75

NO. VIII.

ON THE FIRST REPORT OF THE COMMITTEE OF GRIEVANCES.

Quibus in controversiis cum sæpe a mendacio contra verum homines stare consuescerent, dicendi assiduitas aluit audaciam, ut necessario superiores illi propter injurias civium resistere audacibus, et opitulari suis quisque necessariis cogerentur. Itaque cum in dicendo sæpe par, nonnunquam etiam superior visus esset, is, qui, omisso studio sapientiæ, nihil sibi præter eloquentiam comparasset, fiebat, ut et multitudinis, et suo judicio, dignus, qui rempublicam gereret, videretur. Hinc nimirum non injuria, cum ad gubernacula reipublicæ, temerarii, atque audaces homines accesserant, maxima ac misserrima naufragia fiebant. CIC. DE INV.

THE Committee begin with saying:

"Your Committee having taken into consideration the petition of Edward Glackmeyer, have, by means of the enquiries and researches required by the allegations in that petition, become convinced of the reality of the grievances of which the petitioner complains. Your committee have perceived with surprise, that it has been attempted to compel the Notaries of this Province to take out new commissions on the demise of his late Majesty George the Fourth; and they have to express their regret that it has been dared to exact a fee for such commission, for which there was no right; because, in the opinion of your committee, no law applicable to the Notaries of this country can justify the obligation which has been attempted to be imposed upon them on this occasion."

To have rendered the printed report complete, it was necessary that we should have been furnished with the copy of Mr. Glackmeyer's petition, and it ought to have been sub

joined to the printed report; in the absence of that document, the public is in the dark as to the specific grievances of which the petitioner complains, and of the reality of which they have become convinced. It would also have been more in accordance with the rules of logic, if the committee had noted the premises upon which the conclusion was founded, as well as those which led them to the conclusion, that a fee was exacted for those commissions for which there was no right; and further, the grounds upon which rested their opinion that there was no law applicable to the Notaries of this country to justify the obligation which it is said has been imposed upon them on this occasion. There is, too, in this paragraph an involution of sentence, a mixing up of decisions upon several questions as identical, and an incorrectness in the statement of facts unfavourable to the discovery of truth. Thus, the statement that Notaries were compelled to take out commissions has not that character of severe accuracy, without which questions of this nature cannot be safely treated. From the facts contained in the appendix to the report, it is apparent that the Notaries were not compelled to take out commissions; and the report itself informs us, in a subsequent part of it, that of the whole number of the Notaries commissioned for Lower Canada, only thirty-one took out new commissions; and of the number of those who did not take out new commissions is the petitioner himself. It was clearly optional to the Notaries to take out their commissions or not, as they should be advised or thought proper. If they were pub lic officers holding commissions during pleasure, sound discretion might perhaps have dictated to them the propriety of receiving their commissions; but, although no legitimate ground of complaint lay on their part, because of their having an opportunity so afforded to them of renewing their commissions, serious responsibility would have attached to the Provincial Government, and more especially to the law officer of the crown charged officially with the preparing of the commis

sions rendered necessary by the demise of the crown, if he had failed to afford to the Advocates, as well as to the Notaries, the means of taking out such commissions, if they thought fit. As the matter now stands, the Notaries who have not chosen to take out their commissions, and those who choose to employ them, act upon their own judgment; and without any other controul than the controul of the law, be that what it may, and subject only to such consequences, if any, as flow from that law. There is nothing here of the will of any man, or of any set of men, controlling or impeding the operation of the law, or compulsory upon these individuals. It would have been otherwise if the officer charged with the preparing of the renewed commissions generally, had taken upon himself to furnish no drafts for Attornies or Notaries. It is obvious that if the law required such commissions to issue, and that in default thereof the powers of Advocates and Notaries determined at the expiration of any given period from the demise of the crown, such nonfeasance on the part of the public officer could not have had the effect of preventing the operation of the law. These individuals must have been visited in their own proper persons and property with the consequences of this nonfeasance on the part of the public officer; and even though the conclusion he had come to should have been a correct one, still his conduct would not have been justifiable, inasmuch as it was the right of each individual of this profession, and of this office, to exercise his own judgment upon a subject wherein his own rights were involved, and to obtain, on the payment of the usual and established fees, a renewal of his commission. So far, then, from its being a legitimate subject of complaint that drafts of these commissions were prepared, the public officer would have incurred a high responsibility if he had not done so. In one word, the act here complained of was an act done in the fulfilment of his public duty.

The latter branch of this paragraph is equally deficient in logical precision; it is therein assumed that there was no right

to exact or receive a fee, because, in the opinion of the committee, no law applicable to the Notaries of this country could justify the obligation attempted to be imposed upon them, to take out new commissions. I shall come by and by to the consideration of the assertion hazarded by the committee, in relation to the right to receive these fees; at present I confine myself to the consideration of the proposition here stated, and its logical accuracy; it may either mean that Notaries not taking out their commissions were not bound to pay any fee upon them, because no new commissions were in their opinion necessary, or it may mean that Notaries taking out new commissions in pursuance to the notice above given were not bound to pay any fees upon so taking out these commissions, because again, in their opinion, the renewal of the commissions was unnecessary. These propositions are very different, and ought not to be confounded. It stands admitted that Notaries may or may not sue out new commissions as they think fit, subject, however, to the legal consequences of such default, if it be one, and without being liable for the payment of any fees whatsoever upon commissions which they have not thought proper to accept, and accordingly upon this class of persons no fees have been exacted or received. It is widely different as to the Notaries who chose to take up their commissions. On what ground could they claim an exemption from the payment of the stated fees upon demanding and receiving their commissions; the payment of the fees was incident to their own act, and these fees constituted the legal remuneration to the public officers whose services they had used. It is this last proposition which, from the context of the report, we are led to believe that the committee intended to state, and its inaccuracy seems to be manifest.

The Committee go on :

"Your Committee deem it their duty to remark to your honourable House, that the notice which was published, by order of the Executive Council, after the 15th of December, was addressed to persons who held commissions during plea

sure,' that they could not remain in force after the 26th of the same month, in virtue of a certain statute. That act, that of the sixth year of the reign of Queen Anne, chap. 7, only speaks of the commission of public officers, whom the King may dismiss whenever it pleases him; and it is by the effect of a principle of the common law of England, limited by that statute of Queen Anne, that on the demise of the Kings of England, those public functionaries must in England be continued in those offices, which they cannot fill except by the will of the reigning sovereign. The application which has been made of this statute, or of this principle, to the Notaries and other persons exercising professions in this Province, by requiring the renewal of their commissions, is an encroachment upon the independence which, it is acknowledged, ought to characterise those professions, and to remove therefrom the influence of any power to which the law which established them does not require them to submit. Independent of the injustice there would be in rendering a class of men who maintain themselves by their labour and their industry, dependent upon any government for their means of subsistence, the danger and the innumerable inconveniences must be felt, which would be the result in this country of the subserviency of professions to the executive power; and to show how much such a pretension is unfounded, your committee believe that it will suffice to observe that the persons who exercise professions in Canada do not hold the power of exercising them from the will of government, but from the law, which established those professions, and which ordains that every individual possessing the necessary qualifications shall be admitted to them."

This paragraph is equally deficient with the last, in logical precision and in legal accuracy; let it be analysed for the purpose of ascertaining how far this is true:-It is therein stated

1st-That the notice was addressed to persons who held commissions during pleasure, that they could not remain in force after the 26th of December, by virtue of a certain

statute.

2d-That the statute in question only speaks of the commission of public officers, whom the King may dismiss whenever it pleases him; that the statute in question limits the principle whereby those public functionaries must in England.