of government, unparalleled in the history of the world, cannot for a moment be doubt- ed. As we look forth at the termination of winter for the harbingers of spring and ren- ovated nature, they beheld them as the real messengers of national peace and prosperi- ity. They esteemed them as the patrons of every thing great and happj^ ; at once the active promoters of enterprise, and the fear- less defenders of public right and justice. They esteemed it a boon of no liiile import- ance to be ranked as equal in privileges witii 240 sucli a people : to be counted bone of their bone nncl flesh of their flesh ; to be joint-heirs of tiie inheritance secured to them by the British Constitution. Nor did they waive their rights nor shun their station. They embraced their new fellow-subjects as broth- ers, and lived with them as such on the most cordial terms of ease, peace, and good will.* But favours may be too munificent and protection misapplied. The seeming docili- ty of the Canadians; the sentiments of joy which they universally exhibited at passing from adespotick and tyrannical government to a free and constitutional one; the grat- itude expressed on all occasions at this event ; *In a petition proposed to be sent to the King in 1773, by both his old and new sub- jects in Canada, we find this passage :— ♦' Your petitioners, though they entertaia different opinions upon matters of religion, have nevertheless lived in a friendly inter- course with each other ever since the con- quest of the Country. They are all of them untainted with Jacobite principles : they are and ever will remain, good and faithful sub- jects to your Majesty : they acknowledge no title to the Crown, but that of the illustrious house of Hanover : they desire to be united and connected by the same ties, which will preserve both them ind their posterity to the latest generations, in a state of perfect obe- dience to your most Excellent Majesty, and your heirs aod successors to the British Gov- ernment." U-ieir apj)?ireat simplicity of mauijer* ; and their willing suhmissioD to the new laws im- posed upon them, iuduced the supreme gov- ernment to believe that no indulgence shewn to their new subjects, however incompatible with the just lights and interests oJ the Brit- ish population settling in the province, and destructive of the ultimate benefits arising from Colonial possessions, could be attend- ed by any of those evil consequences which have often disturbed the peace, and not sel- dom proved destructive, of the integrity of extensive empires. The result was, that, though the laws of England, both civil and criminal, liad been introduced into the pro- vince ; though the rule of government and mode of exercising it, had been proclaimed })y documents emanating immediately from the Crown, still the ancient laws, language, and prejudices of the Canadians were foster- ed in a manner which shewed clearly, that if Britain really understood the true interests of her colonies, she for once either lacked the wisdom of carryingijer views into effect, or the courage of enforcing them. Howev- er, it must be stated in her justification---if indeed, any thing can justify such conduct -"that, being then in free and full possession of the whole continent of North America from the Mississippi to the St. Lawrence, throughout which immense region her own language was spoken and her laws executed, she probably imagined, that but little injury could result from permitting the Canadians, a small people of no ambition, commerce or us eoierprise, to eajoy imdlsturbed their owo institutions aud usages. This notion, if real- ty entertained, might have been supported by the fact, that, having the whole Eiig'lisk coh)nies before them, few emigrants from the mother country would think of settling in a newly-acquired province, possessing but little sympathy of manners or habits with them, and enjoying but few resources for a stirring and commercial people. What Brit- on would think of settling in Canada, whose government and laws were not yet estab- lished, whilst such a tract of country as the New-England and other British Colonies, in the full enjoyment of almost every moral and political advantage, lay open to his ambi- tion ? In fact, before the American rebel- lion, few Englishmen settled in Canada. Few men thought of expending capital in a country whose laws were not only foreign but fluctuating ; and fewer still deemed it prudent to cultivate a soil shackled and burdened by feudal tenures and taxes. The consequence was, that the Canadians began to look upon themselves as individualized, if we may be permitted to coin a word. They never entertained much mutual sensibility ■with the English Colonists, and the long wars in which the two nations were perpet- ually engaged, served not only to separate them as aliens to each others' sentiments and feelings, but to render them natural and ir- reconcilable enemies. Thus left to them- selves, the Canadians also began to feel their own importance. They studied and became 249 acquaiuted wlih the rights of Britlsii (Vee- meiK Flau Uj';)^ done so, uiibia-^Si-. by native prejudice, this province would long before now have been the happiest spot on the face of the globe. Bur, unforruDately, the insij^- nificant aotions attached to the Canadians themselves as a people, and the lutio value attached at the time to that parr of the coun- try wliich they occupied, in consequence both of being but little known, and considered of s«iall commercial r pol tical importance in comparison of the extensive sea coast alrendy in our possession, his Majesty's new subjects were left almost entirely to the freedom of their own will : and permitted to speculate on the future in any way most agreeable to their interest or ambition. Though the}' were well aware that the British government were not only desirous of establishing on a permanent basis the laws and government of Canada, but had adopted active prelim- inary measures for that purpose, yet they readily perceived symptoms of delay and hesitation on the part of the mother country, Vv^hich led them to beiiovo tltai both in a mor- al and political point of view, they were con- sidered of much more importance than they were in reality. They watched the signs of the times ; and it must bo confessed that these proved as favourable to the exclusive system to which they already began to as- pire as their utmost ambition could possibly wish. In consequence of the attempts made by the Imperial Parliament to raise a reve- nup in the Old Colonks. the publick miiul 2jO ibere becarao disturbed. Men begau to talk high of their natural and political rights : awd to refuse obedience to laws in which they had no voice in framing. The result is well known : it is one of the most momentous eras in the history of mankind. Neither the interests nor the passions of the Canadians being immediately concerned in the awful struggle which ensued, it was deemed far from being impracticable to render them willing and powerful instruments in the co- crccive measures that had been finally adopt- ed by the Mother Country against her native but rebellious colonies. The ancient feuds*' subsisting between the Canadians and those colonies, and their mutual jealousy and ani- mosity of one another, were thought grand and infallible excitements in the Canadians towards the due execution of the intended blow. As a collateral incitement, it is a well known fact — and a fact which very much disgraces the history of the time— that the old subjects of his majesty who had resorted to the province with capital, and who had by that means already given it a commercial as- pect which it never enjoyed before, were con- sidered as disaffected to the Mother Country, and dangerously tainted with the spirit of riot and sedition which raged with such fury in the neighbouring Colonies. In truth they were not only suspected, but watched ^ and the ordinary language of a British freeman, if coming from them, was construed into the jargon of disaffection and rebellion. Such .'ioniiments, proceeding frequently from thf^ 25 1 highest authoiity in the province, gavt; an air of truth and reality to the suspicions en tertaiued which they could otherwise never obtain ; and iho Canadians, already on the alert for an opportunity to justify the confi- dence which began to be placed in them, most readily chimed in with these unworthy sur- mises.* There certainly were not at this time many men among the Canadians who entertained such rooted prejudices to the laws and government of England as to trouble themselves much as to their introduction *We have heard an anecdote of General Murray, which if true, confirms all that we have said in relation to the reflections cast on the English settlers in the province. The General, with the view, no doubt, of putting a timely stop to the disaffection which he supposed to exist at this period, sent an Ord- erly to desire the immediate attendance at ihe Castle of all the British merchants in iiuebcc. Upon coming up and waiting some time iu the ante-room, the General entered in great wrath and told them, that he sent for them merely to tell them from his own mouth, that thoy were all a set of d d villians ; and that, if they did not behave themselves better, he would ship them off from the Col- ony by tho first King's vessel that should be ready to sail for England. Tho only way in which such proceedings can be justified, is to recollect, that General Murray had just suc- ceeded to the authority anciently possessed by tho FrnTK'h Gov€rnf.>-i\. rinaiiy in whole or in part ; and the great majority, understanding little and caring still less about abstract rij^hts, were willing to obey any law or governuunt that might be conferred upon them. But there was at that time, as there is now, a parti/ nmou^ the Can- adians of almost unlimited influence— -of an influence w liich had tady to command in or- der to be obeyed, and to lead in order to be followed. This party, with the acuteuess peculiar to faction, clearly and distinctly per- ceived their vantage ground ; and left no ef- fort untried in order to possess themselves of it. They assailed both G'overnors Murraif and Carltion with assurances, that if the Canadians were reinstated in their ancient laws and customs, every exertion should be made, if necessary, in cc^'cing the old Colo- nies and in putting down their new preteu- j^ious. These were favourable omens to the military ambition of a General Co»nmandiog in. Chief in Canada ; and we may be assured, from the result, that he did not fail to turn them to account in his correspondence with the Ijnperial Government. VVe accordingly fmd that tlje measures which had been adopt- ed in England for the establishment of a pcrmrmcnt government, on the haais of the English laws, civil, mercantik, and criminal, were from time to time suspended, accord- ing to the extent and increase of the refrac- toriness of the Colonies, until at last they were abandoned and wholly superseded b}- one of th*" most- unjusr and tyranical acts that ever emanated from the British Parlia- no. 25 ment. This was the irapolitick " Quehc Act,'' 14lh Geo. III., Cap. 83 which, at one "fell swoop," annihilated the Laws of Eagland, though in full force and operation in the province during the preceding ten years ; and restored the Canadians, in inte- grum, to their ancient laws, customs and. prejudices: a state of things as destruc- tive of Colonial prosperity, as injurious to the interests of the Mother C ountry itself. This w;is all that the Canadians wanted or wished for. They now beheld themselves a distinct people, having no community of in- terests or feelings with any other part of the continent. Whilst the old Colonies were in a state of insurrection against the authority of the Mother Country, and inarms in de- fence of their supposed rights, they, however averse to British rule and dominion, found themselves encouraged and protected in eve- ry thing that could render them a people alien to true J5rilish principles and sentiment. A passion for exclusive domination took pos- session of their souls, and every nerve was strained to perpetuate a system, which, in their opinion, surpassed all others in wis- dom, energy and stability. They now con- gratulated themselves upon being a French Nation on British soil ; and eagerly looked forward to the period when no bounds should exist to their independence as a distinct and separate people. But the views of those who were instrumental in securing these sup- posed advantages to the Canadians, were 15 2j4i grievously tllsap|>ointed, ond their hopes most unmercifully overcast. The liritisli Governmeiu, fourul that they had been the dupos of dec(Mt, ay well as the silly panders of ovorweeniiif;; ainl)ilion. The CanmHans tvoidd not fight! They said they had no ob- jections to defend their own fire-sides; bnt uo inducement could prevail upon them to join the country that had just exhibited sucli marks of indulf^once lo tliem, in quelling the imnatural rebellion raging in tho other prov- inces of the continent, and Britain was obliged to fight her battles tho best way sho could» without any aid from tho Canadians cvai when Canada Usdfiras invaded ! it was now that (lie genuiTio principles and loyalty of tho despised l^joglish Merchants wore properly understood. They forsook not their coun- try in the day of peril : but manfully and successfully resisted tho tide of rebellion when tho Canadians cowered at its approach, and seemed not unwilling to submit to its laws, notwithstanding the indulgence mani- festeirtli and extraction, upon whom she had lavished every favour, while her own legitimate offspring were (Stripped of iheir natural rights and cruelly jd)nndoned to their fate. JMiis w as a lesson in expfvlmenl a I government which ought nev- er t0 have been overlooked or forgotten by 25ii iho parent state. HovvoVer, a period of iii- tostmo commotion lunl tlic limry and tiirtudt of war, "is not tlio linio for rovisinj:, tlio orrorjj of^ovormnOMt or of oslahlisliing laws on a solid and hisfinji; basis. It Avas not till after tlio p«5;i<(i of I7H.'{, tliorcforo, that any attcn- tiy tho act of 1775. In tlie potitions addressed to tho Kin{^ and Parliatnent in 1781 for tho re- peal (►f tho obnoxious (^urhre A>'t anti i.he es- tablishment of a fret) r(!pros(5ntativ'i govorn- nient, m;iny of tho ('aiiiulians joined •, but with wlint views wo know not, cinisidorin';- the satiafuclion which they had always ex- pressed al tho privileges conferred nj)on tbeni by tbfit nnfortmiaro law. If thoy foresaw that th(;ir distinction as a poo|)lo wouM be> still more cho are not represented at all, and the British population settled i« the towns and cities of the province, amounting to about eighty iJiousand souls, the French population are in entire and uncontrolled possession of wni- versal suffrage. They send whom 7iot they^ but their leaders, please to the Assembly ; and it is no wonder if those who elect them- selves in defiance of their constituents, who have no other choice except among the de- spised and heretical English, should also en- deavour to usurp, as they have frequently done, the whole functions of government. Nothing therefore, as we have said, can be more absurd and insane than to suppose, with those vulgar and parily-politiciaos, the Humes and Labaucheres, that Canada can set itself to rights, and work out its own salva- tion. The contest going on here is not a contest of men hni q( prindpleSi otherwise we could soon and easilv settle the matter. Thi^ ^2G9 being the ease, we have, drawn upon the Mother (^Jq^untry for an ackoowleclgment aad declaration of our rights, and patiently await her award. We have done all that we could constitutionally. We trust we shall never be driven to the necessity of doing more, in justification of our rights and privi- leges as Britons. We will now leave these matters, and, without paying much attention to order or method, glance at a few of the most impor- tant questions which came before the Pro- vincial Parliament during the late momen- tous session. The first question we shall allude to, is that which was raised in the Assembly with respect to the conduct of Mr. Griffin, as Re- turning Officer of the V/est Ward oi Montreal at the last general election. It is not, how- ever, the intrinsick importance of this ques- tion itself, nor its constitutional bearings that induce us to notice it, but the glaring light in which it exhibits the inconsistency, the par- ty-spirit, the fury, and partiality of the " lead- ers''^ of the House of Assembly,— for to de- ny that the house is Led, and that in away the most disgraceful and degrading to hu- man beings having the smallest particle of braiias in their sculls, would be as absurd as to deny the light of heaven at noon-day. Here is a petition from certain individuals residing in Montreal— whether respectable ov not, is nothing either to us or to the sub- ject-— complaining of illegal and unwarrant- able conduct on the j)art of the Returning 2ro^ Officer of the West Ward of Montreal, where- of the uuparallolod Mr. Paplneau is one of the representatives, whilst the jG/ecrio?i itself is heUi forth as pure, inunaculate and incon- trovertible ! This was a question which corresponded exactly in character with the general tenor of the jroceedings of the As- sembly, and they acc<;rdingly embraced it as such. The petition v as relVned to a Com- mittee ; the Committee reported by Resolu- tions to the House ; and the House concur- red in the Resolutions.* These Resolu- tions, which ought to be held in everlasting reniembrauce, not only accuse Mr. Grillin oT Not having taken the oath Required by law, but declare him Unqualified as Returning of- ficer of the west ward of Montreal. Yet " the Returfimade by him of the two raem- *Resolved — That Henry Griffin, Esq. Re- turning Officer for the West Ward of the Town and City of Montreal, has not taken the oath required by the fornnda of the Law of the 5th year of His 3Iajesty's Reign, Chap- ter thirty-three. *' Resolved — That, notwithstanding the oath taken at the late Election by Henry Griffin, Esq. the Returning Officer for the Westward of the Town and city of Montre- al, was not in the form prescribed by Law, the return made by him of the two Members elected to represent the said West Ward is nevertheless good and valid, the Electors having enjoyed full and entire libertyof suf- frage." 271 bers elected to represent the said west ward is Nevertheless declared "good and valid!'- This will not be believed in England nor hi any other Country of ilio least pretensions to national honour, justice, or equity. But still it is a fact, and a fact which makes us abso- lutely to shudder at the prospect which it opens to our eyes of the deplorable condition of this province. Had Messieurs McGill and Delisle been returned instead of Messrs. Papineau and Nelson, we ask if such would be the result of the deliberations of the As- sembly on this petition against the Return- ing Officer ? No, no. The House could not stand without Mr. Papineau, and every prin- ciple of law and justice must consequently be sacrificed in order to secure a seat for him. Under similav crcumst-inces the election of any other individual uninitiated in the plans and views of the Faction^ would have been declared nuil and void, his seat vacated, and the unfortunate Eeturning Officer voted in- capable of serving in the like capacity for ever. But in the present case, as stated by Mr. Solicitor General, the object was to con- demn the Returning Officer and to approve of the representative. Surely no principle of right and justice can be more plain and clear, than that he who invests himself with any official character without due authority and legal qualification, renders every act performed by virtue of such false authority, ub initio, null and void. Nothing therefore seems to us more strange and unseemly, thau to sav, as was ^;aid and done ia this case, that 16 2/i die conduct of the man was wrong aiid ita consequences right ! We have no notion, thank God, of such decisions. They are not sufficiently even-handed for us. They carry neither decency nor decorum in their aspect: neither justice nor stability in their effects. They arc vicious in practice and monstrous in precedent. But as in every other case "ivhere plausihility rather than strength of ar- gument is necessary to ensure success, a rea- son was assigned for these anomalous pro- ceedings, and it was this :— that *^any Govern or wishing to eject a particular member had only to appoint an unqualified Returning Offi- cerf and his purpose ivas effected.^^* We shall say nothing of the indecent insolence of this reasoning, which supposes the Governor of this province to be at all times inimical to the 'views of the Assembly, and opposed to their nghts. It shews the real sentiments of the ^\ Leaders,^' and is a convincing proof, that they are altogether strangers to that princi- .ple of the constitution which has only the fuhlic g'oo J for its object ; mistaking, in their gross ignorance, individual interests and party-prejudices for the first and noblest of virtues. As to the reasoning itself, it is be- neath contempt. Is it not the object of the law to secure the rights and privileges of all parties, when it says, that no man can legally act as Returning Officer but on the conditions and untler the qualifications therein specifi- * Vide Debate on this question. 30th Pe oomber, 1838. 273 ed ? Are these conditions the mere dicta of the Govei'Dor, and can the governor appoint " an unqualified Returniug Officer ?" This doctrine supposes the mere act of appoint- ment a sufficient qualification. But it is not so. After the appointment, the law steps in, and says, " Sir, you cannot proceed to the execution of your office unless you per- form such and such conditions : you must qualify yourself, for unless you do so, all the acts performed under your commission be- come null and void." No man can accept or perform the duties of an office which he is naturally aud legally incapable of perform" ing. Has an alien any suffi-age under our constitution? Can an elector vote with- out the necessary qualification ? Can a judge ascend the bench without the usual oaths of office ? Nay, can Mr. Papineau become speaker without the appropriation of hii Majesty's representative ? If then, as stated iu the Resolutions, Mr. Griffin was not duly qualified for acting as Returning Officer of the west ward of Montreal, by what authori- ty have his deeds been rendered good and legal ? Not, surely, by a vote of the House of Assembly. It is the Assembly, therefore, and not the governor, that act an illegatpart iu the present instance; for how, or by what right, a member can lawfully sit amongst them who had been sent there illegally and without due authority, is to us incomprehen- sible. But the truth is, thai both the elec- tion and the Returning Officer were perfect- ly legal and constitutional ; and nothing d©- 274 . grades the Assembly more in the eyes of the country, than the false and insidious distinc- tion which they have drawn in this case, and the unmanly and malignant attack which had thus been made on the character of a highly honourable and respectable individu- al, who, it is well known, discharged his duty Jis Returning Officer in the most fair, candid, liberal, and impartial manner. It is to his political sentiments, and not to his miscon- duct as Returning Officer, that Mr. Griffin owes the cowardly treatment which his char- acter and feelings experienced in the House of Assembly. Had he been a partizan of the " Leaders" he would have been treated very differently ; and his conduct, instead of being condemned and separated from its ef- fects, would have been lauded to the skies. But the mind of Mr. Griffin is too honoura- ble, and his principles too truly loyal and British to render him the tool of any party ; far less of an atrocious and loathsome faction that pollutes as well as destroys the best in- terests of the country. Hois too much of a man to be led, and too much of a gentleman to be corrupted. We cannot drop this sub- ject without noticing the indecent manner in which Mr. Z^apmerm obtruded his sentiments on the House during the discussion of this vill be e ''^^^^^ weli-gov- ernecl. We trust the emiV^^'°° Committee will not lose sight of a ny-^P^^^ ^^ singularly advantageous to the su^^"^ population of the empire. Sir James ^^^^""^ willingly draw out a code of laws ""^ P^^" ^ system of gov- ernment for the ^^^^ colony, on which he TV'ill.not fail to'*^?'"^^^ ^'^^ French Feudal and Seignieural '^^nure, and the right of the " ma- jority'^ to ^^^^^ the laws. We happen to know sop«ewhat of Sir James. We have of- ten adiiired iiim as a statesman, a politician, ajudge and a man of learning and literary acquirements. Never therefore were we more disappointed than to behold his con- duct with respect to Canada. We always looked upon him as a man of liberal senti- ments and enlarged views. Never therefore have Ave been more surprised than in discov- ering in him the advocate of feudi.1 barbarism and narrow prejudices. Is it possible that a sy^mpathy for the septish domination of his native mountains still lingers around him ? We have no objections to the fire and martial spirit of that renowned country ; but, in heaven's name, let us never again hear of its prejudices und feudal barbarities. Lower Canada is the only spot in the British domin- ions whose suu of prosperity is still darken €d by the clouds of the feudal ages. It was therefore truly unworthy of a man of the po- litical rauk and legislative acquirements of Sir James to become the blind advocate of perpetuating a system of things so little con- genial with the spirit of the times, and the 289 destinies of the British Empire. Sir Jame* is a friend to Catholick Eraahcipation. So are we. But we would ask him, whether it is more honourable to unclasp the chains of political than moral darkness and depravi- ty ? We fear, nay, we are sure, that Sir James has taken the right side of Ireland and the wrong side of Canada. His conduct in opposing the union displayed great igno- rance of our real wants and necessities. This ignorance is excusable, even in such a man as Sir James. But his advocacy of French laws, manners and habits in a British Colo- ny, and his desire to entail upon this prov- ince alf the miseries which it inherits as aa oifspring of Feudal and Despotick France, neither does honour to the man nor reflects credit on the politician. His speech was a compound of abstract and theoretical reason- ing which was as applicable to Botany-Bay as to Lower Canada. There was not a senti- ment nor an opinion in it which he who wishes to legislate for the prosperity of this province would adopt. He praises the peo- ple because they are ignorant, and abuses the Governor because he obeys his instructions. Let him reflect on such rhapsody, and say whether it would reflect honour on any states- man. It has, however, been his fate to place this province in a light in which no other man — even the insane demagogues of the province— has dared do. He has called this province the " i^oe" of England!* It is *Vide his speech when alluding to his op- iiositipn to the union in 183'3, 17 2yo ^ery certaia tliat in so far as regards our re- ligioD, laws and language, we are opposed to England, and our natural and national antipathy becomes stronger in proportion to the attempts of the mother Country to An- glicise us. But as to being the ^'- Foe''' of England, it will be time enough to speak of that when we become independent of her, and are able to compete with her in the field or on the ocean— a period which need never be expected until Great Britain becomes as indolent and stupid as we now are. This shews clearly that Sir James took no real interest in the affairs of Canada, and that he spoke at random merely to pleL'.e a pack of ignorant and prejudiced blockheads, who had themselves not only been the tools of a faction, but had the art to impose upon him in accordance with the narrow views and dangerous plans of that unprincipled faction* Had the case been otherwise he would fromi day today have attended to his duties as a member of the Committee^ and not remain at home reckless at once of the fate and condi- tion of this vast Colony. . But Sir James thought that a speech was all that was asked from him. So it was ; and we can tell him, that the oftener he utters such speeches, the more he will compromise his own character and risk the safety of this province. As to the Report of the Committee, the best way to characterize it, is to state the circumstances which have come to our knowledge with respect to the mode in which 291 it was gol up. As soon as tliG evidence had been gone through, a very intelligent mem- ber of the committee was appointed to draw- up the Report, lie did so, and that in ft manner that reflects much honour upon his information and talents. But this Report is not the ^^ Monument.^' It now beealne evi- dent that there was a pmiy in the Commit- tee. This party, after several numbers of the committee had left town for their countrj^ seats, under the impression that there could be no doubt as to the adoption of the draught submitted to them, drew up a 7ieiv Report, adopting and concenling as much of the first as corresponded with their own views, and adding the famous supplement which at once closes and disgraces this extraor^linary doc- ument. Yet ?/m's Report, to the eternal dis- grace of th^ pcifty, was only carried by a ma- jority of owe vote ! Posterity will scarcely be- lieve it ; but it is a fact, that this majority, instead of being guided by a sense of nation- al honour, and the principles of sacred uni versal justice, were solely influenced by mo- tives of personal dislike and private resent- ment. Is not the character of the nation gone when we find the very Legislature-— the very parliament actuated in their publick conduct by such base and disgraceful pas- sions ! We have only to look into the report itself to be convinced of the corruption that existed in the Committee. Who but a fac- tion could interlard a state document like this with personal vituperation against char- 292 acters hitherto held sacred until fairly charg- ed and formally convicted. It was not pay- ing a great compliment to the King to tell him, that his Majesty's representative in Canada was a delinquent when no charge had been rgg-i*ZarZ^ brought against bim; far less submitted to his Majesty. Was not this trying and criminating individuals instead of inquiring into errors and grievances ? Who made the Committee a Criminal tribunal when the House of Commons itself cannot —dare not put one of his Majesty's subjects on trial before it ? Thus far, at least, the Committee over-stepped their legitimate au-= thority^ and on these groands alone, we are clearly of opinion, that the Report will never be concurred in. A decision to the contrary would eternally disgrace the British House of Commons. Even as respects its main points, though they contain many things that we ourselves approve of, we do not think that it will ever be received or concurred in by the House. Notwithstanding the large volume of evidence subjoined, it does not communi- cate a particle of information on the funda- mental evils of this province ; nor suggest, of course, any reformation with respect to them. It foolishly supposes the Canadians to be as susceptible of knowledge and improvement as Englishmen ; and takes it for granted, that the removal of some Financial difficul- ties and giving way to all the wishes and prejudices of a rude and simple people, would send us down to future ages the envy and admiration of the world ! Provided the 29i. Committee could drive all the Edglishmeu already in the province out of it, and pre- vent others from coming into it, it is very probable that Lower Canada would seldom be heard of as a part and parcel of the British dominions. But while matters remain as they are, it is the bounden duty of the parent state not only to protect us, but to render ns as happy as she herself is. But it is not at the hands of the Canada Committee that we are to expect such happiness. If their Re- port be sanctioned and followed up, without amendment or modification, we shall of all people be the most miserable. In truth, we have reason to know that it never will be sanctioned in its present form. In all prob-« ability the committee, instead of being thank- ed for their industry and assiduity, will either be dissolved or sent back to reconsider the evidence, in order to draw a closer parallel between it and the Report ; a glaring defi- ciencj' which detracts very much from the good sense and impartiality of the commit- tee.* Yet, this is the *^ Imperishable Monu- menf^ which the House of Assembly have undertaken to print, publish, and circulate throughout the country ? We shall only add, *We decline alluding to the extraordinary character of some of the evidence given be- fore the committee. The manner in which that part of it which has reference to the La- chine Canal, has been refuted in this country, is as honourable to one party as disgraceful to the other. 1 ir** 29-1 ihut hotVuo tlie prill tor lins got ilie job out of Ills li;uu)s, it i>4 inoro lluui prol)iil»lu tlinl llio " ItnjK'iishlthh' ^'^Imuiinriit"' sliiill liuvo hvvn tvas npiaiii lost Wv h(\'irti'y vojoioo at: this, not o:ily because its whtdi' luacbinciy ^vas «;cl, ; IxmIcwIh;; llmpavc- incdl willi I ■ tcuis, ariu. Wiiore wore NcIhou and (JuviUkr ! W horc wero the (Jari- Mihi. Cornrnitfce -vvUh their l{,«port and il» hundred lies/? Alaw \ all — all gone. All had forH-il'cn »he unhappy and hereji ved fath- er — tho latherof iImh only child — to his r.'ile. Why di;id terms. 11 very wise rn;jn In ready to n by the 'Assembly ; but only a f«w days before the prorogation, which, though read a second time in the Council, was necessarily interrupted by the adjourn- ment of the session.* Mr. Vigefs labour now became no less tedious than painful, and his friends began to entertain great fears for liis safety. There was but one alternative, and that was to consult that great Colonial Accoucheur, the Imperial Parliament. It was stated at the consultation, f that the Le- gislative Council — a term asserted by the Assembly to be synonymous with ^'■ExeciUive^^ — had repeatedly refused to proceed on the Judicature liills sent up by that body, and that the province had suH'ored great and va- rious hardships from a want of sympathy oa the part of the Legislative Council towards *Vide ** Observations on Petition of Griev- ance,^' p. 20. +Vide the Quebec Petition of Grievance. 298 the precarious situation of Mr. Viger, and the anxiety of his friends. Tiie great ,4c- coucheur, without pronouncing any definite opinion himself, referred the matter to a Committee of young ^sculapians, who declared that the Legislative Council were much to blame for their cruel and inhuman treatment of Mr. Viger, and recommended a different constitution of that respectable body. But the council have refused to acquiesce in this opinion, and declare themselves perfect- ly innocent of the crimes laid to their charge.* In truth, we are ourselves of the same opinioa —and the little sketch which we have given of the history of this famous Judicature Bill may convince any impartial person, that the statements in the petitions of grievance re- specting this matter, were as false as they were groundless. Is not the failure of the Bill in the Assembly itself a convincing proof of this ? Who would trust in future to simi- lar representations from the same source 1 Yes! Ths House of Assembly strangled the Bill in its birth and saved the Legislative Council the trouble of again legislating on a measure so incongruous, and so full at once of blunders and danger to the due adminis- tration of justice. This event however, has been the naeaas of dividing the Assembly into two parties, now commonly known as the Quebec and Montreal parties. The Moatrealers have always supposed *Vide Appendix A, of their iournals for 1820. '' 299 them selves far superior to the Quebeeers both ill number and legal lore; but this is a proposition which the Quebec folk deny ; and it must be confessed, that they have proved their superiority so far as to be able to throw out Mr. Viger's Bill without being capable to naaintaiu the Resohitio7is o^Mv. Vallieres on thesanae subject. Whilst this state of things continues, we despair of ever seeing a sensible judicature laAV pass either branch of the Legislature. We are not pre- pared at present to enter into the merits of the measures of either party ; but we cannot refrain from saying, that, of the two, those of Mr, Vallieres are by far and decidedly supe- rior, though still at an immense distance from the true line of judicial legislation. The ob- servations of Mr. Solicitor General on this question will reward any one who peruses them.* They do as much honour to his can- dour, as to his information, talents, and re- search. We are ourselves no lawyer ; but with a little study and labour, we think we could be able to devise a system of judicial ad- ministration for this province which would at least be equal to that of either Mr. Viger or Mr. Vallieres. The policy of our ancient constitution, says Blackstone, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there were manors and townships in theking- *Vide debate, 3d February, 1829, >0Q Jora ; wherein injuries were redressed iu aa easy au expeditious nuniner, by the suflVage of neighbours aud friends. These little courts, however, corninMnicated with others of alarger jurisdiclioH, aud those with others of s*tili greater power ; ascending gradually from the lowest to the supreme courts, whicli. were respectively constituted to correct the errors of the inferior ones, and to determine such causes as by reason of iheir weight and difficulty demanded a more solemn discus- sion. The course of justice flowing in large streams from the king, as tiie fountain, to his superior courts of record ; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered aud refreshed. This seems to us to be the true basis of Courts of judicature, and is such as ought, in our hum- ble opinion, to be adopted not only in this province, but in every other country of tho least pretensions to civilization. The sys- tem was evidently borrowed from Moses, who, finding the sole administration of jus- tice too heavy for him, " chose able men out of all Israel, such as feared God, men of truth, hating covetousness ; and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens: and they judged the peonle at all seasons ; the hard causes they brought unto Moses; but every small maitcv they judged themselves.'** It is on such a plan as this that we wish to see the judicature of thi^ ^Exod, Chap. XVIII. V. 91. >0l provluce rirmly autl permnnentlv scttleVl. This is the true ilivisiou of jutlicial h\ho!u\ Let the proviucc, theielbre, he divkieil iuto counties and townships. Let there he a sedentary ]yu\^o in eiich of those counties and townships, having jurisdiction in real and personal cases to tlie amount of £30 sterling. Let these counties and townships ho split into three divisions, and attached, according to their locality, to each of the general dis- tricts of Q,uehec, MontreaU nnd Three-Rivers, Let each of these general Districts have a court of Kings Bench, consisting of a Chief Justice and three puisne Judges ; having a concurred original, as well as an appellate, jurisdiction over all the counties and town- ships attached to the District. So far as re- gards the appeal front counties and town- ships, let the decisions of these /)/&]{ /iVf courti be final. I^^t there be a supreme court of Appeals, consisting of the Governor and Council; that council, (ov Judicial purposes, to consist of His JMajesty's Representative, the speaker of the Legislative council, it" ho he not one of the Chief J ustices, but if so, the senior member of the same council : the said three Chief Justices, the Judge of the Vice Court of Admiralty, and Ilis Mnjesty's Ad- vocate General. As to criminal matters, let all trials be had in the cotirt of Kings Bench within whose General District the offence may have been committed. Let all these Judges 1.3 rendered independent : and not only permanent salaries granted to them du- ring good behaviour, but pcj^sions also, in the 302 event of their retiring in consequence of bad health, old age, or a judicial servitude often years. Let the Record language at least of all these courts be English.* As to the laws that ought to govern the decision of cases, of course, we are not prepared to speak. *" Identity of language is a fundamental relation, on whose influence we cannot too deeply meditate. This identity places be- tween the men of these two countries (the United States and England,) a common character, which will always make them attach themselves (se pendre) to, and recog- nize each other. They will mutually think themselves at home when they travel into each other's country. They will have a re- ciprocal pleasure in the interchange of their thoughts, and in every discussion of their interests. But an insurmountable barrier is raised up between a people of a different lan- guage, who cannot utter a word without recol- lecting that they do not belong to the same Country — between whom every transmission of thought is irksome labour, not an enjoyment^ ivho never succeed perfectly to understand each other'— and withivhom the residt of conversation, after the fatigue of unavailing efforts, is to find themselves mutually ridiculous. The very part of America through which I have trav- elled, I have not found a single Englishman who did not feel himself to be an American ; not a single Frenchman who did not find himself to be a Stranger," TaUeyrand^s Memoir of America^ 303 But we venture to think, that the sooner the French feudal laws and tenures are abolish- ed, and the English laws and forras of pro- cedure established in their place, the sooner the province will become happy, prosperous and wealthy. With regard to the foolish dread that has been entertained in the As- sembly respecting /oca^ judges, and their par- tialities to those next them in society and kindred, it is quite absurd. Has not a local judge the same honour and character to main- tain that a District judge has ? To supposa the contrary, would be to suppose h\m a 'priori, destitute of every principle of justice and in- tegrity. Has not every individual a certain rank and character to uphold ? In the name of heaven, why should Zoca/ Judges be ex- empted from so general and favourable an idea of mankind ? Are local and parish per- sons less virtuous and moral in their lives than metropolitans ? It is positively a libel upon human nature to say, that an individ- ual can be more upright and virtuous in one place than another ; and that judges in the country are less impartial and honest than city judges. For our own part, we honest- ly declare, that, had we a case pending, we would' much sooner su^jirriit our fate to a country, than to a town judge. It is very true we might be favoured w ith finer speech- es, closer logick, and more eloquent lan- guage from the cityjudge; but we very much' question whether vv^e should not receive strict- er and more sterling justice from the coun» try justice. Nothing can be more ch}Wi«;b vl04 than the reasoning of the Assembly on thl^ pul)ject. Tliey have mistaken their own sus- picions and prejudices for realilies ; and have put down, as an olfeoce to be guarded and watched, the mere surmises of their own imaginations. We trust we have assisted in exploding such futile doctrines, and that, when the Assembly meet again, their minds will be better prepared for the discussion and final adjustment of a subject which, above all others, claims their serious and undivided attention. This, ought not to be made a party question, because it is of paramount ar>d perpetual importance. Neither Quebec nor Montreal ought to claim any honour or favour from its settlement. The whole country ought to unite in its accomplish- ment ; and he who divides either the coun- try or the Assembly in an endeavour to es- tablish a wise and permanent system of ju- dicature, ought to be execrated and banished for ever from decent society. Without apro- pcr system of judicature, no country can be free or happy : without meekness and mag- nanimity, no legislature can be useful. The Bill introduced by Mr. Lee for dis- qualifying the judges from having seats and votes in the Legislative Council, was a very silly and foolish measure; and we are iiappy that it miscarried. Itdisplayed neither gelie- rosity of sentiment nor knowledge of the con- stitution. This is an old and favourite object in the Assembly ; and of course, was thought to be irresistible on the present occasion in con- sequence of the complaints of the petitioners of ihe Cross ou the one hand, aud the remera brance of that foul monster, the^ Canada Committee, on the other. But, thank God, desperate as our condition is, we have not yet fallen quite so low, as to be driven from our post by every wind of doctrine ahat rises from the Assembly and their minions through- out the country. When the assewbly prevail so far as to be able to say with impunity, either who slialL cr who shall not, sit in the legislative council ; or, in other words, dic- tate the spirit and the principles which ought to regulate that essential balance which the constitution has opposed to their popular passions and designs, there will be an end of the matter. Nothing, indeed, is more natural to licentiousness, faction and envy in all countries, than to unite in an endeavour to possess themselves of the whole power of the state, and we have seen that, in obedi- ence to this general law, nothing has ever occupied the attention of the Assembly more than the means of acquiring the whole pow- er and authority of the province. The at- tempt, therefore, of driving the Judges from the Legislative Council, if successful, is con- sidered as one great step towards an end so desirable. We call upon the government and the country at large to be unanimous in their resistance to these unwarrantable and outrageous proceedings ! One concession leads to another ; and we may be assured, that if the Assembly succeed in their present attempts to destroy the constitutional organ- izatioa of the Le.'^islative Goimcib their next endeavour will be either to declare that body altogether useless, or fill it with their own creatures. Such a conjecture is not so dis- tant or remote as some persons would in- duce us to believe. They who have nar- rowly watched the operations of our Consti- tution, and the process of encronckmenis find violations on its principles which have been going on for years, clearly perceive, that if such a system be longer persevered in, it must be yielded up, like a battered and ruined cit- adel, into the hands of its worst and basest enemies. In the Colonies, in particular, it behooves his Majesty's government to guard against innovation from the side of the popu- lar branches of the legislatures. While the Assemblies possess much of the power and constitution of the House of Commons, the provinces are destitute of that rank and for- tune which are necessary to secure that sta- ble, uniform counterpoise in the Legislative Councils, which characterizes the House of Lords. The model is a good one ; but it can never have fair-play in a country where the materials for forming a counterpart, do not, and cannot exist. Besides, neither the king nor government holds any patronage in the provinces, which can create attachment and influence sufficient to counteract that restless arroj^ating spirit, which in popular assemblies, when left to itself, will never brook an authority that checks and interferes with its own. We do not here advocate aoy undue influence or clandestine rewards. These are equally disgraceful at all time?. S07 and in all places. We only loler to thai, weight and influence on the public mind which always characterize, and ought evev to follow the acceptance of posts of honour, and naerited prefernaent. It is on these grounds alone that we warn this province of the dan- ger that awaits it, if the House of Assembly be permitted to pull down and level every barrier which the constitution has established not only in its own defence, but for the safe- ty and security of the rights and liberties of the people at largo. But with respect particularly to the at- tempts made by th.e House of Assembly of this province to exclude the judges from the Le- gislative Council, nothing can present their true character in a better light. They do not complainof the judges because they hav» polluted the seat of justice, but, on the contra" ry, because they possess, in the opinion of the Assembly, the natural enemies of the other branches of the Legislature, nn undue influenco in the Legislative Council! We do ad- mit, that, if a case were made out shewing one solitary instance wherein the political character of the judges interfered withtho legitimate discharge of their judicial func- tions. Wo should be among the first to second the measures of the Assembly. But when we find that the Assembly, even presumptuous and insolent as they are in all their measures^ have not dared to bring a charge of this de- scription against any of the judges, but, oa the contrary, only hunt them as mere organs? of imaginary political grievances, we standi 18 «n tbelr side; and have no hesitation to say* that the mioister or the Governor who con- sents to stigmatize a learned and honoura- ble body of men, in subserviency lo the views ©f the Assembly, is an enemy of the consti- tution and a base traitor to his country- Yet, even if there had been good and formidable grounds for excluding thejudges from the Le- gislative Council, the mode in which the As- sembly attempt to efiect their purpose, is alike at variance with the principles of the constitution, and destructive of the just pre- rogatives of the crown. By the constitution- al act his Majesty is authorized to call whom he pleases to the Legislative Council, except aliens and persons under twenty one years of age; and those called, hold their seats dur- ing LIFE, unless vacated and forfeited by ab- sence from the province, treason, or allegi- ance to any foreign prince or power. Now, as it is not pretended that the judges have for- feited their seats, by the commission of those crimes, or by absence from the province, by what power on earth can they be disqualifi- ed, except by an act of the Imperial Parlia- ment? It is in virtue of an act of the su- preme Legislature of the empire that they hold their seats, and we know of no other au- thority by which they can be deprived of them. Nay,even had his Majesty recomment?- ed the measure in question, which we are certain his Majesty will never do, we main- tain that the PrormdaZ Legislature could not constitutionally proceed to enact a law upon the subject- Their doing so would be legist •S09 lnliiiK in Jlio faco and in defiance of ilio ( 'ow- stitulional At:l; ; and noilhcr ilio jirdpos lliorn- Molvos nor tho country would l)o l>onnd 1)^ tlioir oiial I'ariianiont, the ordy coinpotont HutlKoity, ho soli<:itn<| to poilorin tho un- p;iatorul task, lint n(;voi- lot it ho Kaid in % JJritish j»rovinoo,th;it rtn outra{;()so j:;I;iriri;:^ liaw hoon conirnill'.d on iho )Miii('i|doK oftho ron- utilulion ; and that in<'onij>oton(;y jiihI iujiis- tice walk hand in haud. At tho risk of in- curring'; tho disploasuro of tho AHKOinhly Jind thoir friends — which, hy iho way, wo kIiouIcI ho sorry ever to do othorwiso than dcHcivr — wo havo no hoHitation in .sayiiij;, that .V0///7; of IIiojikI^os aro tim inoKt usolul and oiru-ioiit inondiorsin tho liOgislativo (Jouncil,and that nothing could ho nnn'o injnritniK to tho real intorOHlH of tho province tlian ^////"r rorii<>vaJ, (it a tinio whon tho coustitulion lies [*ros- lrat«i at oin* feot, and ovory avoniid o|»nnr,d lo t!ic insolont and doHtrnclivo prcilrosions of iho I louBO of AsKorrddy. His IVJiijoHty'H jro- Voinniont will thorcloro do woll not to [)art with lhorr» <:Hpocially at tho proKont jnnctunj. Thoy got notliiii;^ ("or thoir hrh(»ur ; and whilst llnjy work tin? j:,(»od work ol'tho constilntiou faithfully and honestly without injury to thoir judicial character, wo thiid; ihat tho doht J!! •a ik^ sido of tho king and cuuutry, and wot .to on theirs. Some of the most eminent and experienced judges of England have always been found to have seats in the House of Lords, and those who have not are daily lia- ble to be called upon for advice and instruc- tion. Why should not the analogy be main- tained in Canada as nearly as circumstances can admit? Moreover, when we consider that the Legislative Council of this province consists of tiventy six members, and that of this number only three are judges, exclusive ©f the Chief Justice, who, it seems, mai/ ?ioio retain his place,— what evil consequences could result to the country, even if these three formed a faction as stupid, as vile, and as democratical as the Triumvirate who com- plained of them? The fact is, that the good «ense of the country has been very much in- sulted and outraged on this as well as on oth- er subjects : and we are surprised that we have hitherto submitted so quietly to be told that all our judges are pure and immaculate, except those alone who hold seats in the Le- gislative Council. We think we have shewn the cause of this in its true colours ; and we venture to presume that the government will fail in their duty, if they do not immediately- put a stop to this base outcry against respec- table individuals, who are an honour to the country and the rank which they hold in its civil and political institutions. But who are they who raise this outcry? Why, a pack of upstart, ignorant lawyers and notairies, who compose mearly one half ©f the representatives of the people. While oil traducing the judges formeddliug iu politicks, they altogether overlook the fact that they are themselves committiDg the very same fault. Is it not as dangerous to a lawyer, who anti- cipates prc»motiou to the bench to be a poli- tician, as a judge? We at least, think so ; especially when we consider the pdliticJcs of the lawyers in the House of Assembly, and their misapplication ofthat time and industry which would be much better employed in studying their cases in order to do justice to their clients. It is very clear to us, that prac- tising lawyers cannot dabble in politicks without injuring the political interests of the country, and disqualifying themselves for be- ing judges; and therefore we hope the gov- ernment will ever do its utmost to keep such lawyers in their proper sphere. We hope that political lawyers will be studiously kept from the Bench : we hope this, because we wish to see the laws purely, unerringly and impartially administered.* We regret that the Bill, of which we pre- sent a copy below, was not introduced into the Legislative Council and passed, as it forms on^e of the best commentaries on the spirit and character of the lawyers in the Assembly we have ever seen. We hope the gentleman who got it printed will not fail to *" The government of the United States, since its institution, has scarcely evinced any thing else but proofs of weakness ; and, in fu- ture, greater vigour cannot be expected from it, as long 33 it is conducted by Lawyers, a 18* 12 rake it up next sessiou.* We are serious Im thisexpectatiou. Wo ilo not wisli the coa- stitutiuu to be bufl'etecl, like a rock iu the middle of the oceuu by every surge of de- mocracy tliat those iut'atuated hivvyers cau raise against it. We ^vish to see honour, justice aud liberality of seDiiment pervade the province ; but whilst lawyers coutiaue to legislate for us, we despair of ever seeing the country prosperous or happy. species of men the least proper to govern oth- ers, because they have nearly all a false judgement and dull character; and becaus6 with their confined ideas aud mean passions they think they can govern empires, in the Eame manner as they would govern a club." Beanjottr's Sketch of the Unittd States, pp. t)4 and (J5. *Bill for placing the. Legislative Council and House of Assenihli/ of this Province upon an equal footing'. WHEREAS a bill having passed the As- sembly for disqualifying the judges from sit- ting in the Legislative Council and thereby establishing the principle, that professional knowledge of Law ought to work liCgislative incompetency, it is fit and proper for the pre- servation of the due balance of the Consti- tution, and of equal rights, that the two Houses of the Legislature should be placed upon the like footing : IJe it therefore enact- ed, &.C. aud it is hereby enacted by the au- thority of the same, that from and after the passing of this act, no person being au Advo- :ji3 upon tlio whole, we are firmly of opinion, that the Assembly would much better dis- charge their duty to their constituents and thcmBclves in an endeavour to secure the real independence of the Judges, than thuf to hunt them, nolens, volms, out af the Icg- cato, Solicitor, Notary Public or other prac- tiser of Law in any shape shall be elected or sit in the House of Assembly of this Province as a Member thereof, any Law, Statute, Ordinance or Usage to the contrary ihereoi in any ways notwithstanding. And whereas Physicians and Surgeons would be more usefully employed in attend- ing to their Patients, than in composing Le- gislative nostrums. Be it therefore further enacted by the authority aforesaid, that no person being a Physician or Surgeon, shall after the passing of this Act be elected a IVIcmber of the House of Assembly or sit there- in. And whereas great public injury has arisen from the number of Memberi of Assembly resident iu Quebec /^nd Montreal, and the Counties tbci-'ios", representing otbcr 'Joun- ties, whereby their local interests nnl feelings are attended to instead of the puLHcgood, l>e it further enacted by the authority aforesaid that from and after the passing of ibis Act, no person resident in Quebec or in Montreal or in either of the Couuties thereof, shall be elected or shall sit as a Member of the As- sembly, for any County, Town, or Borough, other thaa Ihc Cities or Towns of Quebec 314 illative council ; for even were the Judg:es excluded from this Council, who can say that their dignity and independence would be greater, while their commissions are held durante bene placito, or during pleasure, in- stead o( quamdiu bene se gesserint, or during good behaviour. The first maxim of a free state, is the impartial administration of jus- tice. But, constituted as human nature is, how can justice be impartially administered, unless the minister of justice be placed in such a situation and circumstances as will render him as indifferent to one party as the" other ; as indiffersnt at once to the king as to his subject, however mean or destitute ?* In such a government as ours, the great and leading object of the laws, is the security and and Montreal or the Counties thereof, any Law, Statute, Ordinance or usage to the con- trary thereof in any waysnothwithstanding. And any person being an Advocate, Soli- citor, Attorney, Notary Public, or other Prac- tiser of Law in any shape or any person re- sident in Quebec or Montreal or either of the Counties thereof who shall be elected a Member of the Assembly and sit therein as such, contrary to the provisions of this Act, every such person for every such oflfence, shall' forfeit and pay Five hundred pounds sterling. *Evea in the United States, "The judges both of the supreme and inferior courts, shall hold their situations during good behaviour, and shall; at stated times, receive fortheiv 315 protection of the rights of individuals, and m their impartial execution when these rights are invaded. Suppose the Crown or its of- ficers to be the invaders : suppose a subject —suppose ourselves dragged from our home, our family, and our business, and consigned to a dungeon by a tyrant of the law in some high authority, for no other cause than a free and candid expression of our sentiments on some point of government, what justice are we to expect— in what light are we to look upon our rights, while our Judges, those men who ar€ to sit as arbiters between us and those who may have robbed us of our liber- ty or property, hold their, situations at the pleasure of these robbers and invaders ? Sup- pose our Judges to be men well known lo the community for integrity and impartiali- ty — men fearing God and hating a bribe- may not the Crown dismiss them and ap- point others in their place of less scruples, honour and integrity ? Aye, and such dis- missals and appointments have taken place, even in that country which boasts of the best laws and freest constitution in the world. But, thank God, the times of such evil deeds and evil men have long since gone by. The patriarchs of the Revolution of 1688, clearly saw the defect, and destroyed it forever. By the I3th William 111. cap. 2. the Commis- eionsof the Judges were made during good services, a compensation, which shall not be diminished duting their continuance in office " [Ide constitution of the U. S. Art. 3. Sec. 1, ' 18*** 316 behaviour ; thus depriving the Crown of tho power of appointing subservient and time- serving judges. This was one of the noblest achievements of the Revolution. By the I. Geo. cap. 23, the judges are not only contin- ued in their ofliees during good behaviour, but notwithstanding any demise of tho Crown ; and their salaries absolutely secur- ed to thera during the continuance of their Commissions. The senliraents of the moa- arch on this occasion, were worthy of the sovereign of a free nation ; and ought to be repeated as often as the conduct and iri- dependeoco of the judges become subjects of discussion :—" He looked upon the independ- ence and uprightness of the judges, as essen- tial to the impartial administration of justice ; and as one of the best securities of the rights and liberties of his subjects, and as most con- ducive to the honour of the Crown." It is much to the honour of the judges of this province, that tliey have long felt the evils and dangers of the tenure upon which they hold their Commissions. Previous to Lord Dalhousie's departure for England in 1824, a memorial was presented to him from the Chief Justice and Judges of the province, praying that their Commissions might bo granted them during good behaviour, and a provision made for their retirement after a service of a certain number of years. His Lordship, while at home submitted and' strongly recommended this memorial to his "j Majesty's government; and, upon his le^ turn to the province the ensuing year, he re- 317 celved a desjiatch from the Colonial miuis- ter, stating, " that ho would rccominend to his Majesty that tho appointment of the Judges in this province should be placed on the footing on which corresponding appoint- ments are placed in England, provided that the Legislature of this province should make a provision for their retirement according to tho scale which is adopted in England." On the Ist of February, 182G, a Message to this effect was sent by his Lordship to both hous- es of the Legislature. It would appear, however, that in the Session oflo25, wiica the Governor in Chief was in England, tho Assembly had passed a series of Resolutions OQ this subject, on the basis of which, and not on that of the Message, they novv, for the first time, introduced a bill. The clauses of this bill were as novel and uiaconstitutional in themselves as they were at variance Avitli the whole tenour and spirit of the Message. The very first of these decl.uys " that from and after the passing; of this act, it shall no longer be lawful for any of the Judges of tho several Courts of King's Bench in this prov- ince, nor for any of the Judges of the l*ro- vincial Courts therein, to have or to occupy a seat in the Executive Council, nor in the Legislative Council of this Province." Now, is there any rational being in existence who can discover any consanguinity between this clause and any part of the Message ? What had the seats of the Judges in the Legislative and Executive Council to do with their ju- dicial independence ? We have already ii'8 bpoken at large on this head, and shall only add in this place, that an attempt to deprive his Majesty of the right of calling to his coun- cils, whom he will, is a direct encroachment upon the prerogatives of the Crown, and an assumption of an executive power which cannot for a moment be tolerated under such a Constitution as ours. It would at once overwhelm the just balance of a free repre- sentative government, checked and control- led by a limited monarchy. The second clause of this famous bill declares, that the Judges shall hold their ofSce " during their good behaviour. ^^ But what have the Assem- bly or the Legislature at large to do with the mode in which the judges are to hold their offices ? This is entirely a gift of the Crown that cannot be interfered with by the Assem- bly without assuming to themselves the rights of the Crown. It was not for them to say whether the Judges should or should npt hold their situations during good behaviour. The Message calls for no such legislation. It only enjoins the propriety of "o 'provision for the retirernent of the judges;'' in which case only the minister engaged to recommend to his Majesty the apfoiufment of the judges of ihis province on the same footing with corresponding appointments in England ; and in which case only can the judges be fur- nished with Commissions during good be- haviour. The next three clauses indeed, af- fect to establish a permanent allowance for salaries and pensions to the Judges. But wheac© wero these to come ? Whv? say the 319 Assembly, from '• the funds already by laW appropriated generally for the administratioa of justice and support of the civil govern- ment." Surely our readers need not be told, that these are the very identical funds ■whose existence the Assembly at^ncedeny and assume to themselves the right to dis- pose of ! What infamous tergiversation is this ! Were such a measure as this sanc- tioned, the judges would be less independ- ent than ever. Should these " oppropriate(r^ funds be given up to the Assembly, as has been done towards the conclusion of the lata Session, w^ouid not the judges be obliged annually to beg at the door of the House of Assembly for their salaries and pensions ? Besides, even allowing that no such preten- sions had ever been set up by the Assembly to the permanent appiopriaied revenues of the Crown, these revenues are far from being adequate to the payment of the judges ; and the object of both the despatch and the mes- sage was, not a disposition on the part of the Assembly of those permanent funds, but a new and different " provision for the Re- tirement of the judges according to the scale which is adopted in England." But this was a distinction which the Assembly could not, or would not understand. They had long contemplated the hope of being one day enabled to render the judges subservient to their own popular tribunal, and this, they thought, was one step towards a consumma- tion so devoutly to be wished. According- ly, the sixth clause of the bill ia question^ 320 eenstitutes the Legislative Council as a tri- bunal competent to try not only the judges but every other officer guilty of high crimes and misdemeanours. Yet, they forget, that whatever instructions may have once reach- ed this province on this subject, these wero afterwards modified to such a degree as to deny to the Council any judicial jurisdiction without the express sanction of his Majesty. But \vc should be glad to stand face to face with the man who dared to say, that even the King himself had the right to confer a judicial character upon the Legislative Coun-, cil without an ace of the Imperial Parliament. To talk then of a provincial subordinate leg- islature assuming to itself powers which can only emanate from the supreme authority of the empire, is sheer downright stupidity and nonsense ; and such opinions can only be entertained by a legislative body pretending to an equality of power and authority with the Imperial Parliament. Need we be sur- prised, then, if the Legislative Council have rejected a bill so fraught with innovation and veal danger 1 They therefore did right in damning it ; and we think that those who have found fault with them for doing so- such as the Canada Comuiitiee, their min- ions and witnesses — ought to be impeached as traitors to their country ; at least, as base malignant traducers, unworthy of being as- sociated with by any wise or high-minded people. Such is the state of affairs with re- spect to the independence of the judges; and such is the fate of the recommendations of 32 i li'm Majesty on a subject, which al)OVO ah. others, dcrnarids the serious uttcnlion of u free and ea!iji;htencd country ! The fjuulijication of Jur-jticcs of the I'cacc has been an old and favourite measure in the House of Assembly ; but the real object in view, is, perhaps, not «o generally known as it ought to be. We shall slate it in a hw •words. Though more than thrte-fourlhs of the whole magistracy of the province* is ac- tually composed of native French Canadi- ans, yet the Assembly have ever deemed it an intolerable grievance that the whole body of Justices of the peace does not consist of what they term their " Countrymen,'" to the entire exclusion of ^^ En^^llsh foreigners and strangers.'" They are not content with an exclusive legislative power. They must aI>:o be possessed of the civil and criminal judicial authority of the province. The only mean?. ■which they have hitherto devised for elTcct- ing this object is the fjualljication of Justices of the peace ; imagining, that, as the French population are the holders and occupiers of the greater part of the landed property of ihe country, they are alone entitled to be called upon to perform the important dutici of magistrates. They cannot endure that an Englhhman who is not possessed of real property, can possibly discharge the duties *In the District of Quebec there are 131 Justices of the Peace ; but of this number, only ."30 have English names. The nurnbei- of EugUsh ia tho other Districts is much less. 322 of a magistrate, however well qualified as t* yank, fortune, education, talents and intelli- gence. All— all must yield to the jihysical strength and qualities of the Country. It cannot be endured that a man with an Eng- lish face, an English name, or an English tongue in his head should sit in judgment on a Canadian, or sign a mittimus for com- Baitting to "durance vile" a son of the im- maculate and renowned " ISation Canadi- enne.^^ Such a case as this has always been looked upon as the height of insult and ty- ranny. Besides, the Assembly must have all their own creatures in the magistracy ; for who, in their estimation, can be so useful and influential at Hustings and other politi- cal assemblies, as those in the plenary en- joyment of the magisterial functions ? It is no wonder, then, if the measures adopted by the late administration for purifying thecom- missions of the peace, by dismissing those who had so wantonly and insolently prosti- tuted the dignity and character of the office of justice of the peace, struck the Assembly with dismay. This was a blow which they could not easily recover ; and they have not yet recovered it ; but as soon as the legislar ture met, and its stunning effects had some- what subsided, they lost not a moment in at- tempting to right themselves. The Bill which they introduced for this purpose, was one of the most absurd, barefaced and un- constitutional things of the kind we have ever heard of. It required all persons ap- pointed to the office of Jestiice of tije peac« to swear that they possessed a free uniueuiii- bered revenue of £100 per onnujn. This was an attempt to assimilate the qualifications of justices in this province to those in England ; though, ignorant as they are, they must have been aware that there exists na analogy whatever in the circumstances of the two countries. It is very true, that in England certain qualifications are in force, with re- spect to justices of the peace ; and, in partic- ular, no one can act asjusticc unless he have £100 per annum, clear of all deductions.. Bat this is not with a view to ensure the . services of men of property of any denomina- tion whatever ; but, on the contrary, men of education, reputation, rank, and learning. Anciently, before the present constitution of justices was invented, there were peculiar officers apipointed by the common law for the maintenance of the public peace. The du- ties of those officers were limited to the mere conservation of the peace. Their ignorance in letters or in law was a. matter of no con- sequence, because a good batton and a well tempered sword were the best promoters of peaceful demeanour ; and he who could wield them most dexterously, was considered the best guardian of publick tranquillity. During the reigns of our earlier princes, a *' good Clerk^^ was considered but an inferi- or, being compared to a good "^rcAer," andj in fact, was a less useful member of society, considering the elements and the manners of that society. But as mankind became en- lightened, as feudal warfare ceased, as com- m ;24 mcrce extended, and trade flouHshed, the laws became iiuraerous aud iatricato ; and no man could administer or enforce them, ex- cept he who was either learned in the law, orendowed by education and research with a capacity, equal to the new duties imposed upon him. In fact, as early as the reign of Edward III. justices became Judges in ca- ses of felonies ; and it was then that the old conservators of the peace acquired the more honourable appellation of Justices. In pro- gress of time, the criminal laws became still more complicated and voluminous; and, as they now stand and arc executed in this pro- vince, very few persons can be found in the country of sufficient capacity to administer them as they ought to be administered. Ca- ses wherein the dearest rights of freemen are interested come to be decided before the justices in all their stages from the first ru- mour of complaint to final conviction. The personal liberty of the subject is discussed before them every day. In their General (Quarter Sessions, they are authorized to call Grand Juries before them, who are conse- quently endowed with the highest powers next to legislative authority. Every subject being entitled, when accused, to a fair and just trial, cases come before these periodical courts of the utmost nicety, demanding the sharpest scrutiny and the most careful dis- crimination. Are we to bo told then that these are duties and functions that can be discharged by afiy man worth £100 per an- num of free income? The thing is a pal- pabie absurdity from begianing to ecd. This is the first time in the annals of mankind, we believe, that intellectual and scientifick knowledge has been estimated by acres of land and pounds of money. It is, however, a false estimation : and will never answer in any country whose civilization is such as to render its laws a distinct and professional study. We know a man in a certain city of this province, who is in the receipt of an an- nual free income of from two to three thou- sand pounds ; but who can neither read nor write his own name ! It is enough to dis- gust and sicken any one who contemplates for a moment the figure which this man and bis equals iu ignorance w ould cut on. the bench, doling out justice, not according to therule''V)f law, but the rule of thumb or the ell-wand. For these and other reasons we desire to hear no more upon this subject: it becomes loathsome to us. If we are xle-'i- rous of keeping our criminal tribunals pure and unsullied, let us have magistrates of ad- equate education and acquirement. These are only to be found among the respectable English inhabitants of the province, and such of the native French ones as really possess sufficient education and information. It is too soon to introduce the English laws of qualification into this province. It will be sufficient to do so when the peofile become equally well informed, rich, and independ- ent. The Legislative Couocii, therefore, did right in throwing this bill overboard oucc more. 3P 126 As to the discussion which took place in the Assembly on the introduction of this measure, it was truly worthy of the object, and in perfect character with the ends in 'view. The hue and cry raised against the Governor in Chief for the late dismissions from the commission of the peace is equally unique. But who and what are the individu- als who were thus dismissed ? Why, the very pests and ofif-scourings of the country ; men who, to gratify their own party and se- ditious views, prostituted their office and fjtation as justices of the peace, and thereby forfeited the confidence reposed in their hon- f>ur and loyalty by the crown : men who stood in open array against the government of the country, and sounded the alarm-bell of riot and confusion : men who had opened their doors to nocturnal meetings of the most diabolical nature : men who had turned their iire-sides into forums of debating demagogues and mountebanks : men who had sullied the quiet and privacy of domestick life with the hnpurities of faction and discontent : men w^io had suliered the unhallowed yells of disloyalty and contempt for the metropolitan state to ring from morciug till night in the ears of their wives, children and servants : riien who afTected to be contaminated by any association witii Englishmen: and men who had bearded the highest functionaries in the province with abuse the most degrading and insulting. Did not such men at once despise the law and the authority with which it had clothed thorn ? Did they not from that moment in which their evil deeds commenc ed forfeitthe important trust reposed in theru by their soverei'^n for the preservation of the peace and safety of the country ? Who, then, dare throw their poisoned shafts at the head of his Majesty's representative for pu rifying the comn^issiou of the peace of such traitors and incendiaries ? Peace is the very end and foundation of civil society. Can it be endured therefore that those who are en- trusted with the maintenance of the publick peace, shall be among the foremost ranks in destroying it ? The King's Majesty, to use the words of Blackstoue, is, by his office and dignity royal, the principal conservator of the peace within all his dominions; and may give authority to any other to see the peace kept, and to punish such as break it. How- were the men — the justices — in question to be punished, except by dismissing them from the commissicn ? As ilie office of these justices was conferred by the King, so it sub- sists only during his pleasure. There is n variety ofuays for determining and supersed- ing this office ; one of wduch is that which was adopted in the present case ; via : a new commission, which virtually, though si- lently discharges all the foriaer justices that are not included therein ; for two commis- sions cannot subsist at once.* The powers with wiiich the Governor of this province is invested on this head, are t^s potent as those of the King himself, as will appear from the *Vide Blackstone, Vol. 1. p. 359. 528 following clause in his commission : — *' And we empower you, the said Earl of Dalhou- sie, in case any person or persons, having a commission, or named by us to any charge in our said provinces of Upper or Lower Canada, from which they may be liable to he removed by us, be in your opinion incapa- ble of continuing in our service, to suspend or remove such person or persons from their diffarent employments, without giving him- or them any reason for such suspension or removal." Wfaerefore,then the clamour and uproar raised against the Governor in Chief for the discharge of a disagreeable duty for which he was responsible to his King and country ? Wherefore this petitioning in the part of the dismissed justices to the present Governor to be replaced in the Commission ? Do they not know, that once they have for- feited the esteem and confidence of their sovereign, no governor who has any respect for the civil institutions of the country or the purity of justice, can pardon or reinstate them ? Why, then, pester, torture, and tor- ment Sir James Kempt with their vile scrawls of complaints and solicitations? Let them desist, and sink again into that nothingness from which they have so prematurely arisen. With respect to the character of the de- bates which attended the introduction of the bill in question, we confess that we feel at a loss for language to convey a proper idea of the sentiments which we entertain regard- ing it. The speech of the Honourable Speak- er— for he mint have something to say on 329 ■ aii questions — Is particularly obnoxious t© decency, decorum, good sense, and magna- nimity. His abuse of the Executive Council is downright blackguardism ; and we give it in a note in order to convince the world, that this man is on a level with the dirtiest and most degrading job that can possibly be undertaken by the lowest and meanest of mankind.* It is true, that no one who knows this fellow will be surprised at any thing that proceeds from the man. But when we be- hold the ^/JcaA'er of the House of Assembly * Q^ualification of Justices of the Peace. — The House in committee entered upon this bill, Mr. Laterriere in the chair. T!)e first clause was, that all Justices of the Peace should be appointed by the advice of the Chief Justice, and his Majesty's Execu- tive Council. The HoHourable Speaker held it very im- proper to entrust the appointment, (or what was the same thing) the recommenda- tion of Justices of the Peace to the Executive Council ; that council carried on its delib- erations under the veil of secrecy. They were a secret and invisible body to which past experience had shown we could not en- trust this important duty. In the appointment of the Commission of the Pence, the people of the Province had been extremely ill used; It had been employed to force upon the country the discipline under which it groan- ed. Dismissions and appointments had been made without respect to character, in- 330 standing up in his place — throwing oft" the high dignity of his office and the sacred re- sponsibility of his station — and vomiting forth all the bile and corruption of his ma- lignant and cowardly heart upon a respecta- ble and higly essential body of honourable men, every one of whom is his superior in all relations and capacities, we have no hesita- tion in concluding that the province is posi- tively dishonoured, and the government ab- iluence, property or ability for the office. Every thing was made subservient to party purposes. The Executive Council was chiefly composed of those who depended en- tirely on the Administration and who used their office with servility, secrecy and views of advancement. Every thing combined to make their nominations dependent on the caprice of the Governor. In such appoint- ments probity, honour, character, respecta- bility were disregarded or put into the oppo- site scale. Thus men who were fit for these offices were disgusted with the company they were obliged to keep. No person of merit or standing in the country would con- sent to hold them. Such offices were de- graded. Men who indentiHed themselves with the suffering cause of the people were expelled and driven into retirement. Up- starts unknown and contemned weve sub- stituted in their place. Such were the enor- mities committed by the Executive under the system which we are now called to support. — Clnebec Star, of January, 1829. 331 soliltely disgraced by the presence of a bein^^, so truly loathsome and disgusting. Were not the Executive Council degraded in their own eyes while such a man mingled amongst them? Were not his Majesty's councils contaminated even by the approbation of such a man ? But he is not noiv, thanks to Lord Dalhousie, an Executive Councillor; and the country is indebted to that nobleman for having erased from the Council book the name of a person so little worthy of his ma- jesty's confidence. That nobleman knew too well that the spirit which governed a Papin- eau was inconsistent at once with the hon- our of the crown and the real interests of the province. He dismissed him therefore, un- der circumstances, which, we are certain, will ensure his absence from the Council board in all time to come, tvlioever may be Gov- ernor. Nor is Mr. Papineau a man to be as- sociated with by any one at such a place ; especially after the mode, and the tone, in which he has publickly defamed his Majes- ty's Executive Council. He has neither amity of manners nor generosity of soul to acta proper or dignified part on a stage so important; and of him we may truly and justly say, Totus injidus est, et aperte rupit amicitice jura. Out of these proceedings with respect to the qualification of justices, arose the m-ore serious and alarming measure of expelling Mr. Christie, a member of the House of As- sembly, as representative of the county of flaspe. As thi« is a question ivhich not only o'o'Z involves aa interesting constitutional poiui. but deeply concerns the riglits, liberties and franchises of the people, wo will consider it in two aspects — frst, whether the House of Assembly have a i ight to expel a member in any case, and under what circumstances ; and, secondly, whether, granting the first proposition, there existed just nud sufficient grounds for the expnlsion of Mr. Christie ? Before doing so, however, we think it proper to state, that we know nothing of Mr, Chris- tie, personally, that we have no partiality or friendship for him, and that whatever wb may say with respect to the difficulties in which the proceedings of the Assembly have involved him, shall be solely dictated by the purest regard to the honour of the provincial legislature and the best interests of the coun- try. ■,. I. It must be admitted that no body of men, however or for whatever purpose as- sociated, can exist in an incorporated state for any length of time, unless they are gov- erned by certain laws and customs which not only serve to constitute, organize, and main- tain it in being, but which also invest it with a certain authoritative and compulsory ju- risdiction over the members that compose it. These are rights inherent and peculiar to all societies, whether barbarous or civil. The •wildest race of Cannibals that ever existed have their laws : they have rules, however rude, that cannot be infringed, and usages that cannot be encroached upon, without in- curring penalties and punishments the most severe and degrading. Man is, by nuiuvej the member of a community ; and when considered in this capacity, the individual appears to be no longer made for himself, lie must forego his happiness and his free- dom, where these interfere with the good of society. Agreeable to this maxim, every as- sem})lage of men, every order has its own peculiar rules and institutes of government. Tlie army has its orders, regulations, and codes of honour : the church has its canons : the courts of justice have their laws and cus- toms : and the high court cT parliament has its own peculiar Law, well known as the lex tt consnetudo farliamenti. To each of these different laws and customs every member of the community to which they severally ap- ply, is amenable. But such are the im- perfections and weaknesses of ail human in- stitutions, that even laws founded on the best principles and wisest maxims, may not only be exercised with a total disregard ol the lights of those who are principally in- terosted, but carried far beyond the bounds of their legitimate jurisdiction ; thus at once . ■T'^cting the original compact between the members of the particular body to which they apply, and encroaching upoQ the liberty and iadepeudence of another community over which they possess no authority what- ever. Every system, as well of law as of every otherscience, musthaveits limits. Na- ture hercelf has her laws; and the solar-sys- tem, infinite as it may appear to us, has its limits i;.ad boundaries, Ja truth, the very aim antl ol)ject of laws, is to set bounds and landaiarks to the follies and passions of man- kind. With regard, in particular, to the case before us, it, too, is bounded and cir- cumscribed ; and can no more be endowed with extraordinary principles of tension, than the earth can be driven from its orbit. The supreme, sovereign power of this coun- try resides in the Imperial Parliament of Great Britain and Ireland. Thejurisdiction of this high Court is as extensive as its power is transcendent, and is stretched over every corner, however remote, of the King's do- minions. It comprehends Canada as well as Westminister, and New-South Wales as ^vell as Middlesex. Accordingly, it is from this supreme authority that we have derived and accepted onr civil and political exist- ence — our judicial and legislative capacity. But the Imperial Parliameut has not confer- red, and could not confer on a subordinate dependent colouy as this is, all the sovereign and uncontrolable authority enjoyed by it- self. We are therefore bound, as Aveil in duty as allegiance, to exercise the powers actually conferred upon us agreeable to the jOtter and not beyond the spirit of the deed of conveyance by which we were put in pos- session of such inestimable rights. W^e are bound, to look upon ourselves as the execu- tors of a law which we can no more extend nor abridge — alter nor destroy, than a com- mon court of equity can unite legislative to its judicial authority. Neither can we assiimc any right, benefit or privilege further than those expressly conferred upon us. To 6uj>- pose a Colonial legislature capable of exer- cisiag, even if it could inherit, the power and jurisdiction of the Imperial Parliament,would be to suppose a thing which never did, and never can, happen. The mere contempla- tion of the nature and jurisdiction of parlia- ment will he a convincing proof of this. It has sovereign power and uncontrolable au- thority in making, confirming, enlarging, restraining, abrogating, repealing, revising and expounding of laws, concerning matters of all possible denominatioas, ecclesiastical or temporal, civil, military, maritime or crim- inal; this being the place where that absolute despotick power, which must in all govern- ments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances,operaiions and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tri- bunal. It can regulate or new-model the succession to the crown. It can alter the established religion of the land. It can change and even create afresh even the constitution of the kingdom and of parliaments them- selves. It can, in sbort do every thing that is not naturally impossible ; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence oi' parliament.* The laws, customs, and priv- ileges of this great tribunal are equally un- controlable and extensive ! The whole of the -Blackstoae, Vol. i. p. 173, 33G law and custom of parliament, says Black stoqe, has its original from this one maxitD., " that whatever matter arises conceirniag either house of parliament, ought to be ex- amined, discussed, and adjudged in that house to which it relates, and not elswhere." As to privileges, the same authority tells us, that they are very large and indefinite." And therefore when in 31 Henry VI. the house of Lords propounded a question to the judges concerning them, the Chief Justice, Sir John Fortescue in the name of his brethren, de- clared, "that they ought not to make ans~ , wer to that question ; for it hath not been used aforetime that the justices should in any nay determine the privileges of the high court of parliament. For it is so high and mighty in its nature, that It may make law ; and that which js law, it may make no law ; and ihe determination and knowl- edi^e of that privilege belongs to the lords of pafliaiiicut, and not to the justices." With respect to the jurisdiction of the imperial Parliament, we have already said, that it is as extensive as the empire. It can control, limit, and bind the colonies and their legis- latures in any manner most suitable to the weifa.'-e and dignity of the n:ition. And such a goverament as ours, being of the na- ture of a civil corporation, has only the pow- er, to use the words of the sr.me author, of making by-laws for their own interior reg- ulation, not contrary to the lav, '^ of Eng- land ; *^ and with such rights and miihorities 337 . 45 deep into the late dismissals, not only bo- cause three of their own niembers, who al- ways voted against government, were a- mougst them, but because Mr. Christie had become extremely obnoxious to the house, in consequence of having, in the previous session of two days, voted with the minority against the legality of Mr. Papineau's elec- tion as Speaker. This committee, more fond of tattles which administered to their malice and revenge, than real information, discovered through some weak witnesses, wli ) had no more idea of the dignity of con- duct or the propriety of manners due to the situation in which they stood' than a sucking pig in a canvass sack, that Mr. Christie had a hand in the dismissals in question : ?nd that he oven boasted of having bee< the means of excluding unsound and seditious members from the commission of the peace. This was enouj^h for the comm.ittee: they held him "by the hip," they thought, and 'r.ow let slip the bloody dogs •^'f war upon their devoted victim. T',e tattles and the badinage which were given in evidence be- fore the committee were carried triumph- antly to the house in a report. The joy was now universal. Mr. Christie presented a petition, setting forth the injustice that had been done to him as a member of the house by the ex parte nature of the proceedings a- dopted against him— offering to prove the falsity of the evidence adduced to his preju- dice—and craving a fair trial before be house. But tongue had been given: blood 146 bad already beea tasted, aod nothiug could stop or quell the eagerness of the sportsmen in pursuit of their game. The petition was declared false, contumelious and vexations, and an attack '■'againsV^ the honour and privileges of the house. A string of seven- teen resolutions were then introduced by Saint Vallkres, giving a full and true account of the shocking crimes, delinquencies, and misdemeanours of the said Robert Christie, the cream of which is as follows : i:^. That Robert Christie, Esq. a member of this House, being Chairman of the Quar- ter Sessions for the District of Quebec, was commanded by his Excellency, the Earl of Dalhousio, Governor in Chief of this Prov- ince, in the course of the year IS'i/, to pre- pare and lay before him a list of those per- sons whom it should to him appear advisa- ble to appoint to the office of Justice of the Peace, by the new General Commission of the Peace for the said District. 4. That the said Robert Christie, intention- alii/, left out of the said list by him made, the names of Francois Quirouet, John INeilsou, Francis Blanchet and Jean Belanger, Esqrs. >vho had been for many years, and then were Justices of the Peace f(.r the District of Que- bec and meniheys of this House, for the pur- pose of causing them to be deprived of the Office of Justice of the Peace, on account of their opinions and the votes they had given in this House. 10. That in consequence of the List pre- pared by the saiil Robert Christie, the said 347 1 ranroiH (iu i roue f., John Noil*; on, und tinn- t'oin fil?irjr;hct, Mcrnhors of this House, were »liHrrii'i'if;ist and advised ihc Coverrior in Chief to the said disniis^al"?, Avas one of the Members of this House, after having been fiefore and up to that time, one of the confidential officers of this ITouKe. li). That the said Robert Christie is guil- ty of hi^h crimes and misfJetneanors, and i>; nn worthy the coufidcnce of His MajeutyV. Government. H;. That the said Robert Christie, is guil- ty of a high contempt of this House, and i-; unworthy to serve or to have a seal as a member thereof. ]7. That the said Robert Christie be ex- pelled this House. Now, all thi^ may sound very well, and rnay seem very fine to the Assembly, who had evidently no other object than to gratify their revenge by the expulsion of Mr. Chris- tie. I'ut men, e-.pecially individuals corn- posing a branch of the legislature, ought to bo consistent in their conduct as well as im- partial in their judgments. Ry reference to 348 the second resolution it will he found that JMr. Christie was " commanded''^ to make out the list in question. It was surely therefore, discretionary with him to name any one who might appear to him advisable for filling the office of justice of the peace ; and will any being, of sense or generosity, say, that a member of the House of Assembly ought to be expelled, and his constituents disfranchis- ed during a whole session of the provincial legislature, /o/'i^/te mere exercise of an opinion. Not only Mr. Christie, but every loyal sub- ject in the country, is ready to declare that" the individuals dismissed, to say the least of ihem, were very unfit persons to be entrust- ed with the King's peace ; seeing that they took every opportunity to disturb and en- croach upon it in furtherance of their party and political views. But what, in reality: hns Mr. Christie or the Assembly to do with these dismissals ? Even if Mr. C. had, and we have no doubt he has, positively and point- edly recommended these dismissals, the act was not his. It flowed from a higher source, and, if illegal, which we deny, that source alone is responsible for the consequences. But absolutely, this is neither cr/me nor mis- demeanour, and is merely an exercise of the judgment, or recommendation at most, over which*the most immaculate tribunal can hold no jurisdiction. In the House of Commons, nothing can incapacitate a member but the complaint of acritne and proof thereof. Wal- pole. Sir Richard Steel, and Wilkes, were all accused and proveu to have been guilty S49 of crimes both at common law and customs of parliament. But by what law either of the province or the legislature, is tho charge against Mr. Christie construed or magnified into a crime 7 The Justices of the peace in England are appointed on the recommendation of the Lords Lieutenant of Counties, tho Lord Chancellor, and other j^reat officers of tho state. It very often hap- pens that in new commissions old justices of the peace are left out and others put in. Has tho house of Commons ever expelled a mem- ber for any opinion as to who, or who should not bo included in the commission of the peace. The king can entrust Lis peace to whomsoever he pleases; and we maintain, that when the Commons pretend to a voice in the nomination of officers of justice, as hay been donei in the present case, the rights and prerogatives of the Crown will have been annihilated and tho constitution destroyed- But supposing the conduct of Mr. Christie to have been criminal, we maintain with equal pertinacity, that the present assembly have no jurisdiction in tho case, and thac they are incompetent to take cognizance of delinquencies committed by any members of the last assembly, there having been a dis- solution and a new election. The case of Mr. Christie is still more clear, because when the offence was committed /le was not a mem- ber of any Assembly. It will be observed that is stated iu the 11th resolution " that the said Robert Christie, at the time hepre- jiared the said list, was one of the raeinbcrK VJ 350 of this House." Now, this is a gross and palpable falsehood ; for we have seen that the list was prepared and given in on the 8th of June, 1827 ; whereas the election of Mr. Christie did not take place till the 14th o( August following! The Assembly have therefore stretched and extended their au- thority beyond its natural bounds, even if legitimate ; and no one can be at a loss to conceive the amount of the injustice which has been done to Mr. Christie and his con- stituents, in order to gratify that spirit of re- venge and vindictiveness which has for some time characterized the proceedings of the Assembly. We warn the province tobeou its guard against the assumption of powers and privileges which would prostrate the rights and liberties of the subject at the feet of an arrogant and overbearing Assembly. The fact is, that the Assembly have no priv- ileges or jurisdiction whatever, and can nev- er have, until they are given by the supreme tribunal of the state, or enjoyed in virtue of an act of the three branches of the provincial legislature. Let us not therefore be robbed and chained by mere resolutions of the As- sembly, otherwise the time cannot be dis- tant when our lives and property will be en- tirely at their disposal, to the exclusion of the voice of the other constitutional branch- es of the legislature. During the last ses- sion the Governor declared in a Message to the Assembly, that he was instructed not to f^anction the payment of any sum of money for whatever purpose, without an act o,f the 351 legislature, lu the name of Freedom Rud of Justice, what is a paltry sum of a few hundred, or a few thousand pounds in com- parison to the rights and franchises of Brit- ish Subjects. How is it possible, then, that an act, like the expulsion of Mr. Christie, characterized as it has beeiv by the grossest outrage and violence, and wherein the most sacred deposits of a free constitution are in- volved, can be enforced without a similar proceeding. If a vote or Resolution of the Assembly be not good for a hundred pounds, surely it cannot be of sufficient authority to expel an innocent individual, and deprive his constituents of his services. This is a point of view in which this subject ought to bo seriously considered, and we now call alike upon government and people to with- stand any attempts of a similar nature that may be made to ruin and enslave us. As for Mr. Christie, we are surprised that he has submitted in such silence and meekness to the injury that the Constitution has sustain- ed through him. We are surprised that he has at all submitted to the dictum of the House of Assembly. We are surprised that he and his constituents have not long before now united in a petition to the supreme tri- bunal of the empire, and solicited justice in a cause not only clear and just, but in which the whole British nation is interested. We are surprised that he has not made the coun- try ring with his grievances, and introduced the house of Assembly to the world in theii true characters of arbitrary aad despotic ty oj. ianl>. If any thing that wo have snld wilJ eati to such an issue, our reward shall have boon perfected, and the object of those ob- servations fully attained. This seems to bo n proper place for in- » trodueiug all that we have to say, which i» only one word on tho subject of the resolu- i tions and address of tho House of Assembly * to the Governor for abolishing tho ofRco of | Chairman ol the Quarter Sessions in the sev- ' oral Districts of the province, merely because their opinions sometimes clash with junior magistrates more subservient to the views and projects of tho house of Assembly than the Chairmen hapnen to be. Wo rejoice that the Governor showed no disposition to acquiesce in this fauatick and factious re- quest. Tho business of the Quarter Ses- sions, which, except in cases of life and death, is fully as important as the criminal sido of tho court of King's Reuch, could nev- er be carried on with credit to the state or safety to the subject without ihe aid of Chair- men uell versed in the criuainal law of tho province : Wc question whotlior twelve lay justices can be found in tho whole country capable^of charging a petit jury as to tho distinctions between a common and justifia- blo assault, or between a riot and an'aflVay. VVhilo therefore tho province is destitute of men of sufficient leisure and inu'ependenco totakeapou themselves the whole duty of tho magisterial bench without fee or reward the Chairmen of the Quarter Sessions must be continued in their situatioas ; and to leave the maghtracy of such a couatry as thlswilii- out head or guide would oe like deprivinj; a flock of (ihcep ofilieir shepherd. Hut he- sides being chairmen of the Quarter Ses- fiions, the Magistrates who fill those stations, are also the Police Magifjlratcs of their sev- eral Diatrict«, for which they receive no ex tra renauncratioa ; and no ono will say, that thiit iii an oflJce v/hich any magistrate would take upon himself without a regular salary, even were the duties of a more agreeable uature than they really are, and the province capable of affording the necessary leisure and talent. We trust therefore that this is a subject which will not be repeated, and that, the government is alive to the folly and dan- ger of yielding up to the Assembly an office which they hate because it is useful, and de spise besausc it is filled by men of too much loyalty and integrity to be partizans of tho demagogues of the Assembly. The aboli- tion of the situation of Chief Justice of tho Court of King's Jicnch would be attended with far less difuculties and danger, because all the puisne judges are lawyers, and by consequence fully adequate to the duties of their station w ithout the aid or direction of the Chief Justice. We give the Resolutions of the Assembly on this subject in a note, iu order to shew the futile and general grounds on which they found charges of the gravest nature against individuals of the highest re- spectability, and the sweeping nature of all their innovations. No one who has paid any atieatiofl to iho !ji j^orseveranceaad pertinacity widi whicb llio Assembly have always souglit the possossiou of wliat lias been termed the Jesuits' Estates, could doubt tor a inoiueutthat such a session as the late 0110 could pass without some steps beiug takeu in furtherance of the great ob- ject iu view. Accordiugly a Resolution was passed, as the foundation of an Address to the Governor, setting forth, that the house having during the present session voted con- siderable sums for the encouragement of learning and learned establishments, noth- ing could bo more just and reasonable on the part of his IMajesty than to place at the dis- posal of " his faithful commons of Lower Canada the estate of the late order of Jes- uits, to be applied to tlio purpose for which it was origiualli/ destined, in order that the income arising therefrom may be applied to tlie purposes of encouraging and dift'using education iu this province. Really nothing can be more Jesuitical than the frequency, character and object of the efforts of the As- sembly with respect to the estates iu ques- tion ; for, ever since the commencement of the constitution to the present day, they have not failed to make au annual attack upon the rights of the crowu to these es- tates ; the first address beiug voted on the 11th of April, 179;i. Ou6 would think that the disiuclinatiou of his Majesty to listen to these importunate mendicant requests, and his determination nut to yield up these es- ^tes to the Assembly, confirmed by a posi- ureretusal of nearly forty years' standing. 355 nvould be sulficiont to prevail upon llie As- ^eralily to desist from furtlior supplication. But it would appear as aslandin}^ maxim of this body, that neither right nor favour can he too great to be solicited, and that, wiien once asked, no concession can he justly re- fused. In truth, this seems to he the max- un of all those to vviiom too much has been conceded. The [)roverb of the beggar on horseback is well known. 'J'hc estates of the Jesuits produce some small funds: these funds the Assembly are desirous of having tbe possession and disposal of, because they have long thought that all the other pubJick revenue of the province has already been consigned into their hands. This ij not the case, however; and as long as the 14th of the King, and the rights of Crown exist, we hope there is not an individual in the coun- try who is so much a villain as to advise a concession that Avould plunge this province into irretrievable ruin and destruction. The Assembly have foolishly enough im- agined, that, because the Jesuit Missiona- ries sent to Canada look upon themselves the education of a few Canadian illegitimate children and some young savages, the lands which were given ^o them were destined to defray the expense of such education. This is a proposition than which nothing can be more preposterous; and if we can shew that the Jesuits did not and could not hold any real property in Canarla, wo think it will bo an easy matter to provo that the ^^ original ifc.ftination''^ of the estates io question could 356 not bo for the purposes of cducatioti, niad <'()ii.so(iuonlIy, huviij;; hocoino vostocl in his Majosty by rif^-ht ofcoiiqutsl, his Majesty in ay dispose of thoin an ho thinks proper. In fact his Majesty has hithorto donoso; and allhoii;:;!! ho has doomc, on a reference by tho Karl of llalifaxt bin Majesty's principal sec- retary of state, of tho case of the Jesuits in Canada. " Resides tho Jesuits of tho less observ- nucc, who are to be found in t)veKy part of the world, concealed a};onts of tho society, laymen as well as priests, persons who have been married as well as those who have Messrs. Norton aud Dq Grey. 157 iicvor married, and of all coiulitious and cniployrijcnts of lifo, (tFio wholo order aniounuu'^ to twenty thoiixaiid men in iho year 1710, an(i liricc irinrcaHod in proportion to iho ontcrjjriiin;^ ^<;niuH of that, socicly m iho counio of half a century) tlio known coni- tnuuitios of the Je»uit-j ia Canada were tho Missioriw. Tho Missions ucro properly Kpcaking, drauj»ht« from tho houHoji of th^j professed ; (nf^reoahiy to tho plan of thi-j order, foiinflcd Ity a military man upon rniii' tary prin(:Jplo.H)---t!iey are engaged hy tho J'ourth vow to i^o to any part of tho world where the Pono or his (General shall send them, non 'pi-li.iio vialMo. The rniwifms aro so called in their instilulo in dislirjtlion to the houses of the profesMod, and from tho houses of tho novic-ialcH and colleges. Tho missiouv, like the professed aro all under u vow of poverty, and mendicants by institu- tion, and, as tho professed hold estates in IruHt for the noviciates anfl coilcfreH, and tho rest of tho society, havin;; nothing for them- selves, otherwise than indirectly, (for they never beg notwithstanding their institute) »o the missions, who aro detached from tho pro- fessed, hold c.'>tates in the same manner. If tho estates arc donations, then they are held for -juch u'ifiH a^ the i'aiinii'HH, by yrniil, {^ift or devise, shall have directed and for such other uses as tho father-general ahall direct ; inasmuch as all donations aro constantly ac- cepted by the order, ;ind ratified l»v'f'e (Gen- eral, with this sficcial salvfi, comuiXiiy known and supitoaed to be acquiesced in by the do- 358 uors or their representatives, ita tamen ut in omnibus instituiii ratio serveiur. And if the estates are acquired by purchase out of the surplus of the funds destined ad libitum by the general for the support of the colleges out of the profits arising from commerce or personal industry,then the missions hold these estates for the benefit of the whole society, wheresoever dispersed over the whole world, but united under one sovereign head domi- ciled at Rome, whose power over his whole order being unlimited he is the sole proprie- tor, and, as it were the heart of the whole body, into w^hich and from which, all prop- erty has a constant flux and reflux by a cir- culation ofthe system in all its parts. So that the estate of the society must be considered in the possession of one man, the general of the order, who is always by birth an Italian, an actual subject ecclesiastical and civil of the Roman pontiff; upon whom he acknowl- edges a kind of feudal dependence rather than an implicit obedience, (the father-gen- eral having sometimes resisted,) and being in some respects independent, even of papal authority being in all other relations an ab- solute sovereign over his own vassals, who are independent of every civil Government under which they reside ; to which they can- not be united in a civil essence by nature of their institute, without ceasing to be what their institute makes them, a distinct nation in the midst of nations, and an empire in the midst of empires. As all other regulars, according to the canon law, are servants of :59 thedr monastery, so the iadividuals of the so- ciety of Jesuits, according to their institute are the servants or rather slaves of their or- der and according to the rule of law, by which quid quid acquintur servo acquiritur domino, they have rio property at all. *• It is remarliabie, that the order, (of which the province of France makes but a very small part) has been only tolerated pro» visionally in that kingdom, and upon proba- tion of good behaviour, without ever having had any legal complete establishment as a part of the ecclesiastical and civil constitu- tion of the realm. The general of the order has constantly refused the conditions of the original admission made by the acts of the Assembly at Poissy of the Galilean Church, and has also refused the conditions of the re-admission of the society on • the same terms after their expulsion, (which re-ad- mission was granted by the royal edict in virtue of a treaty between the crown of France and the papal see) because the terms of re-admission were radically subversive of the whole order. To the original acts of ad- mission all subsequent edicts in their favour have had a retrospect. So that the arret of expulsion remained always liable to execu- tion ; and the . members of the order were merely as inmates, occupants of houses and lands in France, and in the extent of the do- minions of that crown, subject to resump- tion. " From all these premises it seems con- clusive that the titles of the society passed. loO together with the dominions ceded to Great Britain, (in which dominions these posses- sions were situated) attended with no better qualification than the titles had by the laws and constitutions of the realm of France, previous to the conquest and cessions of those countries. But it seems further to he clear, that those titles are now in a worse con- dition since the conquest and cession : for till that period they were only in abeyance, and suspended upon a principle of proba- tionary toleration; but by virtue of the nat- ural law of arms and conquest of countries, confirmed by acts of the law of nations, by solemn cession and guaranty, the possessions of the society lost of course all civil protec- tion by the fate of war ; but much more so by the only power, whose authority and in- tervention could have preserved the proper- ty of these possessions to their supposed own- ers, having withdrawn its tolerance and pro- tection, and deserted them, as a derelict at the mercy and entirely free disposition of the Crown of Great Britain, by making no pro- vision in the articles of cession to serve the pretended rights of the community of Jes- uits ; nor indeed of any other ecclesiastical community, which latter might have been under a more favourable view, having civil being, and each hoiise possessing a separate property, distinct from others of the same order ; wherieas the order of Jesuits, contra- ry to all other regulars, is one indivisible or- der, aggregate indeed by its own institute, hut not incorporated by the laws of France ; 561 and the father-general never haviop: been an inhabitant of Canada, nor a subject of the King of France, he could not retire and avail him - self of the fourth article of the definitive trea- ty, nor sell his estates, nor withdraw his ef- fects within the time limited. In a few words the society of Jesuits had not and cannot have any estate ia Canada, legally and com- pletely vested in them at any time and there- fore could not and cannot transfer the same before nor after the term of eighteen months, so as to make a good tide to perchasers, ei- ther with or without the powers or raiifica- tiou of the father-general, who, as he could not retire, so he cannot retain any posses- sions in Canada, since the lime limited for the sales of estates there, agreeably to the terms of the treaty : because he is as incap- able of becoming a British subject as be was of becoming a French subject ; nor can the individuals of the communities of the Jesuits in Canada taiie or transfer what the father general cannot take or transfer; nor can they, having but one common stock with all other communities of their order, in every part of the globe, hold immoveable posses- sions, to be applied for the joint benefit of those communities which are resident in for- eign stales ; and which may become the en- emies of his Majesty and his government. "Whoever the persons are who occupy the possessions in question, they must be under- stood to hold the same as trustees for the head and members of the one indivisible so- ciety, and political body of Jesuits, of ec- 162 clesastical and temporal union, forming ac- cording to their institute, one church and monarchical government,with territorial ju- risdiction independent of all citil authorities under which the members of the society are occasionally dispersed, and without stability of d'omicil ; and that such trusts are there- fore, from the very nature of this institution, inadmissible by the law of nations and of all civil governments; they are void both in law and in fact, because there is no legal cor- porate body civilly established to take the use ; but an alien sovereign, and aliens his subjects, who were and are utterly incapa- ble, by the very nature of their institute, of any civil existence. The possessions, there- fore, of the society of Jesuits in Canada, in every view of the case, are lapsed to his Ma- jesty by right of conquest and acquired sove- reignty ; by dereliction of the supreme pow- er itself of whose good pleasure the posses- sions were lately held, no provision having been made by them for it in the act of ces- sion ; by the want of an original complete title in a body incapable of legal taking, hold- ing, and transferring ; by the nature of de- fective trusts founded upon such defective titles ; and by the non compliance of the order with the provisional terms of their re- admission, as probationary occupants, only jjro tempore, into the dominions of France, domiciled in the person of their father gen- eral at Rome, subject to the execution and effect of the arref which was passed by the original tribunals for tiieir expulsion iu 1594, 363' to which they are still liable, for cever hay ing observed, but openly rejected the condi- tions of their first admission, which are the conditions of the second, and farther are lia- ble, ipso facto, "whenever they should be hurt- ful and dangerous to the realm. " The distinction which the Jesuits have endeavoured to set up, between the Colle- ges and the order, is neither supported by fact, nor by the institute of the society. For it appears from all the foregoing proofs of their institute, that there is one chain of de- pendence ; that the Colleges are not distinct as communities from the body ; that the pro- fessed Religious hold in trust for the Colle- ges ; and, therefore, the conclusion is, that if according to their own confession the Re- ligious of the order of Jesuits are not receiv- ed as persons capable of a civil existence, they are incapable of the Trusts, and then the Colleges are incapable of the uses. Thus every thing built upon the foundation of this anomalous society, falls to the ground to- gether. And it is no wonder, that an insti- tution which seems contrived, with a subtle- ty more than human, to subvert the laws of every country ecclesiastical and civil, should find in the laws of every country an obsta- cle to its establishment." Now, these are arguments which the As- sembly will not and cannot comprehend. But education is not the real object of the As- sembly, but money and poioer for party-pur- poses, as may readily be perceived by any who has paid the least attention to the fac 3G4 tious cupidity, with which ihoy have evei pursued every scheme caculated to give force or weight to that exclusive system of gov- erninent which they have so long aimed at. The refusal of his majesty to renouuce all control over the estaiesof the Jesuits, formed a prominent feature in the petitions of griev' auce presentedjlast year to the King and par- liament ; and the petitioners had the singu- lar audacity to draw a parallel between "Za vnmijicence des Rois de France'* — the munili- ceuce of the Kings of France — in giving a- way these estates, and the stuborn parsimony of his Britanuick Majesty in withholding them from their original destination." This, we think, was carrying the freedom of pe- titioning as far as it could decently be car- ried ; and, without wailing to express an opinion of conduct so gross and insulting, we beg leave to ask the Canada Committee, ^s it has been called, on what grounds they have presumed to recommend the surrender of the Jesuits' estates, while they admitted and "lamented that they had not more full information?" As we do not think that the Canada Committee will be able to give a satisfactory answer to this or any other ra- tional question that may be put to them from this side of the Atlantick, we shall conclude this part of our subject by merely observing, liiat as the Jesuits could at no period, and under no civil government hold any immove- able property in Canada with any kind of destination, and, at all events, as their lands l>ecorae vested iu the King by right of con- 4ae5t, so his Majesty and his goveromeHt will do well never to surrender these lands to the Assembly until, by the cultivation of different sentiments upon this and a variety of other questions, they prove themselves vrorthy of a tj-ust the value and importance of which they do not at present seem to com- prehend. In the same resolution the Assembly pray ** His tiXcellency to take into his serious con- sideration the a^arw excited among the in- habitants by the report spread abroad on subject of the property of the Church of St. Sulpice, at Montreal, which tended to create a belief, that the property which this estab- lishment has quietly enjoyed under his Ma- jesty's government, for more than sixty years, might pass into other hands." This is, indeed, great cause of alarm to such a body as the house of Assembly, who cannot conceive why any establishment supposed subservient to themselves, however bad their title, should be disturbed, even the length of giving offence to prejudices the most rooted and bigoted. We maintain that the Church of St. Sulpice has already remained too long jn the undisturbed possession of property which does not, and never did, of right, be- long to it ; and, if not positively dangerous, nothing can bo more blighting to the real happiness and posterity of a state especially a commercial one like ours, than extensive territorial property being held by ecclesias- tical communities. Bodies of this descrip- tion ought never to be allowed to possess \66 property, except for the maintenance of theis' own sacred institutions ; for, to say not a word of its incongruiij', nothing can be more detrimental to the rights and energies of an enterprising secular people than the shackles of religious communities. Th.'.e can bono sympathy between them. The one is grasp- ing the other free and generous : and noth- ing can possibly reconcile them but a separa- tion bounded by a just distinction of their .individual avocations and pursuits. Mon- treal has suffered much, both in wealth and prosperity from the pretended Seignorial su- premacy of the Church of St. Sulpice ; and the sooner that supremacy is withdrawn and placed in the legitimate possession of his Majesty, the better for all parties, and the country at large. No clashing is so harsh as that of clerical and secular interests when they relate to matters of this world ; and it behooves every good christian and citizen to avoid it. It is this that has brought so much misery on mankind ; but we hope the con- flict is over. Ancient Rome was destroyed by faction and tyranny : modern Rome by avarice and bigotry. We believe the church of St. Sulpice herself is not unwilling to re- sign any pretensions that she may have had to secular property in the island of Montre- al ; at any rate, the candour and liberality •with which she has entered into negotiations with his Majesty's government on this sub- ject, do her infinite honour. It would be well for the interests of the province at large if the house of assembly possessed one grain- of S&7 }ier meekness chrlstaiii forbearance and mag- nauimity. If this were the case we should not be under the necessity of corabatiag, as we are now about to do, the unfounded preten- sions gratuitously set up by the Assembly on the part of the church to the property in question. Our arguments we shall draw from the same source as those with respect to the estates of the Jesuits ; and, we have no doubt, with equal success as to the result. "It seems to be pietty clear, says Marriott, in his plan of a code of laws for the province of Canada, that any religious communities, who, as principals at tbe time of the conquest, were not Inhabitants^ resident in person, do not fall under the privilege of the Capii'M/a- tion, nor come within what is termed by tho civilians, the casus fcsdris., so as to retain the property of their estates under it; because they were not then the local objects to whom, as a personal consideration for ceasing their resistance and on account of their particular courage or distresses, the conquerors granted terms of special favour ; neither could they retire according to the treaty and if they could not retire, they could not take away their persons and estates; therefore, if it is true in fact, that any estates are now held under the grants of foreign religious com- munities, either in under tenancy, or in trust for them, or by deputation such as the Jesuits and the Ecclesiastics of the Seminary at St. Sulpice at Paris, that fact is very impor- tant. The community of the latter are the temporal lords of the most fertile part of 368 Caaada, and a city dedicated to the Virgia Mary ; they have an influence there equal to the power of the Italian Clergy in the state of the Church or campagna di Roma. *• The parishes in the isle of Montreal and its dependencies, says Charlevoix, are still upon the ancieutffooting of moveable priests, and under directions of the members of St. Sulpice. They possess a fine and improv- ingestate of eight thousand pounds sterling a year at Montreal, and which will in a few years be worth ten thousand pounds. If all the facts are clearly established, as stated, it is a great question of law, whether these estates are not now fallen to your Majesty, of whom the under-tenants and possessors must be intended to hold them as trustees, for such uses as your Majesty shall declare. " It is in proof l)y several deeds of estates, (it is immaterial whether before or after the conquest) that the religious living in the seminary of Montreal are merely negotiorum gestores ; they are so described in several instruments of conveyance, which Mr. Ma- zeres has perused in the course of business. The conveyers are said to be Fondez de lu 'procuration de Messieurs les EccJesiastiques du Seminaire de St. Sulpice a Paris. It ap- pears according to Mr. Lothbiniere's own words, that before the conquest the semina- ry of St. Sulpice at Paris, was a voluntary partnership among a number of clergy at Paris, who had engaged together in buying and selling ; that the joint house at Men - real had a share in the joint house at Paris, 369 in a sortof morcantilo way and an opeo ac count. That after the conquest they disolv cd the partnership, because the house at Pa- ris could not have any right after the con- quest in the effects and estates in Canada ; they at Paris (says Mr. L.) transferred (what therefore they could not transfer, having at that period, as ho admits, no property in the estate, and only a share) the whole in Mon- treal to the religious there, who probably were not (vraisernblablement,says Mr. Loth- biniere,) attornies of those at Paris; and this was done by the latter upon paying a com- pensation, being the difference of the account upon a balance. This, after all, is oui dire, as he says be has heard and believes ; and it stands against the evidence of Mr. Mazeres, if it were contradictory ; but it approves manifestly, that the Religious at Montreal have only a coloured and ostensible title. There is also the evidence of a gentleman of undoubted veracity and knowledge, who having had transactions with father Magul- phi, the person acting in the colony for the community of St. Sulpice at Paris, with a view to some purchase, the real proprietors w^ere forced to come forward, and the un certainty of the title broke off the negotia- tion. The evidence of Charlevoix alsomay be added. In 1657, says he, the Abbe Q,ue- lus returned with the deputies of the semi- nary of St. Sulpice at Paris, to take posses sion of the island of Montreal, and to found a seminary there. IJy tho French law it is clear, that no persons, aliens not being nat 170 uralized can hold lands ; so that by right of conquest, agreeable lo Mr. Lothbiniere's own idea, for want of owners domiciled at the lime of the conquest, these estates may be understood in point of law to he fallen to the Crown in righ t of Sovereignty. We have thus, we think, also made out a clear and strong case against the Assembly 30 far as respects their pretended right of su- perintendence over tha Church or Semina- ry of St. Sulpice at Montreal. We have proved, that whatever the "■ alarm,^^ of the Aisembly maybe in consequence of the "re- forts spread abroad,^^ \a Ye\&lioQ to this sub-- ject the crown has a just right both by con- quest and inheritaoce not only to enter into any negotiations that it may think proper with the present occupiers of the temporal property of the seminary, but to assume the actual possession of that property with as little delay as the forms of legal proceedings c^u admit of. When this is done, ihe As- sembly will find how vain and weak it is in them to presume to arbitrate gratuitously in every matter and thing ia which the rights of the Crown, or the interests of the sub- ject may be concerned. This, perhaps, is one of those claims which ^Sir George Mur- ray does not conceive ought to be yielded to the Assembly or their adherants. At least, ive have no doubt it will be found to be so in the long run. Connected with this subject are the Res- .olutions* voted by the Assembly with res- ■ The House in Committee passed the fol- 371 pect to the waste lands of the crown in the neighbourliood and District of Three-Riv- ers. These lands, but especially that part lowing resolutions, which were reported to the House and concurred in, and an address voted to His Excellency founded on them. Resolved, 1. That throughout the greater part of the tract of country on the north side of the River St. Lawrence, extending from about five leagues above, to about five leagues below the town orborougij of Three-Rivers, the lauds conceded, settled, and partly under cultivation, be within the distance of one league or less from the said river, reckoning from the bank thereof to the rear of the said lands, and that the concessions extend to a somewhat greater distance only in the fiefs and seignores of Tonnancour or Point du Lac, of Cap Magdeleine and Champlain. 2. That the tract of country on the north side of the river lying in the rear of the lands now conceded, settled, and partly cultivated in the vicinity of Three-Rivers and in the seign- ores aforesaid, there is found immediately ad- jacent a tract of land of more than sixty square leagues, •which would be susceptible of being cleared, cultivated, and settled, if it were conceded to the inhabitants and actual settlers of the vicinity of Three-Rivers, who have for a long time past prayed for grants of land in the said tract, and who have up to the present time vainly endeavoured to ob- tain them. 3, That the obstacles presented to the set- 372 of tliem comprised in the lease of the Forges of St. Mauric^ seem a great eyesore to the tlement and cuftivationof this tract of l%pd have essentially impeded the progress of in- dustry, and above all that of agriculture in the district of Three Rivers, and of the re- sources of the town or borough «f^ Three- Rivers in particular. 4. That one of the most powerful of these obstacles is the great extent of land, com- prised in the lease of the Forges of St. Mau- rice. 5. That it is necessary to take immediate' steps for the removal of the obstacle to the granting and clearing of this tract. 6. That it would be expedient to adopt measures to promote the settlement of that portion of the Province lying north of Que- bec, now under the name of the King's posts, now uncultivated,by making grants to actual settlers, and for the purpose of encouraging free trade and industry therein. Mr. Viger, reported the following answer from His Excellency to the address on the subject of the waste and unconceded lands in the leases of the Forges of St. Maurice and King's Posts : Gentlemen : — Having every desire to pro- mote the cultivation and improvement of the province, you will assure the House of As- sembly that my attention shall be given to the removal (as far as may depend on me,) of any impediment! that mav appear to me to exist to the formation of tfew settlements S7S House of Assembly. But the reason is oh vious. Perhaps the Assembly conceive that iheirelectioueering influence is act sufficient- ly extensive in that part of the country. Yetj wittiSut having recourse to the Ahnanack, we believe that the Solicitor General is tius only Constitutional member returned by Three Rivers. But this is enough ! . The House has"*often felt the vi'eight of Mr. Og~ den's metal : it has too long been writhing under it ; and too frequently blenched from the force of his opposition and raillery. Wc are not, however, sui^ciently acquainted with the village politicks of that part of the province to enable; us to go into details. Ir; ss enough for us to know, that nothing W'hich the art, the intrigue or the perseverance of a faction can effect will be left untried by the Assembly in order to gatin possession of all the influence and power vested by the Con- stitution and the rights of conquest io the 2rown. The resolutions set forth, that there is a great scarcity of land in the neighbour- tiood of Three Rivers, and that nothing has tended more to inapede the progress- of in- dustry and agriculture in the District of Three [livers than the obstacles presented to tho ietilement of the crown-lauds, but in partic- ular those comprised in the lease of the For- ces. Now, nothing can be more absurd and n the tracts of land mentioned in this Ad Iress. Castle of St. Lewis, ? March 3d, 1889. < 374 iii-founded ihau such a statemetit. Com pare for a inomeat the amount of the pojDU- latioD of the District iu question uith the extent of its territory, and you will see at a glance, that, were the population a hundred times more than it is, there would he an ad- equate and sufficient quantity of lands with- out any interference with the crown-lands and those belonging to the Forges, which i; a mere bagatelle comparitively speakinp; Look abroad towards the Townships am Jjehold the vast extent of uuconceded territory lyiup; waste and idle there. But the croivdcv population of Three Rivers will not travci so far ; the English language is spoken there ; the roads are too bad, and that Demon of the woods, Judge Fletcher, will immolate on the altsr of justice every man who does not properly respect the laws ! Oh no ! The Canadians must have lands at thei: cioors whenever they want them ; they must not —they cannotleave the old seignioral neigh- bourhood ; they mrsthave the oncicnt tenure mi^ les aecGursde la Religion,* and the c .res themseives, Ilka true pastrol guprdiaxis «"aii- iiot consent to a separation from their il )'. ks, as any one who peruses their letters to the special committee of the Bouse ci'Asserjbly on the crowm lands will clearly see. "Do any of the labouring classes go and establisii themselves iu the Townships conceded in vree and common soccage, and if t>:ey do *Vide Letters des cures printed by the As- sembly in 1823, not, to what, cause do you attrlhute it l" say the Assembly. '' Maoy of my young men," answers tiie cure of St. Aiiiie, "go and es- tablish themselves in the seigniories of the Districts of Montreal and Three Rivers ; but I kno->v of none who have established thom- seives in the Townships. This I attribute, iu my humble ojiicion, to two principal rea- sons, first, because of the distance they woukl find themselves from religious assistance (lef occours de la Rtligion ;) and, secondly, be- cause of the tenure and conditions of th-'-; concessions ia free and common sooeage!'" The cure of St. Joachin, after alluding to tiic litter privation in the Townships of all re- ligious assistance, says "because, as thing- are there, they oould not have a Catholic es- tablishment ; but it would not be so, wert' these crown lands conceded in Fiefs.'''' Tho Cure of Narville ^'epbrts, that many are afraid of taking lands i.: ho Tc vnships ^'•fromthc dread of expatriating themselves. The -words which a Cure of the name of Paincliaud puts into the month of his people are re- markable ; "It is christian prudence thus to expose the salvation of our children ? — It is notorious that every advantage is for the Protestants, and every disadvantage for us ; let MS DO longer be told that the Government is just and Impartial !" The Cure of St. Roch des Auleots says, " We should have to submit to pass our whole life among Stran- gers, brought up differently from ourselves, and possessing a different religion from ours.'" '^ We would rather see ouv children aiuays \7Q ■pQor, or at a great distance from us, if only settled in a Seigniorie, than to see them loaded with riches in the midst of such dan- gers 10 ihe'iv education and religion.^'' *'The Canadians will not settle in the Townships," says the Cure of St. Genieve, " until they can be assured of having French Canadians for neighbours, with whom ihey could freely communicate." The Cure of Boucherville says, "that the Canadians must not be drown- ed among too great a number of Strangers.''^ The Cure of St. Leon speaks boldly and without reserve. Alluding to the times pre- vious to the conquest, " he characterizes them as " those happy times— that golden age of Canada." We know not how old this venerable father of the church liiay be ; but we presume, that, like the Apostle Paul, he was born as a man out of due season. *' In those happy days," continues he, " the colonists were attached to their king and country ; hut now it is quite the contrary /'^ We shall only add the words of one more Cure, who says, " the few young men who take new lands, prefer them close to their parents and friends however bad the soil may be !" What a dreadful system of ignorance, prejudice and bigotry is this ! Is there any other country under heaven where such a state of things could be tolerated ? Is it pos- sible that this province can prosper while such is the spirit that governs at once the people and their instructors? They will have no lands at a distance, but must be pre- sented with them at the doors of iheir fa- thers, and that en Seigniore! What apathy — what indolence — what thorough-going in- difference to enterprise and; independence whilst thousands from other countries cross seas and traverse continents — abandon for ever tb© country of their birth, the soil of their fathers, their religion, their laws and all the endearing ties of kindred and friend- ship in search of what the Canadians refuse and despise even in their own native country and at their doors. This has been the bane of this province ever since it has been a prov- ince. Afraid to lose sight of the hearth whereon they were born, the people have burrowed together on the margins of the lakes and rivers, like so many rabbits and beavers until the community has at last be- come so numerous as to leave little more room for a family than thearea of the wretched hut which shields them from the inclemency of the weather. Nor will any thing induce them to remove to a distance in order to make room for one another, and establish their families on a new and wilde'* range of industry and enterprize. Nothing ministers more to this unfortunate state of things than that hideous and destructive law of partition which prevails in the country — a law which at once annihilates the moderate laudable ambition natural to man and that spirit of honesty, freedom, and independence of seig- nioral and ecclesiastical rule which should ever characterize an agricultural people — acd a law which, we sincerely regret, has 578 not been more particulnrly referred to by ihe true friends of Canada in the late dis- cussion of our affairs in parliament. Al! writers agree in deprecating this law ; and nothing has been more detrimental to the French Colonies, as an obstacle to the clear- iagand cultivation of more lands, than the law of partition, as it now exists in this prov- ince. Its injurious effects are so strongly- painted by the Abbe Rayyial, that we cannot refrain from citing his opinion and observa- tions at large as conclusive on this subject. " It is scarce credible, that a law, seem- ingly dictated by nature ; a law which oc- cur? instantly to every just and good man ; whichleavcs no doubt on the mind as to its rectitude and utility, it is scarce credible. ihatsuch a law should sometimes he prejudi- cial to the preservation of society, stop the progress of colonies, divert them from the end of their destination, and gradually pave the way to their ruin. Strange as it may seeiii, this law is no other than the equal di- vision of estates among children or co-heirs. This law, so consonant to nature, ought to be abolished in America. " This division was necessary at the first formation of colonies. Immense tracts of land were to be cleared. This could not be done without people ; nor could micu who had quitted their own country for want, bo any otherwise fixed in those distant and de- sert regions, than by assigning them a prop- erty. Had the govei'nment refused to grant, them lauds, they would have wandered a- 379 bout from ouo place to another ; they would have begun to establish various settlements, and have had the disappointmeut to find, that none of them would attain to that degree of prosperity as to become useful to the Mother Country. '•But since inheritances, too extensive at first, have in process of time been reduced by a series of successions, and by the subdi- visions of shares to such a compass as renders them fit to facilitate cultivation ; since they have been so limited as not to lie fallow for ^vant nf fjauds proportionable to their ex- tent, a further division of lauds would again reduce them to nothing. In Europe, an ob- scure man who has but a few acres of land, will make that little estate more advantage- ous 'o him in proportion, than an opulent man will the immense property he is pos- sessed of, either by inheritance or chance. In Araei-ica, the nature of the productions, ■which were very valuable, the uncertainty of the crops, which are hut fe^v in their kind; the quantity of slaves, of cattle, of utensils necessary for plantation ; ail this requires a. large stock, which they have not in some, and will soon w^ant in all the colonies, if the lands are parcelled out and divided more and more by hereditary successions. *' If a father leaves an estate of thirty thousand livres, or £1312 lOs. sterling, a year, and this estate is equally divided be- tween three children, they will be ruined if they make three distinct plantations ; the one, because he has been made lo pay tao 380 mucli for the buildings, and because he ha? too few negroes, and too little laud in pro- portion ; the other two, because they must hmU\ before they can begin upon the culture of their laud. Tliey will all be equally ru- ined if the whole plantation remains in the liands of one of the tbree. In a country whore a creditor is in a worse state than any other man, estates have risen to an im- moderate value. The possessor of the whole will be very foriunato if he is obliged to pay no more for interest than the net pro- duce of the plantation. Now, as the pri- mary law of our nature is the procuring of^ subsistence, he will begin by procuring that Avithout paying his debts. These will ac- cumulate, and he will soon become insolv- ent ; and the confusion consequent upon such a situation, will end in the ruin of the whole family. *'Tho only way to remedy these disor- ders, is to abolish the equality of the division of land. In this enlightened age, govern- ment should SCO the necessity of letting the felonies bo more stocked with things tbari with men. The wisdom of the legislature will, doubtless, find out some corapensatioa for those it has injured, and in some meas- ure sacrificed the welfare of the community. T/ie;v ought to he placed on fresh lands, and to subsist by their own labour. This is the only way to maintain this sort of men; and their industry would open a fresh source of wealth 5,0 the state." This is true philosophy ; yet the system it doprccatcs is that which obtains throughout iho whole of the seigoioral hiu<]s in this prov- ince ; and, however desirable, no attempt has hitherto ever been made, by the introduc- tion of primogenial laws, or otherwiHC, to get rid of an incubus which retards indus- try and presses the people to the very dust- But besides the evil effects of this law in res- pect of industry and cultivation, its demoral- izing consequences are doubly alarminp;. There are many parishes and seigniories in this province, wliich, twenty or thirty years ago, were occupied by a sober, industrious, and moral yeomanry, who are now in con- sequence of the partition laws, infested with a rabble peasantry the most dissolute, dis- sipated and indolent — a brood of young ras- cals who are too lazy to work and too proud to beg — who destroy the peace of society by the evil efFects of idle habits, and break the liearts of their very parents by claims the most wanton and unjust upon their lands and other property. We appeal to every lawyer in the province, whether it is not a common thing, arid almost a matter of every day's occurrence, to see father and son, mother a ri,d daughter, in hostile and 07)- posing attitudes on cither side of the bar ? if this systetn continue, by the young men of the country being either prevented or dis- couraged from establishing themselves at u distance from their fathers on free and com- mon soccage lands, this province from be- ing the most peaceful and moral in the Brit- ish empire, will become tho most wretched, S84 Crown, ia all the might of its power nod prerogative, could not do this, without hav- ing recourse to a process so tedious, and measures so dilatory as at once to ruin the "works and destroy their acknowledged utility in the country. But, fortunately, the senti- ments of the crown are no more in unison with those of the Assembly with respect to this subject than many others ; and the in- tegrity of the lands around St. Maurice has ever been an object of care and attention on the part of government. Every governor who comes to the country is instructed to this effect. This the Assembly are well a~ w^are of, for their own journals bear witness of the fact ; and, therefore, no one can be at a loss to discover at once the insolence and impudence of their beggarly addresses with respect to tiiese lands. The following are the Instructions to Lord Dorchester ; and tliough we have no access to the archives at Quebec, yet we believe we are correct in asserting that the present instructions are in the same terms : '• And whereas it appears from the representations of our late Governor of the District of Three-Rivers, that the Iron Works of Saint Maurice, in that Dis- trict, are of great consequence to our service ; it is, therefore, our will and pleasure, that 'iio part of the lands -jpon which the said Iron Works were carried on, or froni Avhich the ore used in such works are procured, or which shall appear to be necessary and convenient for that establishment, or for producing a necessary supply of wood,'coru and hay, or for pasture for cattle, be granted to any pri vate person whatever ; an'.', also, that as large a District of land as conveniently may be ad- jacent to any lying round the aaid Iron Works over and above what may be necessary for the above purposes, be reserved for our use, to be disposed of in such manner as we shall hereafter direc: and appoint."* We think it would be quite superfluous to say more on this topick. We have aiieady said somewhat on the subject of the education ; and were about to treat of it more at large in this place in de- fence of the lioyal Institution from the ca- lumnies of the House of Assembly; but at the moment the (Quebec Gazette of the IfJth of April, containing a most able and excel- lent document on this sulrject, was put into our hands, which wo anake no apology for pre'eoting entire to our readers. They will learn from it, that there is no institution, however pure and respectable — no charac- ters, however sacred and unimpeachable, that can escape the malice and derision oi the Assembly. Will the country never learn the extent and danger of the pretensions oi this faction ? The following is rhe substance of the document alluded to, as addressed by the Board of the Royal Institution to His Excdkncy Sir Jaraes Kempt. It commences by stating, that the Board of the Royal Institution for the advance- *Vide Journals of the Assembly for 1823 Appendix T. 384 Crown, ia all the might of its power and prerogative, could not do this, without hav- ing recourse to a process so tedious, and measures so dilatory as at once to ruin the •works and destroy their acknowledged utility in the country. But, fortunately, the senti- ments of the crown are no more in unison with those of the Assembly with respect to this subject than many others ; and the in- tegrity of the lands around St. Maurice has ever been an object of care and attention on the part of government. Every governor who comes to the country is instructed to this effect. This the Assembly are well a~ ware of, for their own journals bear witness of the fact ; and, therefore, no one can be at a loss to discover at once the insolence and impudence of their beggarly addresses with respect to tliese lands. The following are the Instructions to Lord Dorchester ; and though we have no access to the archives at Quebec, yet we believe we are correct in asserting that th? present instructions are in the same terms : " And whereas it appears from the representations of our late Governor of the District of Three-Rivers, that the Iron Works of Saint Maurice, in that Dis- trict, are of great consequence to our service ; it is, therefore, our will anil pleasure, that 710 part of the lands 'jpon which the said Iron Works were carried on, or froni which the ore used in such works are procured, or whicli shall appear to be necessary and convenient for that establishment, or for producing a necessary supply of vvood,~cora and hay, or 385 for pasture fur cattle, be granted to any pri vate person whatever ; anm '• the Royiil Jnstitutioa have attempted l<> '* force Protestant Schoohna^steris ou the Ko "man Catholic Parishes." Aravjtr. — Tfie Royal IrjstitutioD have nev- er sent Protestant fcchoolinasters to thf; Schools in ibe Canadian pari'fihes, or where the tna.jority of the children to be taught w6ro of the Roman Catholic persuasioa : but they have felt themselves perfectly jus- tified in sending Protestant schoolmasters to leach in places where there Vt^ere a suflicient number of Protestant children to form a school, although there might also he Roman Catholic children in these places : such in- stances however have been very rare ; and there are perhaps an cjual number of cases "tvhere they have sent Roman Catholic mas- ters to schools where there was an intermix- ture of Protestant children. Of the twelve schools in the Canadian and Roman Catho lie parishes which fell under their superio- tendence. there is not one to which ihey have appointed a Protestant master : if it be alleged, that they have sent Schoolmas- ters of the Church of England to schools where there were many cijildren of dissent- ers, the Royal Institution aver that they have indifferently appointed Protestant master- to schools of this description, without con- sidering of what particular persuasion they might be, and without regard to any othe. 394 fjualification or recornmeudation litati llicir moral fitness aud their attainments, nndthat in some instances they have actually ap- pointed Dissenting Ministers as masters of these schools. 2. That the Royal Institution have not allowed the inhabitants of the country any influence in liie appointment of Masters or of Trustees, or in the management of schools." Answer. — The Royal Institution have al- ways nominated as Trustees such persons as the inhabitants recommended, or whcrq there; v/as no such particular recommenda- tici:., the most respectable and influential among those who have applied for the es- tabli/jhraent of schools. In the nomination of ScOoolmasters, it has been their rule to j;ive a preference among candidates, to such as were recommended by the people, ifoth- ej-wi^e well qualified ; they have even in some cases appointed persons upon such re- commendation alone, wboai they did not consider as in all respects the fittest; and they have cancelled appointments of School- masters, for no other reason than that they were not acceptable to the inhabitants, 3. " That they have required the Masters appointed by them to use in their schoolsj the religious formularies of tho Church of^ England." Answer. — By one of the Standing Rules established by the Board, Schoolmasters are required, where there is no Church in the place, to read on SuDjlays to Protestant 395 (•Iiildrcn only such portions of the Service o» the Church of England as should be pre- scribed by tbe Board : it will be adaiitted, that in such remote situations as this rule has in view, some provision for the religious observance of the Sabbath is dc Jrablo : that for this purpose the use of some formulary is better than to leave it to the discretion ol the Schoolmaster, lo pray or to preach what he pleases ; and that it is only in the Church of England that such a formulary is to f)e found, containing prayers in which all chris- tians may join, and a selection of parts and passages of Scripture suitable to all place-j and ail understandings ; but the Board have never rigidly acted upon this rule, nor have the masters generally conformed to it, and the rule itself did not contemplate a com- pulsory attendance even of Protestant chil- dren, whose parents should on conscientious grounds object to it. 4. " That they have mismanaged the funds entrusted to them, that education has- been retarded by ihcm, and that they have done more harm than good." Answer. — In 1819, xvhen the Royal Insli- t iuon was incorporated thirty-three schook which had been previously established by Government, under the act of 1801, fell un- der their superintendence. It appears by returns laid befrre the House of Assembly in 1621, that the number of scholars in those schools did not exceed 1200, and that the salaries paid by the Province to the School- masters amouDtsd to more ihau /^2000, cuv- 396 reiicy. Uuder the management of the Roy- al Institution, the number of schools has in- creased to 84, the number of scholars to up- wards of 3700, and yet by the economy which the Board have practised, no larger sura is drawn from the public chest for the support of these schools, than before. 5. " That the Board feeling at last their total inefficiency, have now sought the co- operation of the Roman Catholic Clergy, and Laity, after long struggles on the part of the Roman Catholics to obtain a share of influence in the education of their children." Answer. — This allegation is attributed Xb a member of the Board, who knows that the Board sought the co-operation of the Roman Catholic Bishop and Clergy, from the very commencement of their labors; but ttat having failed in obtaining it, they long ago manifested their desire to be relieved from the charge of Roman Catholic Schools ; ^hat, in consequence of this desire, he him- self in 1823, with the privity of several mem- bers of the Board, and of the Roman Cath- olic Bishop drew a Bill for establishiag a separate corporation, consisting of the Ro- ' man Catholic Bishop and other members of the Roman Catholic Clergy and .Laity, for the exclusive superintendence of Roman Catholic Schools ; that this Bill was sub- mitted by the late Governor in Chief to His Majesty with a strong recommendation, that it should be adopted, which recommendation w^as rejected ; that in 1826, as soon as this rejection was known to the Board, they S97 again sought the co-operation of the Ro- man Catholic Bishop and Clergy, by pro- posing to the Provincial Government an ar- rangement for the formation of a separate Roman Catholic Committee of the Board, and in promoting tljat arrangement, they have made every concession that has been ask!3d on the partof the Roman Cathoh'cs. 6. " It is further alleged, that the Roya^ Institution has lost the confidence of the country." Ansiver. — As long as the Roman Catholic Clergy shall continue their opposition to the labours of the Board, or ■withhold their sup- port, the Royal Institution must feel and ad- mit that they cannot, have the confidence of the Roman Catholic population, but that they have enjoyed the confidence and have secured the gratitude of the rest of the pop- ulation of the country, is abundantly proved not only by the rapid increase of the number of schools under their superintendence and by the applications for new schools which they are constantly receiving from all parts of the country ; but the direct and unequivo- cal expression of that confidence and grati- tude, in numerous Petitions vv^hichhave been recently addressed to the Assembly, signed for the most part by Dissenters in the Town- ships expressing their entire satisfaction with the measures of the Board, and deprecating as a public injury any attempt to abridge their resources or labors. In the name of heaven, let these brawling Romaa Catholics have a Ptoyal Institution ^ 22 ■ - m «f their own, and teach their brats accord^ m^ to their own notions aotl tenets. It is invaia to "rnagiue thai they will ever joia the present institution whilst they have the House of Assembly to advocate their cause. Any Institution, whether Royal or Plebeian, having the Bible ancl the English language for its oV)joct, may lay its account to perse- cution in this province; ancl may be assured of having overy obstacle thrown in its way that an ignorant people, and ajealous factious House of AsscLu.Iy ,^an array against it. But are we BriUsh suhjecty and Englishmen, in- habiting a British colony, having the Habeas Corpvo as the guardian of our persons, and the British C^>nstiturion as the sheet-anchor of our liberty, to be told, that, in all Institu- tions of lear'iiug, the language of Frenchmen ar/l 'tn Alien u?Jtioo is to have co-equal, if not paracnoi.pi impoitaDce attached to it ? We scout the degrading; idea with scorn and contempt; and therefore trust, that whether the Cansdians got a Royal Institution of their own or not, there will ever be in this province an establishment having for its pri- mary objects the in.«'^ruction of the English Language, Loyalty to the King., Attachment to the C'iistitution, ond the Dissemination of the Scriptures of Cod ! The conduct of the Assembly with regard to ♦^he Militia Bill, was no less assumptive of judicia' authority than destructive of the jus* prerog&tJvft of the Crown. The Militia iforceof tl'i Province was first organized in virtu© of Ordiaances passed in 1787 and 399 ; oS>, by llie Governor ^.m] Council of Que- bec. These Ordinances coijtijjued to be the law of the country upon this imponani sub- jeci until 1793, i^'hen, during the second ses- sion of fbo first Provincial Pailiauietit. an Act was passed repealing the Ordijiances, and noaking such furdier provision on the subject as the situation of the Province rea- dered necessary ; but ihis act was a tempora- ry one, and ceased on the first day of July, 1796. This Provincial Statute was renew- ed from time to time till 1802, vvh-^n by a new act passed, me Ordinances of 1787 f/ud 1789 wtre again repealed. This is proof positive that these Ordinances were always consid- ered as permanent laws by thj IjCgisH+Mre, and would ever continue to be so in ihe ab- sence of any subsecsnive lav/ depriving them expressly of their force, vigour and ex- istence. Therefore, as no staiute vhs ever passed subsequent to this second repealing act having any tendency to disturb tl'^ prin- ciple established by it, nothing can be more clear, than that the instant any future Miii» tialaw shouM expire, the Ordinances were naturally, and as a matter of course, resus- citated. Injlfact, all the succeeding acts were temporary acts, founded on the second re- pealing act of 1802. In 1SU7, the Militia Bill sent up by the Assembly to the Legisla- tive Council, contained a clause foreign to the Bill, whereby a separate act containing an appropriation of money for payment oi the Militia Staff was declared to be nuil and void though not repealed. A Bill so fraught 400 with danger, and contrary to the King's In- structions, could notconstitulioually be sanc- tioned by the Legislative Council ; and it was accordingly amended and returned to the Assembly, who refused to proceed on it. The consequence was, that when the tem- porary Militia acts expired, the Ordinances revived : and had the Governor-iii-Chief, Lord Dalhousie, not pvan due notification of this event to the publick, and, in his ;>f- ficial capacity, called the attention of the Province to these Ordinances, the country would have been wholly deprived of the most necessary and constitutional safe-guard known under our Constitution of Govern- ment. Nothing can be more demonstrative of the true character of a people than tlieir obedience to the laws. Nothing reflects greater honour on the character of the peo- ple of this Province than the readiness with which they submitted to the duties imposed upon them by laws framed at a very un- settled period of our history, and at a time when the Government of Canada had scarce- ly emerged from the ordeal of its military and feudal origin, notwithstanding the fac- tious and seditious opinions circulated a- mongst them by the newspapers and other emissaries of the leaders. Towards the conclusion of the lato Ses- sion, a new Militia Bill was sent up to the Legislative Council by the Assembly ; but strange to tell, this bill also contained a clause so monstrous, and so sweepingly de- structive of the prerogatives of tile Crown 401 aud the most elemeniary principlefc of con- stitutional legislation, that the Legislative CouQcil struck it out at once. This clause iiee(J only be perused lo be condemned : " Provided always, and bo it further en- acted by the authority aforesaid, that noth- ing in this Act contained «bai] extend or be construed lo extend to revoke or annul all or any of the comrnissious of the different Ollicers of Militia appointed in this Prov- ince prior to the first day of May \>hich was in the year of our L rd 1827, the Jiaid Com- missions being couforrnable to the provis- ions of the said Acts, hereby revived and continued in respect to the qualification and residence ; and provided always, and it is hereby declared and enacted by the author- ity aforesaid, that ail Commissions or chan- ges of Officers of Militia, issued or made subsequently to the said first day of May, be and the same are hereby revoked and an- nulled, till such time as further provision be made therein by the Governor, Lieutenaul Governor, or person adminisiering the Gov- ernuient for the time being." Let it be remembered, that shortly after the Ordinances of 1787 and 1789 came into force in 1827, a great deal of insubordina- tion and refractoriness took place among the Officers of the Miliiia ; a set of men bound by every tie of civil and military law to exhibit a pattern of peace and obedience to those placed under their immediate com- mand. No country could be safe — no ser- vice could be either effective or honuurabla 402 %vhh the participallon of ?.jch men, Tbcf W"; o. therefore. ve^V properly di^niis^ed; ood ' thers nio:^ Xoyh.'. aad obedient appoiDi* ed in toeir place. These dismissals -ire mridea s :bject of cooplaiut la ihe Ptitions of Grievance ; e-od are to this day a subject of irksone rdection to ths Leaders and the'" disraissed patrons. There is no prin- ciple of our Coustirjlna b'.^ter eetitHishbd, than Iliac the King unay call into and iisrniss from his service, eit'ur civil or military, at pleasure, whom he will. Y^% the Canada CoQiii)ittB6 and the Assembly presume tp thiak other^vise; th-^ latier, by the clause r^L;;v3 cttod, attempting not ooly vo re-hp- poiat the dismissed officers, bu; to rev:>kc cV3.d a,un'.7l "all cumMissions or changes of Officf ''^' of Militia, issued f r matL subse- q.s." iJiiy to the s&id ftv'ii day of May." " When an arasy is estabiishej,' sa}s Moatesque, in hi« Treatise an the British Constitution, "it oa^ht not to depend immediaLely on the le- gislative, but on the executive pow<3r ; ?rnd thi«, from the vt ry nature of the thing ; its buiiuoss consisting more inaction than io deliberation." On what piiaciplf s ofCon- stitutiouaijustice, then, the Assembly couid assume the right of passing such a law as ths one above alluded to, we are totally at a loss to comprehend or to conceive. They per- hap'? thought this a fair and fit opportLcity to ingratiate thf)mselves with their constituents by a merr2 atteniipt to legislate for popular clnmour, as well as to roinstaie the cash'ser- ©d Officers. Bat they forgot that the people 40b bad allaloag paid the most implicit obedi- ence to the revived Militia Ordinaoces, and that Hib Majesty's Goverument had entu'ely approved of the dismissals in quesiioD : na approval founded on the opinion of the Law Officers of the Crown, as well as on that of every sound lawyer in Canada; many of the latter continuing to do duty both as Of- ficers and Privates under the existing iav»'s ! In what other light, then, can we look to the Assembly than as barefaced usurpers of the just authority of the executive govevoment. Thanks to the Legislative Council, they have in this instance at least failed in their unjust and inglorious pretensions ; but the country caiiuot watch too narrowly the proceedings of a set of men so bent on the destruction of every thing sacred in our system of gov- ernment. But this is not all. When the Bill, in its amended form, reached the Assembly, our friend Mr. Viger proposed a series of Reso- luiions, which, to convince the doubtful rea- der, if there be such, we shall give, at full length, as exhibiting in stronger colours thaa any language of ours could do, that nothing- can stop the progress of the Assembly in their attempts to clothe themselves with judicial authority. " M. Viger proposed to resolve seconded by Mr. Quesnel. " That it is the opinion of this committee, that an humble address ought to be present- ed to His Excellency the administrator of the government, expressing that the act of 404 ibe Imperial Parliament of the 14th year of the reigo of his late Majesty George Third, chap. 83 which established for the Province of Quebec a Legislative Council, had limit- ed its jurisdiction within certain bounds it overstepped in passing the ordinances of the 27th and 29th of the same reign for the government of the militia of this Province, of which several provisions are moreover re- pugnant to the principles of law and of the constitutional rights of England, which are the law of this country. " That when a temporary abrogates a per- petual law, aud substitutes on the same sub- ject, provisions only established for a certain time, the repealed law does not revive, when the time for which the new law had been made is expired, without the intention of the Legislature has been expressed on the sub- ject. " That nothing in the clauses of the two laws of the Legislature of this Province of the 34th and 43d years of his Majesty's Keign, respecting the Militia, by the words of which the ordinances of the Council are abrogat- ed, expresses any intention to allow them to revive after the expiration of the tempo- rary laws, which substituted new provisions in the place of these old ordinances. " That the aforesaid ordinances of the Council of the 27th and 29th years of his late Majesty Geo. III. cannot revive by the expiration of these temporary laws which abrogated them, and can only be put into force by a law of the Provincial Parliament 405 ivithout, the authority of ■which the citizens of this province could not he obliged to sub- mit to the exercise of martial law." Now, without waiting to express our sen- timents on the contemptible opinion and subterfuge here recorded with respect to want of due authority on the part of the Govern- or and Council of Quebec, which we affirm to have been as extensive as that of the pre- sent Governor and Legislature,* what can be more insolent and insane than their driv- elling about the revival of the ordinances, and the want of authority to oblige the " cit- izens^^ of this province to submit to the exer- cise oiniartiallaw ? But this trash will ap- pear still more strange and ridiculous when we inform the reader, that so far back as the month of June, 1828, the only legal tribunal in the province capable of pronouncing judg- ment in a case involving alike the preroga- tive of the crown and the rights of the sub- ject, declared, by an unanimous decision, that the Militia Ordinances of 1787 and 1789 were then, stJll are, and ever will be in force while they remain unrepealed or un- suspended by any subsequent existing act of the legislature ! This judgment will be found Oil the margin, f and does honour to the learned individuals who pronounced it. Yet, in the face of this solemn judgment, *The only inferiority on the part of the former was in the want of authority to levy taxes. f Vide Appendix. 406 which not only ought to be venerated, but treasured v.p ass the w^ of cordiKt of every mau in the province, whatever Lis profes- sion or pursui*^'3 may be, th^:- Asseraoly, by their Resolutions, atteront to pronounce a judgment diametrically opposite both as to faci and principle i Can this be endured? Cpn it be endired that the House of Assem- bly may wage eternal %var with every power and tribunal in the state ? Are his Majes- ty's ccurtB of law to be broug^/'.t into contempt ly a pack of arrogaat demagogues, whose eoERtant object^ — as we have said a hundred times over — is to paralyze and destroy the JCinjr's Government in this province ? Are the people to be taught to recognize no oth- er authority hut that of the Assembly ? And is the bar to fly for refuge to the forum ? These proceedings must be stopped. They have gone too far already; but if the As- sembly be not checked — aud that speedily -7-inits wilful and headlong career, England •tvili ere long curse the day in which Wolfe, the greatest and the bravest of her generals, won his glories ! If any further proof be necessary to con- iirra the opinion which we entertain on this subject, we have only xo refer to the pro- roguing speech of His Excellency the Ad- ministrator, and the ''circular" of the Ad- jutant General of the Militia of the 10th of April. In the former of these documents the absolute existence of the Militia Laws is averred aod maintained by the following sentence :— 407 "I had eQtertaioed a hope, that tb;? inbrta" itants of lie Province would have be j re- lieve 1 from any in:cavenience tc which they may b? su'jtcted under "^heOrdi'z^aces now in fty-'-t^ by the passir?; of ■:. Mill im, B'M, s.id i c .not but CApres.^ iny re^f -t ihs:it has not taken rJace." if u :br Matter, whl n is adt'ressed " to Cora- mandin?; Officers of Militia Battalions," by this introdu tory clau'«'^ -. — CIIiCULAR. Offi^cf. of tht Adjutant General of Militia, ^uehec, lOth Avdl> 1899 Sir:- .lis ^ Excol €n':;y tbe" Commander- in-Chief, being desirous :;i\elieving the Mi- licjaofthe Provii r-g from the in-^onvenif ucc to which thty a.ght be subjected iii the course of the present year by attending the Five M athly Revj ^wb ordered and r i: vnr-^ ed by tne Ordinances isj^w n fort 3 > I have received His Excellency's Commands to ac- quaint you that he is pleased to dispense v.ith Three of the said Kevievvs." Thus we find the House of Assembly as iGUch :it variance with his present Excel- lency, on this subject at least, as with |Lord Dalhousie. Why .'ien, are the Assembly aad the " Canada Committee" silent on a matter so important? Whatever tribunal will noiv decide tus case, must do so with as much refe ence to Sir James Kemptas Lord Dalhotisie ; for the one is as guilty of the crime of declaring these ordinances "now ia force" as the other. We have therefore so 408 JicsitatioD to say, that the Defender of Pel- tier* himself, with all his eruditiou aud legal acquireraouts, could not have made out a stronger case than we have thus done with respect to the Militia Laws. The Assembly and its friends have indeed abused and vili- fied even Sir James Kempt for his opinions on this subject ; but Sir James knows how to despise such abuse ; and cares as Utile about it as his noble predecessor did. Wo come now to the last and most im- portant question of the whole. We allude to the Supplies. We have already, in a preceding number, entered so fully upon thiS' (subject, that at present, we deem it neither necessary nor desirable to discuss it at much greater length. We should, however, con- sider it as a cowardly desertion of our post, were we to pass over the proceedings of the late Session, in relation to this matter with- out recording our sentiments on a questioa which has so long and so fearfully agitated the Country. It will be observed, that this Session was characterized by two appropriation acts ; one 10 defray the expenses of the civil gov- ernment incurred in 1828, there baing no session in that year ; and another to nako provision towards defraying the civil ex- penditure during the current year. But we will not consider these acts separately. They are the same in principle : equally destruc- tive of the Constitutiou, equally at variance *Sir James Mackintosh. 409 with the King's instructions, and equally iu suiting to tlie feelings and good sense of the country ! T{ie Message upon which they are founded, claims '' provision in aid of the Crov;n Revenues." It has been asserted, that the Bills, as passed, have reference to this principle, and are couched accordingly. This we shall never admit- The Bill mak- ing provision for 3829, instead of making " provision in aid of the Crown Revenues," appropriates the whole publick revenue of the province in •' such sum or sums of mo- ney as together with the monies already ap- propriated by law for the said purposes, shall amount to a sum not exceeding £54,542 2 6, Sterling."* There is no w ord of an "mt/" iu this enactment. The Assembly knew better ; and were aware, tl)at ^f that term were once made use of, their pretensions over all the revenues of the province, would, instantly fall to the ground. The term *' To^tthtr''^ was substituted, wiiich they blindly imagifie to be tantamount to a full recognition of their claims. But had the act been worded otherwise, and expressed io the identical terms of the Messfige, it would, in our opinion, be equally u^jconsti- tutional ; because, in voting the supplies, the Assembly did not confine themselves to the unappropriated revenue, over which a- )oae they hold control, and which alone they have a right to dispose of ; but spread their authority over the whole of the ** Crowi; *Vide Appendix, No. III. 410 Hevonyes;" anpropn-.tine;, disposing, de- ducUDg, controlling, aaa addiv..; each Civil Officer's aiiowADco actrrdlm tr a ruleot be- nevolcQce oi theit * wn : thus eiitire*y ah'-o- gatiag the aporopii^tiiiiis air*v\dy r,iade b^ his Majesty and tns I^o.-'j of the T^^■lo>"y, and cutdijf^ them off from all int^rveutiou with the '" Crown KevDauigi ckoated and apprupriattd by the 14f.h Geo* III, with the disposal of which tiiey are eiinvely auu i-x- clusively invested. Ni w, if the Crr»\va sub- mit t.r t'.is usurpation on the part of the As- sembly — if it t.Ainely sabmi.; JO be striy. ped of a power with which it is clothod J ,, an act of the Imponal Pa.'ianient—if it subniu to be told., that its judges and ow^er civil of- ficers, who, ia viria' oftnis r^cr, hav-: beea perinanenl'y provkled for ..rcordinn to a scale long in use and yearly su.bmitcad to the inspection and guidance of the Assetvrlny, are henceforward to become annaal pen- sioners ou the bounty of "hat Assembly, m thai case, we humr;;y submit, the Cro'vn is bound to give due notice to inv pici vi> we of its having reli iquished its elaiiins to the h.p- propriation of tht? " Crown Reven'^ciT," in order to prevent us frofMn; qu?»rrelling with the Assejubly, for assuming n x authority acqui- esced in by his lVIaje^it>''s goveriment. But fortunately for us, the Crown has not, will not, cannot, dare not ct^/^m;^ a deed <^v a- trocious, Vihilst the 14tb of the latfr kirr re- mains io the latute book. The CroWu i/iay, indeed, solicit and obta'a the repeal of this act; but while itieraainsia force the Crown 411 is bound to pay it as implicit obedience as the meanest subject, and can n; more Rvoid subaiission to the law of the lao 1 (""aa ' . can suspend the habeas corpus without ti: con- sent <;f parliament. The Jaw has invested the crown with no discretionary power^: : and it can no more transfer the perform auc^ ci' its own duties to *he subject, than the sub- ject can usurp the regal functions. We know not what the Crown may do v> ith respect t^ the subject under consideration ; but hith- erto, so far as has come to our knowledge, we are not aware that it has betrayed any symptoms of compromise. We owe :i a debt of gratitude for this. Even that infa- mously popular term conciliation would, in this instance, be dangerous ; but compro- mise would be ruinous. The government of England is not a democracy, nor a party- government that veers with the political vane of every man who comes into office. It is a government founded on priaciple, consist- ency, and uniformity of conduct ; and it is i to this that we owe the war that has so long; been waged against these characteristicks of the House of Assembly. But is this social warfare to be continued for ever ? If the gov- ernment of England have the inchnation, they have surely the power of putting a stop to it. The past attempts to do so, have prov- ed ineffectual ; but, if England be truly de- sirous to entail peace and prosperity on this province, where have those wonderful and much-boasted Arcana of her strength been hid for the last ten years. Have not the 412 House of Assembly, like the Philistines on another occasion, defied and made sport of them ! The supply Bill passed during tlio administration of Sir Francis Burton was considered so uncoustilutional, and at such variance with the rights of the Crown, that his Majesty's Representative in the province was instructed, not to sanction any measure of a similar nature. Yet, let any one who can road, compare the Bill of 1825 with those of the present Session, and we doty him to pronounce them otherwise, than identically the same both in principle and in terras!* This is a defiance which we certainly did expect, hut which we never for a single in- stant, dreamed would have proved success- ful. So far as regards the Assembly, the only remark wo shall make is, that led and actuated, as they have ever been, by a spirit of opposition to British supremacy, it would at once be impossible and inconsistent with themselves to havo acted otherwise. Their language to Britain has always been; — *' She is my bane, I cannot bear her ; One heaven and earth can never hold us both ; Still shall we hate, and with defiance deadly Keep rage alive till one be lost forever." But what shall we say of the Legislative Council ? In what terms can we express our shame and grief at the conduct of that *Vido Appendix, No. IV. 413 body, '«vIjo liave hitherto stood In tLebreacij between us and anarchy, and who have hith- erto exorcised their authority in such a con- stitutional way, as at once to incur the dis- pleasure of ttie Assembly, and the approba- tion of their Country ? We lament, we grieve to say, that the public character of the Legislative Council, for honour and con- sistency, has been forfeited for ever I But ivfaen we pronounce a sentence so repugnant to our feelings, we do not mean to say that that body is individually infamous. No ; we thank God, that there are individuals in that Assembly who are an brnament to so- ciety, and an honour to the country, indi- viduals whom the king may trust and the province be proud of — individuals who wiH neither bend the knee to power, nor worship at the shrine of avarice — individuals who ■will be consistent while others are abject — individuals who will defend their country and their birthrights, when others desert them to tyrants and enemies. We believe that the Legislative Council never presented a more interesting scene than during the discussion of the Supply Bills. Of the speeches and efforts which were made in favour of those infamous Bills, we refrain from speaking : because, to our mind, nothing degrades human nature more than to behold it fvee to-day and a slave to- morrow — than to see it, lion-like, braving the dangers and the scorn of popular obloquy in the cause of justice and truth, and anon prostrate, licking the dust from the foot of heartless avarice acd proud authority. Far 414 Otherwise are we disposed to speak of those who resisted thein. Would that we could write the names of Kerr, Bell, Coffiu, Fei- ton, Grant, Bowen, and Jbhu Stewart in letters of gold ! The resistance of these men was stern, manful and patriotick. It lias en- deared thera to every loyal person in the Country, and, when they are goDe, will em- balm their memories in the grateful remera- brsuce of all who love that Country and ven- erate the Constitution. Let their tombs jSMr the record Here lies a defender of the^ Constitution ! Of course, it cannot be ex- pected of us to enter into a detail of the ar- gurnents made use of by these honourable individuals in opposition to the Supplies as voted by the Assembly. It will be merely sufficient to say that they were unanswera- ble. Being founded on the principles of the Constitution they could not be rebutted: being in accordance with the laws of the country, they could not be refuted. The on- ly reasoning urged against thera was expe- diency and conciliation. But what can be more expedient than an adherence to the letter and the spirit of the Constitution ; and what can be more conciliating than the due execution of the laws ? As to the argu- ments of their opponents, we must admit they were of the most solid and weighty kind ; and because they were so, they pre - vailed. Let us attend for a moment to the manner in which this took place and to the individuals by whom it was effected. As the same cii'curastaflces characterized 415 and disgiMced the p-,3afre of both BHI«, w# apprehend that the history of one wi'I be qmi^ sufRcient. Wh.^nJ the Lili for the civil expeaditure of the current year carae under discussion, there were fifteen members in the House, exclusive of th,- Speaker ; and the votes were as follows : o m^'' ^if. ^^'^^—i- Cuthbert, 9. De Lery, 3. Ine Bishop, 4. Rjland, 5. Tachereau, 6. Caldwell, 7. Hale. Ag-ar/isi £Ae ^f//.-~l Coffin, 2. BeJI, o. Grant, 4. Felton, 5. Stewart, 6. Bowen, 7. Kerr, 8. Pei-eival. Now, there being Eight vote?! against the passing of the BilJ, and only Seven in its favour, it will naturally excite surprise how the measure cuuld pass at ali, consisleatlv ■With the rules of voting, there being a fair and legal *^,ajority of One on the side of the Nays. But let it be reraeoibered, that there was a being called the SpeaJcer in the house, who as such, like his brothor of the Assem- bly, had a stake of three thousand pounds ia the ganae ! It wrs hard therefore to be de- prived of a sura so considerable by the vote of \ single individual, when a remedy lay witniu his reach. It was no difficult mat- ter, m the first place, to vote as a member on the side of the yeas, the numbers being by that means rendered equal, and then, as Speaker, give the casting vote on the same sids. This was done ! The Speaker of the Legislative council, who is also Chief Jus- tice of this province, has long been esteemed as a man of some virtue and tales t. There 410 may be talent ; but surely there is no virtue ID an act of this kind. Asa lawyer and a judge Mr. Sewell must know, that he had no right to act in this way ; and that by doing so, he has forever blasted his own character as a man of candour and impartiality. If other- wise, God help those who, by the laws of the country, are bound to seek justice at his hands. There is no rule better established by our laws, than that a president or chair- man of any publick body cannot vote but once ; and that one vote can only be, a cast- ing vote in case of their being what is termed a tie. By the laws of the Imperial Parlia- ment the act of the raajoritybinds the whole. But what constitutes this majority ? Not, surely, two votes given by the Speaker of either house, as has been done in the case before us. By no means; but the bona fide majority of votes, fairly put and fairly giv- en ; and a majority, it is well known, may be constituted by one as well as a thousand. Neither the Speaker of the House of Lords, nor of the House of Commons has ever been known to give more than one vote, and that vote only when there is an equality of votes.* It is true that the Speaker cf the House of *Oh the question for the impeachment of Lord Melville, the division of the House of Commons being equal, the motion for the prosecution was carried by the casting vote of Mr. Abbott, then Speaker. By the Con- stitution of the United States, it is declared that " The Vice President of the United 417 Lords, if he be a Lord of parliament, may, contrary to the privileges of the Speaker of the Lower House, give his opinion or argue any question in tha House; but he never votes, except when the numbers on a divis- ion happen to be equal. This is a poiiit clearly establish*: d by pprliaraentary usage; aa;ratitude for the past—and in a passion of personal avarice and fapiily aggrandizement, which ''c fleet as little hon- our on the judge as on the patriot— on tho man ^s the confidential friend. Of the companions and tools of the Hon ourable Speaker, m this work of publick in- famy, we are disposed to speak with as mu^h dec4ucy and decorum as their deeds of atro- city will admit of. The Bishop we have al- ways admired as a man 'of piety, learning, and humanity. But he cannot serve God and mammon ; and it is our fervent prayer, that the Church may never regain be put to shame and confusion on account of his po- iitical subserviency and delinquency. We have said, that we admire the piety of this good and evangelical man; we will only add, from his politicks. Good Lord, Deliver us. The real views of Mr. Cuthbert will be disappointed ; and when that happens, he will remember that we told him so. Of Mr. De Lery w^e say nothing, as he is a man totally unknown to fame of any kind. Mr. Ryland we believe to be the personal eneniy of the late representative of his Majesty in this province. Any man who could be so, is totally unworthy of publick, or private respect. At all events, he shall never have ours. We understand, that at the time Mr- 419 achereau -as ihns voting away the pubiick inoDeyinto :/ 9 pockets of the tur Honoura- ble Speakers, ne ought to have beta attend- ing to hisdu- es as a Judge in another dis- trict of"'.'^ ovince ; and that, in conse- quence o£h. absence it was with great i.if- Seulty the term was commenced at all ; a loss had it taken place, of more serious con- sequence to the country than the whole civ- il list together. When questioned as to his absence, he answered that " The Chief Justice laid his commands upon hir- -' Of this webaveno doubt ; but we ca assure Mr. Tachereau, that had his vote been on the other side, he should next session have been impeached by the AssemblT for neglect of duty as a Judge. As it is, v- -' hope some .independent member will take up the busi- ness ; for the Judge ought to know, that, :wbatever beccrres of politicks, nothing is ■more injurious to a state than a faithless and r.ime serving judicatory Mr. Caldwell is a jpublic defaulter, and has been so declared ^by the House of Assembly and the Canada icommittee. Mr. Hale is an honest man, .^ve believe ; but what Receiver General can i)e an honest politician! Such are the men fwho have aided the House of Assembly ia itheir attempts to destroy the constittj'tion. Such are the men who have compromised ;the character of the Legislative Council. iSuch are the men whom Mr. Felton stated in his place to have been everyway deserv- )!ng the character given of them by Mr. i^feilson in bis evidence before the Canada 420 ^^B' cemmlttee, as well as in the Report of that comniitiee itself. With these brief observa- tioas we leave them io the hands of the coun- try and posterity. But the list would not be complete without the name of the Attorney General, who probably, from a motive simi; lar to thatoftha two Speakers, gave ex m- ficio, a favourable opinion of the supply bills. Were Mr. Atiornev now member for W^ilhani Henry, we -~ask him whether his opinion %vould be the same I If so, the vote of a dissecter of bodies is at any time as good as that of a dissecter of briefs and indictments, for destroying the constitution. But Mr. Stuart was never either a good or consistent politician ; and we fear it is now too late to teach him. We may, perhaps, try our hands on him by and by. He has been said to in- timidate and overawe the Bench ; but he ^all not do either with us. Should he be tempted to indict us for alibel ; we shall take refu^-e under the late instructions transmitted to hfra from England with respect to mean- er libellers, and so escape his malevolence. Upon the whole Mr. Attorney will understand us, when we say : De Sumno planus ; sed non ego planus in uuo Versor utrinque manu, diverse et raunere fungor : Altera pars revocat, quicquid" pars altera fecit. With respect to tBe part which His Ex- cellency the Administrator of the Govera- 421 ment took ia this business, we are disposed 10 say as little as we can, consistently with our duty to the publick. We entertain the most uuqualiSed esteem for His Excel- lency as a man, a gentleman and a soldier. In each of these capa:ciiles he deserves, and we believe, universally receives the respeci and gratitude of his country. As the rep- resentative of Geo. IV. he shall ever receive from us the homage and obedience of free and loyal subjects ; ready to serve him for the benefit of our beloved country in any ca- pacity or on any mission. But'our loyalty to the King, and respect for his representa- tive, will never deter us from giving the freest expression to our sentiments on ques- tions of public importance. We have there- fore neither fear nor hesitation in saying, that, consideringthe nature and character of :he Bills of supply of this session; consid- 3riog the manner in which the supply bill aassedthe Assembly; considering the cir- Jumstances under which the bills'were pas- ed in both houses ; considering the illegali- y of the double vote of the Speaker of the L.egislative Council ; but, above all, consid- sring the Despatch of the Colonial Minister sf the 4th of June, 1825, wherein, with res- )ect to the last Bill of Supply sanctioned by he legislature, instructions were convej'ed ' Not to sanction any measure of a similar lature," His Excellency ought to have vithheld the Royal sanction from the Bills n question, at least until His Majesty's ap- )robaiion should have been obtained. Tti© 23 422 instructions alluded to are as binding upon the present Governor as upon any ofRis Excellency's predecessors, unless formally and expressly recalled : a circumstance which there is no authority to conclude, lias ever taken place. It is said that Sir James Kempt is in possession, of conciliatory despatches. We are far from disbelieving this, because it is very likely, considering the spirit which at present rules his Majesty's government in England. But, why should His Exellency's instructions be different from those of his brother Governor in Upper Canada ? There Sir James Colborne expressly tells the Le- gislature, th.'ithedoes not want supplies,.be- cause the revenue arising from the 14th Geo. III. of which the crown has the entire dis- posal and control, is sufficient for the exigen- cies of tlie government.* Have the Assem- *Genllemen ofthe House of Assembly. — I thank you for your offer of making a pro- vision for the support of the civil Govern- ment, which I should have gladly accepted in His Majesty's name had not the Revenue arising from the Statute ofthe 14th Geo. HI, chap. 88, the appropriation of which, for the public service, is under the control of the Crown, appeared quite sufficient to de- fray the expenses of the current year. An intimation to this effect, was conveyed to you in my reply to one of your Addresses early in the present month. Sir John Colborne's Speech, 20th March, ia29. 42S bly of Upper Canada set up a claim to the distribuiioti and appropriation of ti]ese Crowa revenues ? They have u<»t, and dare not. Why should the Assembly of Lower Cana- da be permitted to pursue a diftereot line of conduct, having the same Constitution to guide them ? It will be vain to say, that it was because supplies had been demanded ia Lower Canada, and that the legislature ia such a case, have a right to interfere with the appropriation of the Crown revenues, ia order to limit or extend those at their own ilisposal. Can a claim of supplies in aid of the Crown revenues alter the laws and coo- slitution of the country? If they can, why should not the interpretation apply iu Upper Canada as well as in this province ; and why should not the point in dispute be freely and candidly given up to the assemblies of both provinces. But there is another point of view in which His Excellency's accept- ance ofsuppliesin the mode voted by the as- sembly, ought to be considered ; and it seems to us the only mode of disposing of the ques- tion so far as respects kivi. At an early pe- riod of the session, his Excellency, by the *' King's commands," sent a Message to the legislature explanatory of His P/lajesty's views with regard to the difficulties which agitate this province. In that message, as- ter the nature and amount of the *' Crown Revenues" are described and summed up, it is positively and pointedly declared, that these revenues " constitute the whole esti- mated rcveaue arising ia the province, wbkb 424 the Law has placed at the disposal of th© Crown ;" and •' His Majesty has been pleas- ed to direct that from this collective Revenue .^f £38,000, the salary of the Officers admin- istering the Government of the province and the salaries of the Judges shall be defrayed.'* It is added " His Majesty fully relies upon the liberality of his faithful provincial par- liament to make such further provision as the exigencies of the public service of the province (for which the amount of the Crown Revenues above mentioned may prove in- adequate) may require."* Now, if His Majesty has been pleased to declare that the "Law" has put the revenue in question at his " disposal ;" and if His Majesty ha.s heen pleased to "direct" the expenditure of this revenue to the Judges and the other of- ficers of ihe government, how can His Ma- jesty's Representative submit to be told by the legislature that they have an equal right in the disposal of this revenue, and will there- fore dole it out, as they have done this ses- sion, in such portions as they think proper ? Is not the insult as well as the illegality of the thing clear to every mind ? His Excel- lency has therefore suffered both his Royal Master and himself to be imposed upon by the legislature ; and has allowed his own Message of the 29th of November, not only to be neglected and spurned, but absolutely trampled under foot. Why is it so then? If contrary, or contradictory instruction* *Vid© Appendix, No. V. 425 hare been received, why have they not beeii published to the world, that the couDirj might have beea made aware of its true sit- uation — that the province might know whether it is to his Excellency or to His Majesty's government in England, that it owes measures so full of danger, contra- diction and inconsistency ? Having said this, we have said all that was necessary, and all we intended on the present occasion. The Protests of the dissentient Legislative Councillors will bear us out in all we have said against them* we appeal for a full and complete confirmation of all our statement* on this question. Having discussed at such length, the ub- constilutional measures of this eventful ses- sion, it may perhaps, be expected that we should touch upon those that were useful and in real unision with the principles of the con- stitution. We do not deny that there wer« such measures. But we leave them, in their free course, for the benefit of our country, and the example of posterity. In conclusion, we feel that we have dis- charged a mostinvidious but important duty. We feel that we have stood alone on the Watch-tower of our country's salvation, ex- posed to all the weapons that faction, malice and revenge can bring against us. But, as we write neither for fame, patronage nor profit, being equally independent of ibeai ail, we have honestly and fearlessly— a^ *Ti was allowed. The words of the record which jnentions the disallowance are " Rex ipsam saam 434 cxcusationem admisit et ipsum ds occupatione predirta exoneravit." At the ccmnencement of the new Parliament in 1678-79 — Edward Seymour (afterwards Sir Edward) who had become very popular ia the house for the violent stand he had taken against Popery, was chosen Speaker. In the address of excuse which he made to the House, ho said "But since you are pleased to sequester your judgments, in his choice, give me leave to pxe~ ivsnt my excuse to the King, and I hope the King will have no cause to disagree with you in any Iking hue your choice of me," and prayedfor leave to intercede \'nth His Majesty to disch?..rge him of his duty. Vf hen brought before the King for ap- jjiobation hs addressed His Majesty " I am come hither for your Majesty's approbation which if your Majesty please to grant I shall do them and you the best service I can." From his having several disagreemejits with Lord Danby then high in fa- Tourjit had been determined to disallow him, but Mr. Seymour being aware of this intention avoid- cd making his excuses in the usual form, but the Lord Chancellor addressing Mr. Seymour said " the approbation which is given by His Majesty to the choice of a Speaker would not be thought i^uch a favour as it is and ought to be received, if Wis -Majesty v/ere not at liberty to deny, as well as to grant it. It is an essential prerogative of the iCing to refuse as well as to approve of a Speaker. This is a matter which by mistake may be liable to misrepresentation, as if the King did dislike the psrsons that chose or the person chosen. As to the first there can be no doubt. They are old re- ]3resentative3 of his people whom he hatli a desire to meet and there can be no doubt of the latter, nor has his Majesty any reason to dislike you, having had great experience of our ability and ser- vice. But the King is the best judge of men and thingSL Ho knows when and wliere to omploj. 435 lie thinks fit to reserve \"Oii for other sendee and to ease ycu of this. It is His Majesty's pleasure to discharge this choice and accordingly by his Ma- jesty's commands I do discharge ycu of the place you are chosen for and in His 'tdajesty's name command the House of Commons to make an- other choice and command them to attend here to-morrow at 11 o'clock." The popularity of Sey- moiu- made this disallowance very disagreeable "to the Members, Avho in the debate which ensued spoke in strong terms against those who had coun- selled the measui-e, but seemed httle disposed to assail the prerogative. During the debate Mr. Sacheverell said " I Vv'ould not lose a bail's breatlth of the King's right" and he moved an adjournment that in the interim the records might be searched for precedents in this matter. Mr. Garraway said, " I would not give the ' King oflfence but not part with one hair of our right." "lam satisfied we could not fix upon a fitter person for Speaker thart Mr. Seymour, he is a Privy Counsellor, treasurer -of the navy and has done the King ver)' good ser- vice here which makes me wonder he should not be approved of by the king. I thought we could not have obhged the king more." NotMdthstand- ing that the adjournment took place, the house addressed the king for a longer time to consider the question as being one of " such great import- ance." The king granted them the delay requir- ed, at the same time observing " as I v^'ould not have my prerogative encroached upon, so I would not encroach upon your privilege." At the con- tinued debate Mr. Hampden said the choice they had made they had reason to think " would have been acceptable to the king." Sir John Ernlv remarked that " the choice is in the Coirimons and it is undoubted that the refusal of a Speaker when chosen is of right in the king." In the ad- dress wliich the House made to the king they dc- 436 darei that thay had a tender regard " for th© rights of your Majesty and your royal prerogative Which we shall always acknowledge to be vested in the Crown for the benefit and protection of the people." During the many days to which this de- bate was continued, the opinions of the members, however much in favour of Mr. Seymour were nev- ertheless favourable to the choice of a third person in preference to the one nominated by the Grown. The king having prorogued the House for a few days, on its again meeting it unanimously chose Sergeant Gregory, thus succumbing to the right of the crown. Throughout this transaction we find the House pertinacious of their own right but at the same time showing a great respect to the priv- ileges of the Crown, thereby affording a striking contrast to the conduct of our Commons, who in all their proceedings and debates afl^ected a total neglect of the wishes and directions of the Crown as expressed by its representative. These arc certainly the only instances on record in English Parliamentary History where the disallowance took place ; but Sir Fletcher Norton, having dis- pleased his late Majesty in 1773 in a speech on presenting a Bill of Supply, the determination of the Sovereign to exercise the Royal prerogative against that individual should he be again chosen was urged by Lord North as a reason against his election, and the House notwithstanding the pop- alarity of Sir Fletcher rather than dispute the wishes of the Crown chose Charles W. Cornwall Ksq. who was accepted of — There are however several instances to be found in Colonial History where Speakers of the Representative Body have been disallowed. In the late Province of Massa- chusetts Bay, in 1704, Mr. Oakes being chosen, was disallowed and the House persisted in tlieir choice. On account of the affairs of the war be- ing so pressing, the Governor waived the preroga- 437 tive, " saving to hor Majesty her just rights at all times." This disapproval was sanctioned by the approbation of the tlicii Commissioneis of trado and plantations. In 1720, the Speaker chosen in the same colony was disallowed by the Governor, who had to dissolve tho Assembly. On the mect- injr of the new one, thontrh composed of nearly tho sainc members, they chose one who v.as accepta- ble to the Governor. These disallowances caused ill will between the Governor and the House, and the disputes were referred to England. Through the means of Governor Dumner, the Assembly in 1728 passed an act, wliereby the doubts which, they said, might have (.xisted, were set at rest by a positive enactment, that the administrator of the Government should have a negative in the elec- tion of their Speaker. The House of Assembly of South Carolina on tho ]2th Jan. 1773 having pre- sented the Hon. R, Lowndes to be their Speaker the Governor diapproved and disallowed their choice, and directed them to proceed anew, but the House, persisted in their views and it was thereupon prorogued. About the year 1810 James Tucker was elected Speaker of the House of As- !?cmbly of Bermuda, but being disapproved of by the Lieutenant Governor, John Noble Manley, v/as subsequently elected and approved of by His Ex- cellency. The first notice or mention made of the appro- bation of the Speaker by the monarch being for- mally announced, was in 1399, when Henry IV, approved the choice made in the person of Sir John Cheney, who next day was obliged to resign his charge from sudden disease, and the Commons elected Sir John Doreward in his place, v/ho was then approved of. On tho election of the Speak- er, it has been already mentioned as being usual to excuse himself on presentation to the king, ami this practice has been almost hitherto invariable. 438 In 1582, Sir Edward Coke, an individual whos^ knowledge of law and the constitution under which he lived, cannot be doubted, in his speech to the throne said : " This is ovAj as ^fet a nomin- ation and no Election, until your Majesty giveth allowance and approbation." In 1 660 Sir Har- bottle Giimstone was chosen, but on account of the absence of the king, was not presented for approbation. The Speech of Sir Edward Turner who was chosen the succeeding year, is not re- corded in the Journals of the Commons, but in substance as given in the Lords' Journals, is as follows : " From this their judgment, if I must so call it, I do most humbly appeal to your Sovereign justice, beseeching your Majesty for the errors that are too visible and apparent in their proceed- inge, that you will review and reverse the same." The Lord Chancellor replied '* you have not dis- credited 3'^ourself enough to persuade the king to dissent from the House of Commons in the elec* tion they have made." In 1672, Sir Job Charlton was chosen, who addressed the king as follows .- " I therefore with a plain humble heart prostrate at your Royal feet, beseech, that you will com- mand them to re\aew what they have done, and to proceed to a new election." The king in reply said ; " He cannot disapprove the election of this House of Commons, especially when they have expressed so much duty in choosing one worthy and acceptable to liim." This individual became unwell and desired to retire to the country and va- cate the Speaker's chair. In his address to the king, he said ; " I humbly beseech your Majes- ty's leave that I may move your most dutiful and loyal House of Comrxions, to permit me to retire to the country, and to give them leave to choose another Speaker." This leave was granted, and the House on the 18th Feb. 1672, elected Edward (afterwards Sir Edward) Seymour, who was ap* 439 f roved. On the 20th May 16S9, Sir John Trerer was re-elected, and on being presented to the king, humbly beseeched liis Majesty " to command the Commons to make a better choice." On the election of Paul Foley in ]694, the Lord Keeper in "addressing liim aftpr he had made his excuses said : " He (the king) does well allow of the choice which the House of Commons have made, and does approve of you for their Speaker." When Sir Thomas Littleton v/as chosen in 1695, ,he said to his Majesty : " I need enumerate no more particulars v»' herein I am wanting to your Majesty, to ¥/hom my insufficiencies in businesi? are not unkno'.^n, hoping I have said enough al- ready to induce your Majesty to disapprove mc." Ha.ving be -^n approved, he rephed ; " Since your Majesty has been pleased to approve the choice which youv Commons have made, it becomes me not to contend longer with your I^Iajesty," When Robeil Harl^y was chosen in 1701, he addressed the king in the usual strain of excuse, but it was not allowed by his Majesty. Harley in reply f-aid ; " Since 3^our Majesty hath not been pleased to admit of my excuse, it is my duty to submit,, and I do in the first place with tlie utmost thank- fulness acknowledge the undcvserved honour your Majesty is pleased to confer upon rne, and that I may the batter discharge that great trust v/hich your Majesty and the Comnions have committed to me, I am an humble suitor to your Majesty,^ .and then prayed the usual liberties. In 1/08, Sir Richard Onslow addressed the Lords Commis- sioners ; " May my most humble intercession to YCiMT Lordships to disapprove this choice obtaia pardon." In 1710, William Brornely being chosen, he addressed the Queen, that in obedience to her commands he had been chosen, and that he was a humble suitor to her Majesty, that she would be pleased to escuse his undertaking it, and to ccra- 440 jmand the Commons to make a better choice. In 1713, Sir Thomas Hanmer being chosen, he thus addressed the Queen : " That for her own service and satisfaction, for the better success of those ar- duous and urgent affairs which have induced her to call this Parliament, and for the honour of the House of Commons, she will be pleased to order them to re-consider this their resolution and to come apain prepared to present some other person to her Majesty, moi*e worthy of their choice, and of her royal acceptance and approbation." To this the Lord Chancellor answered that the Queen ex- pected nothing else from that House, "than the choice of a person for their Speaker equally quali- fied for that important trust, by a just regard for her prerogative, and an hearty zeal for the wel- fare of her people ;" and the Queen further stated that their choice was acceptable to her and there- fore approved and confinned it. In 1714, Mr- Spencer Compton was chosen. He stated liis in- capacity to act, and professed the most unshaken fidelity to the protestant succession. He said, '* This your Commons hope may be some excuse for their presuming to present to your Majesty a person whose iusulficiency rendered him so im- proper for them to elect or your Majesty to ap- prove." The same individual in 1722, besought His Majesty, " to command your Commons to present to your Majesty, some other person more worthy of your Royal approbation." Mr. Arthur Onslow in 1727 craved leave to implore His Ma- jesty's goodness " to command your commons to do, what they can easily perform to make choice of another person, more proper for them to pre- sent to your Majesty on this great occasion." Mr. Onslow in 1734, hoped the king would send back the Commons to reconsider their choice and chooae one " more proper than I am for their service and yoar royal approbation." The same gentleman 441 m 1741 stated that he had been elected Speaker, " how properly for me, for themselves, and for the public is now with your Majesty to judge, and to your Royal judgment, Sir, I do with ail humble- ness and resignation submit myself, being well as- sured that should your Majesty think fit to dis- approve of this present choice your commons will have no difficulty to find some other person among them to be presented to your Majesty on this oc- casion, to whom none of these objections can be made which I fear may too justly, from my imper- fection, arise in your Royal breast, upon being again the subject of your Majesty's consideratioa for this important charge." In 1747 the same gentleman begged with silence and submission to resign himself to the Royal determination. In 1 754 the same gentleman in addressing the Lord Commissioners, stated that he resigned himself " entirely to His Majesty's pleasure, Avell know- ing his own Royal wisdom can have best deter- mined his own choice either to approve or disap- prove what his commons have now done. Sir John Oust in 176], said, " I have this satisfaction that I can now be an humble suitor to your Ma- jesty that you would give your faitliful commons an opportunity of rectifying this, the only inad- vertent step which they can ever take and be gra- ciously pleased to direct them to present some other to your Majesty whom they may not here- after be sorry to have chosen, nor your Majesty to have approved." The same person in 1768 ad- dressed the Lord Commissioners. " His Majes- ty must, I am assured have observed so many im- perfections in my conduct during the last Parha- nent that I need urge no other reasons to induce Bis Majesty to give his faithful Commons an op- i x)rtunity of presenting one worthier of their choice i Lnd His Majesty's loyal approbation." The ad- |irese«s of Sir Fletcher Norton in 1770 and 1774, 442 atid of Mr. Cornwall ia 1780, and 178), nr© nil in tho same str.in. la 1789, 1790, 1796 ami 1807, Mr. Addinj^t.ou implored iho king to direct the commons to proceed to a ne\v choice and to pres(MU one more worthy ot the royal approbation Mr. Abbott in 1807 (Said "in humbly «uhmitting myself at tins bar to his Majesty's judj^ment, I have tho satisfaction to reflect, th;U if it should be IIis Majesty^s Royal |)loasure to disallow this choice."" Again in 1812, ho said " whatever considerations may have weighed with the House of Commons in forming this deter- mination, they Avell know that their choice mnst nevertheless await the Royal pleasure, and i now with all humbleness do in their be- half present myself in this place in order that His Majesty's 'faithful Commons may loara whether it be His Majesty's Royal will that ihoy sliall proceed to a consideration of the ' choice which they have made." In 1820 Mr. Snlton addressed the Lord Commis- sioaerr., ''should, however, it bo Mis Majes- tt's pleasure to r(\ject the choico thus made by His faithful Commons, it is consolatory to me to know, that there are many mem- b^v;5 of the housc much l>etter qualiiied than wiyself to fuliil the oince of Speaker, upoa one of whom their choice may most advan- t;!c;eously devolve." These numerous dec- larations ofSpeaker in various yean-i, speak- iiv'foraud in the names of the Commons ©f^England aro heavy arguments against tho prehensions of our Assembly. It is not very likely that a British Houso ©f CommoB*, 443 TTCuId permit their Speaker for them, 19 use such language, did they not acknowl- edge the Royal Prerosralive, and that iatba Irjnguage thus used, there is something mora than mere matter of form, or mere courtesy. If any of the Members of the late Assembly Tsill cousult the Journals of the Irish House of Commons, he v.ill find the same strain made use of throughout. There in 1639, Jilaurice Eustace appealed to the Lord Lieu- tenant to direct the Commons of that House to make choice of another Speaker, but Hiz Lordship by the Chancellor declared his •' approbation and good liking and allow- acceofthc said election." In 1771, Mr. E. S. Pern- addressed the Vice Roy, "I con- fess it is the highest point of my ambition, and if I have the honour of your Excellency's approbation &c." and in 1776, the same in- dividual said it was his "duty as well ai inclination to submit if their choice shall be confirmed by your Excellency's approba- tion." At the commencement of the House ef Assembly of Jamaica in 1671, it appears that the Governor nominated the Speaker who was then elected by the House and af- terwards presented for His Excellency's ap- probation, and during the whole period from the time already alluded to, the Speakers of that House have invariably been preseated for approbation and have invariably used the same language as the representative branch of England. The Journals of that Island afford a denial of the assertion that ibe presentment cf the Speaker and the de- 444 ffltthnd and grant of the usu&l privileges are mfere matter of form and courtesy. In 1765, the Speaker did not demand the usual privileges when approved of, and the next day, the Governor (W. H. Littleton Esq.) addressed the Speaker, (C. Price Esq.) ia the following terms, "Mr. Speaker, as you onnitted at the time when I approved of the choice which the House of Assembly made of you to be their Speaker, to apply to me for the usual privileges, I have sent for you to ask, whether you will now make appli- eation for them or not. The Speaker re- plied " Sir, 1 do not intend to make any." The Governor replied " Sir I once more ask you whether you will now make applica- tion for thera or not" to which Mr. Price shortly said " Sir, I shall not." The Gov- ernor theu replied, as it is ray duty to see that the just order of the proceedings of the House of Assembly is preserved, and their privileges maintained as well as that His Majesty's prerogative suffers no violation, 1 do in His Majesty's name dissolve the Gen- eral Assembly and it is dissolved according- ly. "In Nova Scotia iu 1806 both Mr. Tonge, who was disallowed, and Mr. Wil- kins who was confirmed, after election but before presentation, expressed their thanks i for the honour proposed to be conferred upoa , them, thereby publicly declaring that as yet . they w^ere but inchoate Speakers whose ex- istence had not yet perfectly taken place. But it can be shown also by the Journals ©fth^ House of Assembly of this Province, -445 that they have tacitly acknowledged thlg right. Upon every new Parliament they have invariably been directed and comnriand- ed to present their Speaker for the appro- bation of the King's representative. Thej never denied this right, but always did as Jhey were directed, and their Journals inva- riably say in such terms as the followin;^, *' that the house beinjj; returned, the Speak- er stated that the Governor in Chief had been pleased to approve of their choice.*' Mr. Panet in 1793, 1797, 1801, 180(3, 1809, 1810, aad 1811, made use of nearly thesaKie language whether frons a paucity of words or not, it is ditlicult to iinajrine. He generally stated that the choice of the house had fallejj on him and he implored " the excuse and comvnands" of Ills Excellency. Mr. Delob- iaiere, elected on the appointment of Mr. Panet to the Bench, said " that you will be pleased to order the Assembly of Lower Canada to do that which may be easily done, that is to choose another person betterquaii- fiedthan lam to fill that office, and fitter to be presented to you on this present occasion." Mr. Papineau the Ex-Speaker in 181.5, 1817, 1890, 182J, and 1825, {i;enerally made use of the same lanj;uage, by imploring the "ex- cuse and commands" of His Excelicney, and after approbation has replied '* the manner in which your Excellency has been pleased to signify your assent to the clioice of the Assembly, demands my warmest gratitude.'* When Mr. Papineau, in 1823, resij;ped tha Speaker's chair, in order tha,l he migiitpro- 24 446 teed to England in aid of the Anti-TJniois Petitions, he addressed a letter to the Clerk of the House of Assembly wherein he made use of the following terms, " It is not there- fore to avoid fulfilliag the duties of that hon- ourable station with which it has pleased His Excellency the Governor in Chief and the House of Assembly to honour me." Mr. Vallieres when elected in 1823, in Mr. Papineau's stead, implored the excuse and commands of His Excellency, and after ap- probation, in his reply he returned thanks " since the choice of the House of Assembly has been sanctioned by your Excellency's approbation." At that time he had not the slightest idea that the approbation was '* a mere matter of form or of courtesy." NO. III. (Seep, 4.6.) PROVINCIAL PARLIAMENT OF LOWER CANADA.: — House of Assembly. Tuesday, Nov. 20th, 1827. The following gentlemen took the usual oath and subscribed the Roll, viz : Messrs. Christie, Robitaile, Borgia, For- tin, Letourneau, Blanchet, Boissonnault, Lagueux, Samson, Bourdages, Proulx, Nel- son of Sorel, Dessaules, De St. Ours, De Rouville, Amiot, L. J. Papineau, Viger, Quesnel, Cuviliier, Raymond, Heney, Les- lie, Nelson of Montreal, Perrault, Valois, Labrie, Lefebre, Turgeon, A. Papineau, leroux, Poirier, Deligny, Mousscau, Bu^ il 447 reaiT, Caron, Dumoulin,, Ogden^ Cannon, NeilsoD, Clouet, Vallieres de St. Real, Stu- art, Young, Lagueux, Quirouet, 46; absent Messrs. Laterriere and Larue, 2 ; elected for 2 places, 1 ; dead, 1 ;^total, 50. At two o'clock, the presence of the Mem- bers was required on the part of His Excel- lency in the Legislative Council Chamber, when the Speaker of the Council informed them that his Excellency did not think fit to declare the causes ofsummoning this Parlia- ment until there be a Speaker of the Assem- l)ly, and requiring them to choose a fit and proper person to be their Speaker, to be pre- sented for his approbation to-morrow at two o'clock. On the Members being returned, Louis Bourdages, Esq. Member for the County of Buckinghamshire, seconded by J. C. Letour- neau. Member for Devon, moved that Louis Joseph Papineau, Esq. Member for the West Ward of Montreal, be Speaker. C. R. Ogden, Esq. Solicitor General, Member for the Borough of Three-Rivers, seconded by N. Boissonuault, Member for Hertford; moved that J. R. Vallicres De St. Real, be Sneaker. There being no debate, the question was called for, and a divison being asked, the names were required to be taken down, and are as follows : Yeas, {For Mr. Pa'pineau as Speaker,) Messrs, Robitailie, Borgia, Fortin, Letour-. neau,BlaQchet, L. Lagueux, Samson, Bour dages, Proulx, Nelson of Sorel, Dessaules^ 448 Do St. Ours, De Rtuville, Amiat, Viger^- Q,uesDel,Cuvi!lier, Raymond, Heney, Leslie^ Nelson ofMonrreal, Penault, Valois, La4>rie^. Lefebre, Turgeon, A. Papineau, Leroox; Poirier, Delig;ny, Moiisseau, Bureau, CaroB' Dumoulin, Canooti, Neilson, Clouet, E. C. Lagueux, Quirouet, (39.) Nays, Messrs. Ogden, (Solicitor General]^ Christie, Boissonault, Stuart and Young. (5.) Mr. Papineau was accordingly conducted to the Chair, where he ihanked the Hous& for the renewal of their confidence, request- ed a continuance of their support in maia- laining the Rules of the House and preserv- ing order and decorum in its proceedings. Tile House then adjourned, till to-morrow at one o'clock, and most of the Memhert 1»'itb a number of the Citizens, conducted the Speaker elect to his lodgings. Wednesday, 2IstNov. 1827. The House met at one o'clock, and their presence being required on the pan of Hia Excellency, in the Legislative Council Cham!)er, Mr. Speaker elect, and the Mem- bers, proceeded thither, when Mr. Speaker addressed His Excellency in the usual form, acquainting His Excellency with the choice of the Assembly. His Excellency then said, in subsrancc, that in His Majesty's name he disallowed the nomination of Mr. Papineau, and required the House to make another choice, lo be pre- sented for his approbation on Friday, when kfi'tvould inform them of certain iostructiout relative to the affairs of this Province reccti^- f his (Mr. B's.) opinion, since erasures h<\d followed its entry. Mr. Ogden was astonished at what had fallen from the honourable member who had just sat down. The precedent which had been cited was directly in favour of the pre- rogative of the Crown — it was astonishing 452 also, to hear some honourable members st«t- ing that the Crowa had not the prerogative of disaUowing their Speaker — a prerogative tphich was tacitly allowed by their own acts, did not positive law declare it. For what purpose did the House go up that morning to the Council Chamber, but to present their Speaker elect, for His Excellency's appro- bation ? Why should they do so if he had not ihe prerogative to ;^rant that approbation ? Mr. Cuvillier stated that the present case was almost unprecedented. There Averq only two cases on record in the English History of the disallowance of a Speaker by the King, and these instances were in 1450, when Sir John Popham, and in 1678 when Sir Edward Seymour, was disallowed. These instances were looked upon with shame by the English people, and no instance could be found of a disallowance of a Speak- er since the revoluiion in 1688, when the Constitution was re-model!ed. Though the House of Commons went up to the King, for his approbation of their Speaker, this was done as a matter of course, by poiitenes* only, and the King could not disallow hira. But allowing the king in England to have such authority, no instance in the Colonies could be pointed out to sanction such an assump- tion. The whole proceeding of disallow- ance was an encroachment upon the free choice of the House of their Speaker, and he would therefore submit a series of reso- lutions, which he hoped would express the Bdoso of the members. He then read the (oU 45S lowing resolutiona, tending to dispute the authori'" ty of the Ciowii to disallow a Speaker. Resolved, 1. That it is necessarj' for the dis- charge of the duties imposed upon this House, viiw to give its advice to his Majesty, in the epactmehfc of Laws for the peace, welfare and good govem- raent of the Province, conformably to the Act of the British Parliament, under which it constituted and assembled, that its Speaker be a person of its free choice, independently of the will and pleasure of the person entrusted by his Majesty, with the administration of the local government for the time being. 2. That Louis Joseph Papincau, Esquire, one of the Members of this House, v ho has seivcd as Speaker in six successive Parliaments, has been duly chosen by this House to be its Speaker in the present Parliament. 3. That the Act of the British Parliament under which thi^ House is constituted and assembled, does not require the appvoval of such person so chosen as Speaker, by the person administeiing the government of this Province in the name cf his Majesty. 4. That the presenting of the person so elected as r**^ eaker, to the King's Representative for ap- proval is foimded on usage only, and that such ap- proval is and hath always been a matter of course. .5. That this House doth persist in its choice, and that the said Louis Jo:?eph Papineau, Esquire, ought to be and is its Speaker. Mr. Ogdea stated no motion could be received till a Speaker was nominated, and the m2,ce on the table, which was not now the case. Mr. Vallieres stated that the members, who had taken the side of the crov/n, argued that the House* tacitly adm.itted the autho ity of the crown to dis- allow, when they asked for approbation. Did not the House at the same time ask for freedom of de- 454 bate, for their ancient privileges and rights, and would they not be astonished if his Excellency were to deny their requests. No instance could be produced, since the revolution of 1688, of such allowance, and in every respect the address to the King's representative was but an act of politeness on the part of the House. Mr. Ogden was happy in having it in his power to answer the Honorable member for Huntingdon (Mr. CuviUier.) On many occasions he had heard the Colonics cited as favourable to the views of the former houses — when they were asked to vote a civil list after the example of England — the ans- wer was that the Colonies did not do so. He would now cite an instance from Nova Scotia in 1806 when the Speaker elect was disallowed, and a new one chosen in his place by the Lower House of that province. He hoped the House would now follow the act of the Colony they were so fond of referring to tor example. Mr. Quesnel stated Mr. Papineauwas the Spea- ker of the House and the mace ought to be on the table. ' Mr. A. Stuart stated though his opinion might differ from that of the majority of the mem- bers he would not shrink from addressing t«v>m. He could not deal in the same roundness of asser- tion or boldness'of assoveration as the Honourable membei: for Huntingdon, (CuvilUer) but he would make some remarks on what the gentlemen had advanced — The mace could not be on the table till a Speaker was chosen — they had no Speaker and no motions could be mooted now. He would not refer to the qualifications or the personal char- acter of the individual who had been yesterday chosen by the member? — but he would briefly re^ mark that their Speaker ought not to be a leader of any party in that house — he ought to be an in- dividual who was not hostile to the Executive part 455 » of the Government, or in any way unfriendly to the representative of the Sovereign. His duty is to carry the flag of truce between the contending parties in the body over which lie presides — it be- comes him to carry the wliite flag of peace — not the bloody flag of war. Would the House of Commons of England elect an individual to tho ■ Speaker's chair who had rendered himself obnox- ious to the Government by liis gross inconsistency of conduct ? — certainly not. No Speaker would there be chosen who had placed himself in person- al collision with the Government, and such a choice if made would never be acquiesced in by the people. The duty of the Speaker is well de- fined. He is a mediator — he is to preside over a popular body from its very nature equally liable to storms as the ocean. The election of an individ- ual the known head of a party would in England be considered a disgrace if such an election ever shoald take place, but the good sense of the peo- ple of that country rendered such a supposition improbable. — They elect the Speaker for purposes of public good (a duty not to be expected from tho avowed head of a party) and for the purpose of allapng the difficulties which arise in a populnr body. That the Crown has a right of refusing tho Speaker named by the House has never till this moment been denied. !t is absolutely necessary that a person should be chosen whose character and disposition were such as to be agreeable to that branch with which he was to be continually in communication. It is also absoluteh'^ necessary that the power should exist in the Executive to give or refuse its approbation of the choice mada by the House — As far as authority and law go, they had no right to proceed to any business till the Speaker was named, and he could not he^ named till the approbation of the Governor was attained — If the law was such how could the macfe 456 o^f the Speaker be placed on the table without flying: ^iirectly in the face of that authority which had de- clared its disappixbation of their choice — how could they proceed to the consideration of any business, without the approbation of the Government. The Clerk of the House is the individual lo whom all the addresses of the members ought to be spoken: he is then chairman — he acts as such ex neceesi- tate rei — there is no necessity that the Speaker elect, should on this occasion have taken the chair to report M'hat had occurred this day in the Upper House — for any one of the members was compe- tent to declare such proceeding as they were to etate the order of yesterday to elect a Speaker.. The Speaker chosen by the House takes the Chair Bubject to the approbation of the Governor in Chief — he has only a quasi possession of it, till the period when he goes up to the Upper House — for nis appointment is subject to a defeisanee or a fur- ther confirmation by the Executive. He is noth- ing more than an inchoate Speaker — a Speaker yet in embryo or he may be considered as an ab- solute Speaker whose title is absolute, should the conditions to which it is subject not be enforced. The approbation of the Executive not being given, he ceases to be a Speaker. He is the organ of tliat House only till the choice is finally determin- ed and who is the competent authoiity to deter- mine that choice ,? The Government only. Th.e Governor acting for the King had disapproved of their Speaker elect and he is a competent author- ity. To what tribunal could thej^ appeal but to themselves — They must in all particulars elect ac- cording to the law of the land. Mr. Neilson said the House were called on to «l©ct a Speaker, but it since appeared they were Dot to elect. Mr. A. Stuart. — By law we have proceeded m mm choice and have done what we could — but 457 the work is not finished. We have the free choit* ' and power to choose whom wehke, and now that ■ we have been sent back to re-consider our choice, we can again elect Mr. Papineau and again prf> eent him for approbation. — If again disappioved of we must proceed de novo. The present incum- bent ought only to have made the communication he had received, and nothing more. His assum- ing the chair at the present tim.e is an usuiped au- thority, and could riot be countenanced. Tbe mace must not be put on the table. Mr. Papineau stated his intention to have been, only to have made the communication of proceed-, ings and then retire, because he locked upon the> Clerk as not a competent organ of communicti.- ' tion. He then left the Chair. Mr. Cuvillier moved his first resolution. Mr. Ogden opposed it on the ground that tl>e, Clerk could not listen to any motion that did not relate to the election cfa new Speaker. They had no reasons to cfler for their choice,andat the same time that they so strenously insisted on their own privileges, they ought not to forget that the other branches had theiis. Dr. Labrie stated, they had all an account yet to ' render to their constituents. — The Doctor moved an adjournment till tc-morrowat 10 cf the clock, which was seconded by Mr. Ogden, and carried. Thursday, 22d November, 1827. The house niet at 10, pursuant to adjcurnrnent. The Cieik stated that at the adjournment the}- were considering Mr. Cuvilier's 1st Resolution which had been seconded by Mr. Leslie. Mr. Og- den stated, he had opposed the motion yesterday/ as tending to destroy the privileges and the prerog- atives of the down. They had no right to have* any motion before them, but elect a Speaker. He was soriy that so much time had been lost, but it bad given him an opportunity to search for pre-^ ficdenta. He had found that the House cf Com- 458 mons in 1672, acted differently to what the House of AssembI)? were now doing. Then, a member had made a complaint of privilege previous to the confii-mation of the Speaker by the Crown, and it was decided that no proceedings could be had till a Speaker was approved. Let the motion before the House be for the re-election of Mr. Papineau, and he could not object to their hearing it, but to bnng forward a string of Resolutions was contra- ■ ry to what he conceived riffht. He therefore, en- tered his protest against such an illegal, unprece- dented and unwarrantable proceeding. The mem- bers who had urged these Resolutions ought to cite precedents to satisfy the new members of thkt house. He had shewn a precedent of the rule to be adopted. Upon what grounds were they pro- ceedmg ? By what rules were they to be bound ? By their own ; which said that reference was to be had to the Commons of England, where their own rules were deficient. Mr. Cuvillier said, they could only proceed to the election of a Speaker. Did not the Resolu- , tions before the House, by declaring Mr. Papin- eau the Speaker, relate to that subject? The House claimed a right, viz. that Louis Joseph Pap- jJieau was the Speaker, that the act of the 14 Geo. HI. gave no power to the Governor to disallow the motion of the House. If the motions were foreign to the object of the Speaker's election, the Clerk could refuse them, but they were perfectly in order. Mr. Neilson.— Many examples might be found m the Journals when motions were received before the ratification of the Speaker, concerning writs of election. Mr. Ogden.— They have all since been expunged. Mr. Vigersajd, that the Hon. member for Thrce- Rivers (Ogden) was correct in saying, that if they employed themselves in debating* any subject for- eign to the election of the Speaker, it should be 459 laid aside, — for the House must have a Speaker, before we could proceed to business. It was a principle well established, that a motion, not per- tinent to the subject, could not be received. But the present Resolutions were relative to matters of debate. They were losical deductions from mat- ters of fact, and estabHslied principles from which consequences wer^ to be drawn, Mr. A. Stuart would keep himself to the point in question. He had yesterday endeavoured tn prove the Governor had the prerogative of disal- lowance, and he had heard notliiug advanced to the contrary. How can the House send these Resolutions to the Governor ? By what organ ? — They should act in accordance with that respfrt and kindness that ought to exist between the two branches. The members ought to keep up the forms. The only way was by an address. The Hou- e must go on Friday with their new Speaker. He never heard of Resolutions being sent to the King or his representative in the manner proposed, and he knew not how the Resolutions could be sent to the Governor. The House of Commons, in Sir E. Seymour's case persisted in their choice, and voted an address to the King stating their reasons for persisting. The King replied in the negative, upon which debates took place. The example might here be followed — this was a form, though some members despised form, and thought more of their own understandings than the wisdom ol' ages. If the House was determined to inform the Governor of their purpose, they must do so by ad- dress. Mr. Quesnel. — If by following the House of Commons, they did it suaviter in modo — they ought to act fortiter in re. The representatives « »f this country knew their rights and had two metli- ods of sending the Government notice to their in- tentions — and that was by address or by message. 4^0 Tiie reasjon of Mr. Seymour's disallowance, ha4. been the Icing's promoting him to a more elevated rank, but the House wished to retain him. Iftho Governor had stated his intention to make Mr. P'apineau Chief Justice, they might still think ho "waa £oing to serve his country, and act according- ly. But no such offers had been made, and the ^tJouse must persist in their choice and adopt tho^ llijsohitions. Mr. Christie said, the 1 st Resolution wa.s am- biguous and wished Mr. Cuvillier to state whether ho would pretend to say the Crown could elect in- dependently of the Sovereign. He hoped he would bo precise and explain his views. Mr. Cuvillier. — The resolution explains itself. ' Mr. Borgia addressed the Clerk, but in a voice too low to afford us an opportunity to report. He said, , the precedents quoted were during the Reign of Chas. '2d, when lib3rty was but feeble — during a most stormy period. To the honour of the House of Commons, the proceedings were ex- punged. Mr. Ogden ftiovedthe previous question, wheth- er the Resolutions would be heard. Mr. Stuart seconded the motion. For motion, 4 Against, 39. Tlie Resolutions were then carried. Mr. Papineau than took the Chair, and the Mace was put on the table. Mr. Ogden asked, by what authority Mr. Pa- pineau took the Chair and the Mace was on tho table — whether by a new election, or by a perse- verance in their former choice. ; Several voices, " by former choice." . Mr. Ogden, Stuart, Young, and Christie, imme- diately left the House. Mr. Vallieres moved an address to the Governor which he said was nearly the sa -ne as in Sey- Kwur's case, explaining their reasons for persisling; 461 « . . >• Hi? Excellency could not refuse accepting t!ie ad» «rmanotJlly unite them in one bond of na- tional feeling and sentiment, avail thomselve* of every means and opportunity to institute civil and religious distinctions for purposes as unworthy of true partriotisra as detriment- al to the happiness and prosperity of this pari of the Uritish Empire." - . Ei'tract from the Resohttwjis of the liki meeting held at (Quebec, 24/A December, 1827. 1. Ilcsolved — That in the opinion of thi* meeting, it is the well-estahlished prerogative of Mis Majesty to disallow or confirm the, Election of the Speaker of the Assembly of this rroviuco. 2. That, in the opinion of this meeting, the public conduct of the person elected to 1)0 the speaker of the Assembly, at the lato meeting of the Provincial Parliament afford- ed sultk'icnt grounds for the disallowance of his Election, and that the exercise of that of- fice by him was incom|)atihlo with the good understanding which ought to subsist between the Assembly and the other Branches of the TjOgislaturo. 3. That, in the opinion of this meeting, the Assembly by pertinaciously jiersevering in an election, which, in the exercise of the Roy- al Prerogative, had been disallowed, render- ed the prorogtition of the Legislature matter of indispensable necessity, and is chargeablij with all tiie public inconvenience and injury consequent on an interruption of the pro- ceedings of the Legislature." 467 Extract from the Address founded on the above Resolutions. " We, His Majesty's dutiful and loyal sub- jects, Inhabitants of the City and vicinity of Quebec, beg leave most respectfully to ap- proach your Excellency for the purpose of expressing the entire satisfaction we have derived from the firm and dignified conduct evinced by your Excellency, on the recent tiieetiug of the Legislature of this Province, iQ the judicious exercise of the Royal Prero- gative, by the disallowance of the Speaker, chosen by ihe House of Assembly, and in the Prorogation of the House on their subsequent proceedings. " The Prerogative of His Majesty, to dis- allow the Election of a Speaker of the House, we maintain to be incontestil)le and co-ordi- nate with the right of approval of that choice. •' We deeply regret in common with other of His Majesty's subjects, solicitous for the welfare, peace and Constitutional Govern- ment of this part of Flis Majesty's Dominions, that a sufficient regard for established autho- rity and for the Public Interest was not found in the Majority of the House of Assembly, to have restrained them from their pertinacious perseverance in the Election of the person disallowed by your Lordship; and while wo view the interruption of Public Business by the Prorogation of the Legislature as a most serious evil to the Province, we are at the samo lime fully satisfied that under circumstances, there was no alternative left for your Lord- ship,oa this uncommon and trying occasion." 46S NO. V. , COURT OF KING'S BENCH.— Quebec. Chasseur vs. Harnel. ^hia important case came regularly before the Court on Wednesday last when itwaa ably argued by the Attorney General, on behalf of the Defen- dant, the Counsel for the Plaintiff not appearing to euppoit his dcmuirer : — and on the last day of the Term the Judges proceeded to give judgment as follows : Chief Justice. — This is an action for a trespass, or volde de fait. The declaration of the plaintiff sets torth that the defendant entered into the [>laiatitr's house, and seized and sold certain arti-' cles of moveable property, belonging to the plain-, tiff, without any lav.'ful authority so to do ; and therefore he prays colnpensation in damages. The defendant, by an excepiion peremptoire en droit, justiiies the entry, seizuie and sale of tlio property in question, und-^r the authority of a judgment awarded by a Militia Court INIartial against the defendant, for a line of ten shillings incurred un- der and by virtue of the provisions of the ordin- ances of the ^Tth Goo. III. cap. 2, and 29th Geo. Ul. cap. 4, fai a breach of duty. This justification iho plaintiff has traversed by a general denegation of the fact and of the law. The cause has been heard upon the pleadings, and the question sub- tnitted to us i:?, whether the justification be a suf- ficient bar to the action ? if the matters of fact stated in the plea bo true, aiul this question turns entirely upon the inquiry whether the Militia Or- tjinance pass :d in the 27th and 29th Geo. III. bo or be not now in force. These ordinances wore passed by the Governor and Legislative Council, under the Quebec act, Wore the establishment of the present constitu- tipn, tvad were permanent acts. But by the Pro* I 469 Tincial Statute 54 Geo. III. cap. 4, they were re- pealed in these woids : — " And be it further en- *' acted, that from and after the passing of thi« ^* act, ai ordiiance of the late Piovinceof Quebec^ "** passed in the 27ih year of liis Majesty's leign, " intituled, itc. and also a . ordinance passed ia ■" th3 2i)th year of his Majesty's reign, intituled, " &c. shatl ho, and they are hereby repealed," Th© Provincial Statute 34 ueo. III. c. 4, was not, how- ever, a permanent act : it was a temporary act ia consequence of the 35th section which is in these woids : " And be it fuither enacted, by the au- •* thoiity aforesaid, that this act shall be and con- " tiuue in fo^ce f om the passing theicof, until tha- " first day of July, which will be in the year of our " Loid 1706> and no longer." And from hence haji arisen the doubt whether the o.dinances lepealed by this s.atute were repealed permanently, or tern* poi a:, ily. I admit the principle that a temporary act may repeal a permanent statute ; but lo effect such a repeal, the intention of the legislature to be so shv uld, in my opinion, be manifest ; for, prima, face, an act which is declared by the legislature ger!erally to be temporary, otight to have no other than a tempo aiy effect. "If," says Mr. Justice Bayley, speaking of the usual clause of continu- ance in tempoiaiy acts, in the case of the King vs. Rof'-ers, (10 Eist, p. 575) "this act mean tho *' whole cf the act, then there is an end of tha " question. — And I consider it as relating to tho " whole act ; and after the time limittd by the act " for it to have effect, I consider the question the •* same as if that act were no longer to be found 'm " the statute bock." If the present case had stood upo(n thisgiound^ I should have thought it to be a case in which tha intention of the legislature to repeal {-eimanently, wa3 particularly lequircd to be manxlcst upon th^i 25 470 face of the statute ; the consequence of a perma- nent repeal of the ordinances would have been to leave the province, its government, and its inhab- itants, vt'ithout the p"otection of a Militia, and so far in a defenceless state, in the immedia'e vicini- ty of a foreign dominion ; and to presume such an intention in the legislature by mere const-'uc- tion, is that which, in my opinion, could not be done. But the case stands ui30i batter ground, name- ly, the construction of the Legislature itself as to the effect of the 34th of Gao. the III. cap. 4. upon the ordinances v/hich is expressed in the subse- quent statute of the 43d Geo. III. c. 1. sec. 53. To_ explain this, I mu':t obsei-ve that the 34th Geo. III. c. 4. was continued by the 38th Geo. III. c. 1. sec. 63, to the first of July 1802, and f/om thence to the end of the then next Session of the Provincial Parliament ; both these Statutes, however, were repealed by the 63 J section of the 43d Geo. III. and to prevent the operation of the Ordinances of the 27th and 29th G;o. III. which, inconse- quence of this repeal of the Statutes, would have revived, if their repeal was temporary. They (the ordinances) by the same 53d section, were again repealed duiing the continuance of the 43d of Geo. III. ; and this clearly shews that the previous Statutes and the suspension of the ordinances which they con tain ea, were considered by the Legislature to be co-equal in their duration, and consequently that the o iginal intention of the Legislature was to effact a temporary repeal of the Ordina :ces and no more. Had it been other- wise, and their original intention had been to ef- fect a permanent rep3al, there would have been no necessitv for a second repeal. It will be admitted that the Legislature is the best interpreter of its own intentions and of its own acts : and as no alteration has been made in any 471 Statute subsequent to the 43d Geo. III. which bears upon the question now before us, and tha original repeal of the dinances was temporary and not permanent,we are of opinion that upon th« the expiration of the last Statute 5 Geo. III. cap, 21. on the first of May 1827, the Ordinances re- vived and have since continued to be and still are in force. Kerr, J. — Since this question first came to be mooted, I never entertained the least doubt upon the subject. It is entirely a question of construc- tion that is, whether the probationary statute 34, Geo. III. cap. 4. and the subsequent expeiinent- al acts did, or did not, operate a permanent re« peal of the Provincial Militia Ordinances ? The very preamble of the 34th of the late King shew* the anxiety of the Legislature to provide for the protection and security of the Piovince, and that it is considered a well organized Militia as the best means towards thege objects. The words irj the preamble are " whereas a itspectable Milj- " tia, established under proper regulalicns, is es- " sential to the protection and defence of thisProv- " ince." The same vv'ords are to be found in the next, and, I believe, in every succeeding temporary act relating to the Militia , and are we in the ab- sence of any express enactment to presume that the Legislature intended, by the clause of repeal in these temporary statutes, to withdraw from the Province that protection and security which a Militia is calculated to afford ? There is not only an abaence of a plain and clear dec}a:ation of tjie intention of the Legislature that these ordinance* should be for ever repealed : but a presumption of the strongest kind, derived fiom the words of the temporary acts to the contrary. There is another circumstance which has veiy great weight on my mind, derived from the Civil Law of the country. Here the Militia are, in seme respects, miniatexi 472 •*f jastice, adding; strength to the civil arm, as well as a militnry force for its defence ; and can we presume that the Legislature ifaould he so wanting to the interest of their fellow-cirizens, as to meditate the depriving the civil magistrates of their support T The authority of the King vs. Rogers, is to my mind conclusive, and I am of opinion that judgment should be entered for the Defend- tots. , BowEN, J. — I also heartily concuv* in tho result of the opinion just delivered by tho learned Judges who have preceded me, al- .though when the revival or non-revival oT the Militia Ordinances, first came under con- tideration in another phice, where I hnvo the honour to hold a sear, the opinion which I then entertained was different. — Thisliow- ever proceeded from my having over-looked the second repeal of ihese Orditiances con- tained in the 53d sec. of the statute 43 Geo. Ilf. c. 1. and having considered the question solely upon the words of repeal as contained in the first statute 34 Geo. III. c. 4. Tho latter is etititled " An act to provide for •♦the {greater security of this Province hy tho ** better regulation of the Militia thereof, and •* for repealing certain Acts or Ordinances •* relating to the same." The preamble re- ** cites thai •' a respectable Militia under pro- •• per regulations is essential to the protec* ** tion and defence of this Provinct; and tho "laws now in force are inadequate to the ** purpoHOs intended." The 31st sectiua iheo euacu *' that from aad after the pa«- 473 ** sing of this Act— (March 1793,) an Ord- " iiiauce of the late Province of Quebec, ** passed ia the 27th year of his Majesty's *' ReigQ, eotitlecj "An Ordioaoce,* &c. •' and also ao Ordinauce passed ia the 29th *' year of his Majesty's ileign, entitled *' An *' Act or Ordinance,! &c. shall be, and '* they are hereby repealed." — And by tho 35th section, it is enacted " that this Act *' shall be and continue in force from tho *' passing thereof, until the 1st of July, 1796, " and no longer, provided always that if at " the time above fixed for the expiration of *' this Act, the Province shall be in a state " of war, invasion or insurrection, the said ** Act shall continue and be in force until the •' end of such war, invasion or insurrection." What XV j\s the intention of the Legislature in any case, can only be collected from tho Janguage used by it in its enactments, and ia every such case it becomes a question of con- struction as to what the Legislature really intended. It EJ a clear rule that by the repeal of a repealSnjj; Statute, the original Statute ia re- vived, for by so doing the Le;2;islalure de- clares that the repeal shall no longer exist, 'and it is the same thing if the repealing law itself provide that the repeal shall be only temporary. But it is not true, as has been asserted, that a perpetual law can in no in- stance be repealed by a temporary one ; for it is an undoubted principle ia law, that a «27th Geo. 3. c. 2. t29th Geo. 3» c. 4. 474 fltature, though tempornry in .some of its provisious, may have a perinaueut operalioa in other respects. Tliia point catne under discussion in the Court of King's Bench ia England, in 1803,* when tiie question wa» irhether the Statute 26, Geo. HI. c, 108, sec. 27, which repealed the Stat. 19 Geo. IJ. c. 35, having itself expired at the end of th» Session of Pailiameni, after June 1795, th» Btat. 19 Geo. II. did not revive ; and Lord Elicnhorough in delivering the opinion of the Court expresses himself thus, ** that *' would not necessarily ft)ilovv, for a law *' though temporary in some of its provision* •* may have a permanent operation in other •* respects. Tiie Slat. 26 Geo. III. c. 108, •* prof»-sses to repeal the Stat. 19. Geo. 11. " c. 35, abstjlutcly, thoufjh its Kempt, Knight Grand Cross of the most Hononiable Miliiary Order of il;e Baih, and Admini^tralor of liie Government of Lower Canada, hearing date iht- lnt'nty-eij;hth y Message of his Excellency the Lieuteuaiit 479 Governor, bearinjij date the eighteenth day of February, one thousand eight hundred and twenty five, laid before both Houses of th» Legislature, it appears that the funds already appropriated by hnv are not adequate to de- fray the whole of the expenses of your Ma- jesty's Civil Government in this Province, and of the adiriinisiration of Justice, and other expenses mentioned in the said Mes- sage; and whereas it is expedient to mako further provision to\vards defraying thesama for the year commencing the first day of No- vember, one thousand eight hundred and twenty-four, and ending tlie thirty-first day of October, one ihoiisand eight hundred and iwenly-five; We, your Majesty's most duti- ful and loyal subjects, the Commons of Low- er-Canada in Provincial Parliairif nt assem- bled, m(jst liund)ly beseech your Majesty, that it may be enacted, and be it enacted by the King's most Excellent Majesty, by and with the advice and consr-nt of the Legisla- tive Council and Assembly of the Province of Lower-Canada, constituted and asi'tmbled by virtue of and under the authority of aa Act passed in the Parliament of Great-Bri- tain, intitled, " An Act to repeal certain parts of an Act passed in the fourteenth year of his Majesty's Reign, entitled, "An Act fcf making more efi'ectual provision for tho Gov- ernment of the Province of Quebec, in Nortli America, and to make further provision for the Government of the said Province;^* And it is hereby enacted by the authority of the same» that in additjoo to the reveuueft 4S0 ttppropriated for defraying the expensed of ihe administration of Justice, and f;;r ilie sup- port of the Civil Government of the Province, . there shall be supplied nod paid from and «ut of the unappropriated monies which now are. or hereafter may come into the hands of the Receiver Genera! of the Province for the time being, such sum or sums as maybe cecessary to make up and complete a sum not exceeding; fifty ei<^b.t thousand and se- veuty-fiuir pounds, two shillings and eleven pence, sterlinj;. fur the purpose of delV;i}ing the said ex{)enses of the civil Government of lliis Province, and of the administration of justice therein, and the other expenses of iho said year commencin;;^ the first day of No- vember, one thousand ei<;Iit hunrlred and t\Tenty-four, and ending the thirty- first day of October, one thousand ei{:,ht himy Law provided for the support of wound- ed or disabled IVlilitia-men. nor the appro- priations made by th 1 Acts passed in tho third ^aar of his Majesty's reign, chapters third and ihirty-niuth. II. And be it further enacted by the au- thority aforesaid, that the due application of the monies by this Act appropriated, shall be accounted for to bis Majesty, his Heirs and {Successors, through tlie I^ords Commissicm- ' ^rs of his Majesty's Treasury for the time being, in such manner and form, as his Ma- jesty, his IJeirs and Successors shall he pleas- ed to direct. IIL And be it further enacted by tbe avL" ■ 4S1 tboriry aforesaid thnt a detailed urfooritof the raooics expended iiiuler the authority of this act, shall bo laid before the Legislafur* during the first fifteen days of the siext se»° sion. ' NO. Vllf. House of Assembly, November 2S, 1S28. r C. Yorke, Esq. Secretary to the Adrcinistratoi" of the Government, presented a Mcs age fiom hit Excellency, which was lead bv Mr. Speaker. James Kempt, — His Excellency the Adminis- trator of the Government avails himself of the earliest opportunity of conveying to the House, of Assembly, the following Communication, which h© has received the King's Commands to make, to the P:ovinc:al Parhament. in 'aying the same before the IIou?e cf Assem- bly, his Excellency is commanded by his Majesty to s'ate, that, his Majesty has received tco many proofs of the loyalty and atlachmtnt of his Can- adian Subjects, to doiibi: their cheerful acquies- cence in every effoit which his Majesty's Govern- ment shall make to reconcile past differences, and he looks forward with hope to a pe.icd, when, by the return of harmony, all branches of the Legis- lature will be able to bestow their undivided atten- tion on the best methods of advancing the proa* perity aid developing the resouices of the exten- sive an?] valuable Te ritories comprised within his Majesty's Canadian Provinces. With a view to the adjustment cf the question! in controversy, his Majesty's Government has communicated to his Excellency Sir James Kempt, its views en different branches of this impotiant subject ; bat as the complete settlement of th« aifaira of the Frovioce caouQt b)e effected but witli 482 the aid of the Imperial Parliament, the Instructions of bis Excellency are at present confined to tho discussion of those points alone, which can no longer be left undecided without extreme disad- vantage to the interests of the Province. Among the most material of those points, the first to be adverted to, is, the proper disposal of the Financial Resources of the country ; and with the view of obviating all future misunderstanding on this matter, his Majesty's Government have prescribed to his Excellency, the limits within ■which his communications to the Legislature on this matter, are to be confined. His Excellency is commanded by his Majesty, Jx> acquaint the Houseof Assembly that the discuF.- , aions which have occurred for some years past, between the different blanches ofthfe Legislature of this Province, respecting the appropriation of the Revenue, have engaged his Majesty's serious attention, and tiiat he has directed careful inquiry to be made, in what manner these questions may be finally adjusted with a due regaid to the Pre- rogative of the Crown, as well as to their Consti- tutional Piivileges, and to the general welfare of his faithful subjects, in Lower Canada. /,35,500 ") His Excellency is further commanded 5,000 I to state, that the Statutrs passed in the 4,200 i 14th and 31st years of the Reign of his [late Majesty, have imposed upon the /.34,700 j Lords Commissioners of his Majesty's j Treasury, the duty of appropiiating tho produce of the Revenue g: anted to his Majesty by the first of these Statutes; and that, whilst tho law shall continue unaltered by the same authoiity by which it was framed, his Majesty is not author- ised to place the Revenue under the control ofth» Legislature of this Province. 14th Geo. III. ) The proceeds of the Revenue 35th Geo. III. ) ansing fiom the Act of the Impe- 41st Geo. III. 3 rial Parliament 14th Geo. III. to- 483 gether with the sum appropriated by the Provin- cial Statute 35th Geo. III. and the duties levied under the Provincial Statutes 41st Geo. III. cap. 13 and 14, rnay be estimated for the current year, at the sum of Z.34,700. Casual Revenue, /.3,000 ^ The produce of the Fines, &c. - 400 Casual and Territorial . Revenue of the Crown, 1.3,400 ( and of Fines and For- J feitures, may be esti- mated for the same period, at the sum of /.3,400. These several sums making together the sum of /.33,100, constitute the whole estimated Revenue arising in this Province which the Law has placed at the disposal of the Crown. His Majesty has been pleased to direct that from this Collective Revenue of Z.38,100, the sala- ry of the Officers administering the Government of the Province, and the salaries of the Judges shall be defi-ayejd. But his Majesty being graciously disposed to mark, in the strongest manner, the confidence which he reposes in the hberahty and affection of his faithful Provincial Parliament, has been pleased to command his Excellency to an- nounce to the House of Assembly that no farther appropriation of any part of this Revenue, will be made until liis Excellency shall have been enabled to become acquainted with their sentiments, as to the most advantageous mode in which it can b« applied to the public service ; and it will be grati- fying to his Majesty, if the recommendation made to the Executive Government of the Province on this subject shall be such as it may be able with propriety, and with due attention to the interest and the efficiency of his 2^ajesty's Government to adopt. Plis Majesty fully rehes upon the Hberality of his faithful Provincial Parliament to make such further provision as the exigencies of the Publie 4U Service ol ths Province (for which the amount of the Crowa Revenues above mentioned may prov» Jaadequate) may require. The balance of money in the hands of the Re- eeiver General, which is not placed by law at the disposal of the Crown, must await the appropria- tion wh.ch it may be the pleasure of the Provincial Legislature to make. His Excellency is further commanded by his Majesty to recommend to the House cf Assembly, the enactment of a law, for the indemnity of any Persons who have heietofore, without authority, signed or acted in obedience to wan ants for tho approp:iation to the pi blic seivice of any ur.appio- , priated monies of this Province. And his Majesty anticipates that they will, by an acquiescence in this recommendation, shew that they cheeifully concur with him in the cfibrls which he is new making for the estabhshment (fa pern antnt fccd understanding, between the difieient branches of the Executive and Legislative Gcverrrnent. The proposals which his Excellency has been thus instructed to make lor the aeljuslment cf the pecuniary affairs of the Pi evince, aie intended to meet the difficulties cf the ensuing year, ard he trusts they may be found effectual for that pnipcse. His Majesiy has, hcwever, further ccnnrarded his Excellency to acquaint the He use cf Assem- bly, that a seheme for the pe^ranent set lementof the Financial concerrs cf Lower Canada, is in con- templation, and his Majesty entei lairs no dti:bt of such a result being attainable as will picve con- ducive to the general welfare of the Pievince, tnd satisfactory to his fai hful Carcdian Si bjcct?. The complaints which have re-ached lis Majce- ty's Govemment rcepectirg the iracUqia'.e secu- rity heretofore f iven by the Receiver Gcrcial ard by the Sheriffs, for the due ajplicaticn cf the Fub- Bc Monies in their hands have net esctptd \htk 485 V5ry serioua attention of the Ministers of ths Crown. It has afipearcd to his Majesty's Government, that the most eltectiiai security against abuses in these departments, v/oitld be found in enforcing in this Province, a strict adherence to a system es- tabhshed under his Majesty's instructions, in other Colonies, for preventing the accumulation of bal-: ances in the hands of Pubhc Accountants, by obliging them to exhibit their accounts to a com- petent authority at short intervals, and immediate- ly to pay over the ascertained balance into a safe place of deposit ; — and in order to obviate the difficulty arising from the v.'ant of such place of deposit in Lower Canada, his Excellency is au- thorised to state that the Lords Commissioners of his Majesty's Treasury v/ill hold them-selves res- ponsible to the Province for any sums which the Receiver General or Sherifis may pay over to the Commissary General, and his Excellency is in- ptructcd to propose to the House of Assen:bly, the enactment of a law, binding those oiflcers to pay over to the Commissary General such balances, as, upon rendering their accounts to the competent autliority, shall appear to be remaining in their hands, over and above what may be required for the current demands upon their respective ciHces; — -such payments being made on condition that the Comimissary General shall be bound en de- mand to deliver Bills on his Majesty's Treasury for 'he am.ount of his receipts. « His Excellency is further instructed to acquaint the House of Assembly, that although it%vas found neceaary by an Act passed in the last session of the Imperial Parliament, 9th Geo. lY. cap. 76, sec. £G, to set at rest doubts which had arisen whether the statute for regulating the distribution betv/een the Provinces of Upper ard Lower Canada, of the duties of customs collected at Q^uebec, had not 4S6 been inadvertently repealed by the reneral terma of a late date : his Majesty's Gove.nment have no ilesire that the interference of Pa liamcnt ia this taatter should be perpetuated, if the Provincial Legislatures can themselves aff^ee upon any thing -for a division of these duties which may appear to be more convenient aid more equitable ; and on the whole of this subject, his Majesty's Gcvem- jnent will be happy to receive such information and assistance as the Letjlslative Council and Assem- bly of this Province may bo able to supply. > The appoiatraent of an Agent in England to in« dicate the \visies of the Inhabitants of Lower Canada, appearins? to b? an object of jrreat bo- licitude witli the Assembly, his Majesty's Govern- ' ment will cheeifully accede to the desire expressed by the House of Assembly upon this head ; pro- vided, that such Agent be appointed, as jn other British Colonics, by name in an Act to b3 passed by the Legislaive Council and Assombly, and ap- proved by the Executive Government of the Prov- ince ; And his Majesty's Givernment are persuad- ed that the Leglsla!:u e will not make such a selec- tion, as to imp")se on the Government, the painful and invidions daf:y of rej:?cting the Bill on the j^round of a ly persDnal objection to the proposed i&f^ent. His Majesty's Government is further willing to' consent to the abolition of the Office of Agent aa it i.i at pre'33nt consritutcd, but it is trusted that the libora'ity of the Plouse of Assembly will in* ^amnif the p esent holder of this Office, to who»ie conduct in that capacity no objection appears ever to have been made. Indeed, without pome ade« quate indemnity beinrr provided for him, it woul4 not b:; conpatib'e Avilh justice, to consent to the immediate ab olinon of his Office. Ilia Majesty's Government being very sensible. of tk'i great iaconvenicnc® wnicli had beco suS" tained, owing to the large tracts of lands which have bsen saffjred to reinain in a waste and un- improved condition, in consequence of the neglect or the poverty of the grantees, it has appeared to his Maj* sty'3 Government to be desirable that the laws in foice in Upper Canada, for levying a Tax upon wild land, on which the setdement Duties, had not been peifoi'med, should be adopted in thi* Province, and his Excellency is instructed to preg«i this subject on the attention of the House of A»» sembly with that view. The attention of his Majesty's Government ha» also been drawn to several other important Tc-^ pics ; among which may be enumerated, tha mischiefs which are said to result fiom the system of tacit mo tagos effected by general acknowl- edgment of a debt before a Notary ; the objec- tionable and expensive forms of con\'eyancing eaid to bo in use in the Townships ; the neces?ity of a Rogistratipn of Deeds ; and the want of prcpei' Courts for the decision of causes arising m thft Townships. — Regulations affecting matters of this nature can obviously be most eftectually rr_ade b/ the Piovincial Legislature; and his Excellency is commanded to draw the attention cf the House of Assembly to these subjects, ts matters requiring their eaily and most setious attention. In conclusion, his Excellency has been com- rnanded to state, that his Majesty relies for aa amicable adjustment of the varicus qucetions v/hidi have been so long in dispute, upon the kyaUy and attach. nent hitherto evinced hy his Majesty's Can- adian subjects, and on that cf the Proviicial Far- .liament ; and that his Majesty enterfaina n-a doubts of the cordial concun'ence cf the House of Assembly in all measures calculated to promcte Jhe common good, in whatever quarter euca meaa- urea may happen to sagiaatc. 488 Protests against the passing of the Supply Bill, for 1829. Dissentieot. — 1. Because His Excellencf the Administrator has asked of the Assembly a sum not exceeding £24,028 10 9 iu aid of the Revenue at t!ie disposal of the Crown, and that body had passed a Bill of aid and supply, whereby the whole perinaaant Rev- enue is rrjixed and blended with unappropri- ated monies and though ostensibly a much larger sum than £24028 is thereby given, yet' i'n point of fact the Assembly has granted for the limited space of one year no larger sum than £16,342 2 6 in aid of the permanent Revenue at t'le disposal of his Majesty. 2. Because, whatever may appear to he the obvious construction of the words of this Bill, the Assembly having used the same words in an Act which passed the Legisla- ture in the year 1825, which received an ex- position, according to wliat was conceived to be the icternion of the Assembly, and whereby some of tlie Public Servants,, who had been loug paid from the permanent Revenues were deprived of their salaries, it cannot ninv be presumed that any other in- terpretation wili be put on this Bill thrui that which was g,iven to the Act of the year 1825. 3. Because, by this Bill the Assembly as- sumes to itself a right of disposing of a rev- e?xue exceeding £38,000 per annum, arising as well from the Briti-^h Statute, 14 Geo. III. as the Provincial Statutes 35 Geo. I! I. 4S9 mnd 41 Geo. III. ns the hereditary RerasD«t^ of the Crowo, which arc at the exclusive di«- posal of his Majesty for the raaiotenaqce of jiis Goveraraent and the due admiaistratioi of the law. 4. Because, the Assembly in its frequent Attempts to obtain the disposal and manage^ snent of these Revenues, is deeply impressed with an opinion that its authority and influ- ence will be increased in the same propor- tion as the authority of the Crown in thif province will be thereby circnmscribed. 5. Because, the Assembly has thus in part achieved its plan of wresting from the Crowa the means to carry into effect its agreementi ivith the Puhlic Servants, who are engaged toserve during their lives or good hehavioun 6. Because if the practice now attempted to pass annual Bills of a similar nalureshould prevail, all the officers of Government will thereby become dependents on the Assem- bly, subject at the end of twelve months ts be deprijed of their salaries, as the ploasur»> or caprice of that body may dictate. 7. Because by the operation of ihis Bill the incomes of twenty-eight Tuhlic Servautt who are not, considering the labour and re- sponsihiliiy aitached to their offices, ade- quately paid, u ill he dimitnsjied and some of whom, after years of Public Service be de- prived of a livelihood. 8. Because it has been quaint'y said that •• certainty is the mother of p^uiei and re- pose," and. persisting to grant the salariea of all tbo uSirersof thQCivU GuveramQut («. 490 «Q Annual Act, the Assembly will perpetu- ate that disquietude, which this Provinc© lias unhappily laboured under for many years. 9. Because if the entire disposal of the porinaoent Revenue of the Crown should bo resigned to the Assenfibly, the Legislative Power will thereby obtain means to obstruct tho operations of the Executive Government at the conclusion of every succeeding year. Lastly, Because the words of the third clause namely, " a detailed account of tha Kionies expended under the authority of thia Act shall be laid before the Assembly" are a departure from the ancient and accustomed similar clause, which has heretofore invari- ably provided that such account should be rendered to both Houses of the Provincial Legislature, and a clause so conceived is therefore an infringement on the rights and privileges of this House. T. Coffin, Edwd, Bowen, J. Kerr, J. Stew- art, W. B. Fellou, Matthew Bell, Dissentient. — For the above reasons and rIso because in our opinions this House ought Dot to concur in a Bill Jo which the King'? Representative cannot assent without sac- rificing the rights of his Majesty, to distrib- ute the Revenue at the disposal of the Crown, and this House has no assurance that hia Majesty has consented to waive the exercise of that right, but on the contrary there ex- ists OQ the Journals of this House sufficient evidence to prove that his Majesty's instruc- uoua to his representative iu this FroviucB 491 prohibit him from giving the Royal asseisi to a similar Act. Because the Bill contains a clause which BS unusual, uncoostirutional and destructiv* of the rights of this House. W. B, Feltou, Matthew Bell, Edwd. Bowen. Dissentient.— 1. Because this Bill containt B clause which is unusual, unconstitutional, and destructive of the rights of this House. 2. Because the decision of the House at ihewn hy the division on the question, v/at against the passing of the Bill; the non-con- tents heiog eight in number and the content* seven, exclusive of the Speaker, and th« questions having been carried in the affirma- tive only by the Speaker in the chair giving a vote as a member and then as his casting vote, a practice which is at variance with the usage of the Imperial Parliament, and in our opinion is not authorised by the Ac8 31 Geo. in. cap. 31, which g;ives the Speak- er of the Legislative Council and Assembly, only a casting vote. W. B. Felton, J. Kerr, Matthew Bell, Thos. Coffio, Edwd. Bo weo, John Stewart, LIBRARY OF CONGRESS 017 397 992 7