and which, the framers of the general instructions thought, would be abundantly sufficient to prevent the Executive Government from degenerating into a government of will, or a pure autocracy, which it now is. It will not be uninteresting to look into the causes which have led to this event. All the offices under the Government being during pleasure, and the British Government, naturally looking to their Governors here, for the selection of fit persons to fill the Councils, they very naturally chose, that the officers of Government who environed them, and of whose flexibility of will and of purpose they were duly sensible, should compose them. The Executive Council has accordingly been progressively falling into public discredit. For a long time the Governors consulted them as they were bound to do, but of late years this decent ceremony is often omitted; thus, for instance, there is reason to believe that, from the time of the accession of the Earl of Dalhousie, the Governors have not condescended to submit to the Council any of their speeches at the opening or the close of the Sessions of the Provincial Parliament, nor are they consulted upon the general course of public policy within the Colony.

The Council cannot afford to resent this neglect, because they are all of them placemen, and the Governor is taught to consider himself as the sole spring of all executive power within the Colony. Another circumstance also, which prevents a proper control of the Governor in other public mat ters, is his sole and exclusive patronage of all offices of honour and emolument. Many of the high public functionaries must and do have families and others dependent upon them. The love of office is one of the maladies of this continent, and the men in office are naturally desirous of getting as many of their own family into office as they can. In this position of things, to expect that each public functionary should discharge his duty without an eye to the pleasure or the displeasure of the Governor, for the time being, is to expect more public virtue than we have yet been able to find in these hy

T

perborean regions. Again, the Lieutenant Governor in point of practice, has always been a cypher, whether he opposed the Governor in Chief as General Hope did Lord Dorchester, or did nothing at all, as all General Hope's successors in office have done. The Lieutenant Governor thus withdrawn, his place in the Executive Council came to be occupied by the Chief Justice for the time being. I need not say, that by these means, this last mentioned public officer, came to be too intimately mixed up with the local politics of the Province, and there then came into his hands, a concentration of power not merely adverse to, but subversive of, all public freedom.

The manner in which the patronage of the Governor has been exercised has been highly injurious to the government. The power of the Governor ought to be controlled in some shape or other in the exercise of this patronage. It is not here as it is in England, where a ministry comes in and goes out ; and the mischiefs of this colonial abuse are, therefore, perpetuated from governor to governor. The new governor is obliged to use the instruments which his predecessor has left him, and these, sometimes bad enough, selected perhaps by a governor, who with the best intentions in the world, has converted his patronage into an eleemosynary fund for decayed widows, and for men whose only claim to be provided for, is, that they cannot provide for themselves.

Another circumstance which has very materially affected the complexion of the colonial administration, is, that our governors ever since, Sir Robert Shore Milne's administration, have been military men. No man entertains a higher respect for military men than I do; but who is there so stupid as not to know that military men, generally speaking, are altogether unequal to the discharge of civil duties of any kind, still less of duties of so delicate and important a character as those of Governor in Chief of British North America. Lord Brougham and Lord Tenterden are confessedly men of high talents; but what would be said if the command of the channel fleet were

given to one of these noblemen, and the other were requested to supply the place of Lord Hill as Commander in Chief of the Forces, or generalissimo of an Indian army to chastise the gold footed Emperor? Is there any difference between this and the appointment of a man who has passed the whole of his life in the camp, to civil command?

The autocratic tendency has been from this cause much augmented; and at this moment the government of Lower Canada may be defined to be a mixed government composed of the two discordant elements of autocracy and democracy.

I cannot close this paper without making some observations upon an expression which provincial baseness has brought into general use, and which is calculated to convey very erroneous notions of the powers of governors to themselves and to others. We every day hear the governor called the King's Representative. Nothing is more inaccurate than this expression in the sense in which it is used.-Constitutionally, the King is the fountain of all office, honour and power; and each officer of the government deriving his authority from the king, represents the king in the exercise of his legal power. This is true as well of the highest as of the lowest officers-it is as true of a constable as it is of the Lord Chancellor of England. In no other sense can it be rightly applied to the Governor of a Colony. None of the particular attributes of sovereignty, under the constitutional law of England, are applicable to that officer. The King can do no wrong. Is that true of a provincial Governor? His powers are originally inherent and perpetual-that of a Governor is derivative, temporary and dependent upon the will of him who conferred it. Constitutionally, the King is answerable to God only for his acts. The Governor is answerable to his Royal Master. The King is amenable to no human tribunal for the discretion which he exercises in displacing public officers. The Governor is answerable in the King's Courts at Westminster for the

suspension or removal of any subject of the King holding an office of emolument within the Colony.*

That an expression such as this should have obtained currency, is of itself pregnant evidence of the servility of that class of the colonial society where it has long been and still continues to be in daily use.

* Masères Canadian Freeholder-Appendix No. 3, page 4.

141

NO. XIII.

ON THE THIRD REPORT OF THE COMMITTEE OF GRIEVANCES.

Ego nugas maximas omni mea comitate sum complexus, Nymphontem etiam Colophonium. CIC. AD QUINT. FRAT.

In all civilized countries the legislative and judicial powers, however variously regulated, are kept distinct and apart. For wrongs done to the person or the property of the subject, recourse must be had to the judicial authority, from which the proper remedy is to be obtained in the Civil Courts, and sometimes punishment in the Criminal Courts. In this manner the parties have the benefit of being able to refer to known established rules, whereby their rights are measured, and the forms of the proceedings for their preservation established; so, likewise, as a further protection for the subject and for maintaining unvaried the common standard or rule by which all his rights are to be measured, the constitution of Courts themselves carefully provided for, and a regular judicial hierarchy established to correct any of the errors to which human infirmity may give occasion, in the judgements of the Courts of original jurisdiction, which errors might otherwise affect the sincerity and integrity of the standard rule, and contaminate the body of the law.

In the report to which I am now to solicit attention, the committee has erected itself into a court of justice, and has