22

ENCROACHMENTS BY THE ASSEMBLY & THE Governor.

the existing law, the right to sit, nay, the duty even to sit, cannot be taken away from them but by a repeal of the old law, or by a law disqualifying them from sitting. The Governor constitutionally possesses no power over the Legislative Council itself, except that of convoking and adjourning it, and none whatever over its individual members, nor over its economy and internal discipline, yet an order was sent by his Excellency to one of the honourable Judges, a member of the Legislative Council, directing him not to attend that body in his place; and as if that were not sufficient, an honourable member of the Lower House was authorized to inform that House of the order which had been so given, and notwithstanding this manifest infraction of the privileges of the Legislative Council, they were silent to a man.

How such a power should have been used at all, or being used should be quietly submitted to, is a problem, for the solution of which I shall offer some conjectures when I come to inquire into the existing Constitution of the Legislative Council, and into the nature of the functions legitimately belonging to a Colonial Governor.

Having thus pointed out some of the instances in which it appears to me that the rights of the Legislative Council were compromitted by proceedings in the Assembly, I shall next proceed to point out some instances, in which, as I conceive, it has exceeded its legitimate powers in matters not immediately touching the Legislative Council, which will complete this branch of the subject.

23

NO. IV.

INTERNAL ORGANIZATION AND ECONOMY OF THE ASSEMBLY.

On n'écrit pas dans ce pays. C'est un malheur.- Brochure intitulé Considerations, &c.; p 1. ligne 1. Montreal, 1816.

NEXT and hardly inferior in importance to the subject treated of in the last number, are to be held all proceedings in deliberative bodies, which in any way touch their internal organization and economy. The independence necessary for the discharge of the high functions confided to them by the law, excludes all direct foreign control in relation to these matters; but we are not thence to infer that the power of such bodies in relation to them is arbitrary, and carries along with it no responsibility. No human power is above the control of right, and the higher the power exercised is, in a corresponding degree is the responsibility. This responsibility in a case like the present, not subject to any direct control, is to be enforced by the silent but' irresistible power of an enlightened public opinion. Deliberative bodies hold their power from the people, and to the people members are accountable for the just exercise of it. It is from the untrammelled discussion of a free press that public opinion must derive its lights, and must be ultimately formed; and one of the great advantages of a representative government is, that it invites to and facilitates such discussions, and brings to bear

upon all matters of public interest, the united sense of the whole country, which cannot be long led astray by passion or misled by prejudice. It serves also to keep continually present before the minds of the men, to whom either legislative or administrative powers are by law confided, the great truth that all legal power is held only in trust, and is to be exercised in full and open view of those from whom it is derived, for whose benefit it was conferred, subject to the law from which alone it derives its efficacy. In enquiring then into that part of the proceedings of the Assembly during the last Session, which relate to their internal organization and economy, I am at once exercising a right and discharging a duty, and bringing the subject under the consideration of its lawful tribunal.

No deliberative body can carry on its proceedings with order and regularity, without certain established rules and orders; nor when these are once established, ought they to be set aside without great care and reflection, and then directly, not incidentally. The Assembly has such a body of rules and orders, established soon after its creation, and drawn with singular precision and judgment.

The formation of Committees, to whom so large a portion of the power of the House stands delegated, is provided for by the following rule:

COMMITTEES.

Sect. 2.-Resolved, that the mode of appointing a Special Committee, shall be first, to determine the number it shall consist of, then each member naming one which shall be written down by the Clerk. Those who have most voices, shall be taken successively until that the number is completed, and if any difficulty should arise by two or more having an equal number of voices, the sense of the House shall be taken as to the preference; but it shall be always understood, that no member who declares himself, or divides against the body or substance of the bill, motion or matter, to be committed upon any of the readings thereof, can be nominated to be of a Committee upon such a bill, motion or matter."-Standing Rules and Regulations of the House of Assembly of Lower Canada,

revised and corrected to the end of the third and last Session of the 13th Provincial Parliament inclusive.-Neilson and Cowan, Quebec, 1830.

The framers of this rule evidently had it in view to render their nominations the nomination of the whole House, and to exclude all possibility of management in the selection. If such a power had been to be vested in any individual, it could only be vested in the Speaker; but as he might be a party man, such a delegation of power would have been injudicious. To have left it afloat to be taken up by any individual in the House who pleased, was evidently altogether without the view of the framers of that rule; if one could do it, so then could another and another, and all. If he acted upon hig own sole judgment, then he assumed a power which no stand ing or ability would justify, and which no patience on the part of the House would long submit to. If, on the other hand, he consulted with others, then the number of those

others might be small-they might be united together for the attainment of objects, not the most meritorious—and though probably the most active, might not be the most impartial of its members; and in one word, the views of a party might be consulted, rather than the general interests of justice and of the country. But besides, there would be no adequate guaranty that the nomination would represent the general unbiassed sentiments of the whole House; so too, the mover would be placed in the awkward dilemma of either recommending his own nomination to the House in one or more of these committees, to the prejudice of his modesty, or of passing himself over, and thus depriving the country of services which he at least must have deemed that the House would consider of importance, or they would not have permitted him to select and point out the individuals who were entitled to their confidence. Above all it would lead to a concentration of power unfavourable to the interests of truth and of liberty. Let it be observed also, that these considerations might or might not have had weight before a Committee of the whole House,

E

sitting to enquire into the expediency of repealing the aboverule. So long as that rule subsisted, no other course than that prescribed by it could be lawfully adopted.

The following permanent Committees, consisting each of eleven members, were moved and ordered on the 29th Januáry, viz :

1st.-A Committee of Privileges and Elections.

2d.-A Committee of Privileges, whereof five to form at quorum, to take into consideration all questions which may arise in the House, and be referred to them relating to grievances, and petitions of grievances.

3d.-A Committee of Courts of Justice, to take into consideration, and report their opinions and observations on all questions which may arise in the House, and be referred to them relating to Courts of Justice and the Admininistration of Justice.

4th.-A Committee of Public Accounts.

5th.-A Committee of Education and Schools.

6th. A Committee of Agriculture.

7th.-A Committee of Trade, to take into consideration, and report their opinions and observations on all matters which may be referred to them, relating to Trade, Fisheries and Navigation.

8th.-A Committee of Roads and Public Improvements, to take into consideration, and report their opinions and observations on all matters referred to them, relating to Roads and Bridges, Improvements of Internal Communications, and settlement of Waste Lands, and Reports and Expenditures connected therewith.

9th. A Committee of Expiring Laws, to enquire into all Laws expired or about to expire, and deemed necessary to be revived, or renewed, or amended.

10th.-A Committee of Private Bills, to take into consideration, examine and report their opinions and observations on all petitions for Private Bills referred to them.

11th.-A Committee of Bills to be engrossed, to examine and report their opinions and observations on all Bills ready to be engrossed, or that have been engrossed.

If in the most ordinary cases the House reserved to itself the direct nomination of its own committees, and excluded its members from any other power in relation thereto, except that of giving an individual vote for one individual of the