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HEItEY^ GEORGE STOBBS, PRINTER. 1834. ^i i»'.' m' ,.t..\c *A.fcr«Sias^'. -i .'■ '* i'' ■ i;iV;;j(ii;,i'. ,,ii; > ',^j^i^lf^'\h.,h 'iJL^.A'. :ik':ii'i'i -^■•■'. '^i.!' '''''i "'•'♦'>.-*■ •f'i'^' ■'^■\> ..,, ^-ci'i'< "[!": There are few enactments eilher of the Impe- rial or Provincial Legislatures, having relation to Canada, vsrhich are more frequently cited than the 31st. Geo. III. c. 31., and generally known under the popular appellation of The Constitu- tional Act. I may, however, venture to assert^ that this act has perhaps experienced far les9 care- ful and studious perusal than its great merits and importance entitle it to claim. It is to it alone that the Canadas are indebted for a con$titution of government similar to that which the Mother* Country herself has so long and advantageously enjoyed : at least in as far as corresponding cir^ cumstances could admit of a similitude of insti- tutions. 1 may also venture to express a fear that it has hitherto been the fate of this great Charter of our liberties to have been referred to, more for the purpose of elucidating questions of an inci- dental and partial nature, than as the natural source of more general and abstract information. For these reasons, and without any pretentions to a superiority of talent, information, or know^ ledge, 1 have been induced to offer to the public a few remarks upon a subject, of all others, the Qiost interesting to a free and inielligeiit people ; and whose happiness and independence must mainly rest on an intimate acquaintance with the basis and origin of our rights. Atanjr rate,a^e great advantage which roust necessarily arise from the present publication, is the general publicity that will be given to our Constitutional Act. The mere fact of its constitut- ing a part in our printed laws of a voluminous and expensive collection of statuses, forms an obstacle \o its being placed at the disposal of those who are most interested in it; while it must be ac- knowledged that every facility ought to be afford- ed to its general circulation. Printed thus sepa- rately, it can easily be procured by every one de- sirous of becoming familiarly acquainted with it; and if the commentaries lyitl^ which its various clauses are intermingled^ should unfortunately |>rove undeserving of genera) approbation, the text will at least be secure from condemnation^ for the integrity of the act will be found to bfi most sacredly preserved. , 'hut n*j 'h* ^'(lOiMouT) -■'•••^' ' h'wlBa odj p..ri. !.n ii |^aw« Clerk to the House .ffeilimnoMH bin]- . ,^.; of Assembly, - '.'I ■;/■• V- • "• ..» '■>(/■ H'' 'II , •< 'i ^i :*0 i4iu2.«« ii. COMMENTARY. yiHoi^^mtl/ll M'-"'- -!■♦ r ON THE ACT OF THE 31st GEORGE III. CHAP. Si; '.'il'uni- eOMMONKY CALLEP ?f; ' .U Dvr, ,f..j, j,:j« ,. i,v.^.,jf,.,/_ .w tt.i OP .si>, iA-ifttr^ yji «i .|,?^vriiv'^'.'jl if •tJ^iaiti/...- n .ijith'.fi^i 1. Whereas an Act was passied in the fourteenth year of the Reign of his present Majesty, intituled, An Aft for mak-% ing more effectual provinion for th,e government of the Province ff Quebec in Nort^ America : j\od whereas the said Act is in many respects inapplicable to, the present condition and circumstances of the said Province; And whereas it is exn pedient and necessary that further provision shp.itld now be made for the good Qovernment and prosperity thereof: May it therefoie please your most Excellent Majesty that it may be enacted ; and be it enacted by the King^s most Ex- cellent Majesty, by and with th^ advice and CQOsent of t^ Lords spiritual and temporal, and Commons, iq, tbi? present Parliament assembled, and ^y thjB authority of th/a sajoe, Tfaa^ so much of the said Act as in any manner i;elatef o the ap- pointment of a Council for the aSairs of the saiu rrovince of Quebec, or to the power given by the siyd Act to the said Council, or to, the ;na|or part of them,^ to make Ordinances for the peace,^ welfare, and good G.overnment of the said Province, with the consent of His Majesty's Gover-. nor. Lieutenant Governor, or Cpramander in Chief for the time being, shall be, and the. same is hereby repeah»d. This clause repeals that part of (he l4th Geo.. III. chap. 83, which established a Council for tho affairs of the Province of Quebec ; but by the. liOth Section it is declared lawful for the Goiteir* ( fl ) nor of each of ihe Provinces^ with the consent of iUc mHjority of such Executive Ooancil as may be Hppointed by His Majesty for the affairs of buch Province, to make temporary laws for the good ji^oyornmcnl, peace, and welfare of such Province ; nnd (hat such laws shall be in force until theexpi- lation of six months after the first sitting of the Provincial Legislature, \ ; II. And whereas His Majesty has been pleased to signify,^ by his message (o both Houses of Parliameiit, his l^oyal in^. lention tu divide his Province of Quebec into two separate Provinces, to bo called the Province of Upper Canada, and the Province ^f L^owar Cai^8|da ; bo it enact(>d by the autho- rity afuresaid, That there shall be within each of the said Provinces respectively tt Legislative Council, and an Assem- bly, to be sevcraljy composed and constituted in the manner lie re rn> after described : and that in each of the said Provinces respectively His Majesty, His Heirs or Successors, shall have power dliring the cohtrnuance of this Act, by and with the ad^ vlcr and consent of the Legislative Council and Assembly of such Provinces respectively, to make laws for the peace, weir fitto Hnil good Government thereof, such laws not being repug- n':ii)1 to this Act ; and that all such laws, berng passed by thp Logl'^^rttivo Couucil and Assembly of either of the said Pro- Vrnrcs respectively, and assented to by His Majesty, His Heirs py Successors, or assented to in His Majesty's name, by such person as Flis Majesty, His Heirs or Successors, shall from tiirc t*) fi^"e nppnint to be the Governor, or Lieutenant Gover- nor*, ofsiTCh Province, or by such person as His Mnjesty, His llfil-s i),y Succpssors, shall from time to time appoint to admin- ii*tcr the Govtrnment wiihin the same, shall be, and the same are hereby declared to be, by virtue of and under the authority of this Act, valid and binding to all intents and purposes what-. fver, withiu tl^q Proviucc in which the same shall have been. sopassqdV/. . : Hut the Acts to uhich (he Royal sanction is thus given, by the Governor, in His Majesty's name, are nevertheless subject to be disallowed by His. Mnjesiy, as will appear from the 3lst Section. \II, Ati4 h? it further enacted by the authority aforesaid*. 'That for the ptirpo.se t.f constituting such L^islativf Couacil, ^i^ (') M «ior«fti4 ia tieh of tb* Mid Provincu refpedively, It vbiill and nty belawlUfor His Maies^, His Huirs uir Succusso.* by u InltruneDruoder His or their Sign Manual, to authorize •ad direct the Ooi^ernor or Lieutenant Oovernor, or person ■dmliistering the QoTernment in each of tlie said Provinces respectively, within the time herein-aAer mentioned, in 11 m Majesty's name, and by an instrument under the Great Svn\ of such Province, to summon to the said Legislative Council, to be established iileachof the said Provinces respectively, a sufficient number of discreet and proper persons, being not fewer than seven to the Legislative Council for the Provinco of Up- per Canada, and not fewer than fifteen to the Legislative Couti- eil for the Provinte of Lower Canada ; and ihut it shall also hu lawful for His Majesty, His Heirs or Successors, from time to time, by an instrument under his or their Sign Manual, to au- thorize and direct the Governor or Lieutenant Governor, or person administering the Government in each of the said Pro- vinces respectively ^ to summon to the Legislative Council of such Province, in like manneri such other person or persons as His Majesty, His Heirs or Successors, shall think fit ; and that every person who shall be so summoned to the Legislative Council of either of the said Provinces respectively^ shall there- by become a Member of such Legislative Council to which he iball have been 80 summoned* ■M\ 'V! This section requires the performance of two conditions : firstly^ there must be an order or mandamus, under the King's sign manual, author* izing and directing the Governor to summon Eome person or persons to the Council ; and afterwards there must be an instrument under the Cireat Seal of the Province by which such person or per; sons are summoned to the Council. It is necessary to remark, that this summons suf- fices to render the person to whont it is addressed a Member of the Legislative Council, according to the express terms of the Act, which leaves the future Councillor no discretionary power to ex- ercise, it is true that this Act does not point out any means of compelling the person so summon- td i,o fulfil the dutiet.of the office, but it does :V- . (ft) Aotfor that rtfakon tippekr to be letfi c<)rUtn tlidC he becomes a Member of the Couucil bv thd mere operation of the summons. It foilow«r therefore, that a Member of the Assembly mivn^ moned to the Council, immediately loses his cha- racter of Represeiitative* and that his seat imme- dialely becomes vacant, and consequently (hat he cannot regularly resign a seat, to which he has ceased to hare any riirht. IV. F'royided dl^ays,' and be it enacted by the authority tiforesaid, That no person shall be summoned to the said Le-^ gislative Council^ in either of the said Provinces^ who fhall not be of the full age of twenty one years, and a natural-born Subject of His Majesty, or a subject of His Majesty naturalized by Act of the British Parliament, or a subject of His Majesty^ having become such by the conquest and cession of the Pro^ Vince of Canadai ' ^ "**^^ ,»:r>R»"ji'>i(rr, io -fi ri j-ui //ti^j^R tm •This sectiotl fixes the condition upOn iivhich t^ person is admissible to the Legislative Council :— • in every case the person summoned must bti tvventy-otle years of age; he must also be a subject of the Kirig by biith ^ or he must have been naturalized by an Act of the British t'arliament ; or he must haye become a sub' ject by the cession of the Province. It is easy to see that the last class of subjects has become! nearly extinct by th^ lapse of time since the con-" quest. To be a natural-born subject, opens the door of the Council ii) either Province to every man who is so born, in whatever part of His Majesty^a dominions he may be born, and Irithout i^ny dis- tinction between Protestants and Catholics. But that part of the Section whjch regards the nator- aiization by Act of the British Parliament, ap' pears to itie to be Worthy of some remarks. It i» to be observed in the Srst place, that aithough this Section seeMs to admit without tliitinction aK (9) thoie who are miitir&lieed by Act of the British Parliament, yet in fact it extends, to foreigpd Pro- te8tant!4 only, as will be hereafter shown : — and next, that the foreigner who is naturalized can only take advantage of the privilege conferred on him by provnig that he has complied with the re- quisite conditions ;— a circumstance which may greatly reduce the number of those who might wish to avail themselves of the provisions of tho Act in question. I think 'it right to enter into some details on this subject, in order to show what is the spirit of English legislation with respect to the effects of naturalization. »»»^ iwi^a^ mhuj O'i i By the Act of the I2th and iSth William III,! chapter 2, it is enacted that no person who is not born within the kingdoms of England, Scotland^ or Ireland, or the dominions thereupon depend-^ ing, although he be naturalized, or a denizen (ex*^ cept those born of English parents) shall be a Member of the Privy Council, or of either House of Parliament, or hold any office or place of trust civil or military, or obtain any grant of lands from . the Crown, either by himself, or through any I. other person for him. ' ^'*" ^ By the Ist Geo. I. chapter 4, which explains the Act last cited, it is enacted, Section 2, that no person shall thereafter be naturalized, unlesaj there be in the Bill brought in for the purpose, a! ' special clause declaring that such person shall ' not by such naturalization be rendered capable of being a Member of the Privy Council, or of either of the Houses of Parliament, and that no Bill which shall not contain such speeial clause shall be received by either House of Parliament. . The ISth Geo. II. chap. 3, enacts that every foreign sailor who Bhall, after the 1st January B { 10 ) 17S9> have served in time of war on board any of His Majesty's ships of war, or on board any mer- chant vessel belonging to His Majesty's subjects in Great Britain, during two years shall, to all intents and purposes, be held and considered to be a natural subject (£. the Kingdom of Great Britain, and shall have all the ri<^hts and privi- leges attached to that character, as if he had (ruly and in fact been born a subject of His Majesty in the Kingdom of Gret^t- Britain. Nevertheless, notwithstanding this 'latitude^ or rather this exten- sion of the privileges of a natural-born subject, the third section forbids the. entry of any such person into the Privy Council, or into either Houses of Parliament. „n,c, ■,■ , v /^^«e. i > England, IhereforB, is willing to recompense certain foreigners for the services she has received from them ; she is willing to encourage them to settle within her dominions, by offering them all the privileges enjoyed by native subjects ; but she will not in any case consent to give foreigners a right of making laws for native subjects, even jointly with them. And in order to set aside this rule in extremely rare cases, not less than two Acts of the Imperial Parliament are necessary; viz. an Act of naturalization of such and such persons by name, preceded by an Act permitting the introduction of a Bill of Naturalization without the special clause of disqualification required by the Act of the 1st Geo. I. chap. 4. .,j >, ',, By the l8(h Geo. II. chap. 7, every foreigner not born within the allegiance of His Majesty, who shall have resided seven years in any of His Majesty's Colonies in America, without being ab- sent more than two months at any one time, and who shall take and subscribe the oaths^ and shall of ler- jcts all to I'eat livi- juiy in JSS. make, repeat and subscribe the declaration re- quired by the'lst Gr«o. I. chap 13, in the presence of a judge, shall be considered a natural-born subject of His Majesty. The oath is to be made, and the declaration taken, during the sitting of the Court, between nine in the forenoon and noon, and en registered in the said Court and in the office of (he Secretary of the Colony. Such foreigner will not, however, be natural- ized by complying with the ^id provisions, un- less he shall have received the sacrament in some Protestant or reformed congregation, in the kingdom or in the Colony, within the three months immediately before the taking of such oath, and shall produce a certificate from the per- son who shall have administered the sacrament ta him, attested by two credible persons ; which cir- tificate shall be enregistered in the said Court, and in the office of the Secretary of the Colony.. —Provided always that such person shall not be a member ot the Privy Council or of either of the Houses of Parliament in the Kingdom of Great Britain or Ireland. By the 22nd Geo. II. chap. 45, section 8, fo- reign Protestants who shall have served during three years on board English vessels employed in the whale fishery, and shall qualify themselves in the manner prescribed by the Act, and shall take the sacrament as aforesaid, shall be considered as naturaUborn subjects of His Majesty, but shaBnot be admitted to the Privy Council, nor into either Houses of Parliament. They lose the privilege granted them by the Act if they are absent for more than twelve months consecutively. /: t >/ r The Act 2 Geo. III. chapter 25, naturalizes such foreign Protestants as shall have served or ( 12) shall serve daring a certain time as officers or as privates in the Royal American Reg^iment, or as engineers in America^ ^'t'' - > ^ ,,j^ The 18th Geo. III. chapter 25, which explains the Idth Geo. II. chapter S, and the 2nd Geo. III. chapter 25, says, '' whereas douhts may ne- vertheless arise whether such persons as have heen or as may be naturalized under or by virtue of the said recited acts, are capable of taking, having, er enjoying any office or place of trust, civil or military, or of taking any grant of lands, tenements or hereditaments from the Crown whatsoever, be it enacted, &c. that all and every person and persons that have become His Majes- ty's natural -born subjects by force or virtue of the said Acts, or either of them, are and shall be deemed to be capable of holding any office or place of trust, either civil or military, and of taking and holding any grant of landd, tenements and hereditaments from the Crown, as well un- der the Great Seal of Great Britain as otherwise (other than and except offices and places and grants of lands, tenements and hereditaments within the kingdoms of Great Britain and Ireland) any law to the contrary notwithstanding.'* This Act in enumerating thk several privileges granted in the Colonies, makes no mention what- ever of the right of being a Member of the Colo- nial Legislature. From all that has been stated above, I should be, Iconiess, tempted to infer from analogy, that foreigners so naturalized, although enjoying all the other privileges of British subjects, cannot, nevertheless, claim the very important right of sitting in the Provincial Legislature. I find diffi- culty in believing that a privilege of the nation would be offered to entire classes of individuals. (13) ts f whose i^eiv s (however distinguished they may be) in the navy or army, seem scarcely to qualify them for the performance of functions so impor- tant. It would be necessary to suppose that the foreign seaman or sailor who had served two years in His Majesty's Navy or in the English merchant service, — that the foreign Protestant, who had been employed for three years in the whale fishery in an English vessel, — that the private soldier, who, being a Protestant foreigner, had served in the Royal American Regiment, became by such service alone, qualified to be members of the Colonial Legislature. Besides, on the other hand, the naturalization, by virtue of which they could claim this privilege, is in certain cases acquired with difficulty, while in others it is very easily forfeited. Thus, by the 13th Geo.' III. chap 2, an absence during two months con- secutively during the period of seven years, pre- vents the naturalization ; and by the S2nd Geo. II. chap. 45, foreign Protestants naturalized un- der the Act, loses their privileges by an absence of more than twelve months consecutively. How are we to reconcile these provisions with the eighth section of the Constitutional Act, which ' requires an absence of four years, in on^i case, and of two years in another, before a Member of the Legislative Council can be deprived of his seat by reason of his absence. Nevertheless I am bound to acknowledge, that' the clause is formal, and admits all persons with- out exception who are naturalized by Acts of the British Parliament. I certainly have not the pre- sumption to attempt to decide a question of this importance. - - ' ■- /^ ' Let us now turn to another class of eligible pei'sons crealed by the subsequent Acts of tbe- Imperial Parliament ; I mean by the 7th Geo. IV. chap. 68, with reg-artl to Upper Canada;, and ih& 1st William IV. chap. 53, with regard to Lower Canada. By these Acts, by which Ibe Act I am now considering is amended, it is enacted, that every person naturalized by an Act of th« Legis- lative Council and Assembly of the Province^ sanctioned by His Majesty, shall be thereafter qualified to be summoned to the Legislative Council, to vote at elections for iMembers of the Assembly, and to be elected to serve therein^ This privilege is considered as so important, that the Governor of the Colony is not empowered to sanction any Bill of Naturalization passed by the two Houses upder these Actsof the Imperial Par- Hament, but is directed to reserve it for the sign i-, ficationof His Majesty's pleasure. iui(l> .uil This concession is the more important, as al- most all the anterior Acts of the Bfitish Parlia- ment which relate to naturalization, would by the nature of the oaths and declarations which they require, exclude all Catholics from the advantages- granted or offered to Protestant fureigners, while the recent acts above, r^citedj. c|o,A9t>Ji*'^sent the same inconvenience. , , > i ^. , p ,-! r ; r , : We might, perhaps, be tempted in Canada to- talk of injustice and persecution when we see Ca* i tholics almost uniformly excluded from the bene-, fits of naturalization which are olfered to Protes- tants ; but it must be remembered that the Acts> above-cited, and a crowd of others which relate to the same subject, are anterior to the acquisi-; tion of Canada by England, and that Catholics in this country have, ever since that period been much more favorably treated than English Catho* lie subjects were formerly in England itself. ■> i ( 15 ) Before I quit this part of my subject, I think it right to remark, that the conditions under which a person is eligible to servo in th^ Assembly are the same as those I have just been considering, as far as regards the qualification of being a subject of His Majesty, and that the electors must be qua' lifiedin like manner. . .';>!^J^ «*H^.!Mnn ,M,i^n ,v,t-p *V. And be it further enacted by the authority aforesaid, That every member of each of the said Legislative Councils shall hold his seat therein for the Term of his life, but subject .nevertheless to the provisions herein-after contained for vaca- ting the same, in the cases herein-after specified. VI. And be it further enacted by the authority aforesaid, That whenever His Majesty, His Heirs or Successors, shall think proper to confer upon any subject of the Grown of Great Britain, by Letters Patent under the Great Seal of either of the said Provinces, any hereditary title of honour, ranker dig- nity of such Province, deucendible according to any course or descent limited in such Letters Patent, it shall and may be law^ ful for His Majesty, His Heirs or Successors, to annex thereto, by the said Letters Patent, if His Majesty, His Heirs or Suc- cessors, shall so think iit, an hereditary r'f^ht of being sum- moned to the Legislative Council of such Province, descendi- ble according to the course of descent so limited with respect to such title, rank or dignity, and that every person on whom such right shall bo so conferred, or to whom such right shall severally so descend, shall thereupon be entitled to demand from the Governor, Lieutenant Governor, or person adminis- tering the Government of such Province, his Writ of Summons to such Legislative Council, at any time after he shall have d- tained the age of twenty one years, subject nevertheless to the provisions herein-after contained. VIL Provided always, and be it further enacted by (he au- thority aforesaid. That tyhen and so often as any person to whom such hereditary right shall have descended shall, without the permission of His Majesty, His Heirs or Successors, sig- nified to the Legislative Council of the Province by the Governor, Lieutenant Governor, or person administering the Government there, hare been absent from the said Province for the spac^ of four years continually, at any time between the date of his succeeding to such right and the time of his applying for such Writ of Summons, if he shall have been of the Age of twenty-one years or upwards at the time of his so succeeding, or at any time between (he date of his attaining the said ago (W) ftnd tlie time of his so applying, if he shall not have Ibeeil of ttid said age at the time of his so succeeding ; and also when and BO often as any such person shall at any time, before his apply" ing for such Writ of Summons, have taken tiny Oath of Allegi- ance or Obedience to any foreign prince or poWer, in every such case such person shall not be entitled to receive any Writ of Summons to the Legislative Council by virtue df such here* ditary right, Unless His Majesty, His Heirs ot* Successors) shall at any time think fit, by instrument under tlis or theii* Sign Manual, to direct that such person shall be summoned to the said Council ; and the Governor* Lieutenant Oovetnor, or person administering the Government in the said Provinceii respectively, is hereby authorised and required) previous to granting such Writ of Summons to iiny person so applying for the same, to interrogate such person upon oath touching the said several particulars, before such Executive Council as shall have been appointed by His Majesty, His Heirs or Successorsi within suck Province for the afl^irs thereof* YIIL Provided also, and be it further enaeted bythoflutho' rity aforesaid, That if any member of the Legislative Council of either of the said Provinces respectively shall leave such Province, and shall reside out of the same for the space of four years continually, without the permission of His Majesty, His Heirs or Successors, signified to such Legislative Council by the Governor or Lieutenant Governor, or person administering His Majesiy^s Government there, or for the space of two yeaiis continually, without the like permission, or the permission o( the Governor, Lieutenant Governor, or person administering the Government of such Province, signified to such Legislative Council in the manner aforesaid : or if any such member shall take any Oath of Allegiance or Obedience to any foreign prince or power ; his seatio such Council shall thereby become vacant* . ,. , . There appears to be some difficulty in the lan- • guage of the eighth section, with regard to the length of absence from the Province, by which a Legislative Councillor may lose his seat. The words are, *' Four years continually, without the permission of His Majesty, signified to the Coun cil by the Governor, or two years continually without the like permission (that is to say, that of His Majesty) or without the permission of the ^ (in £ Governor sip^nified to the Council. The leave of absence granted by the King, which extends to four years in the first instance, appears to be re. strictcd to two years in the second case. The passage may be thus interpreted: the member who is absent durins^ foUr years shall not lose hia seat, if he proves that hie had leave of absence from the Kinj^, which alone will enable him to re- tain his seat in such case ; if he has been absent two years, he may plead leaveof absence from the King which may have been granted for less than four years, or leave of absence from the Governorj Vvhich cannot exceed two years. If he has nei« ther the one nor the other, he is liable to lose his seat. This clause might have been drawn up wilh greater perspicuity. • .-ut-i' i. A\/ IX. Provided also and be it further enacted by the authority aforesaid, That in every case where a Writ of Summons to sucli Legislative Council shall have been lawfully withheld from any person to whom such hereditary right as aforesaid shall have descended, by reason of such absence from ibe' Province as aforesaid, or of his having taken an oath of Allegiance or Obedience to any foreign prince or power, and also in evtry case where the seat in such Council of any member thereofi having su(ih hereditary rlghl as aforesaid, shall have been va- cated by rerfson of any of the causes herein-before specified, such hereditary rigiit shall remain suspended during the life of such person, unless His iVIajesty, His Heirs or Successors, shall afterwards think fit to direct that he be summoned to such Council ; but that on the death of such person, such right, sub- ject to the provisions herein contained, shall descend to the person who shall next be entitled theretr , according to thd course of descent limited in the Letters i'utent by which the Same shall hav > been originally conferred. X. Provided also;. and be it further enacted by the authority aforesaid. That if aiy member of either of the said Legisla- tive Councils, shall be attainted for treason in any Court of laur within any of tiis Majesty's Dominions, his seat in such Council shall thereby become vacant, and any such hereditary right as aforesaid then vested in such person, or to be derived to any I Other peruons through him, shall be utterly furfelted' arrdf tn^ tiflguished. XI. Provided also, and be it further enacted by the autho** rity aforesaid, (hat whenever any question shall arise respect-^ ing the right of any person to be summoned toeither of the said Legislative Councils respectively, or respecting the vacancy of the seat in such Legislative Council of any person having been summoned thereto, every such question shall, by the Governor or Lieutenant Governor of the Province,, or by the person administering the Government there, be referred to such Le-- gislative Council, to be by the said Council heard and deter<> mined ; and that it shall and may be lawful eilher for the per-* son dosiring such Writ of Summons, or respecting whose seat such question shall have arisen, or for His Majesty*s Attorney General of such Province in His Majesty's name, to appeal from the determination of the said Council, in such case, tO' His Majesty in his Parliament of Great Britain 'y and thai the judgment thereon of His Majesty in his said Parliament shal^ be final and conclusive to all intents and purposes whatever. XII. And be it further enacted by the authority aforesaid. That the Governor or Lieutenant Governor of the said Pro- ylnces respectively,, or the person administering His Majesty's- Government therein respectively, shall have power and autho- rity from time to time, lay an instrument under the Great Seal 3f such Province, to cohstitute, appoint and remove the Speak- ers of the Legislative Councils of such Provinces respectively.- The twelfth clause, by formally reserving to the Governor ihe right of constituting, appoining, and removing the Speaker of the Legislative iCouncil, without in any way mentioning the Speaker of the Assembly, thereby admits accord-' ing to the ordinary rules of legal interpretation, the right of the Assembly to choose their Speaker without any control. It would appear to be very natural that th« King should appoint the Speaker of a body of which all the members were selected by himself ; and that he should leave to the re- presentatives of the people, over whose election he cari exercise no control, the riq^ht of choosing ai liead from among thenr-selves. The Assembly has always, however, from the sitting of the first Par- ( 19 ) . kiament, followed the usa^^'e adopted in England, of presenting one of its members to fill the office in question. The 8[)eaker elected had always been approved without the least difficulty- The presentation by the Assembly, and the acceptance of the Governor, had always been considered so much a matter orc».)urse. that under the memora- ble administration of Sir James Henry Craig, Mr. J. A Panet, whohad several times filled this important office, (to which he was called equal- ly by his known patriotism and talents, and the confidence of his countrymen and fellow mem- bers) having fallen into disgrace with the Execu- tive Government, was nevertheless again elected Speaker of the House, and presented as such for the approval of His Excellency, who did not think proper to refuse him. This was the more remarkable from the same Governor's having, a short time belore, thought it right to deprive the sameMr.Fanet of his office as Justice of the Peace, and of his commission as an officer of Mifilia, and that in a public manner, and often assigning as his reason the want ot confidence on the part of the Government in a man concerned in the pub- lication of the paper called '* Le Canadien."" Notwithstanding this, when he was presented, Mis Excellency accepted him in the ordinary form, saying that he was convinced of his loyalty, ta- lents, &c. &c., and approved and confirmed the choice of the Assembly. It is evident that a man of Sir James Craig's decided character, would never have accepted Mr. Panet as Speaker if he had thought himself authorized to refuse him. It was reserved for one of his successors, the Earl of Dalhousie to try this question, which had continued up to that time undecided, and enve- C 2 («•) kf- 11 loped, tike many other important questions, in an obscurity perhaps solitary: and this delicate point in which lht» prcro.. i.: « «J^ ....... A.IV. And bo It further enacted by the authority aforesatd^ That, for the purpose of olectiiig the Members of such Aaseni' blios respectively, it shall and iiuiy be lawful for His Majesty, His Heirs or Successurs, by an iiistriniictit under His or their Sign Manual, to auihori/.c the Governor or LieuUMiunt Govern- or of each of the said provinces rc's|ieciively, or the person administering the Governmuiil therein, witliin lite time herein- after mentioned, to issue a proclamation dividing such Province into Districts or Conuties, or Circles, and Towns or Townships, and appointing the limits thereof, and declaring und appoint- ing the number of representatives to Lu chosen hy each such Districts, or Counties, or Circles, and Towns or Townships re- spectively ; and thai it shall also be lawful for His Majesty, His Heirs or Succtssors, to authorize such Goverijor or Lieu- tenant Governor, or person administering tlie Government, from time to time to nominate and appoint proper persons to execute the Oflico of returning OH'icer in eacli of the said Dis- tricts, or Counties, or Circles, and Towns or Townships re- spectively ; and that such division of thi; said Provinces into Districts, or Counties, or Circles, and Towns or Townships, and such declaiatiuu and appointmeut of tlie number of repre- sentatives to be choseir by eacli of the said Districts, or Coun- ties, or Circles, and Towns or Townships respo'ctively, and alsostch nomination and appointment of Returning. Officers in the same, shall be valid and eHectual to all the purposes of this Ac!, indess it shall at any time be otherwise provided by an act of the Legislative Council and Assend)ly of the Province, assented to by His Majesty, His Heirs or Successors, \ XV. Provided nevertheless, and be it further enacted by the authority aforesai I, That the provision herein-before con- tained, for impowering the Governor, Lieutenant Governor, or person administering the Government of the said Provinces respectively, under such authority as aforesaid from His Ma- jesty, His Heirs or Successors, from time to time, to nominate and appoint proper persons to execute the office of Returning Officer in the said districts, counties, circles, and Towns or Townships^ shall remain and continue in force in each of the said provinces respectively, for the teim of two years, from and after the commencement of this act, within such province, and no longer: but subject nevertheless to be sooner repeaU ed or varied by any act of the Legislative Council and Assein-. bly of the province, assented to by His Majesty, His Heirs or Successors. .- XVL Provide! always, and be it further enacted by the Authority aforesaid, That no person shall be obliged to eze- (i (82 ) CQte the said ufftce of Returning Officer fur any longer Tim* than dpo y«nr, or oftenor tlian once, unless It shall at any timo; bo olliprwiso providtMl by any acl of tho Leglsl uive Coiinc5 and Assembly of the t)ruvincc', ussei^ted lo by iiis Majesty^ IS Moirs or successors. ' ' »<.<«, XVII. Provi(lerson chosen, or by his being summoned to the Legislative Council of either pro- vince, and that such Writs sliJill l" made returnable within fifty days at farthest from the day on which they shall bear Date, unless it shall at any time bo otherwise provided by any Act of the Legislative Council and Assembly of tho province, assented to by his Majesty, his heirs or successors ; and that in case of any such vacancy which shall happen by the dec iiofthe person chosen, or by reason of his being so sumx moned as aforesaid, the Writ for the election of a new menw ber shall be issued within six days after the same shall be made known to the proper office for issuing such writs of eioction, XIX. A .d be it further enac*etl by the authority ^ f J.^, That all and every the Returning Officers so appo. . 1 as a- foresaid, to whom any such writs as aforesaid shall be directed shall. ww\ they are hereby authorized and required duly to ex- ecute such wits. XX. A'id be it further enacted by the authority aforesaid, Tbat the vu<^;^ >>erf fot^ tho several districts, or counties, or cir- ,1 (23) eles ofthe said provinces respectively, shall be cKfiJien'by'm^ ^- »jority of votes of such persons as •hull severally be |)0!?spssc<3 inr their own use and beiiuit, of luiid< ut tenements withiit such district, or county, or circU, h» the cus slmll be, such lands being by thoni hold in rreehohi, ■ u fiel, )r in roture, or by certificate derived wndoi the Auiluuity ot 'lie (jovernor tnd Council of the Province of Quebec, and bcn'r of the yearly Value of Forty Shillings Sterlint^, or upwards, ./V6r and above all rents and charges payable out of or < re|iipe( 'of the same ; nnd that the members for the several tu ns ur 'uwu''' 'Bl/i»1:. within the said provinces respectively, sha. 'ie chosen by ^l.^^'ltnjority of votes of such persons as either si ill sevcr.illjr he poisessed, for their own use and bene6t, of a dwellitiL'-' house and lot of ground in such town or Township, .siKlidwi. • Jing house and lot of ground being by them held in \\l ' nian- ^er as aforesaid, and being of the yearly value of five pounds f^terling, or upwards, or, as having been resident whhi the said town or Township for the space of twelve GhIi ndar monthsnext before the date of the Writ of Summous fur tho election, shall bona fide havu paid one year's rent fur tho dwelling-house in which they shall have so resided, at the i to of ten pounds sterling per annum, or upwards. The twentieth section declares what are iIit conditions under whicV any person may be at elector of members of the Assembly. All electors for counties, muU, wilhout exception, be freehold- ers: in the towns, tenants have the ri^ht of voting- as well as freeholders. There are, therefore, only two classes of voters in the towns, and only one in the counties ; the forms of the oath required by the Act 5lh Geo. IV, chapter 33, clearly prove this. It ifl there enacted, that the electors tor c6untie ho shall claim the rightof votinj;- as free^ holders, shall take the oath No. 4, which, also, re* lates only to (he proprietorship, and thatthose who bhtiil vote ah tenants in the towns shall take a- , (M ) Ihe oath No. 5. It has often been proposed^ however, lo admit another class of voters both iii the counties and in the towns, by giving p6r* isons who have a iisiifructiiary estate in any pro^ perty the rii>ht of voting, (doubtless, however, without exciudini^ the proprietors) ; but it does not appear to me that this proposition can be in any manner niaintained. In fact, if such were the case, the same property might give two votes for the county; one to the person who had the usufructuary enjoyment of the whole or of part of it, and another to the prbprietor; it might give three votes in a town, one to the pro- prietor, another to the person who had the usu- fruclory enjoyment of it, and a third to the t«- nant, which is contrary to the Constitutional I think, then, no one estate can give more Ihsn one vote, even although it should be the undi- vided property of several co-proprietors, what- ever may be its value; and in this case t coiila ^ish ihat one and only one of (hfem should vote. But this I think is scarcely pr'aCticable, acQorclihg to the terms of the section under consideration, which requires that the electors shall severally bci possessed of property for tlicir oWn use and be- nefit, which no one of such Co proprietors can say or swe^r that he is It would rtct be just to give to several co-proprietors of the ^me J)ro{)er- ty, more privileges than are accorded tb the sole proprietor of several estates, who has only one vote. It would, nevertheless, appear to me to be just, that co-inheritors or co proprietors enjoying eevcra] distinct estates, should each receive a vote frttm one of the said estates, provided it was of the tequisite value, and that the rest of the cotiditions 1^' :!•!:..■. (25) required Were complied with. This, ho^^ever^ tannot take place, as it appears to me, without some chanj^e in the Act, because no one of such co-proprietors can say that he is possessed BekM- rally for his oton use and benpfit. ' i- ;> VVith regard to tenants, they are not all elec- tors, even ajihouj^h they pay the rent required by the Act, or a more considerable rent* The te- nant iniist reside in the house he rents, it must be his domicile. He must have resided in that part of the town for which the election is held» dujin and have paid a rent to the amount of at least j(?lO sterling- per annum. The section under conside* ration says formally, who shall have bond Jide paid one year's rent of the house in which he shall have so r.^sided, at the rate of ten pounds ster* lini;' or upwards* So that it is not sufficient to have paid ten pounds of rent, it is also necessary to have rented a house at the rate of at least ten •pounds per annum, to have paid one year of sudi rent, and to have resided in the house. Besides the qualification required by this sec- tion, and which we have considered, it must not be for<2^otten, that to be an elector, a person must also have all the qualifications required in per- sons admissible to the Legislative Council. I therefore refer to the remarks already made on the subject of the fourth section. (See also the 2^d section.) XXI. Provided always, and be it further enacted by the iaTithority aforesaid, That no person shall be capable of being elected a nietiiber to serve in either of the said Assemblies, or of sitting or voting therein who shall be a member of either of the said Legislative Councils to be established as aforesaid 19 the said, two provinces, or who shall be a Minister of the Church of England, or a minister, Priest, Ecclesiastic, or D (26) teacher either according to the Rites of the Chutch of RoiT)e«or nnder any other form or profession of religious faith or Wor-» shipi This section contains some restrictions with regard to admissibility into the Assembly, other than those proviUed with respect to the Legisia* tive Council. ■ - ' ■ ■ ■ r • ■ ■ XX[I. Provided also, and be it further enacted b)' tli« Authority aforesaid. That no person shall be capable of voting at any election of a Mt.nber to serve in such Assembly, in ei- ther of the said provinces, or of being elected at any such elec- tion, who shall not be of the full age of twenty one years, and a natural born subject of his JMajesty, or a subject of his Majesty naturalized by Act of the British Parliament, or a subject of his Majesty, having become such by the Conquest and cession of the province of Canada. i I This section ascertains the conditions on which any person is admissible into the Assembly, and the qualifications of electors, other than those re- quired by the twentieth section. As they are pre- cisely the same as those provided with regard to the Legislative Council, I refer to the remarks I have made on the fourth section. XXTII. And be it also enacted by the Authority aforesaid. That no Person shall be capable of voting at any election of a member to serve in such Assembly, in either of the said provinces, or of being elected at any such election, who shall have been attainted for treason or felony in any Court of Law within any of his Majesty's Dominions, or who shall be- within any description of persons disqualified by any Act of the Legislative Council and Assembly of the Province, assen* ted to by His Majesty, his heirs and successors. Under the provisions of this section, an act was passed by the Provincial Parliament in 181 ly which lakes away from the Judges of the Court of Kinj^'*s Bench the right of being elected members- of the Assembly. It is remarkable that by the terms of this Act, this disqualification extends! ( 27 ) pnly to the Judges of the Courts of King's Bench, and by the En!»lish text only to the two Courts of Kinu:'s Bench then in existence ; the word " either," signit'vinp^ *'*one or the other.*'* It would follow from this, that the Judges of the other Courts of the Province, or even the Judges of the other Courts of King's Bench erected since the Act passed, would not be thereby disqualified. Be this as it may, the members of the Executive Council who are judges in the Court of Appeals, are eligible to be Members of the House of As- sembly. • ' '■ '''"' By an Act passed in the last session of the Parliament 1832, to insure the independence of the Judges (which was reserved for the significa- tion ot His Majesty's pleasure), all the Judges as well of the Courts of Kinar's Bench as of the Provincial Courts, are declared incapable of sit- ting in the Legislative or in the Executive Coun- cil. XXIV. Provided also, and be it further enacted by the Au- •thority aforesaid, That every voter, before he is admitted to give his vote at any such election, shall, if required by any of the Candidates, or by the lieturiiing Officer, take the follow- ing oath, which shall be administered in the English or French language, as the case may require : I A. B. do declare and testify, in the presence of Almighty God, That 1 am to the best of my knowledge and belief, of the full age of twenty one years, and that I have not voted be- fore at this Election, And that every such person shall also, if so required as afore- said, make oath, previous to his being admitted to vote, that • It may nevertheless be said, that the word " either,** may likewise signify the Criminal and the Civil side of the Court of King's Bench, which have one comn»on name ; but oven under this supposition, the Judges of the Proviacial Courts would not be affected by the provisions of tha Act. a TT^': fv; ( 28 ) be is to the best of his knowledge and belief, duly possessed of such lands and tenements, or of such a dwelling house and lot of Ground, or that he has bona fide been so resident, und paid such rent for his dwelling house, as entitles him, according to the provisions of this Act, to give his vote at such election for the eounty, or district, or circle, or for the town or Town- ship for which he shall offer the same. ' ' . '< . No particular interest would attach to this sec- tion, if it were not that it resolves a pretended rather than a real difficulty, which appears to ex- ist in the minds of a considerable number of per sons ; I allude to the question whether women have a right to vote at elections of members of the Assembly. The Act which 1 am now consider- iniS^, fixes the qualifications of electors : these qua- lifications are more numerous than those required in persons who may be elected. The former must be freeholders in the counties, and free- holders or tenants in the towns. It is not neces- sary that the persons who may be elected shoald be either the one or the other. From this it must be concluded, that all electors may be elected, al- though some persons may be elected who could not be electors ; and if women have a right to vote, no matter under what title, they would in- contestibly also possess the right of being elected, since the right of voting always includes, under the Constitutional Act, and the other nets which relate to it, the right to be elected. Those who admit the principle cannot reject the conssenuence which flows from it, and whfch is as unavoidable as it is ridiculous. The words of the section I am now examining, are certainly, as they are in the French version, '* every such person,'* but the words "he" *' him," and *' his," which are ap- plicable to the male sex alone, occur in it no less (ban ten times. The same thing occurs in all the ( 29 ) Acts of the Imperial Parliament which I haye had occasion to see, and which relate to elections. The fact is not of so trivial a nature as it may at first appear to be, for we must bear in mind into what extent of detail the English statutes enter, how much care is always taken to prevent all doubt by repeating the words " he, she and they," V'hen applicable, and how strictly a penal statute is always construed in the Courts of Law. Now a woman who should have sworn falsely, in taking the oath required by this section, might escape conviction, because the word *' she" is not to be found in the clause. Besides this claim is singu- lar in this respect, that it is only brouj^ht forward with reference to elections. For women, although they be freeholders, are never, in this province, called upon to attend any meeting in the result of which they may be not only directly but person- ally interested by reason of their property. Thus women, although they pay tithes, and the rent of a pew in the Church, though they furnish the pain henit, S^c. S^c, neither attend parish meet- ings, nor have any voice in the election of Churchwardens ; neither do they vote at meet- ings in consequence of which their property may be assessed for the erection or repairing of churches ; yet they have a direct interest in the resuitof the deliberations at such meetings*. In i.}'.- * Since this little work was written, two Bills, one for in- corporating the city of Quebec, 1 Will. IV. chap. 52, and the other for incorporating the city of Montreal, 1 Will. IV. chap. 54, which had been reserved for the signification of the Royal pleasure, have been sanctioned in England, as appears by the Procl'iniation of the Governor in Chief, bearing date the 5th June 1832. The second section of each of the said Acts excludes women, by saying formally that every Mqk ( 8» > B word, the scenes which occur it elections a ro* not such as accord wilh the modesty and retired? life of persons of their sex, who beinof pestered. • on every side, by the contendinjj; candidates, inti. mWttted by threats, and agitated by scenes »o moch at variance with their habits, do sometimes^ ill eklreine confusion, take formidable oaths. ' XXV. And be it further enacted by the Authority afore-", said, That it shall and may be lawful for his Majesty, his heirs or successors to authorize the Governor or Lieutenant Governor, or person administering the Government within^ each of the said provinces respectively, to 6x the time and place of holding such elections, giving not less than eight days. Notice of such Time, subject nevertheless to such provisions as ftjay hereafter be made in these respects by any Act of the Legislative Council and Assembly of the Province, assen-- ted to by his Majesty, his heirs or successors., • vi • • XXVI. And be it further enacted by the Authority afpre- said. That it sliall and may be lawful for His Majesty, his heirs or successor*, to authorize the Governor or Lieutenant Governor of each of the said provinces respectively, or the person administering the government therein, to fix the places and times of holding the iQrst and every other session of tliQ Legislative Council and Assembly of such province, giving due and sufHcient notice thereof, and to prorogue the same from time to time, and to dissolve the sam«, by proclamation* or othorwisc, whenever he shall judge it necessary or expe^^ dient. . XXVIL Provided always, and be it enacted by the autho-«^ rity aforesaid, That the said Legisli'Mve Council and Assem- bly, in each of the said provinces, shall be called together onco at tlie lefisi in every Twelve calendar months, and that every? Assembly shall continue for four years from the day of the re- turn of the Wj its for chusingthe same, and no longer, subject^ person of the age of twenty-one years, qualified in the way required by the Act, shall be a member of the said Corpo- ration. The rights of unman ied women and widows who are freeholders may be nevertheless affected by the Act, and then property njay be tnxed, assessed and parcelled out under it^ yet neither of. tnese two acts of the Provincial Pai'liaiuejiti gives them any right of voliog in Lny such case. (SI ) ar» edf •eil . ti. iO, nevertheless to bo sooner prorogued or dissolved by the Oo* Vetner or Lieutenant Governor of the province, or person ad-* ministering his Majesty*s Government there/n. I M 'li .The twenty-sixth section mentions onW " adue and sufficient notice,*' without fixing; any particu- lartime. The custom has alwayss been to give forty days. It has only once happened that the Provincial Parliament was called loojctherto meet on the day on which the Writs were returnable. It was on the IJth of April 1820. This wasalto- j^ether unusual, but the i^esidentof the Province appeared to have no alternative^ if he wished to conform to the requirements of the twenty-seventh 'section, which directs that the Council and the Assembly i^hall be called to^rether once at least in every twelve calendar months* But on the occasion in question, the House of Assembly considering the Act of the Provincial Parliament, 42 Geo. HI. chap. 3, which extends the time for the return to the Writ of Election for Gasp6 to one hundred days, declared itself incom- petent to proceed to the dispatch of business, be- cause all its members had not been summoned. The death of the King happened while this matter was pending, and the Parliament was prorogued. By the Provincial Statute of the 43d Geo. III. chap. 1, section 52, it is enacted, that in time of War the Governor may call the Legislature toge- ther by Proclamation, after a notice of fourlecrv days. This Act was temporary, and has ceased to be in force. But the same provision was re- enacted bv the new Militia Act, passed in 1830 (10 and llth Geo. IV chap 3) and continued until the 1st of May 1832, by the 2nd William IV. chapter 55 ': ""^^ It has been pretended that the 52d Section oJF (iJ2) Ihe 4Sd Geo. Tit chap. I, was perpetuate al- though it made part of an Act manifestly and ex* pressly temporary : (Iiat the similar clause in ihe 10th and llth Geo IV. chap 3, was likewise per- petual, although it also made part of a temporary Act : because it was placed in the Act after the clause which fives the duration of the Act. This opinion must fail, if attentioM be paid to the-Royal instructions cointntinicated to the House of As- sembly during the first session of the Provincial Legislature, by the Lieutenant Governor Sir A. Clarke* These instructions withholtl from the Governor the power of sanctioning any temporary Act which contains any perpetual clause The clause in question mu«it. therefore, have been con- sidered to be temporary, otherwise the Governor ought not to have sanctioned, and could not have sanctioned the Bill. (See section 33, and the note at the end of thisi book. '■' > ' * " • ' ^ XXVIII. And be it furtlier enacted by the Autbority alfore^ saidi That all qiiestiuns which shall arise in the said Le^isla* tive Councils or Asscujblies respectively shall be decided by the Majority of voices of such members as shall be present *t and that in all cases where the voices shall be equal, the speak-( er of suoh Council or Assembly « as the case shall bc« shall hav0 H catting voice. This clause establi>.hesan absolutely uniform mode of deciding the quv^stions agitated in either House, and gives the two Speakers the casting vote in all cases where the voices shall be equally divided : and yet the practice in the two Houses is not the same In the Assembly, the Speaker when in the Chair does not vote, except in cases where the voices are equally divided, while the Speaker of the Council votes in the first place as a Member and afterwards as Speaker if an equal •'■■^iiMiiiieiijmsssKii (s4) iU iry he Oivl-^oii U priuhicffd by iiH first vote: so thtit htt iM^ivcs two v(»i('N to \\\{i side which he espouses. Nupi^ose t^evin meiMlx'is piesent wiihout reck iuf;ili(* SjjCiikff, tlirce on one siJe atid four on tlu^ oiliiM- ; jIic cjiiostioii in ihc Assembly would be (locidti! in t'iivor of Ihc four. It ii)ay happen othrrwisc in (he Coiiniil, acconlin^ to the prac^ lice miopted llveie : Inr (he Speaker voting a* a member \vi;h tlie ininorily, raises it to £ti ciquality wilh (he ni;ijori!v, and alterwards {^ivinp; his cast- in i»- vole a i^ Sneaker, ends bycarrsina: the quea- Ijon aiV'in4 tlie lirst majoriiy. 1 see only one \vny of nccounliiii:^ for this prnctice in the Coun- cd, and ihnt is, Ihat the letter of the law, which savs thai a'i qneKlions shall be decided by the ma- joriiy ol" ^e Membeis present. Iiiis been followed ihore 'i hi'se words undtiiibiedly include the Speaker, bnl the same rn!eou<;ht to obtain in the Asst fnbly, since (be act makes no ditference. It n^.iisl be remarked, that this privileij^e is ftiven to the two Speakers alone, sn th it if the Chaiinan of a Ci)niniiltee of the whole Hoii^e has given his vote (which be may do under (his supposition, as a memhcr picreni) and by such vole (he Com- mittee siiould bi»eqmi!ly divided, it would not be the Chairman who must decide the question, hut the Speaker, if present, ahhono'h he may already have voted, and ii'he be absent, as may frequently btippen when (he Mouse is resolved into a Com- mitieeofthe whole, the question must remain un- decided. Accordiuf^- to (he prac(ice of (he As-» sembly, y tha said Governor or Lieutenant Governor, or other person as aforesaid, to administer such Oath, an J that the same shall be administered in the English or French Hanguage, as the case shall require : I A. B. do sittceiely pfomise and swear^ that I will be faith- ful, and bear true ailegiwico t» His Majesty King Georg/",. as lawful Sovereign of the Kingdom of Great Britain, and of these Provinces dependanf on and belonging to the said King-* dom ; and that I will defend him to th* utmost of my power against all trai^erons conspiracies and attempt«i whatever which shall be made against his person, crown and dignity ; and that I will do my utmost endeavour to disclose and r ' i . XXXI. Provided always, and be it further enacted by tho Authority aforesaid. That whenever any bill, which shall have beon so presented for his Majesty's assent to such Governor, Lieutenant Governor, or person administering tho Govern- ment, shall, by such Governor, Lieutenant Governor, or Per- son administering the Gouvernment, have been assented to in his Majesty's name, such Governor, Lieutenant Gouvernor, or person as aforesaid, shall, and ho is hereby required, by the first convenient opportunity, to transmit to one of his Ma- jesty's principal Secretaries of State an authentic copy of •uch Bill so assented to ; and that it shall and may be lawfaf, K S6 •tnny tJmc tvlthin two yoarsnfinr Miuh Bill sli.'ilt Invo h<*or> no received by such si-frnjiry of stafr, for his lM;i|»'sfy, liU heirs or succossor.H^ by lii< or iheir oi'.Nt in cotincil, to (lc->. cliuo his ot tlioir (lixiillowiiiir'Mifsucli bill, nnd tlint .such dis.il- lovvnitcc, together wiili a ('(M'tilioiir, iiikIct tlu> li>t>))(l and i^ciil of such secrot«ry of slate, U'siifs iiii: tlu; diiy oti uhicIiMicIi bill was received us »ilbr(^sni(l, beiiitj; sijiiiilii'd by such CiovtMiior,, Lieutenant Guvoraor, or peiinoii miinini.sti'riiiir lUo (lovcni-. niont, to the L«ej>islinive Coin\cil i^ud Assombly o4" such |»ro- vince, or by pfucliiniatiun, shall niitke void nir)d uunul llv; sanie^ from tind utter tlxMbite of.HUch siirniriciiiioii. XXXir. And bo it fnrtherenacti.'d by the uiithorliy afore-. Raid, That no such bill, wliich sivill be so rosorvcd fur ih^ i^i;^- nification ofliis Majesty's )>h>»siire tlKM'coii^ sliiill have any force or authority wiihiu either of thy snid provinces irspec-. lively, until the Governor or Lieutenant Governor, or per-, son adniinbteriniO; the GovernnienI, shall sit anu)ngst the pul)lic records of the Province : And that no such Bill, which shall h(! so reserved as aforesaid, shall have auy 'orce ot authority wilhin either of the said Pro- vinces respectively,, unless His Majesty's assent therein shall have been so signilied a^j aforesaid, wiihin tli(j space of two. years from the day on which such Bill shall have I)j;en piesetit- ed ior His Majesty's assent to the; Ciovernor, Lieuionant Go-. vernor or person administering the Government of suck Province. >',;;■!•'.:•: i- ;:>' = . i -li '^h-Dr i f^^ ■\::iu'iji 'Ti By the 31st spclion, every Bill to ^^Iiich the Governor mny have thought himself ntiihorizecf to ffive the RovfW sanction, slinil tievertheiess he tninsmilled to r^n;il«in(l. and (he king; tnay disal- low it hy an order in Coutuii at any time vvithii\ two veaip after it shull linve heen received in lin-j:- land ; it will, in the inteival, be? in foice in the Province until the day on which ;^uch disalIowply or expressly fow (89) etet a permanent clause. It appcafs to me thctl that His Majesty can alone sanction such act. Until the year 1827, no one appeared to doubt that a temporary act might repeal a permanent act ; and in the new edition of the ordinances of the Councils, published in 1825, by His Majesty's Law Frinterj and by order of the Legislature, all those which had been so repealed were omitted us not being part of the laws of the Province* The Executive was of the same opinion, for when the Militia Bill expired in 1816, the Governor re- marked in his speech, that it was to be regretted that the country should by this event have been de- prived of the services of the Militia. But the several Militia acts havinji^ a^j^ain expired in 1827, Lord Dalhousie caused the two ordinances reii'u** lating^ the Militia to be again published ; the crowrt officers having declared them to be asjain in force in consequence of the expiration of the Provincial acts, and if I mistake not the courts were of the same opinion. This proceeding appeared then to be the more singular, that out of several ordi- nances which were similarly situated, those rela* ling to the Militia were the only ones, which were recognized as having survived their repeal. Thus the ordinance of the «(Olh Geo. III. chap. 4, concerning Post Masters, rendered perpetual by the Provincial statute 35 Geo. Ill chap. ?, and afterwards repealed, (as was also the last mentioned statute itself by the 47th Geo. Ill* chap 5,)wa8 not considered as being again in force, although the act which repealed it had itself ex- pired. This ordinance is not the only one so situated. ,*", ' I am very far from taking upon myself to decide this question, which has already received the at- (40) lerition of many pc ions better versed than 1 aril in these mattns : but [ nailer nnscirthatl may be pel inillrd to luizard an oi)inion, since the dis- cussion is inlim;ite!y connected wit'n my subj'^cti 1 think, then, (hat under (he terms of the Consti- tutional act ail iawsj statutes nn(i ordinajices in force at the time tlie act went into operation, may not only be Vrnicd but repealed by any act pas ed by (he Council and the Assembly and sanctioned by His ]\iaji'sly. In the same manner, I think that the Govern.)]', who by (he 30lh section of the act is bound to follow His Majesty'ti instructioa in givin:;- his approval to (he bills presented to him, cannot in uny case sanction any temporary act Whatever which contains a permanent clause, Ko b)ni»: as the instructions above cited remain iii Ibrce. ■; • :. *--' ■-■ - - • f ' ■ ■'■■ ' < - •; ■ -'f;jf ; - This beini»' the case, what must be said with re- gard to (lie (enjporary acts of (he kind in questioil ])assed at dilTerent times, and even during the last 8cst.i:Mi of the Provincial Parliament ? To Say that they are \m\ and have never been a law, would bo presu'.nptuous ; it wuuM l)e to pass judg- ment on the Legislature. I think L may without being wan(inj>'in respect t> any person, say, that these petmanent clauses forminj;' part of a tem- porary act, par(ake of the nature of the acts which contain them, and must expire with them ; and that it would therefore ho better to enact by (hem that the permanent act should be suspended^ than that it should be repea'ed. T' XXXIV. AnJ wliiM<;as by an ordinance passed In the Pro- tiaco ofQuel)cc, tlio Governor and Council of the said Pro-* vince wero con.sniufed a Court of Civil Jurisdiction, for hear- liig and dcte^mininsr appeals in certain cases therein specified^ bo it further enacted by the audiurity aforesaid, That the Go-* (41) V^j^iior, or Lieutenant Governor or persoh adminrsterfng thi l^ioverninQnt of each of the said Provinces respertivoly, togo' ther with such Executive Council as shall be appointea by Hii Alajesty for the affairs of such j^rovince shall be a Couirt of Ci- vil Jurisdiction withitl each of the said t*rovinces resjiectiveiyt for hearing and determining appeals within the same, in tbtt like cases^ and in the like manner and foriiit and subject to such appeal therefrom, as such appeals might before the pas< iiing of this Act have been heard and determined by the Go- vernor and Council of thd Province of Quebec f but subject nevertheless to such further or other provisious as may he 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, tJiis Heirs or.SuCcessor^i XXXVi And whereas by the above-mentioAed aci^ passied in the fourteenth year of thd Reign of his present Majesty, it was declared, 'That the Clergy of i!ie Church of Rome, in th© Provii^ce of Quebec, might hold, receive, and enjoy theif ilc* customed dues and rights, with respect to siich persolns only as should profess the said religion ; provided nevertheless, that it ishould be lawful for His Majesty, His Heirs or Successors, to make such provision out of the rest of the said accustomed dtiea ahtl rights, for the encouragement of the Protestant ireligioni and for the maintenance aiid support of A Protestant Clefgy within the said Province, as he of they should f^om time to time think necessary and expedient : And whereas by His Ma« Jesty's royal instructions, given ui der His Majesty*s royal ^i^h Mai^ual on th^ thii^d day bf Januaryi in the year 6f our Lord one thousand seven hundred and seventy-five, to Guy Carleton^ Esquire, now Lord Dorchester, at that time His Ma-* jesty's Captain General and Govei'noi'-in-Chief in and ovef His Majesty's Province bf Quebec, Hiit Majesty Was pleased* amongstothdf things to direct) "That no incumbent posses'* sing the religion of the Church bf Rome, appointed to any Pa<» rish in the said Province, should be entitled to receive atiy tythes for lands or possessioiis occupied by a Pfotestailt, but that such tythds should be received by ^ch persons as the said Guy Carlcton, Esquifts!, His Majesty's Captain General and Go- V(drnon>iii-Chief in and over His Majesty's said Province of Quebec, should appoint, and should be reserved in the hands of bis Majesty's Receiver General of the said Province, for the rapport of a Pk-otestant Clefgy in His Majesty's said Protince, to be actually resident within the same, and not other wise, .ac- cording to such directions as the said Guy Caileton, Eaquira, His Majesty's Captain General and Governor in Chiof in and i ' .■ i. 1. 'CJ !m:;' -oq'i'; •' )>..' ^a/ / I h ijtihaVuiidit « 0' i/i'tij 42 >i\t\} jli(,.l;>'i. n,J K' ,1 ',;'];>* *5j^flff1Mf43eSfy> said Prdvfe/sliouM receive frdM Mis Ma» j^sty in that behalJf; and that in like manner all growing renti and profits of a vacant benefice should, during such vacancy, ^pe reserved lor and applied to the like uses :" And whereas J^is Majesty's pleasqre has likewise been signified to the same -- ^, . - ..ijesty's said Province of Ql_ . Wc 'ij ^nd^alsO in His Majesty's royal instructions, given in like .inanne'rtQ the. said rrghtnonqrabld Guy Lord Dorchester, now ' ttis Majesty's Chpt*ai»i Geheral an4 Governor in Chief in and , over His Majesty^s said Province ofQu^bet ; be it enacted by • ihe atklhprjty aforesaid) That the said declaration and provi^ '{iibn contained in the said above-mentioned act, and also the 'iBald()rovision ^tt made by Mis Majesty in conseqiiehte thereof^ * by, his in'structldhs above rex:ited» shall remain and coiitinue to be of full force and effect ineach of the said two ProvinCf,;* ^ of tj|)per Canada a^d Lower Canada respectively, except in 50 far astlie shid declaration or proVisibns respectively, or any ■"'jpart thereof^, shall be expressly varied or repealed by any act *" or acts wliTch may be passed by the Legislative Council and ''Assembly of the. said Provinces respectively, and assented to .by His Majesty, His Heirs or Successors, under the restrictioik /herein-atW.provicledk. "' •' ' .'*-''•' • »- »'» H II'J'-M' 'CM'. I' 'ii. The 35th section 'recites and connrms the pro- ^'v5si6,rwfbf the 14th Gieo^ III. chapi. 14, which au- ;^/,thorises the jRotnan Cj^lholic Cler0 to enjoy thtiir* jjCUSloipury rights; pnd due^,,,whjch are formally se* -i^tjured to themi I' it stlso gives, the. force of law to '*^ tliO Jnstfuctions j^iven by Hi^ Majesty to the (Jo- /^"vernors of Canada, cbncerning' the object of this hi«e<;tion: it enacts that part of tfie J4th Geo. IJI. ;otitbof6 cit^d, and those parts of the Instructions '*^^M(fh have reference thereto, shall remain in ^'J^ftji^e, .lintilithey shall te expressly varied by an /••iAct,p9^»eti'by the two Houses of the Provincial 'iLegislatare^ and sanctioned by His Majesty, un- i^Wt 'th^ i^estricti6ii thereinafter provided ; which ^^^fs'ejtplairtfed by the^^nd section. i^'^ ^'V'^i^lf^ ^ ** Another important point arising out of this sec* ( 4S ) f \ tFan, is, that the Protestant landholders in tbi» Province, although, exempt fi?om paying Uthes tp^^ the Catholic Clergy, are not, nevertheiess,. dis-i; charged altoirelher froVn the payment of tithes,' since this section declar^es formally,, thai; ^He tithes;^ due from them shall be received by such person, is shall be appointed by the GoTernorj andi shall i be reserved in the hands of ^he Ueceiireif^Cretie^'ar fpr the support of the 'Prot'estajnt 0lergy.' 'I' ' '"''" Considering^ the great extent of land which i&, ndW in the possession of Protestant*, it is certain? that the tithe arising therefrom mUst noVv 1^ ani' object of some iraportan<;e*,(.,,;^ ,? .,h ■. ,y .} 1 7 // / * ' XXXVI. And whereas His Majesty has been graciously' pleiiSed; by Message to both Houses of ParliaWent, to expres*' bis royal desire to be enabled to irrake a permanent appropria> tion of lands in the said Provinces, ftr the support and maihle^ nahcie of a Protestant Clergy within the same in pro|ic'H0W''td'' such lands as have been already gratrled Within the san10 by His Majesty : And Whereas His Majesty has' been 'gta'cioa'sly ^le^sed by his siiid mesisage^furthfer to signify' his rbyalddiiii^p that such provision may be made, with respect to aWfiiturfe^ graiits of land within the s^id Provinces'r^p(ec(lyel'y»' as may* best conduce to the due *and sufficient sup'rtoi*t Sndi'ittaihteirtiHWer ©fa Protestant Clergy' within -^the said 'Prd^ytn^s^ in pi'Opbi'- lidti t6 such increase p's may happenin the^ po^ulatii)n ahd'Ctil-' tivatlon thereof : Therefore, for the purpose of mOri' 'dtfect^i^' ally fulfilling His Majesty's gracioiis rnftentiohst as a'bre&aid', Ah^ of providing for the due execution of the isame in all ti'md'td* eomfe, be 'jt enacted by ithe authority aforesaid, That if shtfii a(nd ^ay be lawful for his Majesty, His HeirS or Si^cceSSdrSJ.' to authorise the Go^ ernor or jiiieiiteuatit GoVerhor of eftch 'df the said Proviricesrespectively, or the f>erson admiriisteriiigtll^ Government therein, to mike, from arid out of the lands of the^ CroWn within such Provinces, such allotment iind appropria* tlon of lands, for the support and maintenance ofa Protestant Clergy ivi^tliin the same, as may bear a due proportion to the amount uf Stich lands within the same as have at any time been grahted by or under the authority of tils Majesty ; And that whenever any grant of lands within either of the said Proviiices shall hereafter be made, by or linder the authoi'ity of His Ma- j8»ty»Hts Heirs or Successors, there shaU at the saittvtitne' b* "» '"!n-T«i.<(7""'-V-- ( ^4 ) . i '); )t iLiI) , person administering the government, shall with thr ad 7, fice of the said Executive Council, judge to be expedient uut ( 45 ) dfit f.W (hen txi^tiog cirf^umstaoces of such Townthip or Parish. XXXIX. And be it further enacted by the autKority afore- said, Thaf it shall and nriay be lawful for His Majesty, His H«irs or Successors, to authorize the Governor, Lieutenant Cfoy^rjior, or person adi)iinistijriiig the Government of each of t^ s^id Provinces r«spe<:tively, to present to every such par- sonage or rectory an incumbent or minister of iho Church of J^ngland, who aha)! have been duly ordained according to the rites of th«ys, and be it further enacted by flie au- thority aforesaid. That the several provisions herein-before contained, respecting the allotment and appropriation of lands for the support, of a Protestant Clergy within the said Pro- vinces, and also respecting the constituting, erecting, and en- ^OFtng parsonages or rectories within the said Provinces, and also rospecting the presentation of incumbents or ministers to |h«i same, and also respecting the manner in which such in- (sumbents pr ministers f hall hold and enjoy the same, shall be aKbje.ct to be varied or repealed by any express provision for that purpose, contained in any act or acts which may be passed hy th®. I^.egisiative Council and Assembly of the said Pro- vinces respectively, and assented to by His Majesty, His Heir* p/ Successors, under the restriction hereinafter provided. Hi 1' / The last section containfi prorisions simiTar to ' tfrbse (ibfltained in the 35th' Seclk>tr, subject to tbi; restriction hereinafter provided. , ,^^.^''^'';"^ * XLtl. Provided nevRrthcless, and herh fitrther enacted by the mithorrty aforesaid, That whenever any apt or acts shaw bt* paS^dd by the Legislative Council and AssetAbly of eUhei^ of the sa/d Provinces, containing any provisrion» to vary '6t} repeal tb^ aboVo recited declaration and provisioa contained' in the' said act passed in the fourteenth year ef the 'reign of his^ pireisent' Majesty j or to vary or repeal the iabove recited prb-^ v'isio'n contained in His Majesty** royal instruction!!^ g'vett on' the third day of January, in the year of our Lord onb tbM*and| seven bundred ahd seventy five, to t}» said' Gay CarlMdnrj Esrq^ row Lord Dorchestet ; or to vary or jrepealt the provisions" hercin-befbre contained fdr continuity the forte and eflect'i^f tbe said' declaratioh and provisions ;^ or to vary er vepbftl'tany of the several provisions herein-before cori( passed, containing 6ny provisions which' shaH in atr^ nniimei^ rel&tetq'oi; effect tb6 enjoyment dr 6xeh;ise of any rfelJgToui for ni b'r mode of worship'; or shall impose or orelAte ally ■pe^ naltie!s„ burthens, disabilities, or disf^ualifieatibns in respect of tlie sanie ;* or shall in any manner relatd to or affecit tne'pay- b'lent, recovery or enjoyment of any' of the accustomed dues of i*igKtfe herein-before iiientioned ;' or shall many manner related to the granting, imposing or recdv^Hngany other 'dtieS^ wr 9ti» pehds, or emblumbnts whatever, to 1)0 ^id to or for the! «ise ot any niinister,. priest, ecclesiastic, or teacher^ according H> any' religious form ormodeof worship, in respect' of hiSsaid ftflSco or fupc'lion ; or shall in any manner relate to or afibtft the es- tablisbnlent or discipline of the Church of England, 'hntongst the riiihislers and members thereof within thef said Province.* ; or shall ip any manner relate to or affect the King's preroga- iiye touching the granting of waste lands of the Crown wit hi rt tiie said Provinces; every such act or acts shall, previous to> ny' declaration or signification bf the King's aSsent tKreto, bo ai4 before both Houses of Parliament in Great Britain ; kincl ,y; shall iidt be lanfful for His Majesty, Hi« fiien or Saicfis* I >9h<- ^^r,^(^ T >•»,• f.i' r:i'9-(-^ ' noi':>nr?3i ^ui v.jfi'j .?7Pf!»'.^D>:(f; tr. ■'f. (47) ^itt^ tp '9ignu|/ His or. iheir assent to til .thirty days after the same shall h T. any such act or acts, uq- ^ have been laid before the 'StiTd HotislBt^ or to Wsserft to any such act or acts, in case cither 'MoiiiB 6f PirUntnent '^'all within the said thirty dayn> add^iasii tHii: Majesty, His U«irs'or Successors, to withhold His oi* their j'^ssei^t ,froni, such act or acts : and that no such act slvall be Valid or efTMCtual to any of the said purposes, within eitner-uf '1h6 said^rOvlnce'si, Uiitess the Legislative Council and Abem- ifjly/df* suth Province shall, in the Session in which the same • sMI ihiive been. passed by themi havepresented to the Govern- or, Lieutenant Governor or person adininistsring the (jrovern- .mentof such province, an address or addresses, specifying 'ihat'sUir^^ct'cfltitains provisions for sdme of the said purposes ) tiereiM-^biefore specially described, aiid desiring tliat, in order 'tbigiVe effect tO' the. sarae^ such act should be. transmitted to ^^i^g^nd !withqut, delay, for the purpose of being* laid before I'arliani&Qt previous to the significatioa of His MaJesty^s assent ' '-thdtfeto. ■ ' ' •'■^''•''-*''' '■■'" *' ■■:>'i\' .-7!.! :: ;.'.'^) '?;4 ^v'l .1. Hi' ■.« « ' ' > This aectkufi deiserves much attention. Iti con- "Fiequfelace of the provisions wh>ch it contains, the '<iand) unless the two Houses of the Provincial Le£^i$lature bave.^goneiihroa^h certain formalities mentione<( in this section $ and lastly, because the section does not, fix any time during which the Act shull ren^ain Jn abeyance^ or any particular mode o^ publication in the province. Sothftt the two periods mentioned in e' ■ i.\ ■■) .^ i ■I \ ( 4» ) the 31st and 82iid section, which although they each consist of iwo years, are yet essentially dif- lerent with regard to the mode in which they are to be Computed, have no reference to Bills ol* the nature of those mentioned in the present section. 1 have dwelt a little on this siection, because the remarks 1 have made are applicable to a Bill passed in 182^, concerning the division of the Catholic Parishes of Lower Canada* With regard to the Hill, all the formalities required in this Province by the section under consideration were observed. Bur the Act havino* arrived in the Province after the expiration of two years from the time it was reserved, it wan considered that it had come out too late, although it had re- ceived the royal sanction. This error originated in the circumstance of the Bill having been re* served by the Governor, who had no discretiona- ry power to exercise on the subject, but who was bound under the terms of this section, and in con- sequence of the Address presented to him by the two Houses, to transmit the Bill without delay to England) to be there laid before the two branches of the Imperial Parliament, before His Majesty's pleasure could be signified. And an* other cause which led to the error was, that the Bill having been reserved, it was; naturally sup- poi^ed that the provisions of the 32nd section which the delay to two years were applicable to the case. I have then, no doubt that the Bill, being so sanctioned in England, and the formalities re- quired in the Province by the 42nd section having been previously gone through with regard to it» ought to have been enforced, notwithstanding the lapse of more than two years, because that period il wai not applicable to an Act of the nature of th^ one in queslion. I am equally of opinioni thai the said Act may, (I will venture to say it must bf ) carried into etfect whenever it shall please the Executive to act upon it. 1 am also of opinion that the subsequent Bill for the same purposes^ reserved like the other, and transmitted to Eng- land, but with regard to which the formalities re- quired in the Province were not observed, cannot be etfectuaily sanctioned in England. ,i. As to the mode of publication, none is fixed or pointed out by the 42nd section, but it appears that either ofthe modes provided by the Act, with reference to Acts disallowed by the King, or to Bills sanctioned by him after having been ex- pressly reserved, may be followed ; that is to say, a Proclamation or a Message to the two branches of the Provincial Parliament ; and in case of doubt I should recommend that both modes should be adopted. . ! , i XLIIl. And be it further enacted by ttie autlioritv aforesaid. That all lands which shall be hereafter granted tvitnin the sai({ Province of Upper Canada shall be granted in free and com- mon soccage, in Dice manner as lands are now holden in free and common soccage, in that part of Great Britain called England ; and that in every case where lands shall be hereaf- ter granted whhin the said Province of Lower Canada, and where the grant«e thereof shall desire the same to be granted in free and common soccage, as may be established by any law or laws which miy be mn Ic by His Majesty His Heirs or Successors, by and with the advice ami consent ofthe Legisla- tive Council and Assembly of the Provi»ce. tM'i By this section it is evident, that after the past-' ing of the Act under consideration, no lauds could be granted in Upper Canada, except under the tenore of free and common soccage ; while in thi* Province none could be granted to be held under ( 51 ) • that (enure except at (he desire of the (grantee. The lenure in Hoccapfe carries with it the Bn^lish Civil Lrtvv, which the inhahilnnts of Upper Cana- da would naturally prefer. For a sinr.ilar reason the Act j^ranls to the inhahitants of Lower Cana- da, who were accustomed to he governed by the French law, a tenure which is adapted to that law. The system was eminently liberal, and was, more- over, conformable to the express provisions of the I4th Geo. 111. ch'rip 88, section 8, where it is enacted, ** that all His Majesty*^ Canadian sub- jects within the Province of Quebec may hold and enjoy their property and possessions, together wiih all customs and usufi^s relative thereto, in as lars^e, ample and beneficial a manner, as if, &c &c. ; and (hat in al] matters of controversy relative to property and civil rights, resort shall be had to the laws of Canada as the rule for the de- cision of the same ; and all causes that shiill here- after be instituted in any of the Courts of Justice^ to be appointed within and for the said Province, by His Mil jest V, His Heirs and successors, shall^ with respif'ct to such property and rights, be de» termin^d a<^reeably to the said laws and customs of Ca^MHlii, until they shall he varied or altered by »«y ordinances that shall (rom time to time be passed in the said Province by the Governor^ Lieutenant Governor, or Commander in Chief for the time being, by and with the advice and consent of the Legislative Council of the same, to- be appointed in the manner hereinafter men- tioned.*' It appears to me that it may be lep;itimately in- ferred from this, that England has not reserved to herself any ri<:^ht of direct legislation for the Co- lony, with regard to the laws and customs of Ca- nada, ai far as property is concerned. I 5« > ^ The next clause of the same Act, formally ex- 'Cmpts from ihe operation of the said laws and customs, the lands which have hecn or shall be granted by His Majesty in free and common soc» cage, from being governed by the English Civil Law ; but gives the Canadian subject the power of obtaining grants of land even from the Crown, under a different tenure, and prevents his being by such grant bound and governed by the English laws, except he expresses his desire to be so, by soliciting a grant in free and common soccage. And farther, the said section provides that this tenure, and the consequences arising from it, may be varied by any Act passed by His Majesty, by and with tlie advice and consent of the Lesrislative Council and Assemblv of the Province. Thus by ihe Htli Geo 111. chapter 82, the laws, usarjes and customs of Canadn relating to property are Kvaintained fn all their integrity. His Majesty's Courts of Law are bound to ob- serve and enforce the same until they shall have been changed in the country. By the SlstGeo, IV. the tenure in free and common soccage, esta- blished by the Act of the 14ih, with regard to lands granted by the Crown, rosy be modifi*»d, as Well in its essence as in its efiects, by any Act passed in the Province, and sanctioned by JUs Majesly These two subjects are now within the jurisdiction of the Provincial Legis'fkturt , XLIV. And be it further enacted by tho aathorit^' aforesaid. That if any person or persons holding any hnch in the said Province of U(>per Canada, by virtijc of any certiilcate of oc-« cupation derived under the authority of tiie Governor and Coun- cil of the Province of Quebec, and having power and autho> rity to alienate the same shall at anytime, from and after the commencement of this Act, surrender the same into the hands #f Hif Majeitty, His Heirs or Successors, by petition to tb« (58) " ' Governor Lieutenant Governor, or person administering tin Government of the said Province, setting forth that he, she, or they is or are desirous of holding the same in froe and common eoccage, such Governor, Lieutenant Governor, or person ad- ministering the government, shall thereufion cause a fresh grant to be made to such person or persons of such lands, to bo holden in free and common soccage. XLV. Provided neveriheless, and be it further enacted by the authority aforesaid, That such surrender and grant shall not avoid or bar any right or title to any such lands so surren- dered, or any interest in the same, to which any person or per- sons, other than the person or persons surrendenng the same shall have been entitled, either in possession, remainder, or re- version, or otherwise, at the time of such surrender ; but that every such surrender and grant shall be made subject to every such light, title and interest, and that every such right, title, or interest shall be as valid and effectual as if such surrender and grant had never been made. XLYI. And whereas by an act passed in the eighteenth year of the reign of His present Majesty, intituled, "An act for removing alt doubts at;d apprehensions concerning taxation by the Parliament of Great Britain, in any of the Colonies, Provinces and plantations in North America, and the West Indies ; and for repealing so much of an act, made in the se- venth year of the reign of His present Majesty, as imposes a duty on tea imported from Great Britain into any Colony or plantation in America, or relates thereto, it has been declared, * That the King and Pailiament of Great Britain will not im- pose any duty, tax or assessment whatever, payable in any of His Majesty's Colonies, Provinces and plantations in North America or the West Indies, except only such duties as it may be expedient to impose for the regulation of Commerce, the net produce of such duties to be always paid and applied to and for the use of the Colony, Province, or plantation in which the same shall be respectively levied, in such manner as other du- ties collected by the authority of the respective general courts or general assemblies of such Colonies, Provinces or planta- tions, are ordinarily paid and applied :' " And whereas it is ne- cessary, for the general benefit of the British empire, that such power of regulation of Commerce should continue to be exer- cised by His Majesty, His Heirs or Successors, and the Par- liament of Great Britain, sub^^ct nevertheless to the condition bercin-before recited, with respect to the ap|)lication of any duties which may be imposed for that purpose: Be it therefore Enacted by the authority aforesaid. That nothing in this act ■d etotttined shall extend, or be constructed to extend, to prereot or tithct the execution of any law which hath been or shall at any lime be made by His Miijesty, His Heirs or Successors,, and (he* Parliament of Great Britain, for establishing regula- tions or prohibitions, or for imposing, levying, or collecting du- ties for tile regulation of navigation, or for the regulation of tho- commerce to be carried on between the said two Provinces,, or between either of the said Provinces and any other part oC His Majesty's Dominions, or between either of the said Pro- vinces and any Foreign country or state, or for appointing and directing the paynieni of drawbacks of such duties so imposed,, or to give to His Majesty, His Heirs or Successors, any power or authority, by and with the advice and consent of such Le-- gislative Ceuncils and assemblies respectively, to vary or repeal any such law or laws, or any part thereof, or m any manner to. prevent or obstruct the execution thereof^ The 46th »ection; describes the only species of Acts, which it is not within the power of the two» Houses of the Provincial Le<:;islature to pass, and which the King himself cannot sanction, the Im- perial Parliament havinii^ reserved t« itself the sole riffht of enactina* them. XL VII. Provided always, and be it enacted by the autho-- ritv aforesaid. That the net produce of all duties which shall be so imposed shall at all times hereafter be applied to and for the use of each of the said Provinces respectively^ and in such mannfir only as shall be directed by any law or laws which may be made by His Majesty, His Heirs or Success snrs, by and with the advice and consent ot the Legislative- Council and Assembly of such Province, XLVIII. And whereas, by reason of the distance of the said provinces from this coinitiy, and of the change to be made by this act in the government thereof, it may be necessary that there should be some interval of time between the notification of this act to tho said provinces respectively^ and tho day of its comniencement within the said provinces respectively : Be it therefore enacted by the authotity aforesaid. That it shall and may be lawful for His Majesty, with the advice of His Privy Council, to fix and declare, or 40 authorisje the Governor or Lieutenant Governor of the province of Quebec* or the person administering the government there, to fix and declare the day of the commencement of ibis act within the said Provinces respectively, provided that such day shaU not be later than th» t56) "ikHriy -fimt day of December in the year of our LorU on* tWu* sand seven hundred and ninety one. XLIX. And be it further enacted by the authority aforesaid. That the time to be fixed by His Majesty, His Heirs or Succes* sors, or under his or their Authority, by the Governor, Lieute- nant Governor, or person administering the government in each 'of the said provinces respectively, for issuing the Writs of Summons and Election, and calling together the Legislative Councils and Assemblies of each of the said provinces respec« tively, shall not be later than the thirty first day of December in the year of our Lord one thousand seven hundred and ninety two. L. Provided alv^ays and be it further enacted by the autho- Irity aforesaid. That during such interval as may happen be- 'tween the commencement of this act, within the said provinces Respectively, and the first meeting of the Legislative Council and Assembly of each of the said provinces respectively, it lihall dnd may be lawful for the Governor or Lieutenant Govern- t)r of silch province^ or for the person administering the gov- Vernment therein, with the consent of the major part of such r" ..ti ':-.''l ■■ t r y ! t" . . ...■. ' : s .'r'i .r/ti"^' '■]■' y - ' i . .1 ^ ..I \, .:. /r.i; ' ^ UV i' 'i'' '.-) '•'• ^ , , ■ !..;.M ^.z-' V . •' ' < I " ^ ■ I ■:.] '.....{ ■■.'•:• . . . ■ . •:./' li >•> M/ ' ■■;■•■ I .; •: : u'j/: '^ Mi ■•■{'•liV v' i ' ' ' ' V I ,• . . ' i i » i . ' ■ • J f ! ? 1 ;•:,.■■ . r.-!.i-'. ' \ ' K ,.:Uiii t.) ■' ..t .. '■ 'ji ,,,..■/! ; :ii .!■»•■>,- NOTE S. -■■?'• * ' 1 : 1 i . V Message sent by His Excellency Lieutenant Governor Sir Alured Clarke to the House of Assembly, on Monday the 7th January 1793. • > Alured Clarke^ Lieut, Governor^ Sft, Cfc» 1 Ik Mr. Speaker of the House of Assembly; I am instructed by His Majesty respecting tlio enact- ing of laws ill thts Province, upon sundry points, which I think fit to communicate to the Legislature for their infurmationt (Certain articles whereof are in the words following:— i 1. " That the style of enacting all thb said laws^ statutes and ordinances shall be by \5^^ our Heirs or Successors, by and With the advice and consent of the Logislativo Cuuiicil mid Assembly of our Province of Lower Canada^ constituted Hud assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, intituled, * An Act to repeal certain parts of an Act, passed in the fourteenth year of His Majesty's Reigii, Intituled, An Act for making more effeciual provision for the Government of the Province of Quebec in North America^ and to make further provisioa for the Government of the said Province." And that no Bill in any other form shall be assented to by you in our nAme. " • --: - -» 2. That each different matter be provided for by a difTorent law, without including in one and the same Act such things as have no proper relation to each other. •• ' . '7t-» 3. That no clause be insetted in any Act or ordinance which shall be foreign to what the title of it importSi and that BO perpetual clause be part of any temporary law. «•'•<■ ' ( 6« ) 4. That no law o^ ordinance whatever bo suipendcd, aUerr ,«'', continued, revised or repealed by general \vords, bijt that the title and date of such law ur prdiuijince be particularly hicntiuned in the eoa.C(ing part> 5. That in case any law or ordinance, respecting private |f)roper;y shall he passed without ;i saving of the light, of Usj