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ADDRESS To \ May it p -A t ^ } subjects, Provincia leave to House, c( sible Ex( loncy on of the im stitution vernmen for a jt eminent ment of leges, h of burp Council stated, ( bers, (ii mously tions, a accept Excelle whethe oicate t ' the cau lency 8 far as 1 known copies Excell of the andsu Corrn C reaso unxic RESIGNATION OF THE EXECUTIVE COUNCILLORS. (I I -4 I 4 } AUUllESS OF THE HOUSE OV ASSEMBLY TO H13 EXCELLKNCY. OuXhic Order, ami of the Vrussjan ^W''""^;^. Order of .Merit, LicuUaant Oo„crnoro^ the Province of Upper Canada, A-c. i. (-■ roach throughout, the country, from 11 prevalent belief that they have been called upon to fulfil the duty imposed upon tlieni by the Constitution, as ndvi.sers upon public affairs. Hut amidst the obloquy Ihng tiirown upon them, they have studiously avoided any attempt at exculpation, by dis- avowing, in their defei ce, any participation in the conduct of tho affairs which they were erroneously supposed to have approved. Tlie conscfpicnce of this silent endurance of poll- tical odium, has been tluj perpeiuation of the misbelief that the p^xeiMitivc Council are con- vnrsuiit with the nllair.s of the Province, upon which they are appointed to advise : and al- though an opposite practice has gencally prevailed between former Lieutenant Cover- nors and their Council, yet it has ever been notoriously contrary to the state of tilings presumed hy the coninuinity to exist. Public opinion respecting the Executive Council and their duties, has been founded upon the terms of the 3lst George 3, chapter 31, to which Statute the people used to ex- press a firm attachment, an attachment which the Council believe never would have been impaired had the Constitution been adminis- tered either according to its letter or its spirit. In several clauses of 3Lst George 8, cliap. 81, the Executive Council is mentioned in general terms. In the 84lh clause the terms are " together with such Executive Council as shall be appointed by His Majesty for the affairs of such Province," and not as it would otherwise have been expressed, "together with such Executive council as shall be ap- pointed by His Majesty for that purpose." In tlie 38th clause the terms are " with tho advice of such Executive Council as shalljiavo been appointed by His Majesty, his heirs, or successors, within such Province for the affairs thereof," and not, as it would otherwise have boon expressed, "with the advice of such Executive council as shall have been appoint- ed by His Majesty, his heirs, or successors, within the Province for that purpose." The same may he said of similar trrms tjscd in the latter part of the seventh clause. / ^ ? With r further r lated-tlu bnly in words " might ha impairinti therefore sion can must he I imports. From I fore, it a Firsth oil. Secon King. Third vise the *'lhc aj)' affiirs HI iicular ti As th( Council Provincr law to Council Every arriving ment of to it ; a Council given, i discretii In cei of the of the ( certain prove t advice i Provinc cases tl iof the Indeed, the ad' follow t constiti proposi nance t receive But\ the Co Rubordi hereto! pcrtbri of the ing the their r enccs V. 5 •+! the discus. dosiro tor ly nnorditij.' 31st Grnri;e* come more greater dikI linvc lod to nssed under cil, or were rtliolet;s, its siibjoctod to tlio coniitry, liavo bo(;n 1 posed upon vi.sors upon >blo(]ny llius studiously ion, by dis- )articipafion h tboy weio ■oved. TiiG ncc of poli- at ion of ibc icil are con- •vinco, upon so : and al- s gono'-ally [lant Gover- s ever been to of tllilltrs list. Executive !en founded e 3, chapter used to ex- imcnt wliich 1 liave been len nduiitiis- or its spirit, rgo 3, c!iap. icntioned in 30 the terms e Council as Gsty for tiic t as it would , "together sliall be ap- '.t purpose." ! " with tlio as shallliavo his heirs, or or the affairs iorvvise have ice of such een appoint- sncccssors, pose." r terms ttscd clause. / With respect to which clauRes it may ho further remarked, that had it been contem- latod-tliat the Kxocutivc Coiuicil were to net "only in llie mailers liioreiu specified, thn words " on the iifliiirs of such Province" might have been omitted, without in tlio least impairing the legal efloct. In tiie eouHtriiction, therefore, of this Statute, the nhovo expres- sion can not bo treated as Hurplussnge, but must be taken to impose the duty which it imports. From the language of this Statute, there- fore, it appears — Firstly,~'Vh!ii there la an Executive Coun- cil. Secondly,— TUal they are appointed by the King. . Thirdlij,—Thnt they arc appointed to nd- vise the King, and bis Representative, upon " the affairs of Ike Province,"— uo particular alTiirs are spocitied : no limitation to any par- ticular time or subject. As the Constitutional Act. prescribes to the Council the latitude of "the airairs of tlio Province," it requires an equal authority of law to narrow those limits, or relieve the Council from a co-extensive duty. Every llcprescntativo of the King, upon arriving from England to assume the Govern- ment of this country, is neccs^•arily a stranger to it ; and the law'has provided for a Local Council as a source of advice, wliich when given, is followed or not, according to his discretion. In certain cases specified in the 38th clause of the 31 Goo. 3, chap. 31, the concurrence of the Council is required to give effect to certain Executive Acts. But thoyo exceptions prove the general rule, viz: that while liic advice is to be given upon the affairs of the Province generally, it is only in the particular '' cases that"it must harmonize with the pleasure of the Crown, to give that pleasure effect. Indeed, if the law could be construed to limit the advice to the particular cases, it would follow that the Council could not legally and constitutionally advise upon any others ; a proposition wliich, besides its manifest repug- nance to the terms of the Act, is contrary to received opinion and usage. But while the Constitution has assigned to the Council this duty, it is only to a very subordinate and limited extent that they have heretofore had opportunity afforded them to perform it. It is submitted that the exigency of the Statute can only be answered by allow- ing the affairs of the Province to pass under their review for such advice as their consci- ences may suggest, preparatory to the final and discretionary oction of the King's Kcprc- ecntative, upon those r The Council inooti. , .. a week upon Land matters, while ihf; aliairs of the Country are wiilihold from their consideration and advice, is as imperfect a fuUilment of the Constitutional Act, as if the Provincial Parli- nmcut were sumnioned once a year, to meet the letter of the Law, and immediately pro- ro.:ued upon answering the Speech from the 'J'lnone. In both cas-es the true meaning and spirit of the Constitutional Aot require, that tiie I'.irliament should have a general and practicalile opportunity to Legislate, and the Exe^'Utive ('ouiicil to advise, upon the affairs of the Country. In the former case, the Re- presentative of the King can withhold the Royal Assent from bills, and in the latter, reject the advice offered ; but their respectivo proceedings can not be constitutionally cir- cuinscribed or denied because they need the expression of the Royal pleasure thereon for their consummation. The extent and importance cf tho affairs of tho Country liavc necessarily increased with its population, wealth and commerce, and the Constitution has anticipated the dilR- culty, by a division of labour and responsihi- lity, from the active attention of the Executive Council to their duties. With tho exception of those matters of so weighty or general a character as not properly to fall under any particular department, and therefore fitted for the deliberation of t!ie Council collectively, it is recommended, that the affairs of the Pro- vince be distributed into Departments, to the heads of which shall be referred such matters as obviously appertain to them respectively. Upon this principle (recognised by the existing Constitution of this Province and of the mother country) the people have long and anxiously sought for the administra- tion of their Government, under the Repre- sentative of the King ; and the Council most| respectfully, but at the same time earnestly represent, "that public opinion upon the subject | is so fixed, and becoming so impatient, as to^ preclude the possibility of denying or delaying the measure, without increasing public dissat-l isfaction, and leading to the final adoption of I other views, as already too universally mani-r fesled, uncongenial to the genius of the Con- stitution, and most dangerous to the connec- tion with tho Parent State. The remedy, it is feared, is now proposed! too late for all the advantages desired ; but! the longer it is withheld, the more alienated [ and irreconcilable;vvill the public mind bcconne. The present comparative calm and thankful-_ ncss arise from a belief that the Council will ik 6 it. second thie oxigency, in establishing a system of Government, according to the principlcfi recognized by the charter of tlie liberties of tlic country — an expectation which Iho Coun- cil aru most anxious to realize. Should such a course not bo deemed wise or admissible by tho Lieutenant Governor, the Council most respectfully pray that they may be allowed to disabuse tho public from a mis- apprehension of tho nature and extent of the duties confided to them. (Signed,) PETER ROBINSON. GEORGE II. MARKLAND. JOSEPH WELLS. JOHN II. DUNN. ROBERT BALDWIN. JOHN ROLPH. HIS KXCELLENCY'S BEl'LY. F. B. Head. Tho Lieutenant Governor transmits to the Executive Council the following observa- tions, in reply to the document which, in Council, they yesterday addressed to him. The Constitution of a British Colony re- sembles, but is not identical with, the Consti. tution of the Mother Country— for in Eng- land, besides the House of Commons, which represents the people, there exists a heredi- tary nobility, the honours and wealth of which, as well as tho interests of the Established Cliurch, are represented by a House of Lords, while the Sovereign (who, by law, can do no wrong) is surrounded by a Ministry upon whom devolves the entire responsibility of the measures they suggest, and who are conse- quently removable at pleasure. But in the Colonial portion of the British Empire, which, however rising, is generally speaking thinly inhabited, the people are represented by their House of Assembly, which is gifted not only with the eame command over the supplies as in England, but which possesses within tho Colony, most of the powers of the British House of Commons. The Legislative Coun- cil is intended, as far as the circumstances of a young Colony can permit, to resemble the British House of Lords ; and if the Lieutenant Governor stood in the place of the Sovereign — and if,' like His Majesty, he could do no wrong, it would evidently be necessary that a Ministry, Executive Council, or some other body of men should be appointed, who might be responsible to the country for their conduct. This, however, is not the case. His Ma- jesty delegates his Sovereign protection of his Colonics to no one, but he appoints a Lieu- tenant Governor, who is roHpoiisible to inm for his behaviour, who is subject to iirnieacb nicnt for neglecting tho intcroals of the pt-o' plo, and who Ir liable, like the English Mm- istry, to immodinte removal; and tho history of tho British Colonics ch.'urly kIiowh, that there is no class or individual of His Ma- jesty's subjects to whose rcprcscntntioii, pray- er or petition, the King is not most willing tv attend. The Lieutenant Governor is, therefore, tho responsible Minister of the Colony; and as not only his character, but his continuance in office depend on his attending lo the reul in- terests of the people, it would be evidently us unjust towards him that he shoiild be liable to impeachment for any acts but his own, as it would be unjust towards the people, that a responsibility so highly important to their in- terests should be intangible and divided. It is true his knowledge of the country is not equal to that of many intelligent individuals within it; but in Government, impnrtiaiiiy is better than knowledge, and it must be evident to every well constituted mind, that in an in- fant state of society it would be impossible practically to secure a sufficient number of impartial persons to cHoct a change of Min- istry, as often as it might bo necessary for the interests of the people to do so. This difference between the Constitution of the mother country and that of its colony is highly advantageous to the latter — for, as in all small communities private interests and party feelings must unavoidably be con- flicting, it is belter as well as safer that the people should be enabled to appeal in person, or by petition, to the Lieutenant Governor himself, whose duty it is to redress their complaints, and who is liable to dismissal if he neglects them, than that they should ap- peal to a series of Provincfal Ministries, com- posed of various individuals. To enable the Lieutenant Governor to per- form the arduous duties of his office, the Con- stitution has wisely provided him with an Executive Council, competent to supply him with that local knowledge in which he may be deficient, and to whom he may apply for counsel and advice. Before he entrusts himself to these Gen- tlemen, they are by order of His Majesty required solemnly to swear, not only to give to the Lieutenant Governor their best counsel and advice, but thoy arc also sworn to secrecy. Their individual opinions can never be di- vulged, even to the King; and as a proof that I lis Mojepty does not hold them rospon- siblc for the acts of his Lieutenant Governor, 1 1 r •i ihoy can otlicc of (Icr Gov Tiio ni liioutonar hn must who docs but althoi confers d way does his acta b the peopl 08 well ni Governor responsih il ; for I which of Supposin rent advi to eject I his land, liable to acted by the Crov by inforn Iu3 own decreed I him, and he, and i reign for committ( Being and disg well as j a Colony at his pi best for I to the cc Majesty' on the i has dail; possible upon wh not, the sterling ally dra' it, and o liis bills, they con to Him, the impc secrecy Havin relative vernorai His Maj observed ticular, t first obtj (iovcrnn p •« 7 w ntH a Licii- jible lu liini lo iin^icacli of tll(3 |)<'0^ lil tiioet willing lercfore, tlio )iiy ; and ns iilinunnce in llio reul in- evident ly 116 I be liable to i own, as it opie, that a . to their in- divided. It nntry is not : individuals ipni-tialily is it be evident Iml in an in- 3 impossible ; iiunibor of ngc of Min- ecessary iur 10. Constitution if its colony ter — for, as tc intorestti ibly be con- fcr that the il in person. It Governor edress their dismissal if y should ap- istries, com- srnor to per- ce, the Con- im with an ) supply him ich he may ay apply for these Gen- iis Majesty only to fjive best counsel [1 to secrecy, lever be di- as a proof leni rospon- it Governor, ihoy can retain, and often do retain, their nice of sworn advisors, although Governor ,(lcr Governor may have been dismissed. - The advantage of such a Council to a Lieutenant Governor is so self-evident, that hn must be weak and sclf-suflicicnt indeed who docs not continually have recourse to it; but although it strengthens his judgment, and confers dignity on his proceedings, yet, in no way does it shield him from disgrace, should his ttctH be found contrary to the interests of the people. In such a case it would be vain, as well ns unconstitutional, for a Lieutenant (Jovernor to attempt to shield himself from responsibility, by throwing it upon his Coun- pcil ; for by his oath he cannot even divulgo which of his advisers may have misled him. Supposing, for instance, that with the concur- rent advice of hie Council, he was illegally to eject by military force an individual from liis land, the Lieutenant Governor would bo liable to arraignment, and whether he had acted by the opinion of the Law Oflicers of the Crown— by the advice of his Council— bv information derived from books— or from Ins own erring judgment, it has been wisely decreed that the injured subject shall look to him, and him alone, for retribution, and that he, and he alono, is answerable to his Sove- reign for the act of injustice which has been committed. , Being therefore subject both to punishment and disgrace, it is absolutely necessary, as well as just, that the Lieutenant Governor of a Colony should have full liberty to act (though at his peril) in every case as ho may think best for the interests of the people, according to the commands of His Majesty, and of His Majesty's Ministers. To consult his Council on the innumerable subjects upon which he has daily to decide, would bo as utterly im- possible as for any one but himself to decide upon what poir,;3 his mind required, ornceded not, the advice of his Council. Upon their sterling fund he must therefore constitution- ally draw whenever embarrassment requires it, and on their part, if they faithfully honour iiis bills, however often he may prer-ent them, they conscientiously fulfil to their Sovereign, to Him, to their Country, and to their Oath, the important duty which they have sworn in secrecy to perform. Having concluded the above outline of the relative responsibility of the Lieutenant Go- vernor and hia Executive^Council, as it regards His Majesty's colonies in general, it may bo observed with respect to this Province in par- ticular, that when His Majesty, by conquest, lii-st obtained possession of the Canadas, the (iovcrnmout thereof devolved upon the Mili- lary Commander, nntil by an Act passed in the 14th year of George 0, a Council was appc-nted " for the affairs of the Province of (iucbec, to consist of such persons resident therein fnot exceeding twenty.threc nor less than Bevcntccn) as His Majqety, llis Heirs and Succeasors, shall be pleased to appoint, which council so appointed and nominated, or the major part thereof, shall have power and authority to make ordinances for the peace, welfare, and good government of tho said Province, with the consent of Hia Majesty's Oovcrnor." This power of the Council wos further re- stricted by certain important limitations, spe- cified in clauses 13, IL 15, 10, and 17, of the said Act ; however, in the year 1791, a new Act was passed, commonly called the Constitutional Act, because it settled the con- stitution of the Can&das, which w^ro then divided into the Upper and Lower Provinces. By this Act, the Military domination of the General and his Council was changed for a new and better system,; and as evidently both could not exist together, the very first clause in the Act declared—*' That so much of the late Act (14th Geo. 3rd) as in any manner relates to tho appointment of a council for the affairs of the said Province of Quebec, or to tho power given by the said Act, to tho said council, or lo the major part of them, to make ordinances for tho peace, welfare, and good government of the said Province, with the consent of His Majesty's Governor, Lieute- nant Governor, or Commander-in-Chief for the time being, shall be, and the same is EEPEALED." The Act then proceeds to state, "That there shall be within each of the said Provin* ces respectively, a Legislative Counc U and >< an Assembly," the duties and priviteges of which are minutely declared-ill tTiirty-three consecutive clauses; but in no part of the said Act is an Executive Council directly or indirectly created ; nevertheless, a vestige of the ancient one is for the purpose of a court of Appeal, (vide clause 34) recognised, with an expression which seemed to intimate, that an efficient Executive Council would very shortly be created. For instance, in section 38, the Governor is by authority of His Majesty's Government, and with the advice of the Executive Council, "empowered to erect Parsonages and Recto- ries," but in section 39 no mention whatever is mado of the Executive Council, but on tho contrary, it is declared, that the Governor, or Lieutenant Governor, or person administering the Government, should present the incum- bent " to every such Parsonage or Rectory." ft Ell tliu liDy clfiiiHos of ihiM Act in .lucstion, Uiv hxcciiluo Council, whicli ill hccMoii :!l I.S iiiuicly tloHcribcd iia '•buoIi Kxeciitivo Council UH sliatt be .ppoiiitod hy His IMiiju'Sty," la scarcely luontioncd, imd an ro. {,'arils ovpii its cxiatence, llio most l.licrul conatrii.;tiun wliicli can poanibly bo |tul ii|iijii tlio nnid Act only niiioiinla to lluii— .Tliut Urt nil Executive Council was oviduiiilv iiilcii. dod to pxist, ilic rciniiaiit of tlio old oiio ouylil not to 1)0 dcenic'd totally extinct uuld ita Kucccdsor was appointed. Ilowovcr, tills latent intention of lliij Majesty to create ft Council for eacli of llio I'rovinccs of His Canadian doniinioiKs was eoon clearly divulyed in a most important document, commonly called "//it Kin"\s Jnstruclions," in winch an Executive Couii- «:d was regularly constituted und declared aa lollowa : — " WItereas wo liavo tlmnnrht fit that there ehould bo an Executive Council for urfsiotin.r you, or the Lieutenant Governor, or Person Admimsterinjr the Govcnnnent of the said Prnvincf) of Upper Canada for the time l)oin«r, wo do by these presents nominate and ap- point tho undermentioned persons to be of the Executive Council of our said Province of Uj)per Canada," &c. &c. &c. la subsequent clauses it was equally pro- ciscly delincd upon what uiPairs of tlio Pro- vince the Lieutenant Governor was to act, •' with the advice of the Executive Council," but with tho view distinctly to jircvont the new Council bein^r wliat the old ono had been (which indeed under tho new constituti- on was utterly impossible.) in short, to set that question at rest for ever, it was declared in eection 8, " that to the end that our said Executive Council may be assisting to you in 211 f/^ir^ relating to our service, you nro to communicate^ to them such and .so 7nanij of our instructiofis wherein their advice in mentioned to be requisite, and likewise all such others from time to time as you shall FIND CONVENIENT for our servico to be im- parted to them." The Lieutenant Governor having now transmitted to tho Executive Council his opinion of their duties, in contradistinction to that contained in their communication to him of yciJtorday's date, will not express the feelings of regret with which, undur, a heavy pressure of business, ho unexpectedly re- ceived a document of so unusual a nature, from d'entlcmen upon whom ho had only recently placed hia implicit and unqualilied reliance. But he feels it incumbent upon him frank- ly und explicitly to state, that to the opini- ons they have expressed, he can never mh. Ht-ribo— on the tontiary, that so hui" uh hn hIiuII continiiu lo be liiciileiiaiit Govoriiur ol thid Provinoo, he will iiovcr allow Iiih Exccu- live Council odicially to as.iiiiie (hat iieav v rcMpoiiHibility which he owis to hm HovoreiLMi, as well as to tho pi;oplo ».f this Province, to whom ho has Bolemiily plod;;ed himacif " to ■maintain the happij Constitution of this countnj inviolalt; hnt itiutioushj, yvi iffcc- taatlij to cornet all r^al ^'rievunces," 'I'iie Jjoulunant Governor inainlaiiui that tho resjionsibility to the pi-uulo (who aio already rcpres(Miieatter, they Wf !d immediately as their right, demand the jormer ; in which ca.se, if tho interests of tho people should bo neglected, to whom could they look for redress.' For in tho confusion between tho Governor, and an oligarchy conipo.sed of u few dominant fiimilies, shielded by secrecy, would not all tangible responsibility have vanished I Tho Council cannot have forgotten, tiiat previous to their first meeting in tho Council Chamber, which happened only a few weeks ago, the Lieutenant Governor had assured them in a note, (which was even publicly read in the House of Assembly) that although he had no prelimiup.ry conditions to accede to, or to require, it was his intention to treat them wiili implicit confidence ; and tho council must also remember how willinrrly they approved of the very first suggcstion^iio made to them, namely, that no impoilant business should bo commenced in council, until they as well as the Lieutenant Cover- nor himself, had become mutually acquain- ted with their respective duties. Tho Lieutenant Governor assures the council, that his estimation of their talents and integrity , as well as his personal regard for them, remain unshaken, and that ho is not insensible of tho ditficulties to which he will be exposed, should they deem it neces- sary to leave him. At the same time, should they be of opinion that tho oath they have taken requires them to retire from his confix deuce, rather than from the princioles they have avowed, ho begs, that on hia' account they will not Ibr a moment hesitate to do so. Cfocmimcnt House, Toronto, March 5, 183G.