^, ■^ raproduit grica i la gAnArosltA da: La bibliothAqua das Archivas publiquas du Canada Las imagas suivantas ont it* raproduitas avac la plus grand soln, uompta tanu da la condition at da la nattat* da I'axamplairr film*, at •n conformitA avac las con.Mtions du contrat da fiimaga. Las axampiairas originaux dont la couvartura «n papiar ast imprimia sont fllmte an commandant par la pramiar plat at an tarminant soit par la darnlAra paga qui comporta una amprainta d'imprassion ou d'illustration, soit par la sacond plat, salon la cas. Tous las autras axampiairas originaux sont fiimis en commandant par la pramlAra paga qui comporta una amprainta d'imprassion ou d'illustration at en tarminant par la darnlAra paga qui comporta una talla amprainta. Un das symbolas suivants apparaftra sur la darniira imaga da chaqua microficha, salon le cas: la symbols — ^ signifia "A SUIVRE", le symbols ▼ signifia "FIN". Maps, platas, charts. ats.< may ba filmad at diffarant raduction ratios. Thosa too iarga to ba antlraly included in ona axpoaura ara filmad baginning in tha uppar laft hand cornar, iaft to right and top to bottom, as many frames as required. The following diagrams iliuatrata the method: Les cartes, planches, tableaux, etc., peuvent Atre fiimAs A des taux da rAduction diff Arents. Lorsque le document est trop grand pour A^re reproduit en un soul clichA, il est filmA A partir da i'angie supArieur gauche, de gauche A droite, et de haut en bas, en prenant la nombre d'images nAcessaire. Les disgrammes suivants illustrent la mAthode. errata I to t » pelure. on A n 32X 1 2 3 1 2 3 4 5 6 /. ^1. ^ '^ / ^. a*-« c- A FEW WORDS • ^^^' "It seems to be the obligation of « general law which affects all these disputes between a popular assembly on the one hand, and the executire on the other, and the course of proceeding which generally takes place strongly impresses this lesson, that popular assemblies are hardly ever wrong in the beginning, and hardly ever right at the conclusion, of these struggles."— Lord John Russbll. ^y€Ae,^ LONDON: LONGMAN, REES, ORME, BROWN, GREEN, S^ LONGMAN, PATERNOSTER-ROW. 1837. l;istry offices will be to deprive the present land-holders, of French origin, of a portion of their possessions in the Seigneurial counties, on the banks of the St. Lawrence, and transfer them to British settlers." This apprehension is unreasonable, and might, per- haps, wear away upon a proper examination of the subject, as the French Canadians must then be con-- vinced of the observation made by the Commis- sioners, ''that the inhabitants of the Seigneuries could not fail to derive a benefit from a system that would tend to raise the value of property, to supply the wants of agriculture, and to afford to landholders a prospect of obtaining loans of money at a lower rate of interest." But the next latent ground of oppo- sition to the introduction of the proposed system, or to any thing which may facilitate its introduction, is of a more serious nature. It deserves well to be considered. The 'Commissioners say (General Report, page 42, par. 21), " There is, however, we must confess, one discouraging feature in the prospect, which we would mention, not for the pur- pose of exciting ungenerous or unjust suspicions against any class, but as an illustration of the man- ner in which unequal laws are liable to operate with a like injuriousness to all parts of the commu- 86 ' niiy, as well to those to whose benefit they roig;ht at first sight appear conducive, as to the rest. By the Act of 1774, confirmed in that particular by the one of 1791, Roman Catholics, in all the Seigneuries, arc required to pay a tithe to their clergy of one- twenty-sixth of their produce in com, whilst the Protestants are exempt (partly by the same Acts, and partly by custom) from any payment of tithe whatever. That such an inequality in the law must tend to create a desire, not only on the part of the receiver, but also on the part of the payers of tithes, to keep Protestants out of a parish, is suf- ficiently obvious; for if half of the lands in any parish were to pass into the hands of Protestants, the support of theCatholic clergy would fall of course with very increased weight upon the occupiers of the other half. Until some alteration be made in this respect, it cannot be expected that any measure will be well received which is supposed to promote the introduction of Protestants into the Seigneuries." This little incident, very properly noticed by the Commissioners, may well account for what of popu- lar opinion appears to justify the demand of the Assembly for the repeal -of the Tenures Act, while the individual interest of the members of the Assem- bly, in retaining the power, iniRuence, and income which they enjoy, as feudal Seigneurs, will suf- ficiently explain the bias on their minds which makes them equally blind to all the evils of the existing system, and to all the advantages of its proposed substitute. .37 III. The repeal of the Canada Land Company** Act in the third head of the demands made hy the Assembly. The reasons which apply in answer to this required concession relate also to that which we have just been considering, and need not, therefore, be treated at any length. It is clear, that if the Assembly objects to the introduction of a tenure of free and common soccage, it will for the same rea- son object to the formation of any Company to facilitate the settlement of the province on tenures of that description. The House of Assembly asserts that the King and Parliament have exceeded their authority, in granting the incorporation of that Company. It would be difficult to shew, by any precedents of constitutional law, that the King could not have granted a charter to any Company of this kind by virtue of his royal prerogative alone*. The grant to the members of the Com- pany would not have been a grant in exclusion of others, but only a grant enabling them to do that which they could not, in form of law, do without its assistance. It is not a monopoly in the strict sense of that term, though even if it were, the opi- nions f Attorney and Solicitor-General Raymond and Yorke f shew that it is only doubtful whether his Majesty's prerogative would not extend to the granting of such a monopoly in the Plantations. * I Chalmers' Opinions, 232, 233. f lb. 202, 203. m S8 I! They clearly held Ihat the prerogative would ex- tend to granting whatever v a not such a mono- pcly. But to avoid all possibility of question, and to give to the Company the best legal title, the authority of the imperial Parliament was invoked, and a statute ivas passed, declaring the Company to be an incorpitrated Company, allowing it to pur- chase lands, and binding it to make certain pay- ments, which were expressly declared to be appli- cable to the purposes of the province. But the Assembly insists that this is an interference with the internal ^e«^ulations of the province, and that, as such, it is contrary to the Constitution, and to the meaning of the Declaratory Act of 1778*. That Act seems to have been supposed to give up, on the part of this country, a'.l right to make any regula- tions whatever with regard to the colonies, except so far as they are connected with the universal com- merce of the empiref . As even this Act seems, from many parts of the evidence, to have been known to the witnesses rather by traditional reputation than by actual pe- rusal, it may be as well to give them an o'pportunity of becoming acquainted with its real language. It begins, then, by reciting, that " taxation by the Parliament of Great Britain, for the purpose of raising a revenue in his Majesty's Colonies in North America, has been found by experience to * IS Geo. III. c. 12. -}- But see Lord Chancellor Brougham's denial of tUis doctriue, Mirr. of Pari for 1833, p. 3694. 39 occasion great uneasiness among his Majesty's faithful subjects," and then stating^ that " it is expedient to declare that the Iliig and Parliament of Great Britain will not impose any duly, tax, or assessment, for the purpose of raising a revenue in any of the Colonies ;" it declares, " that the King and Parliament of Great Britain will not impose any duty, tax, or assessment whatever, payable in any of his Majesty's Colonies in North America or the West Indies, except only such duties as it may be expedient to impose r>r the reguletion of com- merce ; the net produce of such duties to be always paid and applied to and for the use of the colony^ province, or plantation, in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective General Courts, or General Assemblies, of such colonies, are ordinarily paid and applied." The restriction here placed upon the power of the Parliament is that of levying internal '' duties, taxes', or assessments ;" and surely no man can pretend that the incorporation of a Company of gentlemen, enabling them to purchase land and make improvements thereon, by means of their joint funds, :an truly be said to come under either of these denominations. The demand for the re- peal of this Act is founded upon no reasonable frround, and supported by no proof of any tangible evil occasioned by the Act to the Colony. But the demand is itself marked with injustice, for it is totally unaccompanied by any proposal to indemnify 40 IKi V ■ the members of the Company for the money they have already expended, or to secure and confirm the titles of those who have become lessees, or pur- chasers of land, under them. The Assembly can- not surely expect that a demand thus made can, in neglect or defiance of every fair ^nd honest prin- ciple, be conceded ; and a charitable observer may tee some reason to doubt whether the demand itself was put forth with any other view than that of con- tributing to a statement of grievances the advan- tage of an additional item. The Company is, in fact, more entitled to claim a public reward than to suffer a public forfeiture. In speaking of the Company and its labours, and the effects produced by them, the Com- missioners say (General Report, page 22, par. 14), " Since November 1831, the acquisition of land has been much facilitated to the poor emi- grant, through th;i instrumentality of the North American Land Company. The Company will not, as we apprehend, sell cheaper than the Govern- ment. On the contrary, it will probably sell much dearer; but it will oflerto the settler, and, indeed, does now offer, as we shall have occasion hereafter to explain, advantages of another kind, which the Government never can." Again, directing their attention to the same subject, the Commisttioners say (General Report, p. 30, par. 40), " It now re- mains only for us to speak of the Land Company ; and in doing so, we are happy to be able to ex- press an opinion, founded on actual observation, 41 that it is efTecting much good in the country. When we lately visited the scene of its operations, we found that upwards of two hundred families, during the present summer, had been located in one direction ; and this number will probably be much increased before the close of the season. The total number of persons settling in the townships, will, it is expected, in this year, exceed 5000, which is a ve y much greater number than in any preced- ing year. The Company have adopted the very ju- dicious plan of assisting all settlers willing to work. They assist each settler to clear his land, and build for him, if he choose, a log-house on it, at a fixed charge ; and they also provide, and will continue to do so through the winter, all necessary supplies at a reasonable cost. These are the advantages that we had in view when we said, in paragraph 14, that the Land Company would probably continue, for a considerable time, to attract all settlers of the poorer class, as it oflFered facilities to them which the Govern nent could not : by which, of course, we meant facilities or advantages that it would not be prudent or proper for the Government to offer. ! 8 ' y ' its officers were to be entrusted with such d^j^c ji Ir mary powers as these exercised by the Compuny, it would be scarcely possible to provide against the abuse, or at any rate against the reputa- tion of the abuse of therr!. And here, in reference to the objection which has been urged against the erection of a Land Company, that it delegates to private individudls some of the fnnctions which ought to be exercised by Government, we must observe, that it does not, in our opinion, delegate to others those functions which can, but only those which cannot, be advantageously exercised by the Government." In what manner does the As- sembly propose to compensate the Province for the loss of these advantages ? or what substitute for them does it offer, in case it should succeed in the attempt to deprive the settlers of their eryoy- ment? IV. The Assemb'" demands that "all the reve- nues of the Provinc )jld be subjected to the control of the Provinciw Legislature." In other words, the Assembly requires, with regard to the revenues of the Province, a power at least equal to that which the Parliament of England exercises over the revenues of England. Without doing more than referring to the constantly recurring objection, that a Province is not an independent state, and that consequently the Legislative Assem> bly of a Province cannot pretend to exercise the rights which the Parliament of an independent and sovereign state ought to enjoy ; we may in- quire, to what extent that which is thus demanded might be conceded — to what extent it has been con- ceded, and in what manner the Assembly has used the concession. The question of the appropriation of the re- venues had its origin in the British statute, 14 Geo. in. c. 88. That was entitled, "An Act to establish a Fund towards defraying the Charges of 43 the Administration of Justice, and the Support of the Civil Government, within the Province of Quebec." After reciting that certain duties on Rum, Sc. had been imposed by his Most Christian Majesty, before the Conquest, it repeals them, sub- stitutes others, and, as to the appHcation of these new duties, makes the following provisions : — ** And that all monies that shall arise from the said duties (except the necessary charges of collecting, &c.) shall be paid by the Collector of his Majesty's Customs, into the hands of his Majesty's Receiver- General in the said Province for the time being; and shall be applied, in the first place, towards making a more certain and adequate provision to- wards defraying the expenses of the administration of justice and of the support of the Civil Government in the said Province.'* Other duties previously im- posed by Prance are continued as formerly. Upon this Act, in connexion with the 18 .Geo. III. c. 12, doubts had been expressed as to what revenues the King was entitled to ; and upon this subject the opinions of the law officers of the Crown were pro- duced before the Committee of 1828, and that Committee reported as follows : — "■ Although, from the opinion given by the law officers of the Crown, your Committee must conclude that the legal right of appropriating the revenues arising from the Act of 1774 is vested in the Crown, they are prepared to say that the real interests of the Province would be best promoted by placing the receipt and ex- penditure of the whole public revenue under the m^mi 44 1^' in fci' ; Ik'' m superintendence and control of the House of As- sembly. On the other hand, your Committee, while recommending such a concession on the part of the Crown, are strongly impressed with the ad- vantages of rendering the Governor, the members of the Executive Council, and the Judges, inde- pendent of the annual votes of the House of Assembly, for their respective salaries." The Committee afterwards added — *' If the officers above enumerated arc placed on the footing recom- mended, they are of opinion that all the revenues of the Province should be placed under the control and direction of the Legislative Assembly." The question now is, whether in this respect the recommendations of the Committee have not been acted on. The Ist and 2d Will. IV. c. 23 (passed on the 22d September, 1831), sutficiently answers that question. The King's Ministers introduced that Act into Parliament ; and with the view of re- ceiving from the province the provision recom- mended by the Committee, not under a condition^ but as a voluntary gift, they anticipated the Legis- lature of the province, and gave up the claims of the Crown to the revenues in question, without making any stipulation for a permanent appropriation by the House of Assembly of any civil list. The Act which we are now considering recites the 14th Geo. HL c. 88, and also the division, since that time, of the province of Quebec into Upper aiid Lower Canada, and then enacts, '* That it shall and may be lawful for the Legislative Council 45 and Assembly of Lower Oanada, by any Acts to be by them from time to time passed, and assented to by his Majesty, to appropriate in such manner, and to such purposes as to them shall seem meet, all the monies that shall hereafter arise by, or be produced from, the said duties, except so much as shall be necessarily defrayed in the charges of collecting. &c." We shall now see in what spirit this con- cession has been met in one most important point. As the subject of the independence of the Judges has been connected with the grant of the revenue, it may be proper to observe, that this matter has not been neglected by the Government. Why it has not been satisfactorily settled, the following state- ment will explain. The Ministers were desirous to establish the independence of the Judges, and the Governor was instructed to apply to the Assembly to effect that object. A Bill passed the House of Assembly, de- claring the tenure of office by the Judges to be during good behaviour (it had formerly been only during pleasure) ; but the provision for their sup- p(»rt was, by the same Bill, made to depend on the annual votes of the House. This was hardly a fair way of dealing with the Crown, or with the Judges. They were to be independent of the Crown by the tenure of office ; but they were to be dependent on the House of Assembly by the tenure of their salaries. That House could not, indeed, by this Bill, directly dispossess them of office, but it could dispossess them of the means of living i.i office — an ^■F !■/ vW i Hi .■: i ;■ ■ .,!■ 46 efTective mode of dismissing a public servant, and exactly answering the expressive phrase which^ in the French language, is used to designate a dis- missal. The Crown had the mere power to dismiss the Judges upon impeachment ; the Assembly was to be able to *' destituer" the Judges without im- peachment, by the easy and summary process of the refusal of a vote of supply. This may appear a popular course of proceeding, but, in reality, it is not so ; and if the dignity and honour of the Crown could possibly have suffered such a paramount autho- rity to be exercised by the Assembly over the Judges, the Ministers ought, for popular reasons alone, to have declined to recommend his Majesty to give his assent to the Bill. If a House of Assem- bly should ever think fit to publish reports impugn- ing the character of any private individual who might provoke its censure, can it be believed that a Judge, who in a moment may be destitue hy the House of Assembly, would have the firmness to execute the law in his behalf against the agents of that Assembly? If he should possess such firmness, he would indeed exhibit a high and honourable spirit, but one which is not to be expected at all times, and which would be admired most because it was so little to be anticipated. But it is for the public welfare that the pure administration of jus- tice should be beyond all caprices of accident ; and there certainly should be no temptation to lead Judges to neglect their duty, or to favour any par- ties whatever in their discharge of it. If in such a 47 case as thai supposed, the Judge should conscien- tiously think the party entitled to recover a^inst the agent of the Assembly, every honest and impartial man would^ and every selfish man should, wish him to express that opinion fearlessly and without reserve. Every one, therefore, ought to join in placing the Judge in a situation that would put no check on the declaration of his opinion. Yet the Assembly of Lower Canada has not done this. That the Judges of that province have heretofore been too much of political partizans, and have been too closely allied with the executive Government, I may readily con- cede ; and I may do so without imputing blame to the men, of whom I know nothing, but only in cen- sure of the system which placed them in a wrong IK>sition with regard to themselves, and a false one with regard to the colony. But now that that evil has been remedied by the Government — now that they have at its desire retired from the Coun- cil, and have limited their labours to the discharge of their judicial duties — now that the Crown has dispensed with their political services, and is anxious by all means to make them independent, it surely is a little out of place in the Assembly to say, and such their provisions in the Bill did say in effect, " This House must possess itself of the influence which the Executive formerly possessed, and the independence of the Judges, established by the Crown, must be extinguished by the Assembly." In England we should not permit the House of Commons to usurp a power which, being admitted to be mischievous, ought not to be transferred, but "mm i ' I ■ v il 46 to be destroyed ; and Englishmen will hardly allow a Provincial Assembly to assume privileges which they would not tolerate in their own Parliament. What, then, is it that 1 should propose to do with respect to the demands of the Assembly ? I should say, first, as to the Legislative Council, that it cannot be elective, out that it should be composed entirely of gentlemen selected by the Governor from the province at large, — men whose age, abilities, cha- racter, and fortune, would put thei.ii above the in- fluence of the Governor on the one hand, and above that of popular excitement on the other. With regard to the Canada Tenures Act (and of course I include here that part of the Canada Trade Act which relates to tenures of land), I should say, that it ought not to be repealed without a provision was first made for the settling of titles acquired under it, for the easy and perfect registration of land, and for the abolition of the feudal incidents which now check its transfer and diminish its value. With regard to the Land Company's Act, I should refuse its repeal. The objections made against it are obviously too trifling and capricious to produce any impression on an unbiassed mind, and the advantages conferred by the Company upon the settler in Canada, and through them upon the province at large, are such as would justify the Government in purchasing them at some cost. But the Govern- ment could not purchase such advantages, and they are now had without cost. No one can read the evidence without being con- 49 vinced Ihat the Land Company hag become a real blessing to Canada, and that ii;^ this instance the ends of private advantage and public benefit have been most fully attained. As to the question of the revenue, I am more in favour of the demands of the Assembly ; but I think that a permanent provision ought to be made for the chief officers of Government, especially for the Judges, before the appropriation of all branches of the revenue is placed, without restriction^ under the control of the Asacmbly. If impartial justice is to be administered in the province, the Judges should be at once liberally provided for, that they may not have an excuse to seek for other means to eke out their incomes ; and they should be alike indepen- dent of the favour of the Crown and of the As- sembly. They should be able to illustrate by their conduct the expressive words of that solemn oath which is taken by the Grand Juries of England ; they should judge ** no man corruptly, or through envy, hatred, or malice; neither should they leave any man unjudged through fear, favour, aft'ection, gain, reward, or the hope thereof." This can never be the case while the Assembly persists in making the amount and the existence of the Judges' salaries depend on an annual vote. The amount should be permanently voted for the life of the King; that amount would be voted, not for the men, but for the office ; and if any of the men should, by gross misconduct, forfeit his just claim to the salary, the same misconduct which deprived him, even for a time, of his right to the income of E fiO 4 s !" I w ;i ,1 i' I 1 ' his office, should have the like effect with respect to his right to exercise the powers of that office. The Governor might be authorized, on the address of both Houses, to suspend any Judge from the discharge of his duties till the King's pleasure was known, or till an impeachment had been prepared and decided. But this would be the exception to the rule, and the rule should be that the judges should possess a real in- dependence. The arrangement of this matter would be one that if the desire for its settlement was honestly entertained, might be easily and satisfac- torily settled. Subject to this condition, there is no objection that a constitutional state like England could entertain, against vesting in the representa- tives of the people the power of coutroiling the public expenditure. The King's Ministers have certainly shown every desire to concede this power in the fullest manner to the Canadian Assembly, but unhappily the Assembly has at once disproved Dr. Franklin's theory as to what an Assembly would do, and has met the concession in a spirit which must require a more cautious and less generous treat- ment in future. I shall say but one word on the subject of the im- peachment of the Judges. The Assembly claims to exercise, in this respect, all the powers now pos- sessed by the Lords and Commons in this country. Such a claim cannot be admitted by the protecting state, which must have, and ought to exercise, the power of affirming, or qualifying, or overruling, all the acts of a Provincial Assembly, relating to the rights of sovereignty. Attorney -General Pratt, Mr. bl to he >th of an West, and Attorney and Solicitor-General Murray and Lloyd (all great namci, and some among them celebrated for their love of Constitutional liberty), have repeatedly advised against the concessions of daims of this sort*, and have declared that our House of Commons — the Parliament of a sovereign state — " stands upon its own laws, the lex Parlia' mentum ; 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 justly entitled to here, upon princi- ples that neither can nor must be applied to the Assemblies -^f the Colonics." The Legislature of Canada might have the power of originating and deciding upon an impeachment; but its decision should be subject to revision here. Its judgment would not on slight grounds be overruled. To grant all that the Assembly requires, and in the manner required, would be to confer upon the Province of Lower Canada the privileges of a sovereign and independent state, without permit- ting it to incur the danger, the trouble, or the ex- pense, of supporting that independent sovereignty. The great historian of the Roman Empire says, that *< the Emperor Hadrian expressed his surprise that cities which already enjoyed the right of Muni- cipia should solicit the title of Colonies." If the latter participated in all the advantages of Roman citizenship, without suffering from its burdens, the Emperor would not have felt any surprise at the 1 Chalmers' Opinions, 232, 263, and 296. •ass pp*«p m H li If/; m I 1.1 ? .1 V p)^ 1 ' :4) I ^ bi solicitations. A fall under^ianding of the subject will not leave it doubtful, that if, in the present in- stance, the claims of the Lower Canada Assembly are conceded, that body at least (1 say nothing of the people) will be in a more enviable situation than those bodies which compose the Imperial Legislature. I cannot, therefore, see the least reason to doubt the truth of the axiom k'i down by Lord John Russell, and quoted au the i?>otto for this pamphlet. I believe that there were originally faults of a serious kind in the administration of the Canadian Government, — that those faults gave to the representatives of the people the right to complain, and imposed complaint as a duty upon them, — but that in the discharge of that duty they have become somewhat enamoured of their iask, and have imagined grievances where there are none, and have demanded as justice to themselves that which they have no right to demand on their own account, and that which, if conceded, would be gross injuntice to others. The Government of this country hcis under such circumstances done its duty, and being willing frankly to grant what may be properly asked, has firmly decided to refise whet never should have been req<'.lred. In this course (well explained in the resolutions moved by Lord John Russell) it will be for the interest ard honour of Great Britain, for the benefit of Upper Canada, and, as I hope I have proved, for the advantage of Lower Canada itself, that the Government should be supported by men of all parties, both in and out of Parliament. Wilson and Sos, Printers, 57, SklDnef-Street, London. •~ 'i »)