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levying the duties imposed by the Act of the 51st of His Majesty, and for other purposes," which Bill was amended in the Council by striking out that appropriation, and so returned to the Assembly, which refused to pass it as amended.

It had long been a favourite project with the Assembly to interfere with the salaries, and to lower the consequence of persons holding civil appointments under the Crown, and a Bill was now, for the second time, brought forward for this purpose, by which Bill the salaries and allow ances from the Government were to be diminished in the following proportions, viz.: £15 per cent. on £1500 and upwards, £12 per cent. on £1000 and upwards, £10 per cent. on £500 and upwards, and £5 per cent. on £250 and upwards, per annum.

To give this measure an air of plausibility the Bill was intituled "An Act to grant to His Majesty a duty on the income arising from civil offices, and on pensions to be applied to the defence of the Province in the present war with the United States of America."

It is to be observed, that the permanent revenues of the Province are not adequate to the payment of the civil list, and the dificiency is made good from the military chest, it may therefore be said that by lowering the salaries of the officers of Government so much less money would be required from the exchequer of Great Britain; but this could not fairly be called a Provincial Aid towards carrying on the war. The whole saving under this Act would not have exceeded £2500 per annum; but those officers of Government who now have the utmost difficulty to subsist on their salaries would by this measure have been reduced to the extreme of distress. A special exemption was made in the Bill in favor of the Governor or person administering the Government, and also of officers holding commissions or staff appointments in the Militia, (as the major part of the framers of the Bill did,) and yet the pay and allowances of the field and staff officers of the Militia are even on a more advantageous footing than those of the regular forces, and greatly exceed in value the generality of the appointments under the Civil Government. This Bill was of course rejected by the Legislative Council as it had been in the preceding session.

Thus frustrated in various particulars the Assembly proceeded with vigor to the accomplishment of their principal design, the crying down the several Courts of Justice, and finally, voting articles of impeachment' against the Chief Justice of the Province and the Chief Justice of the Court of King's Bench for the District of Montreal.

A violent and most libellous Address was voted to His Royal Highness the Prince Regent, accusing those Judges by name, of treason, perjury and oppression, and praying that they might be dismissed from their offices. This Address together with one to the Governor in Chief, praying that His Excellency would be pleased immediately to suspend the said Chief Justices; also the resolves of the Assembly, in which the whole of the Judges of the Court of Appeals and Courts of King's Bench, collectively (with the exception of Mr. Bedard) were criminated and charged with having exercised unconstitutional and illegal powers, were ordered to be published in a separate pamphlet, and copies were furnished for the Provincial newspapers, by which means a strong impression was made upon all classes of people throughout the Province to the unspeakable detriment of the Judges in the public opinion, and of the administration of Justice in the King's Court-yet had there not been any evidence before the Assembly, beyond what was contained in the established rules of practice, nor had any complaint whatsoever been preferred by the public against those rules or against the Judges individually or collectively!

It is deserving of notice, that, during the whole of the session, sel1 Chief Justice Sewell and Chief Justice Monk. Documents connected with their impeachment are in Doughty and McArthur, pp. 471, ff.

Proceedings in the Assembly of Lower Canada on....the Impeachment of Jonathan Sewell and James Monk. (Printed by order of the House: English and French, 1814.)

dom more than half the number of members of which the House is composed attended; and amongst these, the most respectable, including the English members, finding themselves outnumbered, gave way to the torrent, and seldom spoke or voted. All men were astonished that no steps were taken by the King's Representative to check these revolutionary proceedings, more especially as the principal movers of them were persons whom he himself had recently appointed to offices under the Crown. But it is now suggested that it was necessary to give way to the Assembly, iest the Act to authorise the further issue of Army Bills should be lost; an Act containing clauses unconstitutional and unprecedented, but in the formation of which it appears that (after all his sacrifices) the Governor had not sufficient influence to guide and direct the House! These events may possibly lead His Majesty's Ministers to consider whether it would not be advisable to set aside the Provincial Statute by an Act of the Imperial Parliament, pledging the faith of Government as a security for the redemption of such Army Bills as the Commander of the Forces may find it necessary to issue for the public service; and there can be no doubt but such an Act would be far more satisfactory to the inhabitants of these Provinces, and far more advantageous to the interests of the Crown than that which has now been obtained at the risk of so much future mischief.

It will be seen by the Governor's speech at the close of the session into how much difficulty and discredit he had brought himself. In the course of their proceedings both Houses had passed resolves severely animadverting on his conduct; and he now availed himself of the opportunity publicly to reprimand both the Houses in his turn!

A few days after the prorogation, the Provincial Parliament (having completed the term of four years) was dissolved, and Writs were immediately issued for a general election.

Thus has ended an Assembly which was called together for the first time by Sir J. Craig, which in it first session, and under what were then represented as very irritating circumstances, was (after manifesting some symptoms of dissatisfaction) induced to receive from the Legislative Council, and unanimously pass a Bill for the suspension of the Habeas Corpus Act, and which from that period to the end of their Session cordially concurred in every measure that could tend to promote the peace, happiness and prosperity of the Province !

A few words will suffice with respect to the future prospects of this Colony. Immediately after the prorogation the most respectable English members publicly declared their determination not to offer themselves as candidates at the ensuing general election. That election is now over, and the returns are precisely such as were expected under the impression produced throughout the Province by the proceedings of the late Assembly. From the time that the Assembly began its attacks on the Courts of Justice, the licentiousness of a press recently established at Montreal (from whence papers in the French and English languages are published weekly) has appeared to have no bounds; every odium that can be imagined is attempted in these publications to be thrown on the memory of the late Governor in Chief, on the principal officers of Government, and on the Legislative Council; and the poison thus distributed is left to work its effect on the mass of the people without any check or interference on the part of the Crown: thus is the disorganizing party encouraged to proceed; thus is it led to hope, that any future Governor may be deterred from exercising that vigor which the preservation of His Majesty's Government may require.

The new Assembly will have in it all that was bad in the last, together with a great accession of the most violent, unprincipled and worthless characters in the Colony, scarcely a man of respectability would stand forward as a candidate at the late general election, and the British and commercial interests may now be considered as excluded from the Assembly. Still however the country is not lost. It is not yet in a state of insurrection against His Majesty's Government, it may still be pre

served to the Crown without having recourse to the bayonet. But the remedy must be immediate.

Should His Royal Highness the Prince Regent be pleased to entrust the administration of this Government to a man of high rank, of known and established character for prodence, firmness, dignity and ability; a man accustomed to Parliamentary business, not to be terrified by the clamours of the ignorant, nor appalled by the projects of the vicious: such a man would readily find means to convince the Assembly of its insignificance when disposed to do mischief; and, by making it manifest that all his measures had for their object the public good, he could not fail of restoring to the Province a state of tranquility and happiness.1 H. W. R.

Quebec, 12th May, 1814.

LXXXIV

OPINION ON THE PRIVILEGES OF THE HOUSE OF ASSEMBLY AND ON THE CASTING VOTE OF THE SPEAKER OF

My Lord,

THE LEGISLATIVE COUNCIL.

[Trans. Doughty and McArthur.]

2 Lincoln's Inn, 30th December, 1815.

We have had the honor to receive your Lordship's letter of the 20th Instant, transmitting to us two papers containing questions which have arisen on the construction of the Act of 31st Geo. 3rd, Chap. 312, respect ing the Government of Canada; and desiring us to take the same into our consideration, and to report to you our opinion thereupon in point of Law; we have accordingly considered the same, and as to the questions stated in the paper No. 1 which we have returned with our report, first "Whether by the several Clauses referred to the Assembly of Lower "Canada is entitled to any privileges under that Statute," we beg to report to your Lordship that we consider the Members of the Assembly of Canada entitled to such Privileges as are incidental to, and necessary to enable them to perform, their functions in deliberating and advising upon, and consenting to laws for the peace, welfare and good Government of the Province.

In answer to the second question, "Whether the Assembly is entitled "to all the Privileges to which the House of Commons of the imperial "Parliament are entitled under their own peculiar Law, the Lex Parlia"mentaria."

We beg to report, that we think they are not so entitled. The Privileges of the High Court of Parliament composed of the King, The Lords spiritual, and temporal, and Commons of the Realm, are founded on the antient law and Custom of Parliament and we conceive arise from the supremacy, or as it is sometimes called, the omnipotence of this High Court, when the Parliament or great Council of the Nation thus composed sat together in one Assembly; Tho' the period when the two houses separated in their sittings, is not ascertained, yet whenever that event took place, each house retained certain privileges and powers; The Lords the judical power; the Commons the power of accusation and impeachment, and to both remained the right to pass bills of Attainder, and of pains and penalties to be assented to or rejected by the King, and each retained the original right of asserting, deciding upon, and vindicating the mighty privileges of their separate houses, but still we apprehend as constituent parts of our great Council or High Court of Parliament by

1 Prevost's account of the events referred to in this document ought to be read. The dispatches are in Doughty and McArthur, pp. 462 ff, 465 ff, dated 18 March and 4 September, 1814.

2 Constitutional Act, 1791 (No. LV).

virtue of their united Supremacy. To measure by this standard the privi leges of Legislative Assemblies created either by the King's Charter, or by Act of Parliament, for the purpose of enacting Laws for the peace, welfare and good Government of any particular Colony, or district, part of the Dominions of the Crown of the United Empire, would be to give to subordinate bodies the mighty power of supremacy. The King, by his charter, could not, we apprehend, grant such powers, and tho' Parliament might, if it should deem it expedient, bestow them, yet unless it has so specifically done, such powers cannot belong to them as incident to their Creation and Constitution. If these powers and privileges belong to colonial Legislatures as arising from or by analogy to the Law and custom of Parliament, they must belong as well to the Legislative Council as to the House of Assembly, and then the judicial power in the last resort upon matters arising in the Colony, would be in the Legislative Council; the right to impeach would be in the House of Assembly; and the right to try and adjudge such impeachment would belong to the legislative Council; they would each have a power with the assent of his Majesty to enact Bills of Attainer, and of pains and penalties; it is however clear that by the Statute the Legislative Council have no judicial powers, belonging to them, neither have the House of Assembly any power of Impeachment in the legitimate sense of the word, however they may use the term in any accusation or complaint they may make, either to his Majesty in Council or in any petition they may present to the Parliament of the United Empire.

This claim to possess the same privileges as belong to the House of Commons has sometimes been asserted by certain colonial assemblies, as was done in the year 1764 by the House of Assembly of Jamaica, but we apprehend it has never been admitted or recognized, tho' in that particular instance it appears to have been thought expedient, so far to comply with their complaint, as to direct the succeeding Chancellor of the Island to vacate and annul the proceedings which had given offence to the House of Assembly. That the House of Assembly of a Colony is not entitled to the same privileges, nor has the same power in vindicating them as belong to the House of Commons of the imperial Parliament has been the opinion of very great and eminent Lawyers in former times.-Such was the opinion of the late Lord Camden, when Attorney General, as expressed in these words, “Our house of Commons stands upon its own laws, the "lex Parliamenti, whereas Assemblies in the Colonies are regulated by "their respective Charters, Usages, and the Common Law of England, and "will never be allowed to assume those privileges which the house of "Commons is entitled to justly here upon principles that neither can nor "must be applied to the Assemblies of the Colonies." Such appears also to have been the opinion of Lord Mansfield and Sir Richard Lloyd, and the same is to be collected from an opinion given by Sir Simon Harcourt and Sir Edward Northey in the year 1704, and from the opinions of other persons of Eminence, on Cases on which this question has individually arisen. Thirdly, it is enquired if the House of Assembly are not entitled to the privileges founded upon the lex Parliamentaria to what extent they are entitled? We beg leave to observe that as no particular privilege is stated, as that, to which claim is now made, it is difficult to give a precise answer to this question, or to point out the privileges to which they are by Law entitled, otherwise than by giving a general outline.

The House of Asesmbly of Upper Canada has not existed long enough to have established privileges by usage; the Act of Parliament has not delineated any, and we therefore conceive the outline to comprize and to be confined to such only as are directly and indispensably necessary to enable them to perform the functions with which they are invested, and therefore may be fairly said to be incidental to their constitution. We mention some of these as examples; personal liberty, eundo, redeundo et morando, or freedom from arrest, in civil Cases; a power to commit for such Acts of contempt in the face of the House of Assembly as produce disturbance and interruption of their proceedings, the freedom of debate

upon the subjects of the Laws to be enacted or considered; they think also they would have the power of expelling a Member convicted by any competent Tribunal of a crime of an infamous nature, and as to this latter instance, we are warranted by an opinion of Lord Mansfield and Sir Richard Lloyd in the year 1755. The right of regulating and ordering their own proceedings in their Assembly consistently with the Statute must necessarily be incident to them, and as to the privilege of deciding upon the right of sitting either in legislative Council, or the house of Assembly, this can no longer be a question of privilege, because such right is in certain cases given by the 31st of Geo. 3d. Ch. 31 to the Legislative Council as to their Members and is enacted by the Provincial Statute of the 48th Geo. 3d Chap. 21 as to the houses of Assembly.

As to the question stated in the paper No. 2 which we have also returned with this Report "whether the course of proceeding therein "described is the legal course of proceeding in the legislative Council of "Lower Canada under the Statute of the 31st of Geo. 3rd. Ch. 31," we beg to report to your Lordship that we conceive the true meaning of a casting vote to be that of a second vote given to some Member of the constituted body in case there shall be an equality of votes including such members original vote: the phrase however is also in common parlance used as descriptive of the vote of some particular member or officer of such Body, who by its constitution has no vote in the original deliberation or decision of the question proposed, but whether it is to be understood in one sense or the other must be decided by the Charter or Act of Parliament constituting the body, if it be extant; or by antient and immemorial usage if no such Charter or Act can be found:-The ancient and immemorial usage of the house of Commons, manifesting the Law and Custom of Parliament, is the foundation of the practice of the Commons' House of Parliament, which does not, and cannot apply to the Legislative Council of Canada To decide the present question resort must be had to the Act of the 31st Geo. III, Ch. 31, for neither in the regulation of their own proceedings, nor in any other respect can the Legislative Council act against the provisions of that Statute. If the Parliament had meant that the person who should be appointed Speaker should be thereby deprived of any of his rights or franchises as an individual Member, and should not vote unless the other Members (exclusive of himself) were equally divided, we are of opinion the Statute would have been penned in very different terms; there is nothing in the Clause referred to which divests the Speaker of any of the rights belonging to him as a Member of the Legislative Council separate and distinct from the Office or Character of Speaker. Tho' the Legislative Council is not confined to any definite number yet it may frequently happen that the number of which it is composed, or the number which may attend, will be an even number; Upon such occasion if the Speaker were excluded from giving an original vote, a majority might exist on a question on which he might think with the minority, and by that means he would be deprived of the exercise of his right or franchise. To prevent the inconvenience of equal division, when his vote is included, it was, that the Statute gave the casting vote to him on an equality of Voices,—and we are of the opinion that the giving the casting vote in terms was meant to give a vote or power of voting superadded to his original vote as an abridgement or in derogation of his original and inherent right of voting as Member. We therefore report to your Lordship that we are of opinion that the proceeding stated in the paper No. 2 is the legal course of proceeding, and that the Legislative Council has put a right construction on the Act of Parliament.

We have the honor to be
My Lord,

Your Lordship's most
obedient Servants
W. GARROW

To Rt. Hon Earl Bathurst.

S. SHEPHERD

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