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

the removal from them. The power of control vested in the Executive Council seems to have been better provided for in some of the old colonies.

It has been stated in a previous number, that the Government of Lower Canada has in point of fact assumed the form of a mixed Government, consisting of autocracy and democracy; and this is the proper place to point out the causes which have led to so unfortunate a result. The surviving members of the Legislative Council, established under the authority of the 14th of the King, with but few, if any addition, came to be appointed under the authority of the Constitutional Act of 1791; and carried into the body erected under the last mentioned act, all the habits and feelings which had been formed under the operation of the system established by the 14th of the King. They were all or nearly all placemen, and were nominated by the Governor. -The right and sound policy of keeping apart, the Executive and Legislative Councils existed upon paper, but no where else, as all, or nearly all the Executive Councillors were also members of the Legislative Council. So intimately blended and confounded came to be these two bodies, that, at the hour I am now writing, the clerk, the assistant clerk and law clerk are members of the Executive Council, whilst, en revanche, the clerk of the Executive Council is a member of the Legislative Council.-It is but fair to add, that of late years several independent country gentlemen and merchants have been added to the Legislative Council; but their number is not sufficiently great to alter the political character of this body. One single fact will shew how completely, down to a very late period, the spirit infused by the Council of 1774 had been imbibed and preserved by the Council under the Constitutional Act.-It is not more than five years since strangers have been admitted to the debates of the Legislative Council, and it is only since the opening of the present session of the Legislature that we can read them in the public newspapers. These are happy indications, and

shew a great and salutary change in the public opinion. I ought not to have omitted, as influencing the character of the Legislative Council, the circumstance of its containing several Judges of the supreme court of original jurisdiction in the number of its members, whereby the judicial functions came to be mixed up with the legislative, without any adequate considerations of public policy to justify such an anomaly,

Although far from considering the Report of a select Committee on the civil government of Canada, ordered by the House of Commons to be printed on the 2d July, 1827, to be a monument either of sagacity or of wisdom, their opinion upon this subject is, I think, quite correct, and will be found in the following paragraph:

"One of the most important subjects to which the enquiries of the Committee have been directed, has been the state of the Legislative Council in both the Canadas, and the manner in which these assemblies have answered the purposes for which they were instituted. Your Committee strongly recommend that a more independent character should be given to these bodies; that the majority of their members should not consist of persons holding offices at the pleasure of the crown; and that any other measure that may tend to connect more intimately this branch of the constitution with the interest of the Colonies, would be attended with the greatest advantage. With respect to the Judges, with the exception only of the Chief Justice, whose presence, on particular occasions, might be necessary, your Committee entertain no doubt that they had better not be involved in the political business of the House. Upon similar grounds, it appears to your committee that it is not desirable that Judges should hold seats in the Executive Council."

I must, at the same time, say, that the charge contained in the petitions to which this report applies, against the Legislative Council, for not having passed useful bills sent up to them by the Assembly, was, if not in all, at least in very many instances, entirely without foundation.* To enter

It may be observed here, incidentally, that nothing more strongly evinces the want of independence in that body, than the vacillations of

into the grounds of this opinion, would much exceed the limits of this paper, inasmuch as it would necessarily involve an investigation and examination of the various public measures, the rejection of which is complained of by the Assembly.—Ab uno disce omnes.-A bill for a new organization of the courts of justice, was introduced by the Honorable Denis Benjamin Viger, then a member of the Assembly, and passed for several successive years by that body, and sent up to the Legislative Council, where it was rejected.

Seeing the temper of mind in which the Legislative Council then was, the Assembly became afraid, that, although the Council had oftentimes rejected it, (and I believe that no man can read it without saying they rightly rejected it) they would now adopt it, and that the whole judicial system would be thrown into absolute and irretrievable confusion; they, therefore, found themselves constrained to reject the bill in question, by a large majority, in the session immediately after the publication of the Canada Report.

Under present circumstances, one may say, (and it is a subject of congratulation to the country) that the power of the official classes in the Legislative Council is utterly and for ever annihilated. Whether the proposed changes, which would have the effect of vesting the whole of the authority of that body in the large landholders, to the exclusion of all other classes of the society, would be beneficial, is a question not lying within the scope of the present enquiry, which has much exceeded what I had originally contemplated, and which I am anxious to bring to as speedy a conclusion as I can.

its policy, according to the views taken by each successive Governor of the public policy to be pursued in a colony. Let the course of the policy of the Legislative Council, and its tone under the administration of the Earl of Dalhousie, be compared with the same under Sir James Kempt, and with that of the Provincial Assembly under the administration of Lord Aylmer. The Canada Report had certainly the effect of making a very great change in the proceedings of that body; and this change demonstrated that the Legislative Council had not all the independence which it ought to have.

175

NO. XVII.

COURT HOUSES AND GAOLS.

FIAT JUSTITIA.

ON the 22d of February last, the following message from his Excellency the Governor in Chief was delivered to the Assembly:

"The Governor in Chief desires to bring under the notice of the House of Assembly the subject of the message of his predecessor, dated the 1st of February, 1830, recommending to the House of Assembly the expediency of providing for the erection of Court Houses and Gaols in the most populous counties of the province. The Governor in Chief fully concurs with his predecessor, in the view taken by him in his message above referred to; and he considers it, therefore, unnecessary to say more at present regarding the contemplated measure, further than to recommend it to the consideration of the House of Assembly, as calculated, in his opinion, to produce the most beneficial consequences to the province at large."

Upon this message being taken into consideration by the House, it was resolved as follows::

That it is the opinion of this Committee, that it would be expedient to build Court Houses and Gaols in the Counties of this Province, so soon as the inhabitants shall think fit. That it is the opinion of this Committee, that, in order to provide for the erection of a Court House and a Gaol, a public meeting of the freeholders and landholders thereof shall be convened; and that the expediency and necessity of