remedy, instead of coming from the sole act of the Governor, came to be the joint act of him and of each of the other branches of the Legislature. Nor does there appear to have been any thing exceptionable in the form in which this measure was carried into effect. To have transmitted the message by letter would have been contrary to usage, and would have been less respectful than the delivery of it in person by his Excellency's Secretary; the message, it is plain, could not go to any other than the Clerk of the Assembly; for the House had not yet received its regular organization, and the Clerk of the Assembly was in legal and actual occupation of the Chair. Nor could the message be delivered at the bar of the House, as was subsequently pretended, or elsewhere than at the chair, where in point of fact it was delivered. Thus far, then, all seems to have been right. The proceeding which his Excellency was advised ultimately to take is of a more questionable character. The next day a second message was sent by his Excellency to the following effect: AYLMER. CASTLE OF ST. LEWIS, Mr. Clerk of the Assembly, "You will inform the Assembly that, still labouring under a severe indisposition, which confines me to my room, and being extremely desirous that the opening of the Provincial Parliament should not be longer retarded, from this cause, it is my desire that the Assembly, when they shall this day adjourn, do adjourn themselves until to-morrow, at the hour of two in the afternoon, when I shall proceed to open the session." On the following day the Session was opened, not at the usual place, but in his Excellency's bed-room, he lying in his bed, and it was from this and not from the throne, that the speech was delivered.-Most willingly acknowledging the best intentions on the part of his Excellency, in waiving the established forms, I hesitate about the wisdom of such a proceeding, and very much doubt its legality. If this course had been adopted in consequence of the idle clamour of the previous day, this afforded no adequate motive for it. He has read but little in the book of human nature and government, who thinks that tranquility is to be bought by submitting to, or in the smallest degree countenancing, unjust pretensions and idle complaints-or who has not yet learned that forms are things. Accordingly, one of the first acts of the Assembly, after it was organized, was to refer these several messages to the Committee of Privileges, implying thus a censure of the proceedings taken by his Excellency. This censure was embodied by the Committee in certain resolutions subsequently adopted by the House. They are to the following effect: RESOLUTIONS CONTAINED IN THE FIRST REPORT OF THE STANDING COMMITTEE OF PRIVILEGES. Resolved-That the first Session of this fourteenth Provincial Parliament, by proclamation to meet for the despatch of business on the 24th of January last, was not opened on the said day, in the customary form, by reason of the severe illness of the Governor. Resolved-That the effort made by his Excellency to meet the two Houses of Parliament at the Castle of St. Lewis, on the 26th of January, after finding it impossible to open the Session on the appointed day, and in the customary form, is a proof of his desire to communicate with this House, and of his wish not to retard the dispatch of parliamentary business. Resolved-That at the time when this House had not become organized by the choice of a Speaker, no message ought to have been received within the bar; and that this irregular proceeding which took place ought not to be drawn into precedent, or be repeated in future. Resolved-That the written messages of the 24th and 25th of January, signed by his Excellency, being addressed to the Clerk of the House, in the words following: "Mr. Clerk of the Assembly" are irregular and contrary to parliamentary usages, and ought also not to be drawn into precedent, or cited as such hereafter. Whether these resolutions form any part of the proceedings which afterwards called forth the expression of his Excellency's admiration, I am not prepared to say. In most other breasts they would assuredly not have this effect. I have already stated my belief that the opening of the Legislature, elsewhere than in the usual place, was irregular; and it is not merely because this and the other measures just adverted to, hold the first place, in time, that I have first directed my attention to them, but because, also, whatever touches the constitution, occupies the first place in importance. And I shall accordingly proceed to consider such other measures of the late Session of the Provincial Parliament, as are immediately connected with its constitutional powers, and the laws which regulate them. 10 NO. III. ENCROACHMENTS ON THE CONSTITUTIONAL POW. ERS OF THE LEGISLATIVE COUNCIL BY THE ASSEMBLY AND THE GOVERNOR. En 1791, le corps législatif n'était composé que d'une chambre, sous le nom d'Assemblée Nationale Législative; et c'est principalement ou au moins en grande partie de cette imprudente concentration de la puissance en un seul corps, jointe à l'initiative qui lui était exclusivement déférée, que la France a du le commencement de cette longue série de malheurs dont les effets et les suites pèsent encore sur nous si douleureusement. TOULLIER. THE essential character of a free government is, that it is a government of laws and not of men; and whatever false covering may be given to it, or however specious may be the pretexts, wherever the laws are made to bend to the will of individuals, or powers exercised by public bodies which the constitution of the state has not vested in them, or other powers withheld from bodies with which the constitution has clothed them in that country civil liberty is endangered; nor is it any alleviation of the evil, but on the contrary a high aggravation, if any of the public constituted bodies of the government tamely acquiesce in acts like these. Powers conferred on them by the law and the constitution, are powers not held by them in absolute property to be used or abused at their pleasure; they are powers held by them in trust for the people, for the due exercise of which they are accountable as men, to God, and as citizens to the state. In the ordinary acts of deliberative bodies, error does not always justify blame; men equally enlightened and equally honest, might and do differ as to the measures most conducive to the public weal. It is otherwise as to the assumption of ENCROACHMENTS BY THe assembly & THE GOVERNOR. 11 powers not given by law, or the surrender of those which are so given: for these things nothing can be said in palliation nor in mitigation; they bless neither him that gives nor him that takes. As a lover of just freedom, it is the duty of every good subject vigilantly to watch the conduct of the public bodies in whom the law has vested the high power of making laws, to satisfy himself of their reverence to that law to which they owe their own political being. After a careful review of the whole of the proceedings of the last Session of the Provincial Parliament, I have been led to the painful conclusion, that the House of Assembly, in various acts during the Session, assumed to itself powers not given to it by the Constitution, and derogatory to the just powers of the Legislative Council. The object of the present paper is to bring under the consideration of the public some instances wherein it is conceived that the Assembly has exposed itself to the foregoing reproach, and before doing so, I beg leave to recall to the recollection of my readers the nature of the functions and powers of the Legislative Council of Lower Canada. By the Constitutional Act of Lower Canada, the Legislative power is vested in the Legislative Council and the Assembly, concurrently with his Majesty, represented for this purpose, in the colony by his Governor. The Legislative Council has been sometimes erroneously assimilated to the House of Lords in England, the points of difference between which two bodies are so numerous, and so great, that to detail them would be to institute a comparison, which if not odious, might be deemed invidious. But although the members of this body are not lords of parliament, still the functions assigned to them by the Constitution, are of the highest importance, being analogous to those which are exercised by the Senate of the United States of America. The division of the Legislature, it has been well and truly said, "into two separate and inde"pendent branches, is founded in such obvious principles of "good policy, and is so strongly recommended by the une"quivocal language of experience, that it has obtained the |