"AYLMER, Governor in Chief.

"The Governor in Chief having taken into his most serious consideration the request of the House of Assembly, to suspend from the exercise of his official functions the Honourable James Stuart, Attorney General of this Province, until the King's pleasure be known, touching certain matters of complaint preferred against the said Attorney General, in a petition from the House of Assembly addressed to his Majestynow informs the House that he has decided upon suspending the Attorney General from the exercise of his functions accordingly.

"Having taken this important step, in compliance with the request of the House of Assembly, the Governor in Chief relies upon the justice of that House to furnish the Attorney General with copies of the various documents upon which the charges against him are founded.

"The Governor in Chief cannot too pointedly guard the House of Assembly against drawing an inference from his proceeding on this occasion, that he has thereby taken a part, or pronounced a judgment, in the case now pending between the House of Assembly and the Attorney General; for it is a cause in which he cannot suffer himself to be considered as either judge or party.

"Castle of St. Lewis, Quebec, 28th March, 1831."S

A.

It had been my intention to have gone somewhat fully into this part of the subject; but since writing a preceding number of these papers, where this intention is expressed, the memorial of the Attorney General to Lord Goderich having come under the public eye, any observations of mine would be wholly superfluous; and I deem it sufficient to subjoin to these papers an extract from the Memorial and accompanying correspondence, as affording all the information that can be desired in relation to the suspension of the Attorney General.*

• See Appendix, No. , page

168

NO. XVI.

LEGISLATIVE COUNCIL.

Factio haud dubio regis, cujus beneficio in curiam venerunt.

THE present political condition of the British Colonies cannot be fully understood without a reference to the history and political institutions of the old Colonies of Great Britain.

In these the Executive Council possessed the power of a Council of advice and control, and also that of a Legislative Council. The defects in the constitution of this body in the old system will best be understood by reference to a passage in a work of Mr. Mazeres, the first Attorney General of Lower Canada, after the cession of the country.*

The two great defects therein stated are the paucity of the numbers of these old Councils, and the members thereof not being absolutely independent of the Governor; the consequence of which was that they had not sufficient weight to check the violence and aberrations of the popular assemblies. -The first innovation in the old Colonial system is to be found in the Statute 14 Geo. III, chap. 83, commonly called the Quebec Act. The provisions of the Act relating to this subject, are to be found in the 12th, 13th, 14th, 15th, and 16th clauses of it.-By the first of these clauses it is provided,

* See Appendix No. , page

"That it shall and may be lawful for His Majesty, his heirs and successors, by warrant under his or their signet or sign manual, and with the advice of the Privy Council, to constitute and appoint a Council for the affairs of the Province of Quebec, to consist of such persons resident there, not exceeding twenty-three, nor less than seventeen, as His Majesty, his heirs and successors shall be pleased to appoint; and upon the death, removal or absence of any of the members of the said Council, in like manner to constitute and appoint such and so many other person or persons as shall be necessary to supply the vacancy or vacancies: which Council so appointed and nominated, or the major part thereof, shall have power and authority to make ordinances for the peace, welfare and good government of the said province, with the consent of His Majesty's Governor, or, in his absence, of the Lieutenant Governor, or Commander in Chief, for the time being."

The 2d provides, "that nothing in that act shall extend to authorize or empower the said Legislative Council to lay any taxes or duties within the said province, such rates and taxes only excepted as the inhabitants of any town or district within the said province may be authorized by the said Council to assess, levy and apply, within the said town or district, for the purpose of making roads, erecting and repairing public buildings, or for any other purpose respecting the local convenience and economy of such town or district."

The 3d requires every ordinance by the Council to be laid before His Majesty, within six months after its passing, and gives a power to His Majesty of disallowing the same by his order in Council.

The 4th provides, "that no ordinance touching religion, or by which any punishment may be inflicted greater than fine and imprisonment for three months, shall be of any force or effect, until the same shall have received His Majesty's approbation.

And the last, evidently having in view the first of the evils above adverted to, arising from the paucity of the number of councillors in the old colonies, provides, "That no ordinance shall be passed at any meeting of the Council where less than a majority of the whole Council is present, or at any time except between the first day of January and the first day of May, unless upon some urgent occasion, in which case every member thereof resident at Quebec, or within fifty miles thereof, shall be personally summoned by the Governor, or in his absence, by the Lieutenant

X

Governor or Commander in Chief for the time being, to attend the same.*

Apart from this Legislative Council, was appointed an Executive Council, by the mere exercise of the royal prerogative.

From a work published in London in 1789, and, though anonymous, evidently coming from a man of information, the following is an extract :

"The Chamber of the Legislative Council of Quebec was as close and impervious as the Divan at Constantinople.— And though the members do not now consider themselves obliged to conceal what passes in the Legislature, yet the public, as the door of the Council Chamber is still shut against them, can only learn through the imperfect medium of common rumour, what laws or acts are at any time agitated in the Legislature.”†

The work in question contains numerous anecdotes, shewing the misgovernment of the Colony under this system.‡-This brings us down to the passing of the Constitutional Act of 1791. The framers of that act seem to have been perfectly sensible of the insufficiency of the correction of the old system attempted by the foregoing Act of 1774. Besides providing for the convocation of an assembly, in which, in conjunction with the Governor and Legislative Council, the whole legislative power is vested, they retained some provisions manifestly framed with a view to give additional weight to the Legislative Council. The power of selecting them is given to his Majesty—they are not to be fewer than 15-they must be of the full age of 21

• See, in the Appendix, No. , page , an account of the instructions to the Governor of the Colony of Georgia, as given by Mr. Mazeres, in his before mentioned work.

+ Legislative Council, February 14, 1780-motion by Mr. Grant Whether a member of council, acting in his legislative capacity, may not take a copy of such papers as are laid before the Board by His Excellency the Governor, or any other person, in order deliberately in his cabinet, to instruct his mind and form his opinion of the matter committed to him."-Voted and resolved in the NEGATIVE.

See Appendix, No. , page

years, natural born subjects of his Majesty, or subjects of his Majesty, naturalized by acts of the British Parliament, or subjects of His Majesty, having become such by the conquest and cession of the province of Canada. They shall hold their seats for the term of their lives, with only two exceptions, residence out of the province for the space of four years continually, without the permission of the person administering the government, or taking an oath of allegiance or obedience to any foreign prince or power. A further clause in this statute enables his Majesty to annex to hereditary titles of honour, the right of being summoned to the Legislative Council. The power of nominating and removing the Speaker is given to the Governor.

So far as the Executive Council is concerned, it seems to have been intended to be kept a body apart from the Legislative Council, and it is therein constituted a Court of Civil Jurisdiction, within each of the said provinces, respectively, "for hearing and determining appeals within the same, in the like cases, and in the like manner and form, and subject to such appeal therefrom, as such appeals might, before the passing of this act, have been heard and determined by the Governor and Council of the province of Quebec; but subject, nevertheless, to such further or other provisions, as may be made in this behalf, by any act of the Legislative Council and Assembly of either of the said provinces respectively, assented to by his Majesty, his heirs or successors."-This Council is made a Council of Control, as to the erection of parsonages, and the endowment thereof.

In the act of 1774, nothing was said respecting the Executive Council, but under the common constitutional law of the colonies it was appointed by the King, as a council of advice in all cases, and of controul in some.

By the King's instructions, they are also a council of control, so far as the granting of lands is concerned. It is much to be lamented, that they were not also made a council of controul, as to the nomination to public offices, and as to