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This item is filmed at the reduction ratio checked below/ Ce document est filmi au taux de reduction indiquA ci-dessous. 10X 14X 18X 22% 26X 30X J 12X 16X 20X 24X »x 32X Th« copy filmed h«r« has bMn reproduced thanks to the generosity of: ly/lcLennan Library IMcGili University IVIontreai The images appearing here are the best quality possible considering the condition and legibility of the original copy and in Iceeping with the filming contract specifications. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or Illustrated impres- sion, or the bacic cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. 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Tous les autres exemplaires originaux sont filmte en commenpant par la premiere page qui comporte une empreinte d'impression ou d'illustration et en terminant par la derniAre page qui comporte une telle empreinte. Un des symboles suivants apparaftra sur la derniAre image de cheque microfiche, selon Ie cas: ie symbols -^^ signifie "A SUIVRE", ie symbols V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent Atre fllmte A des taux de rMuction diffArents. Lorsque Ie document est trop grand pour Atre reproduit en un seul clich6, il est film* A partir de I'angle supArieur gauche, de gauche A droite, et de haut en bas, en prenant Ie nombre d'images nteessaire. Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 ^- / THOUGHTS ON THE GOVERNMENT, UNION, DANGER, WANTS, AND WISHES, OF TUB CANADAS ; AND ON THE PROPER LINE OF POLICY OF THE BRITISH PARLIAMENT IN THESE respects: BEING A LETTER TO MB. HITCBINOS OF TOBONTO, OCCASIONED BT, AND CUNTAININO STRICTURES ON, ONE ADDRESSED TO EIH BY DB. DUNLOP, CONVEYING HIS THOUGHTS ON THE SUBJECT OF RESPONSIBLE GOVERNMENT. By CHARLES SCOTT. " Unbounded materials of agricultural, commercial, and manufacturing industry are there : it depends upon tlie present decision of the Imperial Legislature to determine for whose benefit they are to Ite rendered available. ' — Earl of Durham. Report. " Wherever an Englishman goes, he carries with him as much of English Law and Liberty as the nature of bis situation will allow." — Chitty. Prerogative of the Crown, MONTREAL : PRINTED FOR THE AUTHOR BY CAMPBELL & BECKET ; AND SOLD BY THE BOOKSELLERS OF MONTREAL, QUEBEC, TORONTO, AND KINGSTON. 1839. 1 r d o 1 ol hi al 8U bi e.\ de so fo] an to th( po it I ADVERTISEMENT. This is a very hasty production, commenced as a mere newspaper review of the letter of Dr. Dunlop, extended under the pen to the dimensions of a pamplet, and made to embrace subjects of higher or more general interest, only during its progress through the press. Though it will doubtless betray much error, as being the production of a man extremely ignorant of almost every thing relating to the history and constitution of these Provinces ; it is hoped that it will also be seen to be the production of one that is not a stranger to such subjects, in their more general relations : of one who has not been unaccustomed, in these respects, to distinguish between the evil and the good, and to trace the various evils which he may have detected through all their various windings to their most hidden sources : of one who, while he scorns the affected singularity of the fopling, is not afraid to have^ on any subject which he has studied, an opinion of his own : of a man, in short, who, while he knows how to think and dares to speak, will neither pander to' the passions of the mob, iior spare the corruptions of the monopolists of pelf and power. Such as it is, he gives it to the public, with the hope that it may serve — in some degree — in some respect— their interest. THOUGHTS, &(•. A LETTER. HITCHIN6S, Esq. n Sir,— A few days ago I observed in the Montreal Gazette of the 12th instant, copied from the Toronto Patriot, the following letter of your friend Dr. Dunlop, with an admiring panegyric by the first- named journal, recommending it to the attentive and good-tempered perusal of the advocates of Responsible Government, as contunhig much forcible and sound constitutional doctrine, conveyed in the Doctor's usual candid and straight-forward style. Having followed this advice, and formed an opinion of the production very different from that of the Gazette, and of its subject somewhat different from that of your friend, though a stranger both to yourself and the Doctor, I take the liberty to address to you this letter. Besides a review of that of your friend, it will be found to contJa my thoughts on some other matters of great importance besides ti-e subject of your enquiry, equally perhaps, and now especially interesting, as being connected with the projected Union of the Provinces. Gawbraid, Sept. 25, 1839. Mr Deab Hitchings, — Tou ask me what is my opinion of Responsible Government. I will tell you ia a few words — I look upon it as a trap, get hij knaves, to catch fools. To which of these classes the Laird of Woodhill, who is at the head of the Upper Canada Chartists — or you, who have judiciously appended yourself to their tail, belong, I own has puzzled me. With you, as a lawyer, the thing is not so bad, as great allowance is made for you folks in the law, for making wrong right — but for him who is only a Barrister, and who never was accused uf being a lawyer, I have no excuse — for, even in walking the boards of the Parlia. ment House, he might have met with some Bartoline Saddletree, to have inforinud him, that spouting sedition to a rascal'y rabble, in the spirit, and nearly in the words of his friend, Mackenzie, was not secundum Erskine, Didrymple, or M'Laurin. " It is our right, and we must and ii'ill have it," means, being trans- lated into English, " if they won't give it you, take it by force." (i I Imvc not I'cail ciihcr (iiillivi'r'H liiciiliriili(iii-)(uns, as if an impression were to be made on the head oi' the public, au water wears the stone, *' non vi," (most luisuredly not,) '* sed s(vpe cadendo." I was once of opinion that some means similar to those employed at home, of makin)r the Government responsible to the people, mi^ht be adopted in this country, but observation and reflection have convinced me, that the way proiMtsed is quite impracticable here. It is ipiite clear, that the House of Assembly is not a body of siitflcient intellifrence, nor in their collective capacity of even sufficient honesty, to be trusted with the inauogement of the chuck iiocesHury to be kept over judicial or monetttry concerns. This is not a matter of prejudice or theory, nor is it arguing in the plu-perfect tense, of what might, could, would, or should happen, but a matter of fact which is as susceptible of proof, as any fact to be substantiated on evidence less than mathematical. Look at the proceedings of every House of Assembly, of every shade of politictd opinion, in the management of the funds of the Province, for the last fifteen years, and tell me if the men who have squandered the resources of the country on such jobs as the Welland Canal, (which I don't object to as an under- taking, but as to the misapplication of the money employed in it,) of that most absurd and ntifarious job the St. Lawrence canal, — of ail the jobs of the late Parlia- ment, for which jobs Sir F, B. Head sent them packing, and the colony confirmed his sentence, and then tell me upon what principle, save that doubtful one of setting a thief to catch a thief, you could ever propose to commit to these worthies the surveillance of their brother plunderers. No, if you are to have any responsibility on this side of the water, let it rest with the Legislative Council, a body of men sufficiently independent both of the rabble and the Family Compact to do justice, without fear or favour, and by making their |>roceedings in all investigations an open Court, you exercise a more effective and beneficial control by the people, than you ever would do through their representa- tives in Ptu*liament. On the whole, however, considering the average of Assem- blies, of Councils, and Lieut. Governors that I have known, I would infinitely rather commit the charge of checking abuse to the latter, than either of the others, and for this reason, that an individual is always really responsible for his actions — a body, hoivever constituted, never is so. But if your plans had been as judicious as they arc in the extreme absurd, the time you have chosen to bring them forward is enough to condemn them. The Province just recovering from rebellion within, and still obnoxious to invasion from without, all minor matters should be laid aside, and before you proceed to legislate for the Province, you should take ciure to secure the possession of it, and this is not to be done by dividing the well affected, and giving the enemies of the British Constitution a point round which to rally. When the " Carle o' the Carse" set up for a Uaniel O'Connell, he should first have been sure, that he had a fair share of Dan's tiilent and of Dan's impudence, and you and Gowan and Fothergill, and ('arroty Ilughie, ^4honld reflect, that while you are grubbing for yourselves holes under the foundation, you nuiy bring the house about your ears, — that if you are succcs:>ful in your present imitation, it will certainly cud in siendiug men info the tra] rasJ wej his his am I havJ and I 7 hext Pnrliament on your NlioiiMorM, who iiri< iiiiniicul to Hi itMi tupremat-y uinl HritUh coniiectiuii (tli)* KiidiciiN not Li'iii|{ t'ooU wlioevrr vN)> iii')*), who will mb«'ri>d tliu friundly udmonition — *' good4(>m- |H>rt'd :" for oh ! if it had tut happened that your friend had found hiniHelf no served out, to the last day of his existence how must ho have chewed the bitter cud of calm reflection I How must have rankled in his breast the thought, that he had thus been robbed of that on which he so confidently reckoned — The earthquake shout of victory, To him the breath uf life ! Not doubting that the Doctor, on hearing of his fortunate escape, will be disposed to feel, as assuredly he ought, greatly grateful for the forbearance of his unknown adversary ; and being equally assured that you are one of the Poet Cowper's " friends indued," and conse- quently determined not to be a whit less friendly for all the thump- back freedoms of your friend, I propose that for any thing oifensive which we may have thought, said, or intended, or hereafter may think, say, or intend respecting him, we duly deprecate the Doctor's wrath. Pardon, O pardon, great physician 1* On stolid souls some pity take : For wond'rous hard is our condition- To drink thy beer,f To brook thy jeer, To stand thy sneer, — Thy fists to fear — to fear and quake I I have done with badinage, and now to business. « I was once of opinion that some means similar to those employed at home of making the Government responsible to the people, might * I forgot to enquire in what profession tbe Doctor obtained his diploma ; but suppose it niust have been the medical. Surely— in the name of all the Saints— it was not in Divinity ! and I should not willingly believe that he it titled LL.D. No : he must be " a member of the Eaculapian line ;" and I make no apology for presuming that, like his friend of " Newcastle- upon-Tyne," No man can better gild a pill— Or make a bill : Or draw a tooth out of your head, Or bleed, or blister ; Or chatter scandal by your bed, Or give a glister ! Indeed, taking this as a specimen of his prescriptions, I should imagine he must have had very extensive practice and tliink himself quite an adept in this last branch of his profession. t " Hogwash :" the sort of stuff which the Doctor brews, and which he so well knows how " to cope withal." |1 t I \w ii(l ill tliiN (UMintry ; hut olmorviition and rt'flectioii Imvu con* viiirtvl iiii» tlint tlio wiiy |>i'tted" by which to make a fortune, may ht>, and frequently is found to be, '* quite impracticable." The Doctor may not like our way ; but doeti \m h)gic lead him to ccmclude that therefore he must denounce our end ? The proba- bility in — and we s^hiill have other reasons for the opinion presently — that, instead of having vlinntied \\\* mind, or in (uniMequence of its too frecpient changes, the Doctor does not knoiv it. Perhaps we shall have reason to conclude that he is one of those — an. Tl. Note fr.} B 10 i ! to sit in judgment on the conduct of the Judges in this Court. Be this, however, as it may, the Doctor takes his stand against the pretensions of the Assembly principally on the ground, not of inca- pacity or want of intelligr-pce, but of honesty. It is not that the Assembly is not competent co be a check on the Council, so much as that they are unworthy to have a check on the financial administration of the country, as proved by their own squandering of its resources. Now, if you contenders for Responsibility residing in the Upper Province have no more formidable arguments to '< cope withal" than any that have been or that can be drawn from ** such jobs as the Welland Canal," I should think you might calculate on an easy and very harmless victory. It is for us in the Lower Province to pre- pare for conflict. Here it is that we shall have to stand against repeated discharges of whole parks of artillery, such as can at any time be cast out of suppressed rebellion, national antipathy, political disaffection, treachery, and treason. In the mean time (for as yet we have hardly begun to skirmish), it surely is something to our purpose, that an adversary so formidable and straight-forward as Doctor DuNLOP, should concede a check upon the Council as " necessary to be kept." Such a check Lord Durham did not find, and such a necessity for their being checked, is just what we insist on. It is necessary that the Executive Council be checked : but hitherto it has not been checked ; ergo, it is time there was a change. Your friend lias granted the major : he will hardly venture to cry, Non sequitur. It would seem, therefore, that his only chance is in attempting to explode the minor. He must endeavour — for I hope he does not intend to quit the field — in order to demolish the argument above stated, to make " quite clear" that there is no necessity for any change, because the check that has been, and that is, is just what it ought to be in kind, and sufficient in efi'ect. It may be well, however, that your friend should have a gentle hint, that if this is really his opinion, and what he means to establish so that it will stand, it will not be his saying what he thinks, nor his bluntly asserting it; no, nor his unwearied or even endless reiteration of it that will serve his purpose. Facts are against him : and in opposition to their testimony, Truth never can be made to speak. He may shout — She will be silent. If, as respects Responsibility, he undertakes to prove that whatever is is right, hand htm the Report, is my advice, and bid him — ^not bark at, but — answer that. Your friend will jL'ut a very sorry figure if he attempt it. 11 A House of Representatives, pretending to be established on the principle of a Representative Government, according to the English Constitution, and yet denied all controul over the administration of Government affairs, is a perfect fraud. What does it ? What was it meant to do ? Merely to give advice for the people's welfare to those whose interests are antagonist, and who can snap their fingers with impunity? To pass bills for the people's welfare, merely to see them systematically rejected ? It is not thus in Eng- land. What makes the difference ? Responsibility. << The constitutional responsibility of the advisers, ministers, and officers of the Crown," says Chitty,* "not only operates as an inducement to them to act with caution, but enables the people, through their Representatives, the House of Commons, to expose, by an impeach- ment, to public view, to the eye of the world, the corrupt, the ill- advised, or impolitic measures of administration." When men love darkness rather than light, we have reason to suspect that their deeds are evil. We want our Representatives to hare the means of exposing certain secret springs and movements " to public view, to the eye of the world" We ask for our Assemblies the power to see, to make known, to arrest ; and, if necessary, to punish. In fact, we want a Representative — not House, but Government, according to the true principle, — the English ; the only one, as history and experience prove, consistent with established liberty or settled peace. If this cannot be allowed us ; if nothing more in this respect can be than has been granted, better far that we should be deprived of our pretented " Constitutional" self-government in toto. What we want that we have not, and what we might have consistently with the supremacy of the Imperial Govermnent, is So much of English Law and Liberty as the nature of our situa- tion WILL ALLOW. In the meantime, I have seen enough to justify my saying, without hesitation. If it be not safe or possible to give us more than we have at present, too much has been given us already. What we have is what pretends to be — restricted, indeed, but still to some extent — self-government. I mainttun it is not self-government at all. If we are worthy or capable of nothing better in this respect than what is merely nominal, let our Rulers take back the name and disabuse the world. Should it be thought necessary, in order to soothe us under the terrible privation, that we should be allowed to hope for emancipation in case of future good * Prerogatives of the Crown. behaviour, in mercy let it be granted that we be diBciplined and trained. Let us be put under Tutors as well as Governors, — Tutors whom we may not answer, Governors whom we must obey. Lord Durham's Report, — which, till a few days ago, (having engaged my promise when I entered the Bank of British North America, that I would not join in or interfere with political pro- ceedings or discussions), I had not read, and had scarcely looked into, — informs us, that " the wisdom of adopting the true principle of Representative Government, and facilitating the management of public afiairs, by entrusting it to persons who have the confidence of the Representative Body, has never been recognised in the govern- ment of the North American Colonies." How to account for this, except on the supposition of contempt on the one hand, or of fear on the other,* — ^fear, pushing caution to the length of odious suspicion, impolitic and pernicious, because offensive and insulting, — exceeds my comprehension. If no confidence can be accorded, no right to influence the Government or interfere with its proceedings, why give a right to and solicit counsel ? why grant liberty of speech ? Is this merely to save appearances ? In effect it is to sow the seeds of discontent and wide-spread disaffection. For near two centuries the Commons of England spoke their wishes in the style of very humble petitions, frequently beginning with — * Your poor Commons beg and pray,' and ending with — < For God's sake and as an act of charity.' Was it expected that our Canadian Assemblies would be thus ser- vile and crouching ? David Hume informs us that " when the Speaker, Sir Edward Coke, made the three usual requests of freedom from arrest, of access to her [Queen Elizabeth's] person, and of liberty of speech ; she replied to him that liberty of speech was granted to the Commons, but that they must know what liberty they were entitled to : not a liberty for every one to speak what he listeth, or what cometh into his brain to utter : their liberty extended no further than a liberty of Aye or No." Doubtless such language would be thought odd, addressed to a Speaker of a House of Com- mons in the present day ; but however oddly or ha ily it might sound, and however arbitrary might appear its absolute enforcement, better far for the people that their Representatives should be reduced to this, than that they should be allowed in addition the liberty of free debate, and nothing more. The evil which otherwise they * Our Constitutional Act, it ought to be remembered, was passscd soon after the American Revolution. ii 13 person, f speech t liberty what he xtended inguage of Com- it might rcement, j reduced -f )erty of | ise they I e American | would not, that they ■ i lutioD, potion, clyNt«r-pi{M> and plaster. He surely does not give up the case as hopeless. — He does ? Nay, then — send for the Undertaker ! Pax vobiscnni ! Rear him a marble mausoleum, and on the basis of his statue be this inscription, Alus ! pour Yorick I As a last eflfort, however, the Doctor is willing to try his skill. " If we are to have any responsibility on this side of the water, let it rest with the Legislative Council." With the Legislative Couvcil truly ! This is a Daniel come to judgment. We knave-trapped fools would set a thief to catch a thief ; the Doctor laughs h, gorge deployee ; and lo ! he sets a thief to catch himself. No matter. If any responsibility on this side of the water, — this. It is not only the best ; it is, says the Doctor, the only tolerable. But changing his sido, as a lawyer knows how, — (and here I cannot but suspect that he and we are under obligation to your friendship) — the Doctor discovers something better than the best. On the whole, he tells us, he would infinitely rather commit the charge of checking abuse, — not, as just decided, to the Legisla- tive Council, but — to the Lieutenant-Governor. The former is undoubtedly the best ; the latter, however, is infinitely better ! Now, is not this a pleasant man, and of good assurance ? And what, I wonder, can be the reason of this preference ? What ? Bear it, ye Muses, on your brightest wing 1 " An individual is always really responsible for his actions" — an English King for instance : " a body, however constituted, never is so" — his Ministers to wit ! Why really, really, Doctor, E'en Satan's self with thee might drend to dwell, And in thy skull discern a deeper hell ! i! ill liiiili Having now diitnuMed tlie Doctor, — Mine what unc«r«moniou«ly perhapi, for want of patience, — I propose to take a much wider rang* than was at first intended, in order to obtain a more comprehensive view — 1st, of our Colonial Constitution as it now exists, in order to prove that it is bad : 2nd, of the projected (.Constitution according to the Bill that has been printed, in order to discover wliether or in >vliut respects it is likely to be better : and, hutly, of the Constitution as I think it might be, so an to secure all that can reasonably be required in the way of self-government, and at the same time avoid whatever could be reasonably advanced in opposition. Should it be any fortune to accomplish so much, I trust I shall be allowed to have some claim on the public — nt least for a patient hearing. If, on the other hand, I fail, I am free to confess that I shall fall short of the achievement to which my ambition prompts me to aspire. I am not so inexperienced in the ways of men as not to know, that I am about to enter on u very perilous adventure. Belonging to no party, determined that I will belong to none, is it for such a one as I am to assume a right to do, — what some indeed have done ; what nature seems to have designed some men to do, but what no man yet has been allowed to do without a fearful visitation, — in a case of such importance to think as I please, and to speak as I think ? This, says Gibbon, speaking of Bayle, is what nature had designed him to do, Ay, and this was what he did ; and well he paid the forfeit. He it was of whom Byron beautifully observes, Deep and slow, exhausting thought, And hiving wisdom with each studious year, In meditatioD dwelt, with learning wrought, And nhaped his weapon with an edge severe, Sapping a solemn creed with solemn sneer; The lord of irony, — that master-Kpell, Which stung his foes to wrath, which grew from fear, And doom'd him to the zealot's ready hell, Which answers to all doubts so eloquently well. Is there then to be a privileged class in this respect ? Is freedom of thought and speech to be the prerogative of the favoured or highly-gifted few ? With Lord Erskine, I answer, no. " Every man, while he obeys the Laws, is to think for himself, and to com- municate what he thinks." " Opinions," as the same writer quotes from Mii>TON. — " Opinions and understandings are not such wares ai tu btt moiiupuii'xeJ niul traded in by ticketM» and »tutntL>«, uiid •tandnrdi*." It \» tru**. tlie pi-t-M lying my faculties in the line of my profession, I determined to look into the matter. I read the Act of 1791. It was quite enough. I was not such a novice in tiie science of govorimient as not to see, not only that tliat Constitution was not the British, but also — what, tjiongh I had often asked, I conld never learn till now — the reason of the ill feeling that prevailed in the Upper Province respecting the conduct of the Government ; and especially the reason why there was no prosjieriti/ ; nothing even to compare to tliat across the border. I saw it now. I read Lord Durham's Report, and saw much more. Tlie letter of Doctor Dunlop had roused my indignation : tlie in- solent snarliiigs of those would-be war-dogs, the public prints, led on by tliat h(!ll-liound, your Toronto Patriot, had fixed my purpose : my pani})hlet was in the press, when I discovered that this (piestion about tlie Constitution had been fiercely debated by Sir Francis Head. I stopped the press, and sat down to the study of his folio volituie of J>espatches, &c., and now I come to do what I think I can do, — not, however, as I know it should be done ; not sis I could wish to see it done ; but yet — something more than any living man can undo, — or I am much mistaken. In this most important matter of their Constitution, the people of these Provinces appear to have been completely bamboozled. Your first Lieutenant-Governor, Colonel Simcoe, whom a Public Meeting in your City Hall, in their Address to Sir Francis B. Head, were pleased to style " the ablest and most enlightened Lieutenant- Governor of this Province," — he, it seems, began the game, or rather the farce, of befooling the public. His having been a Member of the Iliifli(ittii,n, finl irith a Constitiition which f an li 29 hrone... ON, and ry';"- so pom- 8 inhabi- 1, do not « Chinese with the Bspecting with the , why let iockheads I find the f its own md-thiity y this im- >ntly. In of the most ament; and Constitution lat the form E heard the sr of the Act Hid was well rernineiit, to their benefit. >w what the first Session Throne, and e Parliament Constitution, 1 the British he same form ns that guard ititution, thus test Posterity, committed to whatever till m the British lich its Inhab- nstitution.' as the King's oscd that Ses» f this Provitice •ifitiition trhirh has stood the Tent of Experience, and is the very Image and Ti anscript of that of Great Britain,' Such were the emphatic Words of this great and good Man. Were they, afler all, a mere Delusion ? An empty-sounding, unmeaning Mockery ? — f Des- patches, p. 2l\.J , , These gentlemen of the Committee, though they mentioned the " memorable debate" and " Mr. Fox," forgot to give his opinion as above quoted as a set-off against that of Colonel SiivrcoE. '^ This distinction of His Excellency," they had just before observed, " between the Council serving him and not the people, is calculated to awaken much concern, and seriously impair that identity of interest and purpose, which (under the presumption of our enjoying the British Constitu- tion) we always supposed to exist between the King and people." Again, at the very commencement of their Report, p. 202, these gentlemen open thus : " It is at such a crisis that we are called to the discussion of a question of vital importance to the people of this Province ; a question which, in the opinion of the Committee, is no less than this ; whether we have, as we have been taught to believe, a Constitution, < the image and transcript of that of Great Britain,' or have only a mutilated and degraded Cnnstitution." Most heroically do these gentlemen contend for the affirmative, and if I cannot carry thisyor^, I lose the battle. My enemies are a host, and their artillery bristles in terrible array. Now for the pounding. But stop. I must first enquire the opinion of the men of this Lower Province. In a Petition of the Counties in the District of Quebec, and of the County of Warwick in the District of Montreal, dated 2d February, 1828, addressed to His Majesty, and bearing 29,388 signatures, I thus read : — Amongst the numerous benefits for which the inhabitants of Lower Canada are indebted to yoiu- Majesty's Government, there is none that they more highly prize than the invaluable Constitution granted to this Province by the Act of the Parliament of Great Britain, passed in the 31st year of the reign of our beloved Sovereign, your august father, of ever-revered memory. Called by that Act to the full enjoyment of British constitutional liberty, and become the depositaries of our own rights, under the protection of the INIother Country, we contracted the solemn obligation of preserving inviolate this sacred deposit, and of transmitting it to our descendants, such as it was confided to us by the great men who then presided over the destinies of your powerful and glorious empire. Is not this a rather formidable army, playing away with muskets and c/'o*«-bows, all in the same direction ? After all, however, I like the Reports of the great guns best. They make more music and bettor fun. Unfortunately, you, as well as we, have lost your 30 W' lilh^ii! ! most terrific Bombardiero. Another volley, however, from the heroes, and then — have at 'em. Sentiments similar to those of Governor Simcoe have been expressed by suc- ceeding Lieutenant-Governors, and by persons of all Classes and Creeds who have ever treated on the Subject. Although some have demurred, that while we were entitled by the 31st of the King to all the Blessings of the British Constitution, tliat while it was held out to us in Theory and by Profession, it was denied (in some respects) in Practice, yet all have a<;rueU that it was guaranteed to us by the Constitution ; and those who have heretofore complained of the Want of it in Practice have been charged with Disatfection, and denounced as Demagogues, Grievance-mongers, and Disturbers of the public Peace, by Lieutenant-Governors and their Adherents. The Records and public Documents of the Province are filled with Expressions (sometimes explicitly and at other Times incidently men- tioned) calculated to impress the Belief that we are entitled to the full Enjoyment of all the Blessings flowing from the Constitution of Great Britain ; and what is peculiarly striking is, that amidst all this Multitude of Witnesses in favour of our llight to the British Constitution, with all its Blessings and Benetits, not even a hint to the contrary was ever heard from any of them ; and it has been reserved for Sir Fhancis Bond Head, in 183(), to discover thnt our Constitution is dif- ferent from the British Constitution, and that it would be foolish and niinous for us to introduce the British Constitution if we could, and that any attempts to do it would be vai/i. Whatever evils we suffer under our present nondescript Consti- tution, which even Sir Fkancis admits are so great and oppressive as to require ' important remedial measureii without ' delay,' which ' our Sovereign has on/uinttl,' and ' which he is here to execute,' we should console ourselves, according to his opinion, with one animating and delightful reflection, namely, we are not and caniiut be ciirsed with the British Constitution. According to his doctrine, the Constitu- tional Act ordained no such absurdities, and the Royal instructions were equally gracious and careful to protect us from that terrible evil and calamity the British Constitution. It has been ol)served by His Excellency in one of his public Expositions, that SiMcoE ' could not alter the Charter committed to his charge,' or render it wliat His Excellency asserts it is not, the very ' image and Transcript of the British Consti- tution.' Your Committee in imitation will say, neither can Sir FnANcis Head, by his detractive Assertions, impose upon us a ' mutilated Constitution,' nor has he the right to impose upon Upper Cana'.a the arbitrary Government of Russia or Con- stantinople, in place of the genuine transcript of which Simcoe was the bearer. But altliough SiMcoE could not alter the Law, ai.d was too great and good a man fo do it, yet he never had a successor who had equal pretensions to expound the meaning, elucidate the provisions, and explain the scope of the new Constitution. He who fought with U. E. loyalists in the American war, and knew the worth and claims of the men for whom the Constitution was generously designed; he who sat and spoke in the Senate in whit;h the law was passed, who was moreover in- trusted with the duty of putting it into operation, and who, from the Throne, solemnly declared the magnanimous gift of the British Constitution to those vvlio had been driven by their loyalty to seek an asylum under it, was surely better and more conipetent authority respecting that law and Constitution than a gentleniau nearly half a century afterwai-ds, who, &c — (Despatches, p. 2\2.J iir It now becomes my tnrn. I am not going, he. ,"er, to enter into a ridiculous dispute about the competency or inconipetency of some third party to settle the dispute. I am going to try if I cannot settle it myself. I am going to produce such facts as cannot be denied, and such arguments as will not easily be refuted. I begin with the JJ£AD of the ret-pettive Government?. SI , by his i!i hu tliu or Coii- »■ bearer. (1 a mail luiid thu stitiitiuii. worth and he wl»o reover in- Throiie, host' who better and eiuleinan By the people under Her Government, the Queen . wrun)(, with )*vi-ry loral Mt'ans atforded him to do what was ri);lit. 2nd. Bf>canM! the Impeachment or Complaint must be made by the injured Person at a great Uiittance, requiring a Delay, Expense, and WatchlulneiM out of the Reach of the Power or Means of the Sufferer, wlio (if belonging to ' the indus- trious Classes,') might make out in Writing a very informal or insufficient Case, however clear its Merits, or be unable to retain Counsel and Agents here and ill England to conduct his Suit. Limitation to such a Remedy would practically be a Denial of Justice. 3d. Because the Complaint would be made to a Minister in Downing Street, who is the Patron of the Governor accused ; and, besides, the Governor haM numerous Friends on the Spot to exercise every Influence and Interest in his Behalf. The weight of this reason is increased by the difficulty of proving any act to have been done from corrupt motives. Even if a presumptive case could be made out against a Governor, it would be contended that a clear and positive one must be established before tlie Consequences of Impeachment could be visited on the Accused ; and how very many Acts of Misgovernment there are, in their Nature vexatious and injurious, against which it would be difficult to fix the Charge of corrupt Mo' tive, while it was palliated, evaded, or explained away as an Error of Judgment, the deceptive Assurances of others, a Misapprehension of Circumstances, a mistaken Policy, or the like. For instance, it would be in vain to proceed against the exe- cutive Authorities for the Erection (as herein-after mentioned) of 57 Rectories, and certain corrupt Exchanges of Lands, although opposed to the well-known Sentiments and Interests of a vast Majority of the Religious Community. It would bo equally vain to attempt to institute such Proceedings for many Appoint- ments to Office, as Surveyor-General, Colonels of Militia, the Commissioners of the Courts of Requests, and other offices. It would therefore obviously place the Country in a desperate Condition, if the onlff Hope of preventing Wrong being done, was founded on an Institution of an Impeachment for it after it wait done, before a Patron of the Wrongdoer, 4,000 Miles off, defended by a person intrenched in Power here, and sustained at home by Family Connexions, and the Preservation of what is called the Colonial System. The House of Assembly of Lower Canada instituted a Complaint of this nature against Lord Aylmer in a most solemn Man- ner, and with great Unanimity, for most arbitrary and unconstitutional Misgovern- ment ; but it only ended in his Promotion t^ a higher Post of Honour. Although therefore an Impeachment might be resorted to in extreme Cases, yet it by no means supersedes the Necessity of all local and constitutional Checks, calculated to prevent Cause for so difficult, painful, and undesirable a Course. This Precaution against the Occurrence of Evil, instead of merely contriving how it can be punished by Im- peachment 4,000 Miles oif, is the more needed from the Fact that this Impeach- ment would yield no Redress to the Persons injured, even if it punished ihe Per- sons injuring them. If all our local Governors were impeached, and all their Estates contiscated, it would not repair the Injuries of the most notorious Nature ; besides Thousands of just Complaints murmured only in Secret, and either endured with Patience, because, the Remedy proposed would be worse than the Injury, or because, what is notoriously true, to prefer a Complaint, however just, against a Governor, ensures a Black Mark against his Name as a troublesome, a fitctimis, or undeserving Man, whose future Hopes are blasted, and his Oppressions multi- plied at every favourable Opportunity, in various Ways, that elude all Proof and Conviction. What could be done to redeem the Injustice against Gourlav, Willis, the late Robert Randal, Francis Collins, and others? And if an insufficient blustering Pretender to Learning should be made a Judge, and an in- nocent Person be convicted thereby and executed, he could not by Impeachment be restored to Life 4th. Because there are such Changes of Colonial Ministers, that there might be Half a Dozen in Succession before a Suit could be conducted to a Conclusion ; and the Justice done by one Minister is often undone by another. For instance, in Lower Canada, Mr. Gale, who gave such Evidence before the Canada Committee G I': I 'li-: ■»' ii 81- of 18^8 iiH to obllK*' till- Ri^lit HonoiiruMe Mr. Si>I(in(i Kh e to pruiioiiiic** liiin iiiiflt tor any Offirv of TriiM, wiim iippoliited a Judge liy Uuvt-rnor-Ui'iieriil Avi.mkk, wlioHf iM'liv! Piirtlsan he liiiil hfcii. When tlip Ncwit of thin Appoiiitinptit rcnctipil KiikIiiikI in the Antiimn of 1834, Mr. IticF, hail b*>cuine diloitiiil Sfcri'tary, who allllr)■^^l'(l a Dc^^putch to Lord Ayi.mkh, Miyhii; he ttouhl not roiitirin Mr. (iAi.c's Apjiointniciit. Mr. Kick wnn ttoon Nim-ft'dvd hy Lord Aueiiukkn ; and tlifrrfon- Lord A yi.meu, dUrt-Kardin^ thti ConinmndN of Kx-nilniiitvr Kick, and the known Scniinit-ntH of thf I*e the Governor and Council have here, and the King in Council has in England, as Courts of Civil Jurisdiction, in appeals from a Colony, to take cognizance of matters of property belonging to the Colonial subjects of the Crown, whereas all such interference, by the Crown or Council, in matters of property belonging to the Metropolitan subjects of the Crown, is proliibitcd by statute. And is not this a difference of something more than nominal importance ? There is, too, another striking and most important difference which I discover between the British and our Colonial Constitutions. By the former, the discretionary power to allow or disallow a Bill is not only an incommunicable prerogative of the Crown, while by the latter it is not incommunicable ; but the Royal decision, in the one case, is required to be signified during the Session of Parliament, whereas, in the other, it may be suspended for two years from the date of the receipt of the Bill in England ? and what is more, and infinitely worse, and in my opinion even monstrous ; a Bill which shall have obtained the Royal Assent in Canada, may at any 3.5 liiin unfit Ayi.mk.h, ionH34, t(t Lord Kkf, wuh nnl'mis tli« [•etiplf iiinl rinntlon of I, iilthouKh Spcfih 111 I improper ly nnothcr, y tli« fitiiiu ey Geiifriil iovtTiinn'iit nor (lid his u^ly offtTed GoDKHICII ftheKiKhttt tor Gt-ni-rul ni>d tlip At- w SueiicH of been in full 1 Sufficiency the whole of t of 1791, uuncil lias a Colony, ! Colonial le Crown ropolitan lot this a difference stitutions. ow a Bill while by >n, in the rliament, Aus from ,t is more, s ; a Bill ay at any time within two yours of its receipt in London, receive tlie Rityal MisAM.owANcK ! * And now, y(> thinn|)ing wonhl-he sons of thun- der, iK this yonr hoiisted British Constitution ? I sluinhl he ghid now if some one wonhl nndertiJve to sliow, wliiit nec^essity or toh'rubh? reason there is or can he tor tliis <'xtraordinnry str(!tch of tlie ]irero;;atire. By the British ('onstitntion tlie Legis- lative j)ower of the Sovereign is merely negative; "and," says CiiiTTY, " ii is only for the purpose of protecting the regal executive authority that the Constitution has assigned to the King a share in legislation." N(»w, if this l)e true, — and the same thing hud been sai hope-let u? strive law fully- lor more. tiG Uiiili \\ I might rnetitiuii vuriuiiti utiior piirticulura in wliicli the fiuwer uf the Crown \h much more limited in Knglund tliun in Cuniidu — at leuMt in thix Pruvint**; : in the upitointing of Sheritfit, for intttnnce. In Knghind, tlio cuNtiMii is, " for the Lord High Chnncellor, the Chan- cellor of the Kxflie<|nor, the Judges, several of the Privy Council, and other great otficers of State, to assenihle, &c., when three persons for each County are proposed or sehjcted, out of which three one is finally appointed hy the King." '* Sheriffs, by virtue of iseveral old statutes, are to remain in office no longer than one year, and there- fore it seems that the Crown cannot authorize them to remain in office for a longer pericul." — (ChiUif.) Had this rule obtained in this Province, we should have lost less by defalcations, and been spared the disgust occasiiuied by some late proceedings. Have we not had enough of these pocket Sherii]>* ? I might also mention Justices of the Peace. In England, " in selecting individuals to fill this important situation, the Crown must ascertain whether they are sufficiently qualified, according to several statutes on the subject." Are there any such statutes here ? Is there any such discrimination ? Looking in certain directions, one would hardly think so. I might even dwell on the unconstitutional power (as it would be thought), which the Crown possesses here, of adjourning the Houses of Parlia- ment. It has no such power in England. They adjourn themselves. But there is yet another and a more important diii'erence, which I was on the point of passing, and which, if I am not mistaken, is no trifle either. The Lord Chancellor in Canada, is the head of the Executive, the Represensativeof the Crown. Is his Royal Mistress the Lady Chancellor in England ? " It seems," says Chitty, " that in very early times our Kings, in person, often heard and determined causes between party and party ; but, by the long and uniform usage of many ages, they have delegated their whole judicial powers to the Judges of their several Courts ; so that, at present, the King cannot determine any cause or judicial proreedingst hut by the mouth of his judges." Now if any attention is to be paid, any deference shown, to the opinions of any of the great men, British or foreign, who have ■written on the subject of the English Constitution, such a violation of every principle observed in its entire fabric, can be justified by nothing less than sheer necessity. But where is the necessity ? or who will undertake to show it ? Are there not twenty men, in either Province, better qualified by far to preside in the Court of Chancery than was Sir F. B. Head ? What knew he about either Statute or C'oinnioii liHW ? U'liut kiiuw he iikoiit tlic h'gnl aiiJ loiig-cHtHb- liiihed priiwipU'i) of Kqiiity ? () ! *' In goveriiiiiviit, iiiipnrtiulity" — HO he t«'IlM iiM — *' iM better than knoMletlge ;" tind hence, I 8ii|ipoite, the reoMon, why ho chotie ho frequently to turn hiM xkiill into a dice- box. I grunt the gretit iinportiince of impiirtiality, in a Judt/e ubovH all functionaries, and more eMpeciully in tliin fjower Province : but impartiality, in Kngland, m thought to b(> best secured by indi!- pendence. Now Im, I ask, a Provincial Governor independent ? Is it not the ciuie, that he no NO(»ner enters into the Ciovernment, than he finds himself entangled in the toils of self-constructed aristocratic compacts, so as to be necessitated either to espouse their cause against the Commons, and become their advocate and apologist at Court, or to return disgraced ? Was Sir Fkanm.is Head impartial ? Will any man venture the assertion ? Whoever thinks so ha solid Rt>nsoniii(r with wiiiuh you suistuiii the coiistitiitioiiul Groiiiiil whii'li your Excrlieiir-y hiix taken up, cannot fail to have a salutary Ett'oct ill repressing the Growth of pi>Iiticnl Error. — f Despatches, p. 287. y Without doubt those gentltunen supposed that this their Address would greatly assist His Excellency's dignified endeavours to repress t'u! direful growth. Do they then require to be told, that what they call an uticalled-tor excitement was [)ersonally and loudly called for by his ExcoIleu(!y ? Tiiat he avowed it ? that he gloried in it ? that he, not loss than O'CoxxKLL, dubbed himself what I have called him, an Agitator, (a very dignified, very dispassionate one, of course). — Oh<('rvinvc that these Answers, — [sunh are his very words,] — not only produced ^reat Excitement in both the Canadas, but that the more Address's I answeri'd the m.ire I received, I determined to continue the Controversy, in order that tlie IJe- piililieiiiis should, in the most puldic Manner possible, be forced to measure their Strength with the .Supporters of the Hritish Constitution. If the Siiliject of Dispute had been of triflin;; Importance I need hardly say I should have uviiided rather than have courted a CoiiHiet i(f this irrefjular Nature ; but as I l find themselves suddenly deprived of their Property, and, what is better than all Property, of their rreedom aud In- dependence f Despatches, p. lliS.J Something however must be done, — [must be? why ?] and although I trust I Sim as unwilling as any person can be to meddle with the Constitutional Act of 17!)1, yet, seeing the unavoidable Necessity of doing so, I cannot but avow I think it the Duty of the Country, if it does resolve to interfere, to prevent the Necessity of ever doing so iigain {Despatches, p. 348. ^ On a Province the most noble this amiable Knight would wreak vengeance the most disgraceful ; and a Constitutitni which others were to fight for to the hist letter, without a shadow of necessity shewn, he would mutilate without mercy. Again, In his re|)ly to the Address of the House of Assembly, dated March 14, 18-3G, 8ir Fu.vxois, sj»eaking of his Council, says, "For ', dated " For m their acts I ilolilteratoly declare myself to be responsible.'' — (Dc.S' patches, p. 154.J What can he mean ? How could he be ? Speaking of iiiinsclf in tlie third person, he declares, — " By his oatli he cainiot even divulge which of his advisers may have nii.'>led him.... Their individual opinions can never be divulged, even to the King." — (p. 157.J " Their oath,"' observes his Excellency, " appears to my judgment to be an oath of non-responsibility to the people ;" (p. lG9v) then was not his oath, by the same rule, an oath of non-iesponsibility — " even to the King i*"' But away with inference : take his own declarjition. " It would be evidently unjust that he should be liable to impeachment for any acts but his own." — (p. \57.) Tiius he deliberately declares himself to be, what he as deliberately declares it would be unjust if he were liable to be ! But I have taxed his Excellency with writing claptrap sophistry. Very well : tan I not prove it ? Let us see. If the Crown voluntarily surrendtrs its actual property in this Colony (before it has imbibed from the Mother Country a Huiidrech I'urt of the redundant Popula- tion it is capable of siipportin<;) it may with equal Justice \tii required to surrender its Jurisdiction, — (Despatches, p. 325.^ That is to say, — leaving out the parenthetic clause, which is nothing to the purpose, — Give " voluntarily" a part of what is " your actual property" — your own ; and " with equal justice may you be required to surrender" — any portion or the whole of the remainder ! Such is the " solid reasoning" of Sir Francis Bond Head, when deli- berately writing — not answers " in homely language" for purposes of agitation, to Addresses from '* farmers and yeomen ;" but — officially to Loi'd Glenelg. Again. Ridiculing, as well he might ridicule, the paraded Colonel Simcoe, for having asserted that the Act of 1791 had " established the British Constitution," and " that this Province was singularly blessed, — not with a mutilated Constitution, but with a Constitution which has stood the test of experience," &c. Sir Francis thus replies to the addressers of such nonsense : — Supposing it were to be argued that Four Fifths of the ISIembers of your House of Assembly ought immediately to be dismissed, because, in proporiinn to tlie Popu- lation of Great firitian and Ireland, there exist Five Times as many Meuibers here as in the English House of Commons, would you not think it very irrational tiint this noble but thinly-peopled Colony should be made the ' the exact Image and Transcript' of the liritish Constitution merely because Colonel Simco£ hap- pened to use these Words ? Would you not immediately appeal to your Constitu- tional Act on the Subject? Would you deem it just that a yoimg rising Province like this should be afflicted with t)>e same expensive Alachinery requisite for the Government of the Mother Country, 4,000 Miles off? 40 ;ri,. -X. Would you not very fairly argue, that as the wliole Population of this Immenw Country exceeds only by One Third that of the single Parish of St. Maryleboiie ill London, and as the whole of its Revenue does not equal the private Fortune of many an English Commoner, it would be unreasonable to expect that the People of this Province should be ruined in vainly attempting to be the 'exact Image and Transcript' of the British Constitution. — f Despatches, p. 168. J Now, is not this a precious piece of " solid reasoning ?" I have heard the right of the Crown to increase the number of the Members of the House of Commons questioned, because such increase would destroy the proportion tacitly settled by the Acts of Union, between the number of the English Members, and the Scotch and Irish ; but beside this great political polemic, did any man ever hear or dream, that according to the British Constitution, the Members of the House of Commons must be in some stated " proportion to the population ?" that tlie British Constitution prescribes the expense of the machinery of Government ? What if we had, in fact, as these men pretended that we had, " the very image and transcript of the British Consti- tution ?" would any man not crazed assert that it involved, either the irrationality or the ruin here pretended ? I look upon such stuiF proceeding from such men, as I do upon an old Avoman's bogle, — a mental monster to frighten naughty children. The ignorance which prevails in Canada respecting politics is not at all suprising, looking at the character and conduct of their instruc- tors. Speaking generally, what do the people read ? Netcspapers. Now take a sample. The Montreal Herald of this morning calls the political apophthegm. Vox populi, vox Dei, a " modern creed :" and the same paper, a while ago, gravely told us, that in its opinion, instead of being the voice of God, the voice of the people was more frequently that of the devil ! One might fear this learned Theban had been mistaking for the voice of the people, his own sweet voice ! It has been said — and there is much truth in the saying, ^' perrai les aveugles un borgne est Roi :" among the blind a blinkard is a King : and verily, before a man would venture to publish notions such as those above-mentioned, he must have calculated pretty con- fidently that the eyes were all his own. What opinion ought we to form of the public press ? Lord Brougham tells us it is the best possible public instructor. I beg his Lordship's pardon, but I cannot be of his opinion. Napoleon's notion was much more rational. " When I landed at Cannes, they wrote in the Paris newspapers — Rebellion of Buonaparte : five days after — General Buonaparte has entered Grenoble : eleven days after — Napoleon has made his entry into Lyons: twenty days after — 41 Lord I beg jleon's es, they ve days n days after — The Emi'KIIor is arrived at the Tuileries." Then follows a pretty good reflection. •' After this, look for pnblic opinion in the news- papers !" " Tiie ambition of rnling over the mind," says Napoleon, " is one of the strongest passions :" and this is most strikingly observable in politics and religion. Gibbon saw it in Calvin, and hence he calls him " a stern theologian, who loved liberty too well to endure that Christians shonld wear any other chahis than those imposed by him- self." And is it not so with our Yankee neighbours and their liberty ? And is it not so with our newspaper editors and their opinions f " As to Responsible Government in a dependent Colony," says our Herald, " it is a political contradiction too palpably gross and ridicu- lous to require more than the passing remark, that ave have always considered it the touchstone between loyalty and rebellion." What magniloquence. " We" are noble fellows ! For the benefit of those who hear and say so much about the British Constitution, and know so little, I shall give a very masterly delineation of it, in the words of Montesquieu. I prefer this sketch before that of any English author that I have met with, for two reasons : it is more concise and clear, setting forth what is, and why it is, and why it ought to be so ; and it possesses every possible re- commendation to a respectful attention of the Franco Canadians ; whom 1 shall choose, whatever may be the cry for their political destruction, to treat as fellow-subjects ; and for whose reclamation to loyalty, and introduction to a more full participation of the incal- culable blessings of English Liberty than this Colony has yet eiyoyed, I am not and shall not be ashamed to labour. The French Canadians, speaking generally, may be ignorant, may be degraded, may be disaffected : they may be unenterprising ; they may be comparatively stupid : all this they ai'e said to be, and this, to a great extent, I believe they are. What then ? All this may be the fault of others, rather than their oivn. Are the French in France, their brethren, unenterprising, ignorant, degraded, stupid ? What makes the difference ? I put this question, not to a company of snarling curs, hut to calm, observant, reflecting men. What makes the difference ? I think I coidd tell, and shall, perhaps, so^ie day. In the mean time, I ask another question. Have the Franco Canadians ever yet been guilty of a tythe of tlie rebellion that have the Irish? Yet the Irish are not politically proscribed : on the contrary, they now are courted. Their Peers P .1 l^ir 1 ^1' mm .''I \yn li are iidmitteJ into our H«uisi' uf Lords, and iiuiigh^ with th«' proudest of tilt* Siissiuiiu-lis 4ui efjual terms. Do I complain of this ? Not so. It is one of tliose " tides in the affairs of men" of whirh history shows many, resultinj^ from a law of political attractions and repidsions, of which, if those who wield the destinies of England knew how to avail themselves at present as I would to God they did, I should not yet ddy of magistrates, but to persons taken fro.n the body of the p:'iiple. . . . The two others should rather be ijiven to public officers or per- rr.auent bodies ; because they are not exercised (ui any individual; the one bciiiif only the irennral will of the com- munity, and the other the execution of thiit will. But if the judicial body ought not to be pi-rmauent, the judj^ments ought to be so pri'cise as never to deviate from the law. Were they to be according to a mere private opinion of the judge, men would live in society without knowing precisely what enga;rement8 they had contracted. It is even necessary that the jud'ii's should be of the same rank as the a"cused, or, iis we say, his peers; le.>t he shiiuld fancy that he had fallen info the hands of men seeking occasion to do him vi(dence. If the le^iislative power leave to the executive the ri^ht of imprisoniu); litizcus who can give secriuMty for their conduct, there is an end of lib rty : — except in cases wlu^re they are held in custody to reply, withi)Ut delay, to an a(^cusation wiiich the law has made capital: in Par la premiere, le prince ou le raa- gistrat fait des loix piuir un temps ou puissance legislative est reunie a la puis- saiH;e executrice, il n'y apoint de liliertu ; parce qu'on peut (Taindre que le meme monanjue ou le meme seiiat ne fasse des loix tyranniques, pour les exec.uter ty- rainii(|uement. II n'y a point encore de liherte. si la puissance de juger n'est pas separee de la puissance legislative & de rexicntrice. Si elle etoit joints a la puissance legisla- tive, le pouvoir sur la vie & la liberie des citoyens seroit .arbitraire ; car le juge scroit lugislateur. Si elle etoit jointe a la puissance executrice, le jugi* {lonrroit avoir la force d'un oppresseur. Tout seroit perdu, si le meme homme, ou le meme corps des priiKnp.nux, on des nobles, ou du peuple, exer9oient ces trois pouvoirs; celui de faire des loix, celui d'executer les resolutions publioties, & celui de juger les crimes ou les diii'urends des particuliers La puissance de juger ne doit jias etre donne h, un senat permanent, mais ex- ercee par des personnes tlr6es du corps du peuple Les deux autres pouvoirs poiirroient plutot etre dflnn6s a des magistrats ou <\ des corps permanens; parce qu'ils ne s'exercent ^u^ nuc.un particulier ; n'otant, I'un, que la volonte g<^n(irale de I'etiit ; & I'nutre, que I'execution de cette vo- lonte gontrale. Mais, si les tribunaux ne doivent pas etre fixes, les jngemens doivent I'ctre i un tel point, qu'ils ne soient jamais qu'un texte precis de In loi. S'ils 6toient une iipiiiion particuliere du juge, on vivroit dans la societb, sans s9Jivoir precisement les engagemcns que Ton y contracto. II faut meme que les juges soient de la condition de I'accuse, ou ses pairs, 44 \k ' ^ h-l '■ which CA8e they nre really free, because they are made subject only to the power of the law. If, however, the legislative authority bclieveH itself in eople in a body should have the legislative power : but as, in large stfites, this is impossible ; and in small ones is subject to great inconven- ience ; what the people cannot do them- selves, it is necessary that they should do by their representatives. A man knows much better the wants of his own city than of others ; and judges much better of the capacities of bis neighbours than of those of his di^tant countrymen. The members of the legis- lature, therefore, ought not to be taken from the body of the nation generally : it is preferable that the inhabitants should choose a representative in each principal town or location. The great advantage of representatives is, that they are capable of discussing national affairs : the body of the people is totally incapable ; which forms one of the great iuconveniencies of a demo- cracy. It is not necessary that the represen- tatives, who have received from their constituents a general instruction, should be further instructed on each particular aflPair that arises, as is done in the Diets of Germany. It is true that, in this ciise, the vote of the deputies would more exactly express the will of the people ; hut this would produce inter- minable delays ; would render each de- puty the master of all the rest ; and in the most pressing emergencies, all the force of the nation might be arrested by gome caprice. When the deputies, as Sydney has well observed, represent a body of people, as in Holland, they ought to render an account to those by whom they were commissioned. It is otherwise when they are deputies of Boroughs, fta in !p}ngland. All the citizens, in the several districts, ought to have a right of suffrage, except ^hoae only who are in such a state of pour qu'il ne puisse pas se mettre dans I'esprit i|u'il soit tombe entre les mains de gens port6s a lui faire violence. Si la puissance legislative laisse h Tex- 6cutrice le droit d'em])ris(Uier des citoy- ens qui peuvent donner caution de leur condiiite, il n'y a plus de liberte ; a mollis qu'ils ne soieiit arret6s ]>our re- pondre, sans diJlui, ii uiie accusation que la loi a rendiie capitale : au(|uel cas ils sniit reellement libres, puisqii'ils ne soiit souiiais qu'ii la puissance de la loi. IMais, si la puissance legislative se croyoit en danger par quelqiie conjura- tion sciTctte contre I'otat, ou quelque intelligence avec les eniitinis du dehors, elle iiourroit, jiour un temps court & limitu, pcrmettre a la jmissance execu- trice de faire arreter les citoyens sus- pects, qui ne perdroient leur liberte pour un temps, que pour la conserver pour toujours Comme, dans un 6tat libre, tout homme qui est ceiiso avoir une ame libre doit etre gouverne par lui-meme, il faii- droit (|ue le peuple en corps eut la puis- sance legislative: mais, comme cela est impos^illle dans les grands etats, & est sujet a bcaucoup d'incniiveniens dans les petiis;, il faut que le peuple fasse, par ses represeiitans, tout ce qu'il ne peut faire par lui-mcine. L'on connoit beaucoup miviix les bes- oins de sa ville, que ceux des autres villes ; & on jiige mieux de la capacity de ses voisins, que de celle de ses autres compatriotes, II ne faut done pas que les membres du corps li'gislatif soient tir6s en general du corps de la nation ; mais il convient que, dans chaque lieu principal, les habitans se choisissent un rcpr^sentant. Le grand avantage des representans, c'est qifils sont capables de disciiter les affaires. Le peuple n'y est point du tout propre ; ce qui forme un des grands in- conveniens de la dcmocratie. II n'est pas n^cessaire que les repre- sentans, qui ont re9U, de ceux qui les ont choisis, une instruction gentrale, en resolvent une particuliere sur rbaque affaire, comme cela se pratique dans les diettes d'Allemagne. II est vrai que, de cette majiiere, la parole des deputes seroit plus I'expression de la voix de la nation : mais cela jetteroit dans des longueurs inflnies,rendroit chaque depute le maitre de tons les autres ; et, dans les occasions les plus pressantes, toute la force de la nation pourroit etre arret^e par un caprice. Quand les deputes, dit tres-bien M. ',. i 15 les repr^- IX qui les tit'rnle, en chaciue e dans les vrni que, I deputes I'oix de la dims de8 ue depute ;, dnns les ite la force lepar un l-bien M. depravity or dcirrailatioii, that thi-y are considered as watitiii!; the faculty uf free volition. Ill the greater part of the ancient re- publics, there was one ^rand vice : the people had a rif{lit to resolve respi'ctin;; matters belont;iuir to the executive de- partment, and alto;;ether beyond the reach of their ability. The peoiile ou;;ht nut to take part in the frovcrnnient, ex- cept to choose their representatives. Of this they are sufficiently capable: for although there are but few men who know the precise degrue of the capacity of each particular individual, yet every one, generally speaking, can judge of the relative intelligence of different in- dividuals. Neither ought the representative body to be chdsLMi for the purpose of taking, any more than the people generally, a share iu the ext!cutive government: this would be highly iin]iriiper. They are chosen either to make laws, on to SEE IF THOSE ALUEADY MADE HAVE KEEN PHOPERLV EXECUTED. T/lU they can do extremehj well, and it can be well done hy none hut them. There are always iu a state men dis- tinguished by birth, riches, or honours : but if they were to be confounded among the people, and if they had only one voice, like others, the common liberty would be their slavery, and such liberty they would have no interest in defending; because the greater part of the proceed- ings would be against them. The share therefore which they have in legislation, ought to be in proportion to the other advantages which they have in the state ; and such will be the case if they form a distinct legislative body, having a right to prohibit the enterprises of the com- mons, as the commons have a right of prohibition of theirs. By this means the legislative power will be entrusted to a body of nobles on the one hand, and on the other to a body chosen *q repre- sent tlie people ; having their assemblies and deliberations apart, according iis their views and interests are separate and distinct. Of the three powers of which we have spoken, the judicial is, comparatively, nothing. There remains then only two : [i. e. the legislative and tlie executive :] and OS these have need of h. regulating power to moderate them, the branch of the legislative body which consists of nobles, is very proper for that purpose. The body of nobles ought to be heredi- tary. In the first place it is so by its Sidney, reprosentent un corps de peuple, comme en lltdlande, lis doivent reiidre compte tV ceux qui les out commis : (;'est autre clnise lorsqu'ils sont deputes par des bourgs, comme en Angleterre. Tons les citoyens, dans les divers dis- tricts, doivent avoir droit de donner leiir voix pour choinir le reprosentaut ; ex- cepte ceux qui ^ont dans un tel otat de basscAse, qu'ils sunt reputes n'avoir point de vnlont6 priqtre. II y avoit un grand vice dans la plu- part des anciennes r6piildii|ues : c'est que le jieuple avoi' droit d'y prendre des resolutions actives, et qui demandent quel(|ue execution ; chose dont 11 est enticrement incapable. II lie doit entrer dans le gouveriiement que pour choisir ses representans ; ce qui est tres a so. port^e. Car, s'il y a pen de gens qui conn(dsseiit le dogro precis de la capacite des honnnes, cliaciiii est pourtant capable de s^'avoir, en general, si celui qu'il choisit est plus cclaire que la plupart des autres. Le corps reprSsentant ne doit pas etre choir'i nou plus pour prendre quelque resolution ac^tive ; chose qui ne scroit pas bien : mais pour faire d.'j loix, ov POUR voiu SI l'on a hien execute celi.es (iu'iL A FAiTEs ; chose f/uil pent tres-hicn faire, et (/u'il ny a jncme que lui tpii /iniime bien faire, II y a toujonrs, dans un etat, des gens distingues par la naissance, les richesses ou les honneurs : mais, s'ils 6toient confondus parroi le peuple, et s'ils n'y avoient qu'une voix comme les autres, la liberie commune seroit leur esclavage, et lis n'auroient aucun interet a la defi'iidre ; parce que la plupart des reso- lutions sentient contr'eux. La part qu'ils ont h la legislation doit done etre propDCtionneeaux autres avaiitages qu'ils ont dans I'etat ; ce qui arrivera, s'ils forinent un corps qui ait droit d'arreter les enterprises du peuple, comme le peuple a droit d'arreter les leurs. Aiusi, la puissance legislative sera confiee et au corps des nobles, et au corps qui sera choisi pour representer le {leuple, qui aiiront chacun leurs assein- blces et leurs deliberations a part, et des vues et des iiit^rets separes. Des trois puissances dont nous avons parle, celle de juger est, en quelque fa9on, nulle. II n'en reste que deux : et, comme elles ont besoiii d'une puissance reglante pour les temperer, la partie du corps leglslatif, qui est compose de nobles, est tres-propre a produire cet effet. Le corps des nobles doit etre hercdi- 46 m\ I' : ! !iii!; iiiiturp ; licslili'M H)iii;h it U ntTcs^ury that it sliiMild )iiiv(> KPfut iiitfriMt in \tVH- NiTviiii; itH prrrit'iitivi'!*, oditiiin in tli<>in- nrIvi's, iukI whit'h, in a tree Atatc, niiut ahvayN liH expoMfil to danger. Kut as nn ht-redihiry power ni!i{ht ho indiieHd to follow its own iiitereMtM, and I'ornet tliosH of tlie people, it is necessary that in inattero where theri> may he a Movereiirn interest to corrupt it, as in those which concern tlieraisini! of money, it should tJil; its pre- ro;;atives, and its rii'lit to do, what, in consequence of such dcstraction, would not he done. Hesides, if the leirislative body were continually assembled, it uii;;lit happen, that the only cdanffe of memliers would be by supplying vacancies occasioned liy death ; and in that case, if the hcdy once became corrupt, the evil would find nr) remedy. When divers bodies succeed ea(;h other, the people who have a bad opinion of the one in beinir, with reason carry forward their hopes to that which will come after ; but if there were always the same body, the people seeini; it once corrupted, would hope fiir nothini; further from the laws : they w ould cither become furious, or ttink to a state of indolent abjection. The Parliament oujjht not to con- vene itself; for a body is understood to exercise volition only when assendilcd ; and if it were not to convene unani- mously, it mif^ht be dilficult to say wliich taire.* II Test premierement pnr sa nature ; et d'ailleurs, il faut qu'il ait uii tr^s-i;rand iiiturct a (Minserver ses pi uiii- ^atives, odieusespar elles-meme, et qui, dans un etat libre, duivent tourjours etre en danger. Mais, comme nne puissance hereJi- taire pourroit dtrh induile u suivre hvh inierets particuliers, et i\ oublier ceux du peiijde ; il faut que, dans les choses oil i'oii a un souveraiii inturet (i la cur- roinpre, comme dans les loix qui con- cement la le^ee de I'argent, elle n'ait de part a la legislation que par sa faculie d'empecher, et non par sa fuculte de Htatuer La puissance exc 'Utrice doit etre entre les mains d'lin monarque ; parce que cette partie du ({ouveriiement, qui a presqiie toujnurs besoin d'une itction moinentaiiee, est mieux admintstree par un <|ue ]mr pliisieiirs; au lieu que ce qui ilupeiid de la |)uissaiice legislative est souvent mieux ordonne par plusieurs que ]iar nn seul. Que s'il n'y avoit poijit de monarque, et que la puissance oei'utrice flit contiee <\ un certain nombre de personnel tiiee» du corps legislatif, il n'y auroit plus de liber;e ; ]>arce que les deux puissances seroient unies, les mcines per.^onnes nyaiit qiielquefois, et pouvant toujours avoir part a I'une et a I'autre, . II seroit inutile que le corps legihlatif fnt loiijours (usseinble. Celu seroit incommode pour les represeiitans, et d'ailleurs occiipiroit trop la puissance exei-utrice, qui ne penseroit point a exe;'uter, mais a defendre ses preroga- tives, et le droit qu'elle a d'exei'uter. De plus: si le «'orps legislatif 6:oit continut'lltMneiit asseml)!u, il ]icurroit arriver que Ion ne f< roit que supple T de nciiveiiux deputes ii la place de ceux qui ir.oiirroient : et, dans ce cas, si le corps legislatif etoit une fois corrompu, le mal seroit sans remede. Lorrque divers corps le^islatifs se succedent les uns aux iiutres, le peuple, qui a mauvaise opiiiili»tivi' liixly, — thiit whlcli liad lusKfiiililt'tl, or tln' rcin^iiiKli-r. Oil tliu otlii-r hand, it' tin* lf>;i?Jiitivi> liddy Imd ii ^i^r|lt ti> |ir;uiiist the exciuitive power, would ^ive a dun{islatlt', ct'llc qui sci-oit iisseinlilu'-, ou ct'llc qui lie le seroit pas. Que s'il avoit droit di! se ]irorogi'r lui-inOme, il pourroit arriver qu'il lie se proro^cmit jamais ; ce qui seroit dangerenx i)uvuir qu'il pent imaginer, il aiiu intira toutes It's autres puissani;es. Mills il ne faut pas que la puisKance lcj;isliitive ait re •iproqiieinent la facull<) d'arrdter la puissance exdcutrice. Car, IVxe^'utitm ayant ses limites par sa nature, il est inutile de la bonier ; outre que la puissance exivutrice sVxerce ttnijoiirs sur des cboscs momeiitati^.'s. Et la puissance des tribuns de Home 4toit vicieuse, en ce qu'elle arr^toit iionseule- meiit la lej;islHtitin, mais in6me I'exeru- tion : ce qui causoit de grands maux, Mais si, dans un ^tat libre, la puisiianre le^i^lative ne doit pas avoir le droit d'arrfiter la puissance exe:utri(!e, elle a droit, et doit avoir la fuculte d'examiner de quelle inuniere les loix (ju'elle a faitet ont He cxicutves ; et c'est I'avantage qu'a ce gouveriiement sur celui de Crete et de Lmeiliinone, ou les cosmes et les cpliores ne rendoient point compte de leur administration. Mais, quel que soit cet exainen, le corps l«gislatif ne doit pas avoir le pouvoir de juger la personne, et par consequent la conduite de celui qui execute. Sa perstmne doit 6tre sacr^e ; pnrce qu'^tant iieiiessaire a I'^tat pour que le corps le^islatif n'y devienne pas tyrannique, des le moment qu'il seroit accus^ ou juge, il n'y auroit plus <|e liberty. Dans ce cas, I'etsit ne seroit point une monarchie, mais une r^liublique non libre. Mais, comme celui qui ex^rute ne pent executer mal, sans avoir des conseillers n^e/hans et qui liaissent les luix comme ministres, qtioiqu'elles les favorisent comme liommes ; ceux-ci jieuvent vtre recherchcs et punis. Et c'est Tavantage di; ce gouvernement sur celui de Gnide, oil la loi ne permettant 48 cv *. law, nut |><>riiiittiiiK thu Aniiiituiii'N, i-vcii al'tt'r tlii'ir ailiniiiiHtriition, to \w ari-aii{ti- ed, the |i)>o|ile liiiil no redi't-M* I'lii* thu in- juriHs which they hud suHVrcd. , . . It niiiy ha|(pt'n thiit ttoim-ortlic officiTA ut'iitatu hhall have violated the rights of the pi'oplf, and coininittfd crinii*!* which the established iiia){iKtrutes can not or will not punitth. Hut, in general, thu legislative power cannot jiid^e ; and inn case of this kind, especially, where it represent:* the party interested, the peo- ple, it ought not. It can only be the aeeuser. liut before what Judge ? Shall it abase itself before the tribunals of the Jaw which are its inferiors, and where, besides, the juries, being composed of the people, might be overborne by the author- ity of so powerful an accuser ? No. To maintain the dignity of the people and the security of the individual, it is neces- sary that the popular branch of the legis- lature should carry the accusation before the other House of Parliament, that House having neither the same interests with itself, nor the same passions. And here is the advantage which this govern- ment has over the greater part of the ancient republics, where there was this abuse : that the people were at once ac- cuser and also judge. The executive power ouisht, as we have said, to have a share in the legisla- tion by itsfaculty of disallowing, without which it would presently l)e despoiled of its prerogatives : but if the legislative power take a share in the execution of the laws, the executive power will be equally despoiled. AV'hat caused a change of government at Rome was, that the Senate, which had one part of the executive power, and the miigistrates who had the other, had not, like the people, the faculty of dis- allowing. Such is the fundamental Con- stitution or THE Government of WHICH WE SPEAK. The legislative bodies being composed of two parties, each restraining the other by their mutual faculty of disallowing. Both are bound by the executive power, as is the executive by them. As all things human have an end, the state of which we speak will lose its liberty, will perish. Rome, Sparta, Car- thage have perished. It will perish tlien, when the legislative power shall be more corrupt than the executive. point d'nppi'llcr en jugemcnt lea nmimo^ ues, ni6me apres leur adnilninistrM- tion, le peuple nt! pouvoit jamais sv faire rendre raison des injiuticeii qu'on lui avoit faites II pourroltarriver queijuelquecitoycn, dans les att'aires publiques, violeroit les droits (In peuple, et feroit des crimes que les niagistrats titablis ne svauroient ou ne voudroient pas punir. Mais, en gtMidral, la puissance lu^islative ne peut pasjuger; et elle le peut encore moins dans ce cas particulier, ou elle repr^-^ente la partie interes>ut% qui est le peuple. Elle ne peut done 6tre qu'accusatrice. Mais devant qui accusera-t-elle ? Ira-t- elle s'abbnisser devant les tribunaux de la loi qui lui sont inferieurs, et d'ailleurs compoi-ui de gens qui, £tant peuple comme elle, seroient entrainee |inr I'autorite d'un si grand accusateur ? Non : il faut, pour conserver In dignhu du peuple et la surete du particulier, que la partie le.-islativc du peuple accuse de- vant la partie legislative des nobles ; la- quelle n'a, ni les m^iuej interfits qu'elle, ni les mumes passions. C'est I'avantage <|u'n ce gouvernement sur la plupnrt des republiques anciennes, oil il y avoit cet abus, que le peuple etoit, en uieinc temps, et juge et accusateur. La puissance executrice, comme nous avons dit, doit prendre part A In legisla- tion par sn facu!i<; d'emp6cher ; sans <|uoi, elle sera bientot depouillee de ses prerogatives. Mais, si la puissance legislative prend part a I'exei-ution, la jiuissance executrice sera c^alement perdue Ce qui fut cause que le gouvernement changea a Rome, c'est que le 'enat qui avoit une partie de la puissance execu- trice, et les magistrats qui avoient I'autre, n'avoient pas, comme le peuple, la faculte d'empecher. VoiCI DONC liA constitution FON- DAMENTALE DU GOUVEIINEMENT DONT NOUS PAKLONs. Ls corps le4;islatif y etant compoh^ de deux parties, I'une enchninera I'autre par sn faculte inutuelle d'empecher. Toutes les deux seront liees par la puissance ex<>uutrice, qui le sera «;lle-meme par la le:j;islative Comme toutes les choses humaines ont une fin, I'etat dont nous parlous perdra sa liberte, il perira. Rome, Laccdcmone et Carthage ont bien peri. II perira, lorsque la puissance le;;islative sera plus corrompue que I'executrice. w I rcgri't that circiimitituiicuti will not permit my puiiHirig liore, to uifi'i' Muiiiu roinui'ks un this (>xtr)tct. In the wor(U of a greiit MuHter it (;ontuin!t u tsiictch of the Knglidli Constitution ; — a delineution on which those that have a taste for the views, and arguments, and }»rofound reflections of political philosophy, will love to meditate. JIow much has France advanced in freedom since this was written ! How much more nearly does her Constitution resemble ours ! She has tried the opposite extremes of democratic and arbitrary sway ; and in tlie school of stern experience has been taught to prize the kind of government here recomniended. Is such experience to be lost on us ? Shall we, in our self-sutticiency, repudiate the wisdom of philosopliy, teaching what she has learned from the experience of all pa.st ages ; and take up with the new-fangled notions and con- trivances of every crack-brained Constitution-monger ? Give me the storm-tried Constitution, that, in the direst tempest and the darkest night, has beaconed and still beacons forth above the waters, THE Pharos op all nations ! As one principal object of this Pamphlet is to afford a clear view of the Constitution of which ours ought to be an " exact image and transcript," I make no apology for adding as follows, from the pen of one of our standard Authorities, A. F. Tytler, Lord Wood- iiousELEE. — Elem. Gen. Hist. )N FON- kT DONT I'lslatif y I'une Inutiielle lout liees le sera iimaines parlous- Rome, un jieri. Litslative frice. ON THE nRITISH CONSTITUTION. 1. Thtt rudiments of the con»tiiution of England may be traced as far book as tliu Norninii coiKjuest. AVilliam distributed a great proportion of the lands among his \(irn)an follitwirs, subjecting these, as well as the Anglo-Saxons who retaiiied thi'ir |ir obligation of the vassal's taking arms for his sovereign when- over r(>(|uirt'd. In the continental kingdoms of Europe, as in France, the feudal system arose by sliiw degrees, nor was there of consequence the same union of the fabric ns in England. The feudal lords were independent of each other, ever at variance from tiieir mutual pretensions, and often owing but a vury slender alle- giance to the crown. Their vassals suffered from oppression, and often struggled fur their freedom ; but these efforts being partial produced no consequence favour- able to the liberty of the nation. In England all were oppressed by the enormous weight of the crown ; it was a common grievance, and produced at times a violent ert'ort for the general liberties of the people. 2. The forest-laws imposed by the conqueror (see Sect, XV. § 2, 11) were a grievance felt by the whole nation, as rendering every man's property precarious, and subject to the arbitrary encroachments of the crown. It was no wonder that the barons and their vassals should cordially unite to rid themselves of so intolerable a hardship. Henry I. found it necessary to conciliate his subjects, by mitigating the most rigorous of the feudal laws. A greater advance was made under Henry II. by the institution of the trial by jury, liut John, imprudently resisting this natural progress towards a rational freedom, was soon compelled into those import- ant toncessioii>, the Chiulo 'le Foiefta and Mngna Ckarta. From that time, G 50 m '1 mhntever wi> miiy JmlKr ufthe uctuiil Koveriimeiit, which wm oftfn rnunt uriiltrary iiiid devpotical, the (iiiiiitltution uf Kiigland wan thut ot n liiiiitf)! iiioiiarchy, •'). ThH iifxt iiifiniiralili* ern ill thK Kriiwth uC thH KiiKlUh ('tiiiNlitutlnii wait tha FPiKH i>( IIenhv III., whfii, iiiiiliT thiit Wfuk |iritife, th*' piirliimiciit rKceivril a iihvv I'onii, by tlie udlni^Millll iil'thi* re|irci(«iitutivfit ut' thu |H)(iplu, thr dvpiitii'M ol' tlic couiw tlen and lM)^oll^hH. (Hfit. X\II. § 2.) IIU NUfneHitiir KiiWAun I. ni:kiiowled){ed their uiithiirity in olitaiiiliiK ull hi« MuhnidlKN, and rutitifd n new law, which de- cliired, tlint no tnx Hhould Im* levied without the coiiNent ol'the LitrdNiiiid CoiinnonH. The Miujna Chttrtu wuh cuntirmed no leHN than eleven tiiiieM in ciiiirHe of tliin reitrii. 4. ThuH the (JoiiNtitution cuiitinued udvanciiiif, till its |iriiHreHM wiut HU»|>ended by thM«>nthtI coinpoiieiit part iif parlinincnt, hei'mi^te he ahiMA ha^ the potvtr to I'luivuke, pniroKiie, ami dUHolv<* It. il<> han likewUt* a iie^'ulivH on all Itn urtH, whirli are Invalid tvitliout IiIm approliatlon ; and each Ihuiho has a neKative on the dt-rreeM ol' the other. It N likewise competent to the khiK to pro- pose any iiieHMire to he laid liet'ore the piirliuinent. 10. All i|ne-itii)iis re^ardlntt puhlie alViihs ami national measuren may oi'ii{inafn in either hon-t take their ri^e in the lloiiie of ('iiunni)n'<, and cainiot hi> altered, though they may be rejected, by the LiiriU. 'l'\u> mutter nni'-t lie priniin'ily dUcn«.'.) He bus the power of makini; war, peace, and alliance, and of sending and receivint; ambassadors. (7.) He is above the reach of all courts of justice, ami is not responsible tu any Judicature for liis conduct in the administration of government. 12. These hiijh powers of the iioverei;jn, which, at first sii{ht, would seem to ren- der him an absolute monarch, are i) admiraldy controlled: — The hln){ is depen- dent on parliament for all sub" ,i's, wlthciut which he can neither maintain his fleets and armies, nor pay the salaries of officers. The parliament indeed settles a revenue on the klnj{ for life, but this Is merely sufficient for the maintenance of his household, and supportin); a proper diginity of establishment ; and as it must be renewed by parliament at the be|;iniiin!{ of every rel);n, it is in the power of that body to withliidd it till all abuses shall be remedied. Thus the constitution may be brought back at those periods to its tirst principles, and all encroachments of the perogative restrained. 13. The king can never reign without a parliament. It must by law be assem- bled once in three years, on a notice of forty days before its meeting.* Although the head of the church, the king cannot alter the established religion, nor frame ecclesiastical regulations ; these must be made by the assembly of the clergy. The king cannot interfere in tlie ordinary administration of Justice, nor refuse his con- sent to the prosecution of crimes, lie may pardon olTences, but cannot exempt the offender from pecuniary compensation to tlie party injured. He cannot alter the standard of money, either in weiglit or alloy. He cannot raise an army without the consent of parliament ; and tliou!;h a moderate standing force is kept up with their consent, the funds for its payment require an annual renewal by parliament. Finally, although the Sovereign liiinself is not amenable to any Judicature, /it's ministers are responsible for all the measures of government, and are impeachable * The original or first institution of parliaments is one of those matters which lie so far hidden in the dark ages of antijiaity, that the tracing of it is equnlly dithcult and uncertain. The word parliampnl is comparatively of modern date; and derived from the French, nnd signiftes an assembly that met and conferred togetlier. It was first applied to general assemblies of tlio states under Louis VII. of France, about the middle of tlie twelfth century. But it is certain that, long before the introduction of tlie Norman Inngungcinto F.nglnnd, aU matters of import- ance were debuted and settled in the great councils of the realm — a practice which seems to have been universal among the northern nations, pHrticularly the Germans, and carried by them into all the conntries of Kiirope. The first mention of the word parliament in our statute law is in the time of Kuward I. (1272.) But it is agreed that in the main the constitution of par- liament, as it now stands, was marked out in the seventeenth year of king John ( A.D. 1215), in the great charter granted by that prince ; wherein he promises to summon all archbishops, bishops, abbots, earls, and grnjiter barons, personally ; and all other tenants in chief under the crown, by the sherift's andbailitfs ; to meet at ii certain place, with forty days' notice (this period ii now extended to fifty days since the union,) to assess aids and sciitnges when necesiary. in 5<-2 hy the Commons at the bar of the Iloute of Lords, fur every species of misconduct or misdemeanour. Such are briefly the outlines of the admirable fabric of the British Constitution. Esto perpetua I The origin of the Legislative Council is seen in Sec. 12 of 14th Geo. III. c. 83, as follows: And whereas it may be necessary to ordain many regulations for the future welfare and good government of the Province of Quebec, the occasions of which cannot now be foreseen, nor, without much delay and inconvenience, be provided for, without intrusting that authority, for a certain time, and under proper restrictions, to persons resident there : and whereas it is at present inexpedient to call an As- sembly, be it therefore enacted by the authority aforesaid, that it shall and may be lawful for His Majesty, his heirs and successors, by warrant under his or their signet or sign manuel, and with the advice of the Privy Council, to constitute and appoint a Council for the affairs of Quebec, to consist of such persons resident there, not exceeding twenty-three, nor less than seventeen, as His Majesty, his heirs or successors, shall be pleased to appoint ; and upon the death, removal, or absence of any of the Members of the said Council, in like manner to constitute and appoint such and so many other perstm or persons as shall be necessary to supply the va- cancy or vacancies : 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 the said Province, with the consent of His Ma- jesty's Governor, or in his absence of the Lieutenant-Governor, or Commander- in-Chief for the time being. I am thus particular in quoting, notwithstanding that this enact- ment has been repealed, to shew the real in contradistinction to the pretended model of our present Legislative Council ; and also the origin and reason of a title, which was much more appropriate be- fore than since the appointment of an Assembly. The title of this statute, it may be proper to observe, is, " An Act for making more effectual provision for the Government of the Province of Quebec ;" which shews that the preceding provision was considered even less effectual than this. But what was this ? A Council established as a Legislative substitute for the ttvo Houses of an English Parlia- ment." The Act by which this provision was repealed, (31st Geo. in. c. 31,) made still '^^ further provision for the Government of the said Province." I set forth these gradations to shew — what indeed is very obvious, but what appears to be very generally overlooked — that our present Constitution has been a bit-by-bit creation : that its provisions were temporary and experimental: that, consequently, the prejudice and cry against any further and still more effectual provisions, as if they were to be so many innovations on the ancient and revered Imperial Constitution, are senseless and absurd : and seeing a Bill has been brought into Parliament, proposing to make such further and more effectual provisions as are still acknowledged 53 enact- to the !io the ite be- of this more ebec ;" en less hed as 'arlia- Geo. of the indeed ked — hat its ently, "ectual ncient : and make edged to be needed ; and that we, as Cohinists, have been invited to state freely our opinions and wishes on the subject ; when an attempt is made to drown our cry for right and freedom according to the Imperial Constitution^ by a counter cry of danger to the Constitu- tion, our sense of the absuiJity is lost in that of the impudence — " bald and bare-faced." The Act 31st Geo. III. c. 31, contains the following provisions : Wheheas nil Act wns passed in the fourteenth year of the rt'iifn of his present Majesty, entitleri, An act for mailing more effectual prorision for the government of the province of Queliec, in North America: and whereas the said act is in many respects inapplical)le to the present condition and circumstances of the said province : and whereas it is expedient and necessary that further provision should now lie made for the good government and prosperity thereof: may it therefore please your most excellent Majesty that it may be enacted ; and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal and commons, in this present parliament assembled, and by the authority of the same. That so much of the said act as in any mannner relates to the appointment of a council for the atfairs of the said province of Quebec, or to the power given by the said act to the said council, or to the major part of them, to make ordinances for the peace, welfare, and good government of the said province, with the consent of his Majesty's governor, lieutenant governor, or commander in chief for the time being, shall be, and the same is hereby repealed. II. And whereas his Majesty has been pleased to signify, by his message to both houses of parliament, his royal intention to divide his province of Quebec into two separate provinces, to be called the province of Upper Canada, and the province of Lower Canada; be it enacted by the authority aforesaid, that there shall be within each of the said provinces respectively a legislative council, and an assembly, to be severally composed and constituted in the manner hereinafter described; and that in each of the said provinces respectively, his Majesty, his heirs or successors, shall have power, during the continuance of this act, by and with the advice and consent of the legislative council and assembly of such provinces respectively, to make laws for tlie peace, welfare, and good government thereof, such laws, not being repugnant to this act; and that all such laws being passed by the legislative council and assem- bly of either of the said provinces respectively, and assented to by his Majesty, his heirs or successors, or assented to in his Majesty's name, by such person as his Majesty, his heirs or successors, shall from time to time appoint to be the governor, or lieutenant governor of such province, or by such person as his Majesty, his heirs or successors, shall from time to time appoint to administer the government within 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 whatever, within the province in which the same shall have been so passed. III. And be it further enacted by the authority aforesaid, That for the purpose of constituting such legislative council as aforesaid, in each of the said provinces respectively, it shall and may be lawful for his Majesty, his heirs or successors, by an instrument under his or their sign manuel, to authorize and direct the governor or lieutenant governor, or persons administering the government in each of the said provinces respectively, within the time hereinafter mentioned, in his Majesty's name, and by an instrument under the great seal of such province, to summon to the said legislative council, to be established in each of the said provinces respectively, a sufficient number of discreet and proper persons, being not fewer than seven. t» the legislative council for the province of Upper Canada ; and not fewer than fif- teen to the legislative council for the province of Lower Canada; and that it shall also be lawful for his Majesty, his heirs or successors, from time to time, by an in- strument under his or their sign manual, to authorize and direct the governor or lieutenant governor, or person administering the government in each of the said provinces respectively, to summon to the legislative council of such province, in 54 like maniipr, such ottier person or persons as his Majesty, his heirs or sucressors* shall tliiiilc fit ; and that every person who shall be so summoned to the legislative council of cither of the said provinces respectively, shall thereby become a member of such legislative council to which he shall have been summoned. IV. Provided alirai/s,nnd he it enacted hi/ the authoriti/ aforesaid. That no person shall he summoned to the said le^iHlative council, in either of the said provinces, who shall not be of the full at;e of twenty-one years, and a natural horn subject of his Majesty, or a subject of his Majesty, naturalized by an act of the British par- liament, or a subject of his Majesty, having become such by the conquest and session of the province of Canada. V. And he it further enacted hy 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 hereinafter contained for vacating the same, in the cases hereinafter specilied. VI. And he it further enacted hy the authoritii aforesaid. That whenever his Majesty, his heirs or su(;cessors, shall think proper to confer upon any subject of the crown of Great Britain, by letters patent under the great seal of either of the said provinces, any hereditary title of honour, rank or dignity of such province, descendible according to any course of descent limited in such letters patent, it shall and may be lawful, for his Majesty, his heirs or successors, to annex thereto, by the said letters patent, if his Majesty, his heirs or successors, shall so think fit, an hereditary right of being summoned to the legislative council of such province, descendible according to the course of descent so limited with respect to such title, rank, or dignity ; and that every person on whom sucli ri^'ht shall be so conferred, or to whom such right shall severally so descend, shall thereupon be entitled to demand from the governor, or person administering the government of such prov- ince, his writ of summons to such legislative council, at any time after he shall have attained the age ot twenty-one years, subject, nevertheless, to the provisions herein- after contained. VII. Provided ahrays, and he it further enacted hy the authority aforesaid. That when 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, signified to the Legislative Council of the province by the governor, lieutenant- governor, or person administering the government there, have been absent from the said province for the space 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 the date of his attaining the said age and the time of his so applying, if he shall not have been of the said age at the time of his so succeeding ; and also when and so often as any such person shall at any time, before his applying for such writ of summons, have taken any oath of allegiance 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 of such hereditary right unless his Majesty, his heirs or succes- sors, shall at any time think fit, by instrument under his or their sign manuel, to direct that such person shall be summoned to the said council ; and the governor, lieutenant-governor, or person administering the government in the said provinces respectively, is hereby authorized and required, previous to granting such writ of summons to any 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 successors, within such province, for the affairs thereof. VIII. Provided also, and he it further enacted hy the authority aforesaid, That if any member of the Legislative Councils of either of the said provinces respectively, shall leave such province, and shall reside out of the same for the space of four years contitmally, without the permission of his Majesty, his heirs or successors, signified to such Legislative Council by the governor or lieutenant-governor, or person administering bis Majesty's government there, or for the space of two years continually, without the like permission, or the permission of the governor or lieu- tenant-governor, or person administering the government of such province, signified S tl 55 uccessors^ egislative I member no person >rovinces, subject of ritish par- iid session lember of erm of his r vacating enever his subject of ther of the 1 province, int, it shall thereto, by link fit, an province, such title, conferred, entitled to sucli prov- i sliall have ons herein- aforesnid, shall have [successors, ieutenant- Ibsent from itween the ich writ of ds at the ig the said age at tlie in shall at |ny oath of case such egislative or succes- lanue], to governor, provinces Ich writ of jrson upon III as shall province, \oid. That Ipectively, Ice of four luccessors, Irernor, or ■two years V or lieu- signified to duch 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 seat in such Council shall thereby become vacant. I\. Provided also, and be it further enacted hy the authority aforesaid, That in every case where a writ of summons to such Legislative Council shall have been law- fully withheld from any person to whom such hereditary right as aforesaid shall have descended, by reason of such absence from the province as aforesaid, or of his having taken an oath of allegiance or obedience to any foreign prince or power, and also in every case where the seat in such Council of any member thereof, hav- ing such hereditary right as aforesaid, shall have been vacated by reason of any of the causes herein before specified, such hereditary right shall remain suspended during the life of such person, unless his Majesty, 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, subject to the provisions herein contained, shall descend to the person who shall next be entitled thereto, according to the course of descent limited in the letters patent by which the same shall have been originally conferred. X. Provided also and be it further enacted by the authority aforesaid. That if any member either of the said Legislative Councils shall be attainted for treason in any court of law within any of his 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 other persons through him, shall be utterly forfeited and extinguished. XI. Provided also, and be it further enacted by the authority aforesaid, That whenever any question shall arise respecting the right of any person to be sum- moned to either of the said Legislative Councils respectively, or respecting the va- cancy of the seat in such Legislative Council, of any person having been summoned (iiereto, every such question shall, by the governor, or lieutenant-governor of the ]' ovince, or by the person administering the government there, be referred to such 'legislative Council, to be by the said Council heard and detennined ; and that it shall and may be hiwful either fur the person desiring such writ of summons, or respecting whose seat such question shall have arisen, or for his Majesty's attorney general of such provikice in his Alujesty's name, to appeal from the determination of the said Council, in such case, to his Majesty in his parliament of Great Britain ; and that the judgment thereon of his Majesty in his said parliament shall 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 provinces respectively, or the person administering his Majesty's government therein respectively, shall have power and authority Ir'om time to time, by an instrument under the great seal of such province, to constitute, appoint and remove the speakers of the Legislative Councils of such provinces respectively. Section 26 enacts, that His Majesty may authorize the Governor to fix the place of holding the Sessions of the Legislative Council and Assembly (giving due notice), and to prorogue and dissolve the same. Section 27 enacts, that the Legislative Council and Assem- bly shall be called together once at least in twelve months. 28, that all questions be decided by a majority of voices of members present. Speaker to have a casting voice. 29, prescribes the Oath. This is all that the Act contains respecting the present question. Now it seems impossible that any one less than absolutely blind, should take this (which respects a matter of no less importance than the Constitution of the Upper House of Parliament), to be ani/ thing like the " very image and transcript of the British Constitu- 51) tidii." U it optiunal with the Crown in England whether the Munibers of the House of Lords shall be all Peers, all Commoners, ur mixed ? — all hereditary, all for life, or what proportion there shall be of either ? But so it has been, ever sinco the passing of the " very image and transcript," with respect to our Legislative Councils. And let no one presume to tell us, — no one at least pretending to pay respect to what is high in authority among the writers on such subjects, or ancient and venerable in the storm-tried Institutions of our country, — that this is a matter of no importance : it is a matter of the last importance. Our life members of the Legislative Council, neither ennobled by the King, nor required to be entitled to respect as men of property, do not form, as do the hereditary Peers of England, any firmer support of the Throne than do their fellow- subjects, nor any independent barrier against the abuses of its power.* In the Debate in the Commons at the passing of the Constitutional Act, Mr. Pitt observed, " An aristocratical principle being one part of our mixed government, he thought it proper that there should be such a Council in Canada as was provided for by the Bill, and which might answer to that part of the British Constitution which comprised the other House of Parliament." The truth however is, that there never has been such a Council in Canada as Mr. Pitt " thought proper" and the Bill " provided for." I say nothing now about Titles of Honour, which, as intended for Canada, Mr. Fox ridiculed, and for want of which our neighbours stick every stable- boy into the 'Squirarchy, and are dragging us, like a cockboat at a steamer's stern, pretty rapidly in the same direction. A Lord Chancellor for Canada, or a Lord Chief Justice, might be something very shocking for aught I know ; but I must beg pardon for the perversity of a taste, which, however unpopular, however scowled at or scouted, would much rather follow old-fashioned than novel notions in this respect; much rather have aristocratic dikes * Mr. WiLBBRFORCB desired to kuuw from Mr, Fox, whether he intended his elective Council to be for life, or for a term of years ? Mr. Fox said he had not decided tliat point, but heratherinclined to constituting them for life. Mr. Wilberforce, objecting to this, said, that let the elettive Council be for life, or for a term of years, in tlie one case they would clog the prerogative, and deprive the subject of its protection ; in the oti.er point of view, it would be a democracy under another name, and give the popular branch of Government too much power : whereas, if they adopted an hereditary Council, they would form an open aristo<'racy, and .though, at first, produce only saplings, in the course of years they would become forebtt, capable of bearing up against any innovation either of the crown or people, s f ( 1 I a: (( ti ti I I Si 57 ler the nonure, 1 there 5 of the ouncils. iding to on such itions of I matter Council, itled to Peers of fellow- s of its itutional (ing one :e should 3ill, and m which ever is, r. Pitt ling now ir. Fox stable - )oat at a Lord Light be pardon however led than lie dikes HB elective poiut, but |, said, thiit clog the vould be a |['h power : cracy, and lie foiebt«, than a democratic deluge ; much rather follow Old England than Sam Slick. Without, however, stopping to insist on this, Mr. Pitt and his colleagues were of opinion that Canada should have, and the Constitutional Act made provision for its having, ennobled and hereditary Members of its Legislative Councils. I am not now asking any man's opinion whether ennobled and hereditary legisla- tors are right, that is not now the question. The question is. Are they not according to the British Constitution ? Is an upper House of Parliament without them according to the British Constitution ? Is the Constitution which allows of the indefinite continuance of such upper Houses having no such ennobled and hereditary Members, the very image and transcript of tlie British Constitution ? Again. Why have not our Legislative Councils been, what was contem- plated and provided for by our Constitution Act ? Because, contrary to what, in a matter of such vast importance, would have been tolerated or even tiiought of in England, our Constitution Act allowed the actual constitution of those Councils to be left depend- ing on the discretion of the Crown, and of course on the capricious changes of Ministerial advice. I do not say that such discretionary power, considering the then state of society in Canada, was not better than would have been an immediate creation of hereditary Peers ; nor do I so much as say that it was not necessary. It might be so, or it might be otherwise : that is nothing to the present question : I stand upon the uitterence. It appears almost incredible, and yet it is an undoubted fact, that besides our unreflecting petitioners and addressers, your very Assemblies have been so completely bamboozled, as to talk and argue as if they supposed, and probably did and do suppose, and are prepared to defend as undoubted gospel, that the whole of our Colonial Constitution is contained in the fifty clauses of the Act of 1791) and some few other records equally formal, public, and explicit. It is no such thing. An immense amount of discretionary, undefined, and therefore arbitrary power is left behind, which comes to us as " Downing-street Law," sent out in packets and bundles of Instruc- tions, for the most part secret, every one of ichich is as truly consti- tutional according to OUR " Glorious Constitution," as is that Act. I marvel that you lawyers of Upper Canada are not aware of this. I marvel beyond measure that, after the senseless squabbles between Sir F. B. Head and his Executive Council, you *y roifulations framed by himself.— CAjY^y— frtfriifuthus. >Sr' . 59 , but may hey have ir own by laoncr of re prero- laws and Chitty— providing a hoc and representative Government, similar to the English, tlie Crown is immediately precluded, by that gift or promise, from all further acts of independent Sovereign Legislation in the Colony, being now restricted, in this respect, to its right to negative, as in the case of Bills in England : but in its Executive capacity, it still retains the right to do whatever it thinks proper, restricted by no laws, (there being none as yet existing), but only by the fore- mentioned Treaty or Capitulation. But the Colony advances, and the snhere of its Constitutional Liberty must be enlarged. How is thib ' ^e effected ? In one of these two ways : either by Imperial or Colonial Acts of Parliament, (which must, of course, obtain the Roysil sanction), or else by indi- vidual spontaneous concession. But mark. Spontaneous concessions may be twofold : they may be grants irrevocable, and so restrictive of the prerogative ; or they may be revocable at pleasure, and so entirely precarious. Permit me to explain. The division of these Provinces in 1791 was the spontaneous determination of the Crown, signified to both Houses of Parliament by a Royal Message. If the Houses had refused their concurrence, the Provinces might still have been, and doubtless would have been divided, for the entii-e right was in the Crown : but there would, in that case, heave been this difference : that wliich had been done without concurrence, without concurrence might at any time have been undone: but when once the Crown had admitted the Houses a partner in the division ; a re-union, without their concurrence, was no longer in its power. The division, instead of being effected by the Crown in right of its prerogative, was effected by an Act of Parliament ; and consequently, from all after interference in this important matter, other than negative, prerogative is excluded. Having thus cleared the way, I now come to the very pith and marrow of the controversy — our great grievance. What is it ? It is this : our Provincial Constitution is — yet — too much a THING OP Royal Prerogative and Court caprice. It re- quires a much more perfect Parliamentary definition. Like the Cameleon, it is a reptile of ever-changing colours, myster- ious in its sustenance, air-fed or self-supported. Children behold its beauty, and are in raptures: fools, thinking themselves philoso- phers, contend like very furies — each for his favourite colour ! I 60 peep unseen behind the curtain, and mark the countenances of the merry and of the crafty oni- in office ; these hm^liing at the sport, those scowling at that tenfold flat, Sir Francis, for letting slip the cat. I stumble upon something, — down comes tlie curtain ! O for thy pencil, Hooarth, to picture forth the scene ! It is not the business of thi'^ Pamphlet to go into a detail of the evils and grievances, which, for many years, have kept the whole of these North American possessions in a state of inquietude and too- general disaffection. These will be found in various publications, especially in the Report from the Select Committee of the Ilonse of Commons on the Civil Government of Canada (including the Minutes of Evidence, and various Petitions), and the still more valuable Report of the Karl of DuRiiAnr. The object of my search has been to find the roo^-evil. In this search I have looked at particular complaints — local sores and inflammations — as merely symptomatic. The universality of these soon shewed me, that the disorder was Constitutional. I determined to search it on :> point it out. Have I not succeeded ? I never for a momeui .... ibted of success. I felt assured, if mortal man could find the hcart's-core of the evil, I could. There it is. Let our state physicians treat it as they think proper, there is the pestilential cause whence comes the plague-spot. Quacks will persist in their assertions that tliere is no cause,* that the pretended plague-spot is a pimple. Drugsters will raise the horror of the timid and the amiable lovers of sweet repose, by howling at the men who probe and lance, regardless of the pa- tient's cries, as butchers, murderers, and traitors. Let them. Dogs, or Men ! (for I flatter you in saying That ye are dogs — your betters far), ye may Bead, or not read, what I am now essaying To shew ye what ye are in every way : As little as the moon stops for the baying Of wolves, will the bright Muse withdraw one ray * The political Disorder of Lower Cnnadabeing; (ns I have endeavoured to show) by the slow process of Emigration incurable, we are now driven to consider what would be the safest, the simplest, and the most effectual Method ot killing it. I do not mean by personal Violence, but by the calm Legislative Powers of the Imperial Parliament. It ia useless at the present Hour retrospectively to regret the uncalculating Course of Policy which, ever since our Possession of the Canadas, has not only permitted but encouraged a few Individuals, who misrepresent the real Interests of the French Habitans of Lower Canada (whose Simplicity and Amiability of Character no one can fail to admire) to assume towards the British Empire a Tone of Arrogance and a Posture of Defiance which, considering their rela- tive physical Strength and the total Abtence <)/' any jutt Ground for Complaint, ia without a Parallel in Colonial History .—£ir F. B. Head, Detpatchet, p. 348. Gl le slow 1st, the pe, but IPoUcy 1b few tanada \ds the • rela- hout a From out her tkim : then howl your idle wnitb 1 While ihe still silvers o'er your gloomy path. « In attempting to arres^t dUorder, a thorough knowledge of tlie cause hi half the cure. But shall I leave my work half finished ? That IS not my intention. I profess to have no particular acquaint- ance with state surgery, no professional acquaintance with legislative pharmacy, but I do profess to know something about the scientific principles of each profession ; and of such skill as I possess, the public — if it so please them — are welcome to tlie benefit. Sir, I am no Agitatt r. I am no friend to agitation. What I mean by agitation is, that species of writing or harangue addressed by the O'Coxxells of the day to large masses of the people, the tendency and aim of which is — not to instruct, but to inflame. Its appeals are not to reason, but to passion. Its force, instead of being, as is pretended, moral, is demoniacal.* It alms to overawe the Government by means of ignorant and infuriated mobs. Under pretence of seeking their benefit, it begs from the poor creatures their last copper ; and having rendered them half frantic with its exaggerated pictures of their wrongs, and by its " brutal and bloody"f hayings at the men in power ; having carefully pocketed the rint, it goes to those very men and sells to them its power — to quell the very tempest of its own creation. When I see an agitator playing a game like this, immediately the words recur, O ! for a law to noose the villain's neck ! I do not say, however, that agitation, in the simple sense of passionate appeals to the people, may not occasionally, or even frequently, be necessary, and so excusable. Hume has said — and his opinion is worthy of great respect, — " The spirit of the people must frequently be roused, in order to curb the licentiousness of the Court :" and if ever the licentiousness of the Court required a curb, it surely is now. I am not speaking with reference to Metropolitan Government, but Colonial. The range of the prerogative is limited enough as it res- * I have called the Toronto Patriot a hell-hound. Let wliuever is offended af the designation read its fiend-like curses and imprecations on Lord Durham. All I know of them is what I saw, by chance, at our Exchange, as quoted by the London Spectator. Is it possible that this Patriot can be the organ of the Government in Upper Canada ? If the Government be not totally insensible to the opinion of the people, it ought to be made to feel this infamy as a burning blister. t Some years since, O'Connbll called the men in power, "the brutal and bloody whigs." m, ,i?l &2 pcctH thu t'oimc'r : in tho Inttor it in so unliniitoii, that licence bticunicH LICKNTIOUS HKYCNU ENDUIIANCE. 1 was speiikiiif? of our Legislative Councils. Now, I auk, Is there nny thing in such Councils to curb the licentiousness of the Oourt ? Are not they made the very creatures of the Court ? " The majority," says Lord Durham, " was always ciunposed of members of the party which ctuiducted the Executive G<»vernment ; the clerks of each Couiu^il were members of the otlier ; and in fact, the Legis- lative Council was, practically, hardly any thing but a veto in the hands of Public Functionaries on all the a(-ts of that Popular Branch of the Legislature, in which thoy were always in a minority." It cannot be pretended that such is the dei)endant puppet character of the House of Lords.* We have seen these hereditary independent Peers, while nobly sustained by an indignant people, curbing the licentiousness of the Court, when, imder a pretence of curbing another species of licentiousness, all the power of the Crown was urging the whole pack in fidl cry, to hunt to death a persecuted Queen. With our Legislative Councils, the members thus obsetpiious, and holding office for eiijht years, we shall see nothing of this sort of curbing in Canada, I trow. I cannot like the Whigs, they are so weak of intellect, so insatiable of power : so popular in profession, so aw/ thing to suit a present turn in practice ! As if conscious of their weakness, they are ever courting popular support ; no matter at what risk, or at whoso expense. On obtaining power, their first object is — permanent possession. To please the many, they give imwarrantable power to the many ; (witness that monument of mad adventure, the Reform Bill ; conceived and carried in a reckless spirit of hostility to a party — almost equally reckless of the consequences of a pertinacious opposition to the most reasonable wishes of the people) : — to complete or to avert, as the expediency of the moment may require, the con- sequences of their conduct, they are willing to give unwarrantable licence to the Crown, even to the swamping of the House of Lords : willing to sell unwarrantable power to O'Connell, to the destruction of the church : willing to give unwarrantable power to the Crown * In the year 1825, there was a supply bill passed by the Assembly, which passed the Council, only two dissentients. In the next year a bill, exactly similar, was rejected unanimously by those that were present. In the first instance the Governor approved of the bill, in the second the Governor disapproved of the bill. Q. Was he a different Governor? A. He wasr— ^c^ccf Committee's Report, 1828. J. Seilton, Ksq. (')'.] Is tlicro Court ? « The 1 embers le clerks ! Logis- () ill the Branch ty." It •acter of •pendent biiig the ; another lifiiig the . With t holding ■ curbing iisatiablc present are ever whose manent )ower to Reform ty to a inacioua onaplete the con- rantable Lords : trnction Crown 10 Council, mously by the secnud again, to the rendering of our " image and transcript" House of Lords as (h'pendent as ii hireling, as subservient as a pampered menial, as crouching as a spaniel ; and then again willing, in order to please the many, to cramp and insult the Crown, by requiring that its confidential Councillors be men possessing the indispensable pre- requisite of the confidence of the people I Allow me to explain. The Assembly of New Brunswick, in an Address to His Majesty in March, l8dG, recommended a material increase in the number of the Members of the Executive Council, and expressed their cordial concurrence M'itli the views of Mr. Spuing Rice, relative to the summoning to that board of some Members of the popular branch of the Legislature. On these points Lord Glenelo writes, on the 31st of August, thus: "His Majesty can give only the general assurance that his selection of persons to sit in the Executive Council will be guided stdely by a reference to the permanent interests of the Province." Five days afterwards he writes, with respect to the increase : " His Majesty, after a due consideration of the arguments urged, &c., is prepared to adopt the necessary steps for meeting the wishes of the Assembly." After stating that he would give no pledge as to the precise number of Members, he goes on to direct : " You will immediately report to me the names of sever 1 gentlemen whom you may think most eligible for seats in His Majesty's Execu- tive Council. In making your selection, you will not confine yourself to any single class or description of persons, but will endeavour to ensure the presence in the Council of gentlemen representing all the various interests which exist in the Province [not forgetting the Republican !] and possessing at the same time the confidence of the people at large" This popularization of the Privy Councils of the Crown throughout these North American possessions (for the in- structions quoted were general) may, for ought I know, be very popular, very conciliatory, very expedient — for certain purposes, but I shall not easily be persuaded that they are very consistent with the principles of Monarchical Government, or with those of common sense. A very pretty state of Royal subordination truly, that the King of England, in a question (for instance) respecting the preser- vation of his prerogative against the encroachments of the people, must not be allowed to take the advice of any Councillor, who has not actually received a retainer from the people, and engaged himself as a confidential advist^r on tlioir side ! Thisi is guarding the pre- 64 rngative with n vcngennco ! Out upon nik-Ii MinistoH ! A King uf Bt'nHC and spirit woiilil Koon wnik tlioni out. Ah little (liNpos<>(| to see, on the one iiund, tliu Crown dctipoiled of itM rightful pr<>nigativ<>, — (wlii«-h, in truth, ih just ho much extra- ordinary right, uh is esM<*utial to the preNorvation of a power extraordinary ; which power, for that reason, in exposed to extra- ordinary rnry, hut mIucIi, for the preservation of the Throne and Constitution, is absolutely necesxary,) — as, on the other, to see that prerogative granting a licence to acts of Government pursued in violation of all right ; I must beg to refer you to that passage in the third book of Lord Ci.akkndon's History of the Rebellion, which relates the proceedings preparatory to the trial of the Earl of Straffohi> ; beginning with the two propositions of the Scotch Con)inissi(niers " of most fatal consecpu'uce to the King's service, and to the safety and integrity of all honest men." The first proposition was, " for a committee to be settled t)f both lf<»uses for the taking preparatory examinations:" the second, "for the examining upon oath Privy Cunncillors upon such matters as liad passed at the Council table." The Conunissioners foresaw and stated, " that, without the King's consent, they (the Councillors) might not discover any thing that hud passed at that board ; so that the greatest difficulty would be, the procuring of the King's consent for the betraying liiniself : but (they ad sc no To itiiout King jbeing ^t the tacit ^hich lined : mses IshfW t\io nripfiii of llio Mtrii^'^lo tor rt'sponMiltility, ^wliitli, ho>v('Vi>r, in holli Htriking luid inMrnirtivf), us to propose tor (MiiiNiilcralion tliis qucHtioii : U'crt; thi) ('oiuicillorM right in tht'ir nniuiinioim lulvico ? Wum tho King juMtitiahh* in yichhiig to th** (icniiinil ? I unHWor, without lichitatiun, Ni» : tor uMowing the King'** ability t(» uhMolvu the Conn- cilhirs from their oath (which yet \n very (hmhtfnl) hix concetiHiou was n treajhcriHis betrayal. Whatever the Karl of Strakforii might have compelled, was under a full conviction that he was not to be held n*KpoMsible ; and it is only r(>a8onable to suppose that, had he known the t-oiitrary, he wouhl have been more guarded. How- ever much, tlierefs it has been hitherto, the height of folly. Lord Durham has said, what a little attention might have enabled any man to see, that sueli Councils are " singularly," and, without doubt, were designedly " calcidated, for preventing the responsibility of the acts of Govern- ment resting on any body" I propose, therefore, to abandon them to the Ministers altogether, and, according to the wit of the young rascul whose father prayed — Lord mend me ! — to turn my thoughts from mending to a new creation. So far as it may seem necessary to induce the public to adopt, in this respect, my policy, I shall think it worth whih? to expose the anomalous character and functions of tliese Councils, but no further. I shall therefore shew briefly, as far as cii-ciunstancos and materials will permit, what they are, what they do, and whiit tliey were and were not intended to do. Perhaps it will be seen as tlie result, that they were intended to serve the double purpose of a Privy Council for the Governor, and of a stalk- ing-horse to screen from public observation, the measures taken by the Government to thwart the public will. And first, these Councils were not constituted by the Act of 1791 : whence it follows, that, unless there has or h:>' valid and binding within such Province, until the expiration ut' six months att>.: ine Lei;isliitivu Council and Assembly of such Province shall have been tirst assembled by virtue of and under the authority of this Act ; subject nevi>rthel(>ss to bu sooner repealed or varied by any law or laws which may be made by Ilis Majesty, his heirs, or successors, by and with the advice and consent of the said Legislutive Council and Assembly. This clause supposes, hke the preceding, what will be done by His Majesty in appointing-, &c., but it imposes no obligation to appoint, and much less does it appoint ; nor is tliore in the Act a single line prescriptive of the Constitution of the Council to be appointed. What, then, is the consequence ? Jnst what I have said : that, so far as respects this Constitution Act, these Councils are the mere creatures of the Crown, dependant oven for existence on the wearer's pleasure. They may be constituted — no matter in what form or of what materials, — Whig or Tory ; Aristocratic or Democratic ; Englisli, Irish, Fi'ench, or Yankee ; Tartar, Turk, or Negro ; male or female ! Were it wortli my while now, I could easily shew, that Sir Francis Hkad, in his bickerings about his Councils witli his Coun- cillors and your AssoisiUies ; and that theV) in their not more digni- fied or honourable bickerings with him ; have publislied a world of nonsense, and sometliiiTg greatly worse. Take an instance. Yom* House of Assembly., in their Address of the 14th of IMarch, 1830, speak thus : — May it please Your Excellency, We, His Majesty's dutiful and loyal Subjects, the Commons of Upper Canada in Provincial Parliament assembled, humbly beg leave to inform your Excellency, that this House, considcriiiij the Appointment of a responsible tlxecutive Council, to advise your Excellent;) on the Affairs of the Province, to be one of the most liappy and wise features in tlie Constitution, and essential to the Form of our Gov- ernment, ami Diie of the strongest Securities for a just and equitable Aduiinistra- tiiiii, and eminently '■.ilciilated to insure tlie full enjoyment of our civil and religious KIghts and Privilet'e , ias lately learned, &c. — (Despatches, p. 153.^ Now can yuu hiliove that those gentlemen really believed " the appointment of a responsible Executive Council" to be a feature of the Consiitution at all? How could they ? If, to a man, tliey did not know, that by the very Constitution Act the " appointment" of that Council was committed to the King ; and if, to a man, they did not k?iow, that by the King's appointment that Council had not been made " responsible" as they pretended ; you may account for their ignorance if you can, or they may if they can, but for my lite I can- not. This is ugly work, my Master. Again. J;li 70 The six members of the Executive Council who afterwards resigned, plied His Excellency thus : " As the Constitutional Act prescribes to the Council the latitude of ' the affairs of the Province,' it requires an equal authority of law to narrow those limits, or relieve the Council from a co-extensive duty." Now I ask, Does that Act prescribe any thing about latitude to the Council ? Does it prescribe to the King so much as an " appointment" of such a Council ? It doubtless supposes such appointment, and prescribes that, in the event of such appointment, the Council shall be a Court of Civil Jurisdiction, &c., but it does not, in the event of such appointment, prescribe any thing about " latitude" of duty, nor even any thing ttbout duty, beyond its duty as a Court of Civil Jurisdiction, and its duty of rendering such assistance to the Governor as by this Act is contingently i)rescribed, or such as by the King or any subsequent Acf might be required or enjoined. This Act supposes that His AFajesty would confer titles of hereditary honour and rank ; and prescribes that, in such case, parties so distinguished were to have a right to demand their writ of summons to tlie Legislative Council. Wliat tiien? In both cases t\ic prescription was contingent, it took effect in only one. As to the pretence of a prescription of any " latitude" of duty, it is a perfect hum. And His Excellency. In his reply to the communication of his six Councillors, he writes : In the Fifty Claust's of this Act in question the Executive Council, wliich in Soci ion 34 is merely tli'scrihctl as "such Executive Council as &/(((// /je appointed l>y His Majesty," is scarcely mentioned ; and as reijards even its existence, the most liberal construction %vhich can possibly be put upon the said Act only amount!> to this, — that as an Executive Council was evidently intended to exist, the remnant ut' the old one 0Uii;ht not to be deemed totally extinct until its Successor was ap- pointed. However, this latent intention of His Majesty to create a Council for each of the Provinces of His Canadian Dominions, wiis soon clearly divul<;ed in a most impor- tant document, commonly called " The King's Inst met ions," in which au Executive Council was regularly constituted and declared as follows : — " Whereas we have thought tit that there should be an Executive Council for " assistint; you, or the Lieutenant-Governor, or Person administering the Govern- " mt!nt of the said Province of Upper Canada for the time being ; we do by these " |)rescnts nominate and appoint the under-mentioned persons to be of the Executive " Council of oui said Province of tipper Canada," &c. &c. &c. In subsequent clauses it was equally precisely defined upon what affairs of the Province the Lieutenant-Governor was to act, " with the advice of the Exccntii'c Council" but with the view distinctly to prevent the new Council being what the old one had been (which indeed under the new Constitution was utterly impossible), in short, to set that question at rest for ever, it was declared in Section t^, " that to the end that our said Executive Council may be assisting to you in all atfairs relating to our service, you are to comminiicate to them such and so many of our instructions wherein their atlrice /,v mentioned to he requisite, and likewise all such others from time to time as you shall find cunvememt for our service to be imparted to them." 71 Now here we Iiave His Excellency Sir Francis Bond Head, Knight of tlse Royal Hanoverian Guelphic Order, Knight of the Prussian Military Order of Merit, Lieutenant-Governor, &c. &c., occupying a very enviable position, both as a disputant, and as a man. Tor, first, the King's Instructions here quoted, which so " soon" and so *' clearly divulged" the " latent intent of His Majesty to create a Council for each of the Provinces of his Canadian Dominions," bear date on the 9th day of May, 1818, (seven-and-twenty years after the passing of the Act!) and are addressed to " Charles Duke of Richmond, &c., our Captain-General and Goveriior-in-Chief in and over the Province of Upper Canada in America," and relate to that Province exchmvely. Secondly, the eighth secti(m of these In- structions, instead of being as quoted, — " You are to communicate to them such and so many of our instructions" — generally ; runs thus : " You are to communicate to them such and so many of these our instructions :" without any the slightest hitimation that those con- tained in ordinary despatches were to be only partially communicated : and if, as would appear, no part of these Instructions had ever been commuuicsxted to the Council till this rupture with Sir Francis, he was not the first Governor that had been " keeping dark !" Thirdly. His Excellency further informs us, that what was declared in this eighth section, was " with the view distinctly to prevent" — what " was utterly impossible !" which I take to be a very deep discovery ! a.m\, finally. His Excellency helps us to a " most liberal construc- tion," according to which, as he had just before observed, " a vestige of the fincient one [Council] is, for the purpose of a Court of Appeal, recognised" in this Constitution Act, when, by the first clause of this vestige-recognizing Act, the Act to which that vestige-tailed Council owed its existence, had been repealed. " As an Executive Council was evidently intended to exist," though the Act by which it existed was repealed, and the Council, by consequence, was extinct, " the remnant" of the Council ought not so to be considered ! If this man's head had not been full of " bubbles," could he have written thus ? As to the little touch at stratagem, having my opinion, others shall have theirs. I must on. What are the functions of an Executive Council ? They are, what no man not in the secret, can know. What they now are may be known — ten months perhaps, or ten years hence. All that we can say is, we know what were the functions of the Council in % 7^2 tlie Upper Provinco in 1828. Buyund tliis, witii a very few oxeep- tioiiM, all that has been done respecting the cuiistitnting, or re-consti- tuting, or instructing, or re-instructing of this Council since, or of any of the other Executive Councils since the passing of the Consti- tution Act, has been kept secret.* In a word, they are at present, just what, the law permitting, (and the law, iis we have seen, is not very restrictive in the mattor),f Her Majesty pleases. During the interval between the commencement of the Act of 1791 and the first meeting of the first Legislative Councils and Assemblies, they >vere respectively, if then created, endowed with Le(jislative functions as well as — as well as what ? Can any man define or properly desig- nimie Council, or to any of the same Council if it touch him or be party thereof. You shall not i;ift, meed, f{ood, or promise of good, by any man, or by promise of any other person, accept or take, for any promotion, favouring, letting, or hindering any matt4>r or thing to be treated or done in the said Council, You shall with all your miifht and power, help and strengthen the King's Miid Council for the good of the King and this ]>rovince, and for the peace, rest, and tranquillity of the same. You shall withstand any person or persons, of whatever condition, etttate, or deo^ree, that should attempt or intend the contrary ; and, generally, you shall observe, keep, and do all that a good and true councillor ought to do unto bis sove- reign lord, or his representative in this province. (Signed) John Beikie, Clerk, Executive Council. From tliis mountain battery Sir Fiiancis opens upon the hosts of his assailants a most tremendous tire ; while they, poor souls, can neither take the buttery nor return a shot ! He sends them an in- stdting message, that they had better have mercy on themselves and surrender at discretion, for that they are " dead-beaten :" and so, in fact, they evidently felt. In this extremity, did it never occur to one of tliese dead-bc'.^en gentlemen to enquire, how the oath of the Privy (Council, — said to he the same as the above, — was dealt with in Eng- land ? They must have known that, as it respects the King's Ministers, there is no oath of non-responsibility there. First, then, I enquire, Is the oath indeed the same ? or is it such an " image and transcript" as is our Constitution ? I confess I cannot answer this question ; for though I have made some little enquiry of lawyers, and some little search in books of law, I have discovered nothing more exact than the sketch in Blackstone, which is not suHicient for the pur- pose. I make no doubt that the form required might easily be foimd ; but the fact is, not being one of the dead-beaten, nor in any wise concerned in their attempt to silence this objection, I am not careful in the matter. Enough for me that those Ministers and Officers of State, who in England are members of the Privy Council, are held responsible, are liable to impeachment : that there is no one act of mal-administration for which some one or more are not so liable ; and that what, in this respect, is the case in England 75 111(11. 1, you will eiitutive in 'd, and df- ir, without r iift'fctiun, lied hy wiiy , or in any e Council if promise of r liindirin;; King's Mtid :e, rest, and 1, estate, or you shall to bis Huve- EIKIE, Council. e hosts of $ouls, can sm an in- iclvcs and and so, in r to one t»f the Privy \ in Eng- Ministers, I enqnire, ranscript" question ; and some ore exact r the pur- easily be ar in any I am not stei's and he Privy that there more are England spite of impossibility and treason, might bo and oiiglit to be tiie case in Canada. If, for example — [tiayM De Loi.me] — the public money has been employed in a manner contrary to the declared intention of those whoj^ranted it, an impeachment may be brought a)(ain.Ht those who had the management of it. Ifany abuse of power is committed, or, in general, any thing contrary to the public weol, they prosecute those who have been either the instruments vr adviners of the measure. — f CuHntitutioH, p, i)2.J Our author proceeds : Hut who shall be the judges to decide in such a eause ? What tribunal will flatter itself that it can give an impartial decision, when it shall see, appearing at its bar, the Government itself as the accused, and the Representatives of the People as the accusers ? It is before the House of Peers that the law has directed the Commons to carry their accusation ; that is, before Judges whose dignity, on the one hand, renders them independent ; * and who, on the other, have a great honour to support in that awful function, where they have all the nation for spectators of their conduct, When the impeachment is brought to the Lords, they commonly order the person accused to be imprisoned. On the day appointed, the Deputies of the House of Commons, tvith the person impeached, make their appearance. The impeachment is read in his presence ; counsel are allowiid him, as well as time to prepare for his defence ; and at the expiration of this term, the trial goes on from day to day, with open doors, and every thing is communicated in print to the public. But whatever advantage the law grants to the person impeached for his justifica- tion, it is from the intrinsic merits of his conduct that he must draw bis arguments and proofs. It would be of no service to him, in order to justify a criminal con- duct, to allege the commands of the Sovereign ; or, pleading guilty with respect to ttie measures imputed to him, to produce the royal pardon. It is against tLe ad- ministration itself that the impeachment is carried on : it should therefore by no means interfere. The King can neither stop nor suspend its course, but is forced to behold, as an inactive spectator, the discovery of the share which he may himself have had in the illegal proceedings of his servants, and to hear his own sentence in the condemnation of his Ministers. An ADMiRABiiE EXPEDIENT I whlch, by femovlng and punishing corrupt Ministers, affords an immediate remedy for the evils of the State, and strongly marks out the bounds within which power ought to be confined : which takes away the scandal of guilt and authority united, and calms the people by a great and uwful act ofjutice : — an expedient, in this respect especially so highly useful, that to a want of the like Michiavel attributes the ruin of iiis Republic. Respecting the Representative Assemblies, I find nothing in their constitution requiring remark. Their continuance for four years instead of seven, the English term, is a deviation rendered necessary by circumstances, and of no material importance ; and as to qualifica- tion of Members, it is little more than nominal in England, and would be worse than nothing here. I have had occasion to notice the anomaly of the Representative of the Crown having a constitutional right to preside iii a Canadian * It might be well that the people generally should consider, how much their interettt require an independent Legislative Council ; and how strenuous should be tlieir efforti to prevent its Constitution being such, as to render it dependent on the Court. Of what aviul would bt Rgsponsibilitv without an INOBPK^DE^'T JuDce? t" 70 Court of Equity ; and have only now to add, that the not very frequent exercise of the right docs not afft^ct the question. The danger is where the representative, being disqualified, by want of the necessary knowledge and independence, has too little prudence, or too much presumption, to permit or induce him to decline the honour. Such danger ought not to be permitted. Rut what now shall I say respecting the legal qualifications and official independence of the Judges of our Courts of Law ? Of course, as to qualification, I shall venture no opinion of my own ; but it is an announcement somewhat startling, that " throughout the Colonies a body of gentle- men are acting as Judges, who, however accomplished in other respects, are totally destitute of a legal education When was this spoken, and by whom? It was spoken on the 21st of June, 1828, by James Stephen, Jun. Esq., Counsel to the Colonial Department, in evidence before a Select Committee of the House of Commons. There is the fact. Beyond one observation, I make no comment on the character of the evil. It is too bad to be endured. But can wo not trace its course ? Whence comes it ? Nothing can be plainer. The Crown will have the Judges — not independent, as they are in England, and as they ought to be every where : not appointed during good behaviour, — which, in fact, is during life, — but during pleasure. This, of course, excites suspicion and popular displeasure, resulting in an efibrt, in the Assemblies, to countermine . ' You keep them dependent on the Crown : we will keep them de- pendent on the people. Their stipend shall be a sorry pittance, voted from year to year.' Here is the proof. Austin Cuvilheh, Esq., questioned. With respect to the Judges, the Coin- mittee understand that they are appointed only during pleasure ? They are ap- pointed during pleasure. Would it, in your view, be safe and wise, to appoint them quam diu se bene gcsserent 9 ^No question that holding their commissions during good behaviour, subject to impeachment in the colony,* would be more advantageous : it would make them more independent of the Crown, and the people would have no objection to make them independent of them, giving them permanent salaries and retired allowances. That has already been proposed, but rejected in the Legislative Council. — Report, p. 138. J. Stephen, Jun., Esq., questioned. Are you aware that in those disputes which led to the separation of the North American Colonies, which at present form the United States of America, from the mother country, this question of the inde- pendence of the Judges formed a great part ? Yes. # Impeacliment of Judges in the Colontf, is out of nil character. Who could form a proper tr i - hunal here? They ought undoubtedly to be licld responsible for their behaviour, as in England : otherwise their appointment during good behavionr, would be a farce. I should think the proper tribunal would be, (u yet, one selected from the Judges in London. 77 I" iir e- ri- id ; ■Me Arc you iiwnrc of Dr. Fuankmn's ox|ir)>s<4Piloplii'on on tliiiisuliject, ofthe utter iin|in>|irifty of pi'oplp, iu any friM> State, itllowiiik; Judi;)-:* thiit weru di'pfniifiit on the Crown, to l)t>t:onii* intli'ponilfiit of tlicin, lu hciii^ utterly HubverMlvn of every tVee Constitution? .When the CiiniKloM shall h.-ive crown Into n nation, lartfe anthonld hardly know liow to refrain from writing a volnmc on the subject. (Jnqualiiicd for the duty, as I am, (and yet, I am not so unqualified as not to feel it a duty,) the difficidty is, — having but now discovered the disorder, and looking at it through a mist of ignorance, as upon a battle-field (»f most extreme confusion, — to know where to begin the description, or how to convey even a tolerable image of what I conceive to be the situation of such afftiirs. I can oidy hope for the indidgence which, whatever may be thought of my want of modesty or ill-desert, I would not deny to my worst enemy in such a fearful situation. I declare most solemnly, that though I began this investigation in a spirit of gamesome and even wanton self-sufficiency ; and though, till more than sixty pages of this pamphlet had been printed, however the growing difficulties daily arising bad convinced nio of the neces- sity of proceeding with greater and still greater wariness and cir- cumspection, I still had retained entire self-possession, such has been the impression produced by reading Alinntes of Evidence before the Select Committee, 1828, that I have been ready to regret my having entered on the subject at all. It is not that I fear whatever enemies I may make, but I do begin to fear the consequences of getting entangled and bemazed in trackless woods and wild^ being now compelled to tread my way on ground so slippery and swampy, as to render unavailing my utmost efforts. L 78 My purpose thou is, an inquiry into tlio rlmrnctcr of tlio Lnn-s of this Lowj'r Provinro, with n viow to t<'st tho truth of that w^\u^\ w pruten(h!(l by kouio, and apparently hclicved hy all, that wo men of British origin, living undor all the hluHMingH of tlio Knglish ('onsti- tution, enjoy <' us niudi of Knglish Law and liiherty as the nature of our situation will allow." I am not without hope that this entpiiry will serve to answer another question which has fro(pientIy hrought me to a stand : What is it that arrests our prof/nss, that parah/ses all our efforts for improve ment P It cannot be — so I have argued — altogether owing to what Mr. Ei-mce calls " the eternal squabbles" about measures of Government. What can it bo ? I can answer now ; but I cannot answer without shame and iruiignatiou. It is owing to oiu' havitig been paternally betrayed, as British Colonists, in the teeth of what had been promised by Royal Proclamation, into the clutches of a system of Laws not only anti-English, but infin- itely more barbarian than were the laws of France before the Revolution. And is this according to the British Constitution ? When we see a multitude of people so befooled and wrought upon by certain craftsmen, that with all the fury of popular infatuation, they are not ashamed to vociferate for hours, " Great is Diana of the Ephesians," it is impossible to be otherwise than shocked, either with pity, or indignation, or inhuman mirth. When, from the con- templation of such a scene, I turn my eyes upon the loyalists of Lower Canada, the men of British origin, living, for fifty years together, under the laws of feudal France, and all the while vociferating like men possessed, Great is the British Constitution, my spirits sink within me, and in my shame and chagrin I am ready to exclaim, Plus jn connois les hommes, moiiis j'cstime la vie ! The more I know mankind, the less I value life ! In the little intercourse that I have had with my fellows, it has not been my fortune to see or experience much to raise my admiration of the species : but for my country, and for my countrymen till now, I have been able to preserve a feeling of pride and glowing exulta- tion. And are these the countrymen of whom I have been proud ? And are these the men to scoflF at other men's stupidity ? I'd rather be a dog and bay the moon, Than such a Roman ! And for whom now do I thus labour ? and for what ? 79 Man live at riindoin nnil by till so, but the tide is turned. Will it not turn again ? This is, indeed, the day of small things : hut shall we therefore let the small things have their way in this their day ? That is not my temper. In the A]»[)(uulix to the Report of 1828, I find a Petition to the llixise of ConunoMs from '• Alerchauts and others counected with the (Janadas," containing tliese extraordinary words : " That, in the honest conviction of your Petitioners, the Act of 31 Geo. III. c. 31, whereby the late Province of Quebec «-as divided into the Provinces of Upper and Lower Canada, has been the fruitful source of all the I'i'ils iritli which the Cunadas have been and are now afflicted^ Though I cannot but wonder how a company of gentlemen could dare to put their names to a coufcssiou of laith so heterodox, how- fvi'v lioiK'st, I must admit t!mt the coiidud, is entitled to entire ipprobation ; and that the conviction, t'lough in my opinion it falls vci v short oi truth, comes nearer to it than any other that I have met with. " The fruitful source," in fact, is seventeen years beyond. On tlu> tenth day of February, 17G3, was signed the Treaty of Peace between the Kings of Great iJritain and France, the fourth article of wliicii contains the cession of Canada; and on the seventh (lav of ()ct(»ber in the same year, His Britannic Majesty issued a Pioclamation, in which I find as follows: And wlicri-as it will iijrratly rontrihutc to tlic spnedy settling our said new Gov- iTiimi'nts rtjurln'c, East Florida, AVot I'loi'ida, and Grenada] that our loving siil)iects hhould !)(' inl'orniid of (Uir pa'.enial (•;.:•.■ for the security of (he liberty and pruperties of tliose who are, and ^liall lieiinue inhabitants thereof; we havetluiuglit tit to publish anaid Colonies respectively, that so soon as the ^tate and circumstances of the said Colonies will admit thereof tbev sliall witli the advi 'e and consent of the Members of our Council, stnnmon and' call general A;-eml)lies within the said Governments respectively, in such manner and fir as is u.ed and directed in those Colonies and Pro\inces in 81 Ainprica, wliicli are under our immediate Government : and we have also given power to the said Governors, with the consent of our said Councils, and the Represen- tatives of the People so to be summoned as aforesaid, to ma1wer and authority to settle and agree with the inhabitants of our said new CoIoni(>s, or any other persons who shall resort thereto, for such lands, tenements, and hurcditaments as are now or shall be hereafter in our power to dis- pose of, and them to grant to any such person or persons upon such terms, and under such moderate quit-rents, services, and acknowledgments, as have been appointed and settled in other Colonies, and under such other conditions as shall appear to us to be necessary and expedient for the advantage of the grantees, and the improvement and settlement of our said Colonies. And whereas, &c. we do hereby command and empower our Governors of our said three new Colonies, and other our Governors of our several Provinces of the Continent of North America, to grant without fee or reward, to such reduced officers and soldiers as have served in North America during the late war, and ar« actually residing there, and shall personally apply fur the same, the following quan- tities of land," &c. Now, Sir, I ask you, as a Lawyer ; and I ask any man that knows any thing about such matters ; Is there any thing in these words to admit a doubt, whether the Laws of England were as much intended to be introduced into " the Government of Quebec" as into those of East or West Florida ? Is there any thing to countenance or give a tolerable colour to a doubt, whether they were actually so intro- duced into this Lower Province? Is there any thing to give a tolerable colour to a doubt, whether grants of land were actually made in this Province,, and if made, whether they were made and held according to any other Laws than those of England ? I ask these questions now, and shall have occasion to refer to them by and by. In violation of this solemn pledge, the Act of 1774 handed over the inhabitants of this whole Province of Quebec, as to all matters " relative to property and civil rights," to the Laws of Canada ; re- voking, annulling, and making void all and every the Ordinance and Ordinances made by the Governor and Council, relative as aforesaid. To ascertain the precise force of the phrase, " according to Law M 8^ P'r W: and Equity, and as near as may bi','' Sec, \i will \w necessary to recur to a very important principle of public law — namely : that in the case of a country newly acquired by conquest or treaty, ii" there he nothiuir in tiie articles of tuipitidation (u* treaty to the contrary, it is competent to the Sovereign either to adopt the laws of the coufjuered or acquired country ; or, rejecting? them, either to introduce at once some other laws, — any other he thinks proper, so they be n(»t toii- triiry to the principles of natural Ecpiity and Justice, — or to order the inhabitants to be governed according to those priucijjles, witliont the introduction of any positive enactment ; leaving a tabnlu rasd for the reception of sucIj enactments at a fntiu'e and more convenient season. It is not competent to the Sovereign to say to a conquered or acquired people, " You shall have no Laws ;" because this would be to reduce them to a state of war, and so M'onld be, in fact, a declaration of war : but it is competent to him, if not oth(!rwis(> en- gaged l)y promise, or terms of tn^aty or capitulation, to pres(Mibe at pleasure as above-mentioned. Now, then, I ask, Had the King of England, in the case in question, pre-engaged himself by ])romise, or terms of treaty or capitidation, so as not to be perfectly at liberty to act, in this matter, exactly as he thought proper ? Had he, esjiecially, pre-engaged hiinself, by any of the means above-mentioned, to the adoption of the Laws of Canada, either Criminal or Civil ? I have spoken to nobody on the subject, and scarcely on any other subject treated on in this pamphlet, and so iun very liable to error ; and tin- reason is, that, with one honourable ex('eption, I do not find that viva voce evidence on subjects of this nature is worth Jiaving ; but 1 not find any engagement of the kind in question, and do not believe that any can be found. Now, presuming that there is none, wiiat could siny man infer from the words of the Proclamation ? — or ratlier, what less Avould any man infer from the W4)rds of the Proclamation than that the King, though he did wot mIsIi to shock the fetdings of the conquered inhabitants of Canada by saying so expressly, did yet undoubtedly mean to signify, that he did not intend to adopt their Laws, nor yet immediately to introduce the Laws of England r That what he intended to acconq)lish was, the gradual introduction of the Laws of England by the more gentb; and unobjectionable means of local legislation ; and, in tin? nu>an tinu', that he would govern according to those natural principles above-mentioned, with a special regard to the positive enactments and common-law principles of the 83 IJritisIi Govt'i'MiuiMit ? If Kjss than this is meant, if less tliaii tliis is j)romisc'(l, eitlier I am ignorant of some material oircnmstanco liearinp*' on till! (jiiontion, or I am not capable of jndginj'' on tiie snbject. Eleven years after tlie date of this Proclamation — namely, on the loth of Novenil);'r, 1774, the American war connnenced ; and in the Act 14 Gko. III. c. 80, (passed in the same year), I tluis read : Wlicrciis His Miiji'sty, liy IlisllDyat Froc'-iimiitiim, l)!'ariii^ datn the sovonth tlay (it'Oi'tobiT, ill till! third yi;ar of liis rt.'i'iii, tlum^'ht lit to (U'i;lare tin- jirovisioiis wiiirli hail been inaili- in rtspi-ct to certain couiitriL-s, ti-rritorios, and islaiiiU in Amcrira, (:cion bi^in^ tnade for the administration of civil novernineiir therein*; and certain i)arts of the territory of Canada, where sedentary tisberie^ hid been established and carried on liy the subjects of Fraiua-, inhabitants of this said I'riivinc'e td' Canada, under ;;r:inls and concessions from th,? Government tliereol, were annexed to the (Joverimi.'nt of Newfoundland, and thereby subji'ct O re;u- lations inconsistent with the natiu'e of such tishuries ; INIay it therelni ■ [ilea^e Your mo-n o^'juslice in the said I'ro- vince, and all comn.issions to Jud^tis and other CPlc evs tnereof, be, and the same are hi'reby revoki^d, annulled, and made void, from r-u\ after the fiij provision, beiiis^ nuiih'for tlw administration oj Civil (louurnnicnt t/icnin ? Be astonished, O heavens ! 1 uppeul to the Procliimatioii. 84 l,i('iit«nant-Governor, or CnmninndiT-iii-Chief, for the time beinj;, by and with tht; advict- and ronspnt ot'tho Lt-tflslative Council of the same, to lie appointed in inatMier hereiii-iifter-mentiitned. TX. Provided always, That iiuthini; in this art contained shall extend, or be construed to extend, to any lai.'ls that have been granted by His Majesty, or shall hiTeaCter be granted by His Majesty, his heirs and successors, to be holden in free and common sovcage. Here we have, in characters so legible that he who runs may read, the first verse of the first chapter of the first book of that curse of Canada, anti-national Coxcimation. As more immediately (•onne(;ted with my more immediate purpose, permit me to direct your attention to the ninth clause of this Act, and to ask you, as a Lawyer, what, in this extraordinary case, you would understiind to b(^ its legal effect ? Was it intended to except from the operation wf this Act, lands only, as such, granted, or to be granted, in free and common soccage ? or was it intended to exempt from the laws of Canada in toto, nil such lands, and all the inhabitants residing on such lands ? English Lawyers maintain the latter ; French Lawyers in general, and some Enjlish Lawyers and even Legisla- tors maintain, that no exception whatever was intended ! that the liaws of Canada were meant still to extend, as they have, in fact, been made to extend, to the inhabitants of the townships, find to the very lands in their occupation in the townships — all granted in free and common soccage, — even to the right of dower, descent, and (•onveyance. A declaratory Act was passed by the Imperial Par- liament in 1804, disallowing all such ignorant or perverse proceed- ings, as illegal, and sticl the French Lawyers persisted in their former course; a?id 3Ir. Yiger had the face to tell the Committee of the House of Commons, in 1828, that they were right in so persisting. Such has been the conseiiuonce of this first measure of coiu;iliation ! That which I have said, I now call witnesses to prove. I begin with the Proclamation. What was its legal effect? Do the French Lawyers indeed maintain that it was nil ? D. B. ViGEH, Advocate. The Committee will observe, that after the conquest a Proclamation was issued by the King, which went upon the supposition tliat the conquest had the effect of destroying the Laws of Canada. After an examination, it was found that this teas not co7isoiiatit with the principles of Public Laiu between civilized nations ■■ that a conquest cotilil have no such effect ; that by the conquest alleyiance onhj changed ; but that property remained, and of course the Laws, which are the safeguard to that property, and uithout which it could never be kept : and, finally, this Pkoclamation was looked upon as a nullity Minutes, 152. Secondly, if the effect of the Proclamation was, as to .iny change in the Laws of Canada, nothing, it follows, that no subsequent alter- So atioii ((MiM be eToott-d hy moans less direct than positive enactment ; and coiisi'(iiionlly, that the effect of the Act of 1774, annulling that Prot'Ianiation, was nothing ; and that the pretended exception from its provisions (section [)) was u perfect yarct. Call the witness. 1). 1i. VuiEii. [With reference to the provision in the 9th section of the Act of 1774.] Now it was understood, at that time, that tiiis exception could relate only to the incumbrances with which, by the feudal laws, those lands might be charired, but that it did not apply to the ordinary laws which affect every citizen. It was not understood that the property in the townships should be governed liy another system in that respect. We could never imagine that we were to be sliiit out from the townships hy the want of knowledge of the system of laws with which ire were about to he affucted in enteiing those townships : that the Government meant to estal)lish two systems of law in the same country, and to establish the confu>ion that would result from such a division in the Province ; and I understand that it was the opinion of some of the best Lawyers in England, who have been consulted on the subject, that this exception could nut be understood in a different way from what I have stated Minutes, 152. Tiiese French- Canadians had no difficidty in imagining that we were to he shut out from Lotver Canada, by the unknown operation of a system of laws and customs, the like of which is not to be found existing in any civilized country under heaven. Call another witness. Jajies Stephen, Jun. [Counsel to the Colonial Department.] Question. — You iiru probably aware, that subsequently to the enactment of that law (of 1774), the Courts of Justice in Canada, and the people in Canada, both seem to have con- curred, that the old French Law should be applicable, in all its parts, to those lands that had been granted in free and common soccage : and those lands have therefore descended from that time to the present according to the principles of the old French Law. Does it occur to you that that circumstance of the Courts of Justice having governed themselves upon the principles of French Law, does not give validity to those titles which have Oeen thus conveyed ? Answer. Mv own OPINION IS, I'llAT THE COUKTS WEKE BIGHT IN THOSE DECISIONS.— A/lMU^es, 238. Note. Perhi. N 86 K f appeals, they having to bo decided according to tlie Laws of (Canada. In such cases IVir. Stephen', or some other tiouiisel equally disin- terested, must play — a la Paganixi — first fiddle with a vengeance ! Parmi les avengt^s ! &c. To give some idea of the patriotic views of certain English Legislators, I quote a question put to AJr. (now Judge) Gai.e, by one of the Members of the Select Committee of the PIousc of C'onunons. Do you mean to say that, after the separation of tlie two Provinces of llpjier and Lower Canada, in 17!)1, the object of which srpuration was to give the exclitsivk POSSESSION OF THE LoWfll PuOVINfE TO THE FnENCH-CANADIANS, &C, Minutes, 32. Can we wonder, after this, that the French-Canadians should main- tain their pretensions to the exclusive possession of this Province ? I return to the question of the townships. Here is another witness — not as to fact, for that were superfluous, else I could produci' plenty ; but as to right. D. B. ViGEn. Another reason for wliich the Loiver Canadians must be sup- po^ied to tliink tliat they havr a rijjht to their owi; laws in those lands whieii were open to their own industry, was, that tlie s'~<''''l<">.t number of tlie people who have come to settle in those lands [i. c. in the townsliipsj were foreigners. Minutes, 151. Is this a rule, I ask, by M'hich to interpret an Act of Parliament ? or is it a reason with which to justify rebellion ? One of this gentle- man's reasons is strictly critical, and I quote it for the curiosity. Perhaps Mr. Stephen' will have the goodness to favour us with his canon of criticism. We thou^tht that from the general rules of interpretation of laws of a public nature, although the words mi;iht imply sometliing in rontradictiun to the principles which the law seems to intend to lay down, [i. e. wliich tlie interpreter seems to intend to make it lay down] as all public laws should be interpreted rather according to the intention of the Legislature than the oriUnaig grammatical meaning of words [inasmuch as Legislators frequently ii.tend to say one thing, and, according to the ordinary grammatical meaning of tlie words they make use of, do in reality say the very oppo>ite !] it was thought that the Government of England did not intend to establish two different systems of law in the same country, and particularly one for persons in the townships, and another for real property But sup- posing even t;ii-< this \\:,i not the iiitiMiti(Ui of the Legislature at the time, an error which has t- --• fallen into by evry body in Canada [and maintained by Mr. Stephen no! to have been an errirati(>n in the townships in Lower Canada, and also applyiiiif them to all property whcrcvfr held ill Lower Canada, which is held on the tenure of tree and common soernife, would he an intrint;einent of the rij^hts of the ancient Canadian inhabitants of the country? Thu least that I should say of it is, that it would be uxjust. — Minutes, 15G. One reflection. How dignified the conduct of the House of Commons, in allowing their Select Committees to be thus bearded and insulted by barefaced treason ! Another. How profoundly politic the conduct of the Ca!)inet, in still striving to conciliate such men : by measures, too, that injure even niort; than they disgust : measurci^ of which the conseipiences have been, and ever will be, To plunge a Province or a Realm in grief! And now that I am upon this subj(>ct, I will take occasion to record a thougiit, which otherwise may not recur. It is this ; that it is bad policy in a Metropolitan State to allow, in any instance, any one of its dependent Legislatures to alter, or in the slightest degree to modify, any one of its enactments I'especting such dependency or any of its affairs. The reason is very obvious, and the case before us affords a striking illustration. Question. You have referred to a clause in the Act 31 Geo. III., which, after empowering lands to be granted in free and --omnion soi'Cii;;e, contains the following words : " Sul)jei;t nevertheless to su':h alterations with ro>pi'ct to the nature and consequences of such tenure of fret; and common socca^e as jnay be established by any law or laws whii:h may be made by ITis ."VlaJL-sty, hi-, h'irs or successors, by and with the advice and consent of thu Legislative CduiicH and Assembly of the Province." Do you understand any thing more by that clause, than that it is open to the Legisla- ture of Lower Canada, with the consent of tiie fh'owii, to make any alteration in the law of property ? [The question is very vague : the answer is very subtil. Observe.] The manner in which this is inserted there shows, that probably the Parliament must have meant a little more than an ordinary iriteniion of (;onferring upon the Parliament of Lower Canada the power of m'lkinij lawn! [Why yes, to be sure it did ; but wliat was this little more ? ISIark. After some admirable special pleading, here it comes, j Supposing we had interpreted the Law in a manner different from what the Parliament had interpreted, have not we the right even of repealing Acts of Parliament ? Do not we change, every day, the Laws of Eng- land in Canada? Is not the Criminal Law, as it sood in 1774, altered every day in our Provincial Parliament ? No body could deny that the Parliament of Lower Canada had a right to legislate upon these subje(;ts ; and as we had even a special right of making alteratiuu, with regard to that particular subject, we might bavu I 88 w.ulf any ctiariKP su])|nmr(l to li(> iulvniita.(C(ius to tliu country witliuut referring' tn till- I'lirliainiMit of r.'ii:',liiiHl. — Mr. Vkjeu. Minnies, l.'>5. The plain l<2iiglisli of wliicli i.s : Give us u spcciul liconcu, niid we will flaiiii a geiK'ntl ri^lit. As this is a siihjcct of great importance, I must heg t(» pursue it a little further, even at the risk of being thought tedious. The following is a very close (piestion. Are you aware that it is in tin- power of Great Britain to Impose what laws it cliuoseit upon !i ceded Colony; and that wlien the Act ot 17!M gave Tjower Canada an indejienilent Leyi.*lature, [a very improper phrase, beeause very open to iihuse], as it ]irnvide(l that tlie htw of i'ree and eoiiniion soeeage tihould be the law in future grants, if it liad not niven, at the same tiuu', speehically, a power to alter that '•biinieter of projierty, it would not have been within the power of the Assembly [Leuislature] of Lower Canada to have made any alteration in it ; and consequently it beeame lu'eessary at the same time that the Law of Great Britain established the law of free and common soecaj^e, to jjive a power to the Assembly [Le-j[i»lature] of Lower Canada to make such alterations in it as the King might choose to consent to : are you prejwred to adopt this explanation ? 1 do not consider that the Par- liament of Knglaud has more power with regard to a conquered country, than is allowed by international laws, and public laws, which I consider to be part of the Laws of England. — Mr. Vii;eu. Minutes, 1j5. Was ever answer more disingenuous and evasive ? The truth is, Mr. Vkjeu would not deny, what yet he thought it not prudent to avow. I could easily show, that the same refractory Rei>ubli(-an spirit runs through the evidence of Mr. (.'uvillieii,* and that liieie is something very suspicious in some expressions of Mr. Nei i.soN.f How long will England allow herself to be thus treated ? W'ili she never learn to distinguish between her enemies and friends ? I am writing this pamphlet with a view to its being read in Upper Canada as well as Lower, conceiving that a Union of the Piovinces IS, • Do you not eonceivo tliiit, in a (iovernment which admits of any .Monnrchieal priiiciplcj ill its Coiistitutidii, it is esseiitiiil tiiat there slioiild he cortain olhccrs of St.ite who are iuilepen- ih'iit of the pn|iuhir voice?—! will not enter into the merits of any form of Ooverument, [who »skB(i him ?] hot I will merely say, that it is my opinion generally that the Judges only in the CiiUni;/ ^holllll he miiilt" indepeiuleiit of the j-eople. Oil you conceive that all other iiHicDrs whatever helonging to the State should he subject to ■.ui ainiual vote of a popular Assembly ? — I do so, with the exception of the Governor-General «iio, 1 tUmk. slioulil I'C /mid III/ the Empire. Ydii state that there can he no ,\ristooracy in Canada. What makes you say so ?— The laws ■if the country are affninst the acfiuiremeut of property sufficiently large to create an aristocracy in the country, and tl.e uunniers of the people of .America are decidedly against the system of Aristocracy. What is it tliat prevents the accumulation of property in large masses in the hands of indi- viduals? — The subdivision of property. What produces the subdivision of property ?— The laws of descent. — Minutes, 101. Cfeir Is not this the main reason why these laws are clung to and supported ? — At any rate it is a good and sulhcieiit reason why they ought no longer to be tolerated. t I admit that where there is no representation, there should be some supreme legislative power. — ilinutts, "2. 89 t!i at liund ; and that I .sliall be abk> to impart to the iiihahitaiitti generally, nuicli information respecting matters more or less con- nected witii the Union, to which their attention may not hitherto have been directed ; and to induce them to prosecute enquiries for them- selves, mucli beyond what otherwisie they would have considered nectjssary. It is with a view to the lJi»per Province principally thait I have determined to lay open, as I may be able, the character of the laws obtaining in Lower Canada ; and though the attempt should prove a failure, and though the derision which I may have to endure in consequence should be that of an entire city laughing in chorus, I shall not be daunted ; for what I am doing requires to be done, and though I should fail in even the sixth attemi)t, I should not despair of succeeding in the seventh. For this re^iolution I am partly indebted to a (piestion put by the Select Connnittee of 1828 to Mr. Mkrritt, and to his answer. They both evince such want of information res- pecting this subject, now especially so important, that I will count the danger nothing and the labour a delight, so I may but have the satisfaction residting froju success. Are you a nativn of Upper Caimda? — I am.* Wliiit is tlu! law that prevails vvitli respect to personal propeity in Upper Cana- da 'i — The ^sanle as here. Dues it differ in any way from the administration oi the law, [the law differ from the ailiniuistraliim of the law ?] as to personal properly, in Lower Canada ? — I CANNOT SAY. Mr. ViGER (Min. 157) informs me, that " the Civil Law of Canada is, generally speaking, the llouian Law, wherever there is no special enactment of the Couiuinc de Paris, and the Ordonnances of the King of France, and other enactments, which are the smallest part of the Laws of Canada." Now I should be glad to know what " Ordonnances of the King of France," and what " other enactments," \ • On this question's being' subscfiiiently and more sig-niflcantly put, Mr. M, answered that he liiippened to be born in the StiUo of New York. This reminds one of the story of a certain Irisli Nobleman, who, beins aslicd his serious opinion, whether there was any foundation for the vulj,Mr prejudlfe about Irisli bulls, and if so, how he accounted for their prevalence in Ire- land more than olsewliero, answered, that ho must ingenuously admit the fact; and ihat he had no doubt, if an rnglishman were to be bom in Ireland, he would be quite as liable to bulU and exposed to laughter as were his countrymen. Uy the by, whence comes this word hull? what is its etymology or origrin? You will not And it in Johnson, nor have I been able to lind it any where. I am no philologist, because, though extremely partial to such pursuits by way of amusement, having no memory, I could never acquire a tolerable knowledge of any one foreign language. However, following my humour, I guess (,is friend Jonathan says) on occasion; and upon this occasion \ have been induced to guess as follows. After the Norman Conquest, the French language was introduced into all the higher circla* O 90 go to mako up the composition. The Laws of Canada, by the h»vor« of the system, are above all tliiiip^s ext(»llell-kno« n fact (vide HliirktrotKl's Mnirnxiiir), tlint ovon our most adniirod old sonps arc translations from tlio l-"rpncli, almost verbatim ; and tliat it \va« exclusively used at Court admits uo question. Tlio conseqiience was, tliat Kntflisli gentlemen bejfan to make use of terms and [dirases, wliidi Knglish citizens and bumpkins could scarcely understand. Tbe bumpkins in the country vas country bumpkins ever will) sliielded their ifif- norance « itb obstinacy, and stuck to tbeir Saxon; but tbe citizens (citizen-like), were nil for fashion, and .Jack aspired to be as fine a Trencbman as his master. But in his ignorance Jack blundered— «»/«////,— and, for bis conceited ignorance, got — (Just as I shall get for writing about C'^inndian Law, knowing no more about tlio subject than my/aM to lef/al error m conveying nn estate in Canada, I lian would tlie nu)(>t able conveyancer in England, what he meant was nothing to tiie present purpose. If St. PAi'ii was right, it is no bard matter to uvdid transgression Mher»! there is no law ; just as it is no hard matter for a Niitary in Canada to eHect a mortgage on tin' whole of a man's estates, possessed, or at any future time to be possesses! : when all that is necessary amounts to little more than a minute in writing, without any refi'remte to any estate, of an acknowledgment in his presence by the debtor of tin- debt. Such simplicity of the law may be very taking to the ignor just as is chvap Government to the democrat. To the man of such law and GovernnuMit appear as they are, the curse and destruction of any country. A gentleman whom I am proud to call my friend, — though wc lire, in opinion, r(!specting Responsible Government and Cana(han Law, far as the poles asunder, — yesterday lent me Commentaire sur la Coutumc de la Prevoto et Vicomte de Paris, per M. ('. i»e Feukiere. The occasion of the favour — much greater than I had asked, was this. Havhig engaged to write on the subject, and knowing nothing, I took the liberty to ask him to help me over a grand difficulty ; which was, whether, as I had understood, the said Coutume was territorial merely ; the few books in my possession serving only to create and increase, not to resolve the doubt. On opening the first volume, the first words that caught my eye were — page 5 : La matiere des fiefs est la plus difficile de cclles qui se trouvent dans la Jurisprudence coutumiere, et pen de personnes en out une parfaite et entiere connoissance. " Of all the matters em- braced by the Jurisprudence of French customs, that of fiefs is the most difficult ; and few persons possess a perfect and entire know- ledge of the subject." Very pretty encouragement for one wh<> thought to obtain a perfect and entire knowledge of its beautiful simplicity in a few hours ! However, if this difficulty discourages, it all but renders unnecessary all further search ; for if the subject be so complex that few Lawyers understand it, what must be the sit- uation of our ignorant vassals, living under cunning and accomplished Seigneurs, to whom they are liable for forfeitures et Droits pecuni- aires ? It may be very true which Mr. Neilson says (Mm. 82j that, in truth, the inhabitants in Lower Canada, descendants of the original settlers, care not much about the tenure. Allowing it to be li ■,'ii. IMAGE EVALUATION TEST TARGET (MT-S) / L

Hiotographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 872-4503 'o-^^.^ ^ ^ ^ e \ '>> ^ 92 so, this carelessness may be the result of ignorance, just as was that wise opinion recordi'd in Minutes, 127. " I am confident," (so says tliis Canadian Solon) " that every system of Law is good for a country, when it has been long established!" Do the subjects of his Satanic Majesty judge thus? Mr. Vioer tells us, (149) "The Oommittee are perhaps not aware, that what is called feudal law in Canada, has no precise analogy with what is called feudal law on this side of the Atlantic. In Canada tlie land is conceded to the farmer generally for a very small annual rent, and there is an end of all duties to his Seigneur ;" which is about as correct as his assertion (148) " that for one deed which there is to register in a country like England, we have a thousand that would require to be registered !" or as the opinion of Mr. Cuviluer, (168) in answer to the question, how he accounted for the circumstance of there being so few settlers, " / do not consider that there is any thing in the Laws of the country that prevents their settlement in Lower Cana- da !" Now this is just the question which I wish to investigate, and much regret my present inability to do any thing like justice to a subject of such vast importance. Tlie Custom of Paris : — what is it ? — what its origin, its history, its character ? That it is not, as I had understood, merely terri- torial, will be seen by the following titles of the sixteen chiipters or divisions under which are classed its contents. 1, Of fiefs : 2, of eensives and seignorial rights : 3, whfit goods are movable, and what immovable : 4, de complainte en cas de saisine et de nouvellete, et simple saisine. Of complaint or interdict (vindiciarum petitio) in case of trouble or disturbance in ones possession of a heritage or real right : 5, of personal actions, and of hypotheque : 6, of prescrip- tion : 7, de retrait lignager. Of the reclamation of an estate im- properly alienated, by a relation of the same lineage : 8, of arrests, executions, and liens (gageries) : 9, of servitudes (obsequium cliente- lare) and reports of sworn arbiters or appraisers (jures) : 10, de communaute de biens. Of marriage partnerships: 11, of dowers : 12, de garde noble et bourgeoise. Of guardianship of children and grandchildren : 13, of donations and death-bed presents : 14, of testaments, and their execution : 15, of succession, lineal and colla- teral : 16, dcs criees (auctio). Of seizures, proclamations, and sales. In the debates in the House of Commons, on the Constitutional Bill, Mr. Fox said : 93 With regard to the French laws, they (the Canadians) might be allowed to hara constitutional and municipal lawi^, if they were desirous that these laws should not be taken away. But, in tact, these were not the French laws at the conquest of Canada. They had sent only a part of their laws to their Colony ; they formed merely what was called the Custom of Paris ,- but that had been long since abro- gated. Hence arose the utmost difficulty in appeals to the Privy Council ; the law to which they referred no longer existed ; it was necessary to consult, not the French lawyer, but the antiquarian. In saying that the Laws of Canada formed merely what is called the Custom of Paris, Mr. Fox was undoubtedly in error, — unless we suppose the extension to have been made sabsequently, which seems not probable. I find, however, in Ferriere, what makes me some- what in doubt about the truth of Mr. Vioer's definition of the Law of Canada. It is a question — [says he] — whether the Roman Law is the Common Law of France coutumiere. In the rest of France (dans les payes de droit ecrit) it serves for Law, because the Kings have been pleasedtoaccord to some provinces of France, which we call pays de droit ecrit, the favour to govern themselves thereby ; but in the provinces which are governed by custom, that Law is considered only as a written Rule of Right, (raison) founded on undoubted equity, but from which the Judges are at liberty to depart when they think pi'oper. Now, if such judges as we have in Canada, destitute of the benefit of a legal education, are permitted this licence, one may guess what sort of uniformity and precision is to be found in their decisions. In truth, however, I should think it makes very little difference whether what is recorded in the Institutes, &c. be Law in Canada, or not ; for I doubt whether some of our Judges have ever so much as read it, or are able to read it in the original. As to the question, however, Montesquieu, I find, says expressly, 1. 28, c. 42, that " Philip le bel caused to be taught the Laws of Justinian, in the Provinces governed by Custom, merely as a written Rule of Right ; and that they were adopted as Law only in the provinces where the Roman Law obtained :" and the French and Latin Die* tionary which goes under the name of Trevoux, says (Droit Francois) : " Thus France is divided between the Roman Law, which reigns in the southern provinces, and the Droit Coutumier. The ordonnances of the Kings make also a part of the Jurisprudence." (Ed. 1752, 7 vol. fo.) With respect to Canada, therefore, I must still beg leave to doubt. After Mr. Fox, Mr. W. Grant said, that, in general, commercial laws differed but little from one another. The commercial laws of England and of France were nearly the same. All commercial laws were founded on the principle of contracts, either ex- pressed or implied. He begged leave to correct a mistake, on a subject of which he was enabled to speak from his local knowledge. The Custom of Paris had no 94 reference to the rejjulntions of comnierce, but of renl property. The merchnnt:* were ag|;rieved, not in consequence of commercial decisions, but of insolvency. The reJief granted to creditorti was very different in different countries. It was granted in France, according to the nature of the debts. The merchants tliought that they had reason to complain, when they found the whole of tlie bankrupt estate run away with by French deeds, of which they knew nothing. Mr. Fox, (we then are told) after paying a compliment to the abilities of the honourable and learned gentleman that had spoken last, thanked him for having corrected his mistake. How had he corrected it ? He had corrected it by concealing what was true (that the said Cus- tom was only a portion of the antiquated Law of Canada) and by insinuating and asserting what was false. The false insumation was, that the commercial laws of Canada were those of modern France, — but little different from those of Great Britain ; and the false asser- tion was, that the Custom of Paris had no reference to the regulations of commerce (understood as signifying, no injurious effect on com- merce), but of real property, — plainly meaning, of real property exclusivelif. This was wliat (in connection with what I found on the subject in Montesquieu) puzzled me ; and it seems to have served but little in removing the difficulty, and less than nothing in allaying the suspicion, of Mr. Fox, " Notwithstanding what had been urged, he was still in as much doubt as ever about th^' UNix- TELLIGIBILITY of the iaWS." Respecting the Customs of France, their origin, the different sources whence derived ; how, from being particular, which they were for each seigniory, they became general for each Province ; when and how they were reduced to order and writing, and after- wards reformed, I must beg to refer to the Spirit of Laws, 1. 28, c. 45, and especially to GuizoT, Cours d'Histoire Moderne. All this barbarian and barbarizing stuff has been long since swept away from the country of which it was too long the curse ; and tliat the Britisli Government should prolong its existence in Canada, to be at once our scourge and its disgrace, is to me beyond measure marvellous and disgusting. Mr. Grant, — (a learned gentleman, you will observe, as well as honoiu'able) — wished it to be understood, that the Commercial Laws of Canada were those of modern France. There are not wanting English merchants, Loitdon merchants, directly and deeply interested in the trade of Canada, who act as if they thought that our Commercial Laws were those of England ! The Directors of the 95 Bank of British North America (for example) when they sent me out as Manager to Montreal, sent with me three copies of Chitty on Bills of Exchange ; one for Toronto, one for Quebec, and one for Montreal. They might as well have sent the latter two t(» China ! Let the mercliants of England know, — let the Members of the British Legislature learn from me, — what, spite of the learned and honourable Mr. Grant, they will find to be the fact, that our Law of Bills of Exchange is neither that of England, nor that of Modem France, nor any thing akin to either: and further, as to what Mr. Grant was pleased to call "the bankrupt estate," lot them know that there has never, since the Act of 1774, been such a thing existing in the Province ! that we have never had so much sis a barbarian Bankrupt Law — till now ! I say till now, because I have just been told that our barbarian Bankrupt Ordinance has been allowed. I call upon " learned" gentlemen, members of the Metro- politan Legislature, to examine this production, as being a choice specimen of the brain-born lawyer-forged Legislation of Lower Canada. When they have examined it, let them answer this ques- tion i Had we not better be lawless than have such laws ? That Canada, thus governed, in its agriculture, in its commerce, cannot flourish, what but ionorance can wonder ? " Do men gather grapes of thorns, or figs oi thistles ?" When a Manager in England, I thought I knew as much about the Law of Bills of Exchange as one Lawyer in a hundred ; and, if required, I can give something in confirmation, — ^this, e. g., that though I was Manager for years without a Director, and took and paid many hundred bills, numbers of which were returned dishonoured, (for they were generally Sheffield wasters), I neither lost a shilling nor was once questioned, legally or otherwise, respecting the pro- priety of my management, as to a Bill or other Bank transac- tion. When I reached Canada, instead of being able, as I expected, to turn to good account my imported Law Library and stock of legal knowledge, I found myself -just as you may suppose. I was a member of the Board in Montreal, and in my ignorance began to talk about what was right respecting Bills, and what was contrary to Law ; and to vouch, in proof of my assertions, my big octavo, — and got laughed at for my pains ! and when I wanted to play the student, and to be furnished with the necessary books, I found that I was considered a Mr. Busy-body, a would-be Mr. Somebody, who must 96 1)0 taught to be Mr. Nobofly. In sliort, I found the policy of my Dirt'ctora respecting me (as I now find the policy of the Seigneurs respecting the censitaires) to be — Keep him dark, and keep him DUWN ! Wiien my Directors found that I was not a man to be so repressed and snubbed, they wrote the Court (the London Directors) that I wiM a dolt : that I entertained a project of dispensing with my Board ! and that, in their opinion, I ought to be dismissed : and when, on the capital olfence of duncery, and the still more capital nftence of treason, I was tried by a secret inquisition, and nothing found to justify such treatment ; because the Court found that I was a man whom even they could not keep down, — and one whom, under such treatment, not even they were able to make dumb, — in the most brutal manner they knocked me down.* " Rejoice not against me, O mine enemy ! when I full I shall arise." The Custom of Paris was first reduced to order and writing in 1510, and, being found, like the other Customs, very faulty and defective, was reformed in 1580. These reformations were by the authority of the King, and with the consent of the three estates of the Provinces. The Custom in question is divided into sixteen heads or chapters, containing 362 articles or sections. I have given the titles of the chapters in the order of succession, and intend to add a i\^w explanatory observations on the contents. Chapter I. Of Fiefs. The very mention of fiefs gives rise to a question, the full solution of which is a desideratum. The question is this : Hdw comes it that our agricultural, even more than our commercial interest, is, — instead of being, as it ought undoubtedly to be, if not the most honourable and lucrative, at any rate the most independent interest in the Colony, — almost excluded the pale of political or legislative recognition ? How comes it that the occu- pation o( the farmer is considered, in Lower Canada, only one step exalted above the meanest and most servile? It will not do to answer, because of the French Canadians. Do they engross the whole of the laud ? Is there not room enough for English settlers ? Why then do they not settle ? " From May, 1817, to the end of the * For a full and particular exposition of this disgraceful transaction, see Montreal Gazette of .Hh of October. I sent 277 copies to the General Post OHice, London, addressed to the principal proprietors of the Bank. My object was not their injury, but their information. That Insti- tution, if properly conducted, might be of immense advantage to these Possessions; but its direction has fallen into the hands of a company of poor incapables, ignorant and all-sufficient, who know not how to Bank, and are too proud to learn. 97 year 1820, there arrived at the port of Quebec, 39,163 settlers, the great majority ofthem, intimidated by [something] . . . have ascended tlie St. LawTence, and are now dispersed over the lands of Upper Canada and the United States."* What is that something, said and thus proved to be so intimidating ? It will not do to answer, as our House of Assembly have answered this question, that the cause of the intimidation was " the length and rigour of the M-inter of this country," and a want of acquaintance with " the laws and language thereof." British emigrants are not, in general, so ignorant, as not to be aware of the length and rigour of a Canadian winter ; nor would they allow the foreign language of the French, to be any the least impediment to them. There is no occasion that they should even live among the French. But the foreigpn laws ? Well ; even these would not very much intimidate them, provided they were good : — witness Mr. Cuvillier, who, maintaining that they are good, also maintains that they oppose no obstacle whatever ! Con- sider further therefore, whoever intends to give a full and convincing answer : and when you have so considered, I will tell you, lastly, — It will not do to answer, that the grand cause of the intimidation is the feudal tenures. There is nothing in the feudal tenure, simply as such, to revolt or terrify an Englishman, and much less a Scotchman. ' But the banks do nothing for agriculture here.' Why do they not ? < They do nothing because they can do nothing.' Then is it not a shame that they can do nothing ? By why can they not ? ' Because of the feudal tenure.' Not so. I am no friend to feudal tenure, nor to any thing feudal, except in history or romance ; but I cannot allow the public to be led away with the erroneous opinion, that the feudal tenure, as such, is such an enemy to the proprietors or to the occupiers of the soil, as this supposes. *< All the land of Scotland, so far as it belongs to indi- viduals, is vested in them either in superiority or in property ; the « The entire passage reads thus .— " From May, 1817, to the end ofthe year 1820, there arrived at the port of Quebec 39,163 settlers ; the great m^ority of them, intimidated by the Iragth and rigour of the winter of this country, and unacquainted with the laai and language thereof, have ascended the St. Lawrence, and are now dispersed over the lands of Upper Canada and the United States, where they have found a more genial climate, their ownlang^nage, and insti- tutions analogous to those to which they have been accustomed." That is an extract from a Report of a Committee of the House of Assembly in Lower Canada. — Judge Gale. Min. 33. The object of this Report was evidently part and parcel of a regular system of Canadian hos- tility to British interests and British Government. 'Whence this public statement of what " intimidated," and whereof— (^ not to intimidate f Q furmer called dominium directum ; tbe lutter is called by our Lawyers, dominium utile ;" i. e. all the land of Scotland is under feudal tenure ; and yet notwithstanding this, you will hardly find another country under heaven where the land supports so many banks, or where within the fifty years last past, the banks have so advanced in wealth the proprietors and occupiers of the soil.* Allow the insertion of another quotation, both from " Commentaries on the Laws of Scotland, and on the Principles of Mercantile Juris- prudence, by G. J. Bell." — 2 vol. 4to. 1826. According to the prevailing spirit of modern law, land is considered as a com- mercial property. While the rules of its succession are clear and uniform, all undue restrictions on alienation are discountenanced; and the rights of creditors in regard to it ore ample and of ready access. With one single exception in tbe cose of entails, the rules and proceedings of the law of Scotland relative to this sort of property, are simple, just, and efficient. The obstructions of the old law of feudal tenures have been in a great degree removed by the legislative wisdom of more modern times ; called into action on occasion of political convulsions and rebellion, but with effects as salutary fur the purposes of trade as if devised in the true spirit of commercial policy. The forms of voluntary alienation and security are plain, simple, and intelligible. The modes of execution by creditors are prompt, effectual, and equal, in process and in operation. And al- though it has been doubted by some, whether there ought to be, in public records, a complete disclosure of the state of a man's property as charged with debt, while by others it has been suspected that our system of records is fast tending to a state of inextricable confusion and practical uselessness ; the fact is, that the whole landed property of Scotland is registered in volumes deposited in the Register House, and exhibiting at one view, to thoje desirous to purchase land, houses, or other heritable subjects, or meaning to lend money on the security of such property, or desiring to have a correct notion of their debtor's land estate as a ground of general credit, the extent of that estate; the conditions under which it is held; and the securities which may already have been created over it. — Fol. 1, p. 20. I cannot let pass this most valuable passage without one remark. The removal of the obstructions of the old feudal law " by the legis- lative wisdom of more modern times, called into action on occasion of political convulsion and rebellion." How strange ' how melan- choly the reflection ! that while individuals have been brought to yield, almost universally, and almost mechanically, prompt obedience to the Governments under which, respectively, they happen to be born, not one in twenty of those Governments can ever be induced to yield obedience to the law supreme, the welfare of the governed, by means less fearful than political convulsion and rebellion ! From the bar- * Since the American war, the progress of improvement in Scotland has been decidedly more rapid than in England, or perhaps in any other country.— JVealth nf Nations. M'Culloch's Note, p. 41. The gyitem of husbandry in Scotland has been vaatly improved since the close of the Amer- ican war. In all the lower districts of the country it is now fully equal, if it be not superior to that of England.— /d. p. 102. to barUm of those very feudal lawg which now are grinding the farmer* uf this Province to powder, France was delivered only by means of gory Revolution. Must nothing less suffice for Canada ? Another reflection. Let no one presume to tell us, after this, that nothing can be done for our farmers without a commutation of the feudal tenure. The Imperial Parliament has all the power, and the right, to do all that is required. If, so qualified and required, the Imperial Parliament will do nothing, on that Parliament be the penalty of the refusal. Our Franco-Canadian farmers are sunk, degraded, ignorant, and stupid. What wonder ? So were the farmers in France before the Revolution. Why have the barbarian customs of by-gone ages been so long tolerated here ? Is the British Government stone-blind, stone-dead, to what so nearly concerns the honour and the interest of Britain ? Are they weary of a connection with the Canadas ? Is it that they would force our habitans to be in love with republican America, that they refuse them emancipation from barbarity the most intolerable. * They do not ask for emancipation : they have their choice.' What if a doctor, sent for to your dying child, should set before it unpalatable physic and sweet poison? Would you be satisfied, when your boy was dead, with the reply, He had his choice ? Men can sneer at the ignorance of these poor habitans ; will they never feel the force of the claim on their benevolence, of misery resulting from such ignorance ? The Government pretends to be paternal ; and produces, in proof, its licence to a long-neglected, spoiled, and wayward child, to do whatever it thinks proper — >') it does not fire the house ! What is it prescribes the duty or * jju Government ? — the welfare of the governed, or the whim ? Why have these horrid soul-subduing customs been so long tolerated here ? By whose fault ? for whose advantage ? Let no man pretend that it is by the fault, or for the advantage, of the poor degraded farmers. They hate and curse the system, whatever may be pretended, and nothing makes it even tolerable to them but their ignorance of what is better. Let them spend a month in France ; could you hope to bring them back to feudal bondage ? It is pro- posed to educate them. Will those who reap the harvest of their degradation unite in the endeavour? Who reaps that harvest? The Seigneurs. Who are these Seigneurs ? About half of them are English ! Is it possible ? And are not then these English all 100 for rnmmutation of the feudal tenures ? I should not be surprised to lienr that some of them are itH stouteat opponents. Mr. Ellice was a noble exception. With all his might he laboured to effect a change, and failed. Hear him. Th« chiHrobHtRcle to the improvement of Lower Cannda nriieti from the objen- lioiiK of HritiHh-borii iiibJectN to thi> [an] investment of th« large profltH that have ffNifited to them from the trade of the country, in real property, and the impedi* nientH to the circulation of capital so iuvested, by the feudiU tenures, and the heavy Jinea on every alienation. Observe. The chief, or more properly, the proximate obstacle to improvement, is an unwillingness to invest : but whence that unwil^ lingness ? From impediments to the circulation of capital invested. What are these impediments ? Heavy fines on every alienation. Now allowing this to be (what indeed it is very far from being) a full and exact, though to a certain extent it is undoubtedly a true account of the matter, I next must ask. What is the nature of the connection between the feudal system, and those heavy fines ? Will any man pretend that it is a necessary connection ? It may be — according to Canadian Law, but are there then no other Laws ? or can there be no change in this ? The feudal system of Canada may bPt as Mr. VioER pretends it is, of a very superior species : but be it so, or be it otherwise, if these heavy fines are of its blood and marrow, it is not of a species to suit the taste of Britons. To them it is (whatever it may be to others) a Horrid Monster, savage, huge, and blind ! The truth, however, is, that this Monster, so far as respects these fines, is horrid, — not to the Capitalist intending to invest, and whose object is to be a Seigneur : No ! For him, as well as any French- man, it will make an admirable Bailiff! These fines are horrid, not to him, as being a purchaser, but to the seller. « Taxes upon tlie sale of land," says Adam Smith, " fall altogether upon the seller."— (Wealth of Nations, p. 389. ed. 1838. 8vo.) The reason is very obvious. " The seller is almost always under the necessity of selling, and must therefore take such a price as he can get : the buyer is scarce ever under the necessity of buying, and will therefore only give such a price as he likes." Of the seller of land where the fine is one-twelfth of the price, there needs no <' almost" to qualify the assertion of his necessity to sell ; since no man, under such cir- cumstances, would think of selling, that was not almost and altogether necessitated. What then is it that obstructs the purchaser, since 101 tliose finea on sales do not ? Something must, or with the abundance of English capital wanting investment, where land could be got so good, so cheap, so profitable — as a distant view of our affiiirs would promise, there would be a rush for land. I know what obstructs the purchaser. It is the same thing that obstructs the Banker as a lender. It is not the feudal tenure, simply as such. What then is it ? We shall see presently. In the mean time, take the balance, weigh carefully these words of the Author of the Wealth of Nations, (p. 181) and estimate our loss. " Merchants are commonly ambitious of becoming country gentlemen, and when they do, they are generally THE BEST OP ALL IMPROVERS." With Mr. Cuvillibr's good leave, Canada could furnish an Aristocracy, — equal, perhaps, in wealth to that of England, if our good Government would let her. Why will they not ? Hearken ! (I like old honest Adam !) " All for OURSELVES, AND NOTHING FOR OTHER PEOPLE, sooms, in every age of the world, to have been THE vile maxim of the masters of MANKIND."— W. of N. 183. Fiefs are divided into (1) corporeal and incorporeal : (2), noble and ignoble : (3), divisible and indivisible : (4), frank (Ferriere says simple) and liege : (5), simple and de danger. What is a fief de danger ? How can I answer ? Is there a lawyer in Lower Canada that can tell me ? I question it, — if required to state posi- tivcly. Ferriere says : " Fiefs de danger oblige the acquirer to do faith and homage before taking possession, on pain of losing the fief; and from this it is that they take their name, seeing it is very dangerous to possess such fiefs without the consent of the Lord paramount." An admirable condition certainly ! but is this true ? I question it: and if any one of our lawyers will give me his authority for insisting on its truth, I >vill give him mine for continu- ing to doubt. Again : What is a fief liege ? Ferriere answers that fiefs liege oblige the vassals to serve their Seigneurs against all the world, even to death ; ensorte que cet hommage ne pent etre rendu qu' au Souverain : " so that this kind of homage can be rendered only to the King." Now I beg leave to doubt the truth of this also. I can quote quite as good authority as that of Fer- riere, to shew, that hommage-liege might be taken from his vassals by a Seignior, ensorte que le Seigneur les pouvoit employer envers tons, et centre tous, au -dehors, et au-dedans duterritoire, ybr^cora^re le Roi : <* so that the Seignior might employ them against all the R lOi world, witliin tho territory or without, except ngain$t the King.** I mention theso dinagreoinentM among feudal doctors (and were it worth the search, I believe I rould diacorer them by hundredH) merely in illiutration of the beautiful and ao much prniaed simplicity of the syittem. I cannot afford to be aponding time and occupying apace with trifles of antiquarian dispute. My puriwiae, therefore, ia to run my eye over this Custom of Paris, not in tho order of the aections, but of tho subjects ; and to bring before the public such particulars as appear worthy of special observation. This done, if any gentleman whoso name is likely to carry authority with the public, will venture a repetition of Mr. Cuvillier's assertion; I hereby pledge my promise to sit down to tho study of the whole subject of our Cana- dian Law, (should it not, in the interim, be cither swept away or thoroughly reformed,) with tho avowed determination to hold it up, in all its naked turpitude, to public excerution. Tho right which, in certain ca8cs, tho Seigneur may exercise over the fief depending on him, are seizing the estate, — retraction (redhi- bitio) or retention (jus retinendo)) of the heritage sold ; and lastly, the confiscation of the fief. A word on each. 1. La saisio foodale, is a seizure of the estate for want of a vassal, or qualified man ; or a dispossession of the vassal by his Seigneur, for neglect or refusal to render fealty and homage, or for rights and dues not paid ; during which the Seigneur holds and takes the pro- duce of the estate. I have had the curiosity to read what Pothier says on this subject, and though I cannot but admire tho ability of the writer, and the equity of tho principles according to which he takes up and solves all sorts of doubts and difiiculties ; I still must be allowed to execrate the iniquity of a system which gives rise or room to such a host of subtil questions where the vassal must meet his Lord at infinite disadvantage. Tho dispossessed vassal is not allowed to make legal complaint against his Seigneur, pretending that the seizure is unjust. How is this ? I ask. According to the common opinion (selon la commune opinion) the Seigneur can seize only in virtue of the commission of his Judge (de son Juge) — who, of course, would be his creature,— or of the Judge of the place. Monsieur Auzanet, in his notes on the first section of this Custom, avers that it had been so adjudged by an arrSt of the 9th December, 1595. Dumoulin opposes this interpretation — with strange simplicity no doubt ! as 103 The law renpecting this kind of seiiure is, that the Seigneur tal«>M the natural fruita of the fief, provided, at the time of aeizuro, tht;y are attll attached to the toil, and that he has collected them during hi* posseuion. Can Engliih farmers be expected to hold land ot either French or English Lords at this rate? Observe. The Seigneur does not take the produce of the farm in proportion to the time he holds possession, but in proportion to the q''antity which he has time to take and actually takes, of that kind of produce which tlie law pronounces seizable, and which law or lawyers pronounce or judge ripe, or Jit for cutting^ gathering, digging, felling, Sfc, aa well a» seizable, at the time of seizure. And again observe. If any thing is seized which cost the vassal money, seed, or labour, in order to the production ; for these he must be allowed. How much ? Ky whom to bo determined ? Further : What if the crop was good r What if it was bad ? What if the fault was in the season ? What if it was in the land ? Would these considerations amount to any thing, or notliing ? Lastly, feudal seizure, contrary to the maxim, saisie sur saisie ne vaut, deprives other creditors of that which they may have previously seized, and takes precedence of even hypothcciuy rights. What follows ? That registers of such mortgages an Canadian law allows, would afford a sorry security to lenders on mortgage, without a further registration of legally preferable clniniN, as dower, legitime, arrears of cens, &c. 2. Article 20, du retrait feodale, runs thus : '* The feudal Seigneur may take and retun, by right of feudal custom, the fief held and depending on liim, which has been sold by his vassal, on paying the price which the purchaser had paid, and the costs, fines, &c. (loyaiix- coustumens), in forty days after the notification to him of the said sale, and exhibition of the contracts (if there were any written) with a delivery of a copy." Such is the law. But the comment tells me, that in case of fraud by the vassal in the sale of the fief, to the preju- dice (a I'encontre) of the Seigneur, the forty days are not to com- mence according to the text, but according as it has been adjudged by arrets of the years 1558, 1569, and 1596 — namely, from the date of the discover?/ ofthejraitd. Now which, I should be glad to know, is Law in Canada, — ^the comment or the text ? N.B. With- out a notification and exhibition as prescribed the right of retraction, instead of forty days, continues for thirty years ! 3. De la commise, ou du desaveu. Commise, in feudal language, is 104 the confiscation of a fief: commissi culpa : which is an entire forfeiture by the vassal, of his fief, to the Seigneur. The crimes are either a (lenegation by the vassal made to his Seigneur, of the dependance of \m fief or* liim ; or, some act of violence .-•mounting to felony. The 43d section of the Custom runs thus : " I'he vassal who denies the fiHf to be held of the feudal Lord, of and on whom it is held and dependant, forfeits the fief." But here again the doctors are at issue, as to the sort of denial or disavowal which carries this penalty ; some maintaining that it must be deliberate, and with knowledge of the fact, &c., and others the contrary. Then comes another question on which the authorities are at issue : Is the vassal obliged to avow or disavow the Seigneur who has seized his fief? Thirdly, what if the vassal, in such case, knowing the contrary, with premeditated design, professes to hold of the King ? Does he, in that case, forfeit his fief? Here again the doctors disagree. Of the rights and pecuniary profits which the vassal is obliged to pay to the Seigneur dominant. These are, the quint, or fifth part of the price or value, in case of sale or exchange of the fief, ou d'acte iquipollent a la vente, as, for instance, transferring it for a debt ; and the relief, which is, a year's rent or revenue of the fief, in case of certain other mutations. The sections which treat of quints are 22, 23, 33, 51, 82, 83, and 84. I translate the former. " When the feudal Lord has seized and retained, by seignorial right, (par puissance de fief) the fief held and dependant on him, and is afterwards dispossessed by a lineal reclaimant (evince par retraitlignager) such reclaimant is held obliged to pay to the said Seigneur the dues of quints, before he can be obiiafed to receive him in faith and homage for the said fiefs." This is not exactly what is commonly reported and understood respecting (piints. Can any one show that it is exactly right ? I take it to be, not only a sharp, but a sharper sentence ! II semble toutefois que le lignager retrayant ne devroit pas etre tenu de payer les droits au Seigneur, en ce qu' il entre en sa place, et que le Seigneur vendant un fief ne pent pas exiger des droits de I'acquereur. The case is this : — at least so I understand it. A Seigneury is sold — in the opinion of the Lord, too low. He therefore, by his right of pre- emption, pays to the purchaser the cost and charges, and takes it himself. But the estate pi'oves to be liable to a preferable, and therefore further pre-emption, by a lineal descendant. The Lord, 105 however, you will observe, is not obliged to relinquish the fief on the equitable terras on which he obtained it. He obtained it by taking the place of the purchaser, but the heir must not obtain it by taking his place. Over and above the price paid by the Lord, the heir must pay the quint ; because, by this uquitable Coutume, he (the heir) is made to take the place of the original purchaser, — the alfen ! Had the estate come to him direct, he woidd have paid no quint. It is generally understood, I am told, that a prompt payment of the quint entitles the payer to a rabat, or discount of two-thirds. I find nothing of this in the Custom of Paris ? Is it really law in Canada? No: nothing of the kind. It is further to be observed, that the quint is due for a sale between father and son ; and still further, that when a vassal has let or relinquished (laisse) a part of his fief on cens or rent, to the amount of two-thirds, and afterwards sells to the tenant the rent or cens of that part, the tenant, in such case, is considered to hold the entire estate of the Seigneur, and must pay him the entire quint, as well for the (supposed) sale of a part of the fief, as for the price of the cens. Lastly, a fief let or transferred for a redeemable rent (bailie a rente "achetable) is reputed to be sold, and the acquirer must pay the quint on the prin- cipal sum of which the rent is reputed the interest, without waiting tor the redemption. And this, by section 83, extends to estates in roture as well as in fief. Relief is a mutation fine, embracing mutations by descent, but due to the superior Lord for almost all mutations, excepting those by lineal descent. Section 47 of the Custom runs thus: " Relief is the produce of a fief for one year (revenue, i. e. recolte annucUe), or its value according to the estimation of appraisers, (ou le dire de prnd'- hommes), or the tender of a sum of money by the vassal, at the choice and election of the Lord :" and the Commentator tells us, that the vassal that owes this fine, is obliged to make these three offers ! This relief was formerly termed rachat, from racheter, (redimere) to redeem : the plain English of the case being, that all mutations involving this fine, are considered, in feudal law, a forfeiture of the estate ; which can be bouglu back (redeemed) only by allowing the Lord to take the fruits of his fief during one year. But estates produce other kinds of valuables besides annuals, and if the Lord elect to take the relief in kind, how are these patters managed ? Is he allowed to cut down all the wood ! to empty all s 106 the fishponds, &c. ? The next section provides, — I cannot stop to say how, except thns far, — ^that the arrangement is admirably simple) Franc-alu. This is a species of inheritance which is not subject to any dues or Seignorial rights; whether honorary, as faith and homage ; or pecuniary, as cens, quint, relief, &c., in acknowledg- ment of direct Seigniory. In this respect it is equivalent to our free and common soccage, being, in fact, no other than the allodum of the law Latin, from aleut or alodes of the ancient Gauls. After the conquest of Gaul, it appears that lands were divided among individ- uals in two manners, — in benefices, and in alodes. Benefices were lands given by the Prince to his warrior chiefs, either for life, or for a certain time fixed ; and alodes are ssud to have been estates left in propriety to the ancient possessors. These estates are spoken of in the Salick Law as patrimonial and hereditary. Franc-aleu signifies, a Seignorial estate, either noble or roturier, owing simply jurisdiction. According to the French doctors, who hold the maxim, nulle terre sans Seigneur, every heritage is presumed to be a fief ; whence it follows, that franc-aleu can be proved only by a special title. See more on this subject in Spirit of Laws, 1. 3L c. 8 and 25. Franc-aleu noble, i. e. which has a jurisdiction annexed to or dependent on it, or lands held of it in fief or cens, — is divided after the manner of a fief, according to the law of primogeniture ; whereas, in franc-aleu roturier, all the heirs, male or female, take equal shares. Primogeniture, (droit d'amesse) or preciput, signifies the advantage of the eldest son or male heir, in the legal succession to estates noble. In the division of such estates, the eldest son has always the principal fief or manor for his preciput. By the old Custom, the eldest son took the manor-house and entire garden or enclosure ; but as this enclosure might be made to include the entire Seigniory, this custom was reformed. He now takes, besides the manor-house and court yard, an arpent of the garden or enclosure, and must either relinquish or pay for the remMuder. By this law or custom, daughters of the eldest son take in preference to their uncles, and a son bom before marriage, being rendered legitimate by the marriage, is entitled to the right. It is worthy of notice that this right cannot be prejudiced by father or mother, by any means, directly or indirectly, either by marriage contract, gift, sale, or devise. Even a renunciation of the heir in favour of the other children, if efiected during his father's life, might easily be annulled by letters of rescission. 107 The distribation officii noble, including estates in franc-aleu noble, is this. Where there are two children, (and here the word children includes all the lineal descendants) the eldest male takes the principal manor-house, and two-thirds of the estate. Where the number exceeds two, the eldest son, besides the manor-house, takes half. But a question arises here, respecting which the authorities are greatly divided : Does this right of the firstborn extend to estates coming immediately from the grandfather or grandmother ? What say our Canadian authorities ? Are they agreed? I think I know what the text says; but I find that, in Law as in Divinity, the commentators say ten times more than the text does, not unfrequently to the making void the law through their traditions. The eldest son, I perceive by the 17th section, in certain cases, takes the whole estate : i. e. when there is only one fief : but, in case the defunct has not left other property, or not sufficient, to pay the other children their legitimate portion of the property, (legitime ; legitima portio hseriditatis ; which, by the Custom, art. 298, is the moiety of that which each would have had ah intestat ;) or of the dower ; he takes the estate subject to these prior clums. The words are : sauf tontefois aux autres enfans leur droit de legitime, ou droit de douaure, contumier ou prefix, ^ prendre sur ledit fief. The reason assigned is, that the le^time is considered a natural right, whereas primogeniture is that of a merely legal benefice. I mention this to show how little this kind of primogeniture is calculated to create an Aristocracy similar to that in England, or any Aristocracy sufficient for the purposes of a Monarchical Government. And query : What proportion of the land of Lower Canada is held as estates noble ? N.B. Females, in the collateral line, do not con- cur with males of the same degree, so that a brother succeeds to the estate of a deceased brother, to the exclusion of his sisters. (461.) Chapter 2 treats of censives and seignorial rights. The word ceti- sive sometimes signifies the fief on which cens is payable, and some- times it signifies the same as cens. Here it evidently means the latter. The word certs is the Latin census, from censere, which signifies to value or estimate, because the Roman censc/es, afterwards termed censitores, valued, from time to time, the real and personal estates of individuals, in order to their being taxed. The census was the authentic declaration, furnished to the magistrates by the citizens, of the value of their property. These declarations were accompanied i,'! I i 108 with a catalogue or inventory, including all particulars of quantity, quality, situations, abutments, &c. Cens, or censive, in feudal lan- guage, is an annual revenue, pecuniary or real, in grain, poultry, fruit, &c. which the censitaire agrees to pay the seigneur ccnsier fur the estate held under him. There are also chef-cens, and sur-cem, answering to primitivum vectigal, and secundarium vectigal. By the custom of Paris, the chef-cens always carries droits de vente, commonly called lods et ventes. How this latter phrase obtained here I cannot tell, since I do not find the word lods in the whole Custom. I suppose it must have been borrowed from some of the other Customs of France. I must further observe, that he who takes an estate d, cens, cannot underlet it d, cens, because he is not the seigneur of the estate. If he underlet it, the chef-cens will be pay- able to the seigneur, and the sur-cens to him. For lods, see Du Canoe, loer and laudare. In French the word is frequently writ- ten loz, and lots. And what now are these droits de vente, or lods et ventes ? They are pretty little trinkets which Seigneurs have to sell, and of which they have a very nice method of forcing feudal farmers to pay the price. " Droits de vente dus au Seigneurs censier, sont de douze deniers un denier," &c. (Section 76) : in plain English, they are fines payable to the Seigneur censier in money (in recognition of his title, as some tell us : or, as others say, in consideration of the permission which he is presumed to have given the vassal to alienate his estate) amounting, at every turn, to one-twelfth part of the price ! Such and so moderate is thisyu^ ratoE emptionis ! Had error com- munis nothing to do with making such a. jus ? I should be glad to have something to do with «n-making it as it respects this Province. If they like it at Paris, let them take it back ! At any rate, if it do not make its exit quietly — and quickly, it will run some risk of get- ting a kick from Canada! Were it not that our poor habitans are so shrouded in Cimmerian darkness, I fancy I could soon teach tliem to burst these barbarian bonds in sunder, though they be from Pai-is. What circumstance is most likely to make a good tenant continue in his farm ? A good Landlord. And what more likely to make him quit his farm than a bad Landlord ? But the difference, as it respects a tenant, between a good Landlord and a bad one, is as nothing in comparison with the difference, to a censitaire, between a good 109 Seigneur and a bad one. Why ? Because the English furmer lives under a kind of government (so to speak) where, as in the English constitution, all is fixed and well defined ; whereas the censitaire is subject to a sort of domination, where almost all, as in our *' image and transcript" constitution, is arbitrary — undefined — chance-medley. Yet bad as this is, (and it is too bad to be endured), in comparison it is as nothing. When a good tenant quits his farm, he quits it to his Landlord's loss: when a censitaire sells his farm, does he sell it to his seigneur's loss ? What then is the conclusion ? In that coun* try where the farmer's Lord possesses a tenfold power to harass and oppress, the Law actually offers, as a premium for oppression, quints and lods et ventes ; and the more the oppressor plays the vampire and the shark, the greater is the value of the legal bribe I The interest of the English Landlord is to treat his tenant kindly : the interest of the Canadian Landlord is to force those alienations which bring him golden harvests ! By section 83 I learn, that " for heritages sold or adjudged by legal sentence (par decret, decretum) subject to a charge of a redeem- able rent, whether the said heritage — (so in the original. Pour heritages — ledit heritage) be fief or roture, there is due to the seig- neur of the fief the fifth part (quint denier) of the price : and to the censier the droit de ventes, as well for the price determined by the contracts or decree, as for the principal sum of which the interest is the sum of the said rents — (so again in the original : rent — rentes) — although the said rents may not then have been redeemed." Now let any man consider this. One-fifth, plus one-twelfth, is equal to scventeen-sixtieths. That is, for an estate thus sold or adjudged, for every £60 of price, £17 must go for fines — namely, £12 for quints, £5 for lods et ventes. As to any rebate or discount on either of these payments, whatever may be customary or conven- tional, the Law knows nothing of it. Consider, for one moment, how these fines operate to prevent improvements. No Englishman that has seen, and especially no English farmer that has felt, how tythes obstruct them, will need instruction in this matter : yet tythes are trifles, considered as ob- structers, compared with fines like these. Suppose a man builds a barn, how much of it is his o>vn ? Suppose a man builds a house that costs him ten times more than did the land it stands on : for 110 whose benefit hag he built it? For the benefit of some upholder and defender of this soul-subduing barbarizing Custom. Great pains are taken to persuade us, that there is no repugnance to these burdens in the minds of our habitans ; and I am surprised to find that even Mr. Ellice falls into this erroneous opinion. For example. Is not that principle of the French CoAlume de Paris to discourage mutations in property as much as possible, the very principle that attaches the French population to the present state of law in that country ? — That principle, so contrary to all the principles upon which the British Government have proceeded in the government of their other Colonies, has tended to retard the improvement of Lower Canada, while the improvement of other parts of America has been advancing with rapid strides ; and although I should be as adverse as any one to deal forcibly with the prejudices and feelings of the Canadians, who certainly are attached to, and imagine themselves interested in, the preservation of their present system, still, as a matter of necessity, time will so deal with them, unless they can accommodate themselves to a gradual amelioration either under our Government or under some other. — Minutes, 44. In order, as far as possible, to test this question, I shall make a dis- tinction as to the French population of the Province ; proceeding on the very obvious principle (well known to have some small influence in such mattersj of self-interest. That the receivers of cens and lods et ventes have an interest respecting them contrary to the payers, is evident ; nor can it be thought strange if they should be fotmd not exactly one in their attachment to the system by which these im- positions are mtuntained. What interest can our French farmers have ; what interest can they suppose or be induced to think they have, in the continuance of the system ? I can see many reasons why others should by all means possible, endeavour to deceive and cheat them into such a supposition. They want to prolong the existence of the system ; but in order to prolong its existence, those who suffer under it must not be allowed to contrast their state of suffering and degradation with that of the happiness and elevation of others, and especially with that of their brethren in France. Knowledge is power, ergo — education must be resisted, manibus pedibusque, tooth and nail, lest the sons of education should run riot. If, to save appearances, there mtist be education, it must be only that of the catechism ; or, at most, the catechism and the lives of the Saints ; and even these they had better not be taught to read, but only to repeat by rote, lihe parrots. As to Commerce ! By all that is dear in cens and lods et ventes, don't encourage — countenance — even whisper Commerce. Teach them, as the Chinese N 111 are taught, to hate and abjure all nations, except their own. In short, Keep down the People. For God's sake keep them dark AND DOWN ! Educate a few, but only just so many as will help, and of such professions as have interest in helping, to keep the BULK OF THE PEOPLE DARK AND DOWN. No feat of LAWYERS, no fear of Priests : they'l be loyal to the Seigneur system — loyal to the last man ! * Keep off emigrants : drive them from the Seig^euries : frighten them from the Province ! They know tou much : they talk too much. Keep still ! keep dark ! and keep thf. PEOPLE tJOWN. If once they see and rise, we fly or fall. This is what, a priori, I should have inferred from the known principles of human nature, and the circumstances of the parties, t^i have been and to be the policy and practice of the Seig^orial party. On the other hand, if any one will tell me precisely what are tht^ feelings and wishes of the farmers or censitaires, English or Frencli, I will tell him to a nicety what is the degree of their mental degra- dation below the common level. If, as is asserted, they are content with present circumstances, attached to the system, opposed to any change, their degradation is not only deplorable, but awful. They are not merely sunken and sinking, they are absolutely perishing for lack of knowledge. But no : it is not so : it is not true. While the leading men of the French party — [aays Lord Dubham,] — thus rendered themselves liable to the imputation of a timid or narrow-minded opposi - tion to these Improvements, the mass of the French population, who are immediate aufferers by the abuses of the Seignorial system, exhibited, in every possible shape, their hostility to the state of things which their leaders had so obstinately main- tained. Is it possible that the English Government can have read this pas- sage ? Is it possible, having read it, that though they can smile upon and persist in their endeavours to soften down with favours the very leaders of rebellion, they yet can show no favour, have no bowels of compassion, for the tens of thousands of amiable, hard- working, silent, suffering farmers ? It is even so. In a note his Lordship goes on to mention a petition from the inhabitants of the County of Saguenay, and supported by Mr. Charles Drolet, late M. P. P., for that County. The petitioners, who represented themselves as suffering under a degree of distress of which the existence is too deplorably certain, prayed to be allowed to settle on the wild lands at the head of the Saguenay. They expressed their willingness to I ivl • This moit be taken with aome grains of allowance. There are acme honourable exception*. 112 tnkp (he land.') on nny cnnditlonii M'hich the Gnvprnment might propose, but thtjf jiraytd that it thould not be granted on the feudal tenure. Was this prayer attended to ? Were these men allowed to settle on tlie wild lands ? O I how my soul does sicken at such conduct. Where are our Patriots — our Statesmen ? — our public men of sterling sense and virtue ? Is the race extinct ? On whom do our jM'Psent Rulers shed their favours ? Will they never learn from others' conduct, what all the world can read in theirs, — the truth of this old French proverb ? Orignez vllain, il vous polndra ; Poignez vilain, il vuus oindra. I cannot give a translation, but I give something like an imitation. Caress a curst cur, — he'll snarl and bite your fingers. Kick a curst cur, — he'll fawn and lick your fingers 1 Will our Rulers never cease anointing villany, to see themselves kicked and cuffed by their anointed villains ? * It is with no pleasant feelings that I find myself reduced to the necessity of foregoing, for the present, my purpose respecting the Custom of Paris. Were I to persevere, my pamphlet would swell t(» a volume, and its publication must be delayed till those great measures would have been taken, blindly, and at random, which it is my object to cause to be prosecuted cautioiisly and with the utmost circuitispection. It is now the 7th day of December: a hundred pages of my pamphlet are printed or in type : by promise it was now to have been published ; and I seem to have travelled scarcely half juy journey. " On, Stanley ! On !" If those who wish to know more about the beautiful simplicity of our Canadian Laws will insure nio the sale of five hundred copies, I hereby undertake to publish the Coiitume de Paris, with a Translation and Commentary, embracing. * Tliia anointing (oignement) puts me in mind of the tale of the Spanish barber.— i)/onfr«a{ W'TrtW, Dec. 7. All Irish gentleman travelling through Spain, went into a barber's shop to get shaved. The man of foam, with great obscqiousness, placed his customer on the chair, and commenced oper^ ations by spitting on the soap and rubbing it over the gentleman's face. Blood and 'onnds ! was the illigant remark of the Irishman ; is that the way you shave a gentleman ? at the tame time preparing, in hit tvrath, to overturn the tmg minister. " It is the way we shave a gentleman , Senhor." Then how do you shave apoor man ? " We spit in his face, and rub the soap over that," was the Spaniard's reply. N.B.— In one respect the illustration fails. When our Whig Ministers get kicked and cuffed by their Irish uud other customers, it is for want of more of their anointing I 113 as far as possible, the opinions, concordant and contradictory, of all tbe leading authorities on the subject. The necessity for such a work will of course depend, in great measure, on the decision of the Im- perial Parliament respecting their further toleration of a system so destructive of the Province. That it is destructive of the Province I have shown in part ; and though greatly pressed for and impatient as to time, the paramount importance of the subject compels me to proceed to a more complete exposure. The truth is, the more I search into this mystery of iniquity, the greater is my shame and indignation. j .,_ . . I now come to speak of a subject even more important, more per- nicious, more obstructive to transfers and improvement of estates, to the creation of a Landed Aristocracy, and to our prosperity as a Pro- vince, than either quints, or lods et ventes ; — a subject, besides, much less understood, and much more difficult to understand — namely, hyj}otheques. On a subject so difficult and important, though I can- not enter without a painful sense of ignorance and liability to error, I shall, however, not hesitate to run the risk of speaking and attempting an exposure, knowing that much is wrong, and of most pernicious consequence ; and wishing, if possible, at least to excite attention and create enquiry. ' Whoever has read the Minutes of Evidence so often quoted, must have observed the surprising ignorance and prejudice prevailing in this Province, — for what purpose fostered and propagated one may easily conjecture, — respecting the Law of England in relation to Mortgages and Landed estate. I allude especially to the evidence of Mr. ViGER, recommending — not a registration similar to that of Scotland ; not a Bankrupt Law, in accordance with the late aston- ishing extension and improvement of Commerce and Commercial Science, but — a re-establishment of the cessio honorum of the Romans as barbarized in France, accompanied with an amelioration of the Law of Canada, by the adoption, I suppose, of his projected bureaux de conservation d'hypotheques. My explanation must be very brief. Mr. Viger speaks. ., I must observe here the very great difference between the laws of England and the laws of Canada upon a particular point. The great necessity of these registry bills in provinces where the laws of England are in force, is, that there is no re- cord of sales as with us. Notaries are, by the laws of the land, obliged to keep the original act of the sale, and they only deliver copies; every body has a right to get a copy of the Act, provided that he has an interest in it. In provinces, where the laws of England prevail, ou the contrary, the original remains with the buyer, that U ^.^ 114 makM it npcCMMry, *n order to know the proprietor, that there should be n publie office where euch luilea should be recxirded. You probably are aware that in Scotland, where the law \* a mixture of the feudal law and the Roman law as in Canada, they have a perfect system of rexis- tration ? — Yes ; I do not exactly know the principles upon which they ore extn- blixhed, but they have the ccstiu bnnorum. In our country, before we adopt this system, we should take means of amelioratiuK our laws, re-establish the cr«irio bonorum, and subdivide the country. — Min. 148. Mr. VioER speaks here ns if the sole object of registration was, to ascertain the nominal proprietor. He must have known better. The object is that set forth in the quotation (p. 08) from Bell, " There is no record of sales — as with tut," This may be true ; but there are records of sale — often times more value than any " with us," for all the purposes for which registration is required — namely, un< doubted title, safety of mortgage, and Bank accommodation. I state the fact, and challenge contradiction. The owner of an estate not mortgaged, is, in England, in posses- sion of the deeds ; except when, for the sake of safe custody, (as is frequently the case), he deposits them with his Solicitor or Banker. In that case a prudent man will deposit them under his own lock and key. If the proprietor requires a mortgage, he signs a mortgage deed, which, together with the deeds of the estate, is delivered to the mortgagee. The consequence is, that without a knowledge by the party applied to for a second mortgage on the estate, of the prior in- cumbrance, it is impossible to be effected, — except by means of forged deeds, or of some other kind of barefaced fraud. I know there are such frauds, but I never knew or heard of one that was not attribu- table to shameful neglect on the one hand, as well as of gross delin- quency on the other. Now, what, in this respect, is the case in Lower Canada ? We shall see presently. But besides legal mortgages, there are equitable ; and as this is a subject of immense importance, respecting which I feel myself per- fectly competent to speak, I must request attention to what follows. Every one, whether Attorney or not, has, by the Common Law, a lien on the specific deed or paper delivered to him to do any work or business thereon, but not on other muniments of the same party, unless the person claiming the lien be an Attorney or Solicitor. So where a Banker has advanced money to a customer, /«« has a lien upon all the securities which come into his hands belonging to that person for the amount of his general balance 1 unless there be evidence to show, that he received any particular security under special circumstances, which would take it out of the general rule. — Selwyn, Jun., Abr. of Law of Nisi Prius, v. 2. p. 1279, 4th ed. 8to. Trover. This passage I extracted in 1823. The Bank in which I had then 115 bnen five years, and in which I continued ton years longer, though one of the oUIeat and most extensive country Banks in the Kingdom, knew nothing of this prerogative of Bunkers respecting equitable mortgages, and were incredulous at first, even when I had shown my authority ; and I have reason to believe that not more than half the Country Bankers iu the Kingdom arc yet aware that such is the Law. The consequence, with respect to those that know it, is this. A landed proprietor, requiring a temporary loan — say for three, six, nine, in some few cases for twelve months, — having his deeds in his possession, and not wishing to expose his affairs, or subject himself to an unpleasant obligation by asking a friend or neighbour to sign a joint note, takes his deeds to his Banker, deposits them, takes u memorandum of his having done so, signs a single note, — and there is his money. I have had in my possession, as Manager, scores of parcels of deeds pledged for money in that manner, nine in ten of which were not so nnich as shown to the Bank Solicitor. If, on examination, I saw any thing to create a doubt, the Solicitor was sent for, whose charge for the examination would generally be from 2s. 6d. to 7s. 6d. — seldom 10s. Would the censitaires of Canada have any objection to this kind of accommodation ? Would the Bankers ? Not if we had, as we ought to have, the Laws of England. For what now is the situation of the Landed Proprietor in this Province, with respect to Bank accommodation ? and, per contra, what is the situation of the Banker, with respect to the Landed In- terest ? Is it, as Mr. Viger would have us believe, vastly superior to that of the corresponding parties in England ? What though Notaries are obliged to keep the original act of sale ? and wliat though every body interested has a right to get a copy of the act ? Is any body, however interested, any the better for having got a copy ? Can he tell that the possessor is any thing more than the nominal possessor ? Can he tell, or can the Notary tell him, that the estate has not been subsequently encumbered with twenty hypo- theques ? Can he tell, or can the Notary tell him, any thing that would warrant his advancing five pounds on the faith of any claim on the estate which the proprietor can give him ? I answer No, and will prove it presently. A word, in the first place, about the cessio bonorum. By a Provincial Statute passed in 1785, power was given to merchants and traders to take the body of their debtor, though he / llG were not ii trnJiT, nnd nftcr oci/inf^ nixi HclIing nil lie lind, to ko4>p him in jnW forever, — iuiIuhm Iiu t'oiiiid mcuiiM to diHcliurge tlie buluncu | find such I* Mr taw at prcaentJ* By tliiit Ordinance, or, un ho «'X« |»r4'!iM(>ri it, " by an interpretation which has been given to that Ordinant^e," Mr. \''iaKii telU w* " it Ihih been iindertitood, that tlin ressio bonorum, which i.v a part of the Law of Lower Canada, had been abolished." (p. 148). In such a vase, to talk about " interpre- tation" is absurd : inasmuch as the co-existence of the ccssio with such a Statute, is impossible. Rut i have heard a gentlenum of the ]u'ofession deny, that the vessio bonorum ever was the Law of Lower Tanada. So much for simpliciti/ again! Granting, however, that it was, ought it to be re»t<»red ? If it were, in what kind of garb would it come invested ? In that of the age of the Coutuine tie Paris ? or would it be imported direct from Uouie ? I (]uote from Bkll. Tlu> Inw of (■eN>ti> kniKiniin liiul itn origin in Rome. It wait iiitrodiiri'd by Jitlius C.^^4All as II rciniMly n^aiiist the M'vi-rity of the old lawx of Iinprlxoiiini'nt ; uiid lib law, which iiicludfd only Itoiiie uiid Ituly, was, liefore the time uf Dioclktian, exteiidi-d to tlie Provinces. TIiIn iiiKtitution, having been greatly improved in tiiu Civil Law, wax adoptt'd by thoste of the European nationii who followed that sytitein of Juri>prudeiire. In France, the institution was adopted very nearly att it wiw rei-i-ived witli us. Perliaps, indeed, it was from France tliat our law on the sulijeut received its dl.^tinguishin^ features. The law in that country was, during the 17th century, vxtiemely severe, not only a);ainst bankrupts (which name they applied t» Ihiuduleul debtors alone), but against debtors innm^ently insolvent. It was in \b9i that tlie Parliaments in France established, by arrets, the green bonnet, as the habit of tlie vcsaioitiiire, AVithih fourteen years after this, in lt)0.5, the Court of Session in Scotland made an Act of Sederunt, retiuiriiig the majristrates of iMlinburgh to ere(;t a pillar near the market'cross, with u seat upon it, — quhnirupon, in time comiii;;, sail he sett nil dyvuris, and sail sit tliairon aiie marcatt day from ten hours in the morniiiir quhill aiiu hour albT dinner ; and the saidis dyvoris, before their liberty and cumin;; furth of the tolbuith of ]Mlinbur;;h, upon their awn charges, to cause mak and buy ane hatt or bomict, of yellow ciiloure, to be worn be tham all tlie tyine of tliair sitting on the said jMllcrie, and in all time thuirafter, swa lang as they reinaiie and abide dyvoris, with spcciall provissioon and ordinance, if at uny tiuie or |>lace efter the piiblicatioun of the said dyvoris, at the said marcatt-croce, ony jtcrson or personis dedarit dyvoris beis fuiidin waiitand the foresaid hatt or bonnet of yellow cidoure ; toties, it sail be lawful to the baillies of Edinburgh, or ony of i;is creditors, to tak or apprehend the said dyvour and put him in the tolltuith of Kdinburgh, thairin to reniane in sur custodie the space of ane quarter of ane year, f >r ilk fiiult and fellie foresaid." In I'jCjO, *' u whole habit was ordered to be worn, the one half yellow, and the other brown, with a cap or hood, which they are 'to wear on their head, party-coloured, as said is.'" — Cvmmentaries, v. 2, ;». 582. Whether this is the kind of hailecpiin ccssio which Mr. Viger wants, I cannot say. If, as now modified in Scotland, it were to be * Tlie report of the alluwauce of our Bankrupt Ordinance proves to have been incorrect am glad tu And it so. 117 intro(lii(H>(l, togollicr with tlK>ir mirivnlliMl nankriipt Law, ndnptcil to uiir ciroiiiiiHliuicos, I hIiouUI tliink ll < nicasuro ndniiruble. I am HO Scotcliman, hut I nui oiiMJly •ii>«> thnt thuir Dtiiiknipt Law ih far btittur adapted to our wantn and rirciiinstancos than is that of Eng- land. It« h'uding and bt>Mt ftMituro ix, that the crcditom do all, tlio lawyers next to nothing. Tho Scotch for money matters — Bank- ruptcy and Banking ! Tho word fu/potfi?que, as well ns our hypothecate, to pawn or pledge, U frctm tho Latin hypothvca, n pledge, or a mortgage ; or the thing or heritage so mortgaged or pledged. These all nro from tho Greek hypotheke, res qnie pignori datur ; and this from hi/potithemi, snp- pono, to put in the place of, quia supponitur pro pecunia, idivc re quo; debetur. Originally, therefore, tho word signifies strictly, a pledge actually delivered ; but neither in tho Roman Law, nor in the French, nor in tho Scotch, was delivery essential. In this res- pect it differs from a pledge. The old French hypothequo appears, so far as I have seen, to bo the Roman precisely.* For instance ; that of Rome was divided into three kinds,! the conventional, the judicial, and the legal or tacit ; being respectively, a simple convention, a judgment of a court, and a mere implied, or legally presumed, assent of the parties. For this legal knowledge I am indebted to Bell's Commentaries, — an admi- rable work, imported by me on occasion of the passing of our Bank- rupt Ordinance last spring, for the purpose of funiishing materials for publishing on tho subject, in case that Ordinance should be allowed. For the benefit of the hypothecary-ridden, as well as of the hypothecary-terrified public, I quote as under. Conventional hypothecs have, in almost all the commercial states of Europe, been either banished entirely, or subjected to such restrictions as may prevent material injury. On the continent, it is a rule, almost universal with respect to hypothecs on immoveables, that ihfi/ have no efficacy unless entired into hy solemn deed, and recorded: Ne, si eadem res pluribus semel obligetur, homines decipiantur.;^ In Holland and the Low Countries, in Germany, in the Italian States, in France and in Spain, this Law was adopted both with rei>pect to geueral aud to special hypothec* on immoveables. — Com. v. 2, p. 25. The author refers, in a note, to his authorities ; and the reference, ■ I find I nm mistaken hero. L'hypoth^que judii-iairc, arcording to a French authority, ii purely French; and was unknown in the Roman Law. Lcga^ejudiciaire was acquired, under thn latter, only by a judicial seizure of the debtor's goods ; whereas I'hypoth^que judiciaire proceeds from the judgment itself, without execution or actual seizure. t So says Bell, and he ought to know. I had understood that it was divided into four kinds. I Lest, if the same thing should be repeatedly hypothecated, men should be deceived. V -A' 118 with respect to France, U to Pothier. (Euv. Posth. v. 1, p. 420* How^ stands the matter in Scotland ? ■ III this country the common law very early declared itself against conventional hypothecs. This repugnance may be traced back to the days of Sir James BaL' FuuH, (p. 194,) and even to the Ret;iam Mnjestatem, (lib. 3, c. 3.) ; but it is suffix cient to refer to Lord Staib, who (in the end of the 17th century) lays it down, that ' our customs have taken away express hypothecations of all or part of the debtor's goods without delivery.' And the principle, as he represents it, is, ' that COMMERCE MAY BE MORE SURE, and that evety one may more easily know the con- dition of him with whom he contracts'* So strongly has this doctrine been e>stab- liHhed during all that period to which our printed reports reach, that thouj^h many questions are to be found relative to tacH hypothecs, there does not appear a single case in which it was attempted to give effect to a conventional hypothec ; and the law, as delivered by Lord Stair, is almost verbatim repeated by Erskine. — Com. v. 2, p. 26. What is now the law of hypotheque in France I regret that I can- not state — excepting that it has undergone a thorough reformation, llow is it here ? By way of preface : Un traite des hypotheques est un recueil de precautions centre Ics frauds et les infideletes des homnies. ' A treatise of iiypotheques' — so says St. Evremont, — ' is a collection of precautions against the frauds and perfidies of mankind.' The Greek precaution was, that when any thing was hypothecated, — pledged, but not delivered, — it was required to be visibly marked or branded. Roman and French debtors did not like this kind of pre- caution. The latter, it seems, chose rather to run the risk of wearing the green bonnet ! In proceeding to state, as briefly, but as clearly as I am able, our Canadian law of hypotheque, I observe — that the thing hypothecated has this in common with the pledge (gage), that both aie accorded to the creditor by way of surety : and that the debtor cannot engage the same thing to a .second creditor to the prejudice of the first. Secondly, that the hypotheque differs from the pledge (gage), in that the former term is applied, in general, to immoveables ; the latter to moveables : that the hypotheque gives to the creditor the right of folloioing the thing hypothecated, into whatever hands it may have • utile liiiiiourable and learned gentleman, Mr. Grant, knew, as he professed to know, the I.aw of Canada, according to tlie provisions of the Custom of Paris, and especially with respect to hypotheques, it was infamous that ho should deceive the House of Commons by pretending, as he did, that it was not ii\jurious to commerce. But for this blessed Custom, Montreal might now have been the rival of New York ! j4nd it will be yet, spite of our winter; and it shall BK SOON— if I do not reckon without my host. By what means ? By means of British Laws TO poster British Commerce, Hitherto we have bad French Laws— to foster its ex- clusion. 119 passed, and to force the holder to this alternative — either to discharge the debt, or to give up the property in question to he sold t and that (as before stated) whereas, in case of pledge, there can be no security to the creditor without possession ; the hypothecary security requires no tradition, no possession ; no particular or even special designation ; notliing, in short, beyond a tacit obligation to abandon tiie property hypothecated in case of need. Hypotheques are divided into simple and privileged. The simple gives to the creditor no other preference than that of date ; so thut the first in time is the first in right. The privileged do not follow the order of time, but take precedence of the simple, as presently to be explained. Hypotheques are further divided into general and special : the former affects all the debtor's goods, generally speaking (tons I('«i biens generalement quelconque) as well those afterwards to be pos- sessed as those in actual possession : the latter is restricted to the particulars marked cut and designated in the contract. It is worthy of observation here, that, in a contest of creditors, the specialty carries no preference, and, consequently, creates nj exception to the rule of priority of date. In some respects, the general hypothcque has decidedly the advantage. Respecting the goods which are susceptible of hypothecary obli- gation, I find (contrary to what the words above quoted might induce one to suppose), that moveables are excepted : que meuble n'a pas de suite par hypotheque. Nevertheless, this kind uf obligation is not restricted to the material pai't of the immoveables (so to speak), but iucludes tlie real rights depending on thom. I may instance in, rent fonciere ; rent in kind (droit de champart) ; right of usufruct (so vhat, if sold, the price must be distributed in the order of hypotheque) ; certain venal offices, seized by authority of justice before resignation accepted, &c. A man may hypothecate his estates for any kind of lawful debts whatever, — his own, or those of any other party ; actual or contin- gent. For instance ; I promise a woman a dowry, the husband obliging himself, by the marriage contract, to return me the money after his wife's decease, and assuriiig the payment by engaging to me all his property. Some time after he gives a hypotiieque to a third party ; and it is not till afterwards that he receives the dowry which I had promised. Shall it bo said (asks the writer whom I follow) 120 because it was competent to him to refuse my money, that my hypo- theque ought to bear date only from the day of payment ? No, replies the law. Non, repond la loi. This, however, is a question fiercely contested ; but the law and the weio^ht of authority are clearly as above stated. , *^ What is called a conventional hypotheque, is yet not purely con- ventional, as in Rome. It requires the concurrence of a third j)arty — public authority. The agreement must be attested by a Notary and two other M'itnesses, or by two Notaries. It is this tttre rather than the convention, which gives it the force of a hypotheque. But by the 107th article of the Custom, I find that the force of a tacit hypotheque may be given to a promissory note. The article runs thus : A private schedule which contains a promise to pay, carries a hypotheque, from the day of its reco;{nition or confession in judgropiit, or before a Notary, or when, by jiidirinent, it shall be held to be confessed (as in case of default), or from the flay of the denegation, in case it should afterwards be veriiied. I further read, that in the jurisprudence of the Parliament of Paris the surety (caution) has a hypotheque on all the goods of a principal debtor, for principal and interest, from the day when the instriunent was passed before a Notary : and the vender of an estate hits a privileyed hypotheque on the estate sold for the payment of llie price. We have seen that the judicial hypotheque of the French, is essoiitiully different from the judicial pledge of the Romans, inasmuch as the former leaves the debtor in possession of the property. This kind of hypotheque, as well as the general conventional, comprehends tlie whole of the debtor's estate, present and future. Tiie woman who marries without a special contract, has a tacit hvpotheque in the estates of her husband, from the day of the cele- bration of tlie marriage. And is not this a pretty sort of a law ? Nota bene. On ne pent s'enipi'cber d'nbserver qtie cette hypotheque est line porte ouvertc anx iViiudes, ]iiir lt> innyen de Inquelle on pcut avaiitagcr des crcanciers posterieurs, ail prejudice des ])reniiers : car les cruiniciers posterieurs qui ont la femme pour obligee sont coUoque sur ses reprires,* qu'elle exerce jusqu'fi ce quelle sorts # It is not one of the least of the diflirultics I have to enronnter in thi-i nntiqunrian search into liiper-barbarian law, to umierstantl the terms. What for iustnncc, are the wife's repritet f 'I'hey include, snys my fruldc, all that she is entitled to resume or recover from the common stock, or from the (foods of the husband after his decease. But what is that all ? I have not unfrequently had to speud hours in huntin;; fur an answer to such questions, and sometime* tu no purpose. 121 indemne. On epuise par-l4 tous les biens du mari, et les creanciers qui n'ont pM la ffimme pour obligee, Bont frustres, qnoiqu' anterieurs a ceux qui sont payes. C'est pourquoi il est prudent de ne pas contracter avec un homme marie, 4 moins que la femme ne consente a s'obliger avec lui, ou que ce soit pour quelque cauM privilegiee. One cannot help observing that this hypotheque - > - t« an open door to fraudU, by means of which subsequent creditors may be advantaged to the prejudice of those preceding ; for posterior creditors who have the wife for a surety, rank with her in her marriage rights, which she, of course, will exercise till she goes forth indemni* fied. By this means, the entire property of the husband may be exhausted, and the creditors who have not the wife for a surety, though anterior to those that are thus preferred, will find themselves defeated — fairly balked I For this reason it WERE PRUDENT NOT TO CONTRACT WITH A MARRIED »IAN (except where your debt will be privileged) unless his wife accord roc her joint obligation. Here's a law for the encouragement of Commerce ! for the security of Banks ! for an extension of the benefits to be derived from banking ! for the prosperity of Canada ! for the glory of Old Eng- land — the Queen of Nations ! Having thus sketched the history and the law of hypotheque, I come now to speak of its effect. In doing so, I must beg a special reference to the evidence of those gentlemen who, as representatives of the Franco-Canadian interest, endeavoured, — and, as it should seem, successfully endeavoured, — to persuade the British Govern-- ment, through the Select Committee of the House of Commons, that there is nothing in the Franco-Canadian laws of Canada injurious to British interests, nor any thing repulsive to British settlers. I allude especially to the passage quoted (p. 92) from the evidence of Mr. CuviLLiER, which, in substance, may be found iterated and reiterated both by himself and Mr. Viger. We have seen that quints and lods et ventes obstruct transfers of estates, (see p. 101), by deterring parties wishing to sell. I shall now shew that hypothcques obstruct such transfers by deterring parties wishing to purchase : that they further obstruct them by in- ducing, in addition to the fines above-mentioned, a heavy tax, and, not unfrequently, a tremendous loss upon the seller : that general hypotheques almost entirely supersede, as well they may, those special ones, which alone bear any analogy to an English mortgage, and which alone are capable of being registered : that they frequently cheat the British Merchant of his supposed security, and of the debts which he supposed to be secured, and by so cheating greatly dis- courage commerce : and, lastly, that they oppose an impassible barrier to bank accommodation in any other shape than joint personal security (discounts), thereby restricting such accommodation almost w i!ir- m 122 entirely to British merchants; exchiding altogether the lower grades of the landed interest (the censitaires), and so keeping the country unimproved and unproductive ; and driving the retail trader, whose business creates no paper for discount, (whatever may be the value of his real property), to manufacture ^c/t^iou« paper, such as a prudent Banker will not discount ; and then driving him to the shav- ing BANKING PEDLER to get it cashed. That such a system, in tills boasted age of light and political economy, should be upheld ; and by Great Britain too, — the greatest financial and commercial nation under heaven ! and by the most enlightened and liberal Whig Government that ever Britain had to boast ! — O, how sweetly grateful must be the thought ! How soul-expanding to The generous mind that's not confined at home, But spreads itself abroad tlir>>ugh all the public, And feels for every member of the land 1 The first witness which I shall call to my assistance is D. B. ViGER. Supposing a person borrows a sum of money upon his bond, does that carry hypoth^que 9 — It does not, unless exeoated before a notary. Must it have reference to the estate ? — That is not necessary, provided it is passed before a notary, that carries by itself the right of ht/potheque. Then a person who sells an estate, wishing to deceive the purchaser, might keep back those hypotheqnes 9 — Yes ; and that is the very reason why we have recourse to a sheriffs sale. — Minutes, 147. ' A SherifTs sale !' an immigrant would be rejidy to exclaim : — * what does that mean ?' O ! nothing to be alarmed at. It's only a rather expensive — I should say, a rather profitable sort of purge, which Canadian lawyer-doctors prescribe and sell ; — rather griping perhaps sometimes to weakly patients, but very necessary to the health of the incoming, whatever it may be to that of the drastic-driven out- going one. All this, however, as to the evil, is nothing to the pur- chaser. He neither pays nor purges — unless he foolishly refuses to let the said lawyer-doctors sweat and purge the seller. If he be so foolish, he'll catch, by contagion, what will make him sweat. What, then, is the effect of a Sherif 's sale ? It '< removes,' ' says Mr. Ellice, p. 54, " all incumbrances." I marvel that Mr. Ellice, a gentleman so deeply interested iu this matter, should have been so dangerously mistaken. I give this public warning to all whom it may concern, that it does nothing of the kind. Call Judge Gale. Supposing that land is mortgaged for any given sum, and that that land is to be dl al ail bJ 193 divided under the French Canadian law amongst all the children, how would niicIi a divisiun be consiHteiit with the security of the mortgage, and whnt i^t the operatimi or nature of the mortgage ? — The mere division of land under the French law among children, is not inconsistent with the security of a morts;age under that law, bfcause the creditor's right would extend to each and every portion ; that ri^ht could only be defeated by claims superior in privilege, or, if of the same nature, prior in date. What, however, the English in Lower Canada commonly know and call by the name of a mortgage is rather the hypntheca of the Roman or civil law, and the French style it an hypnthhiue. It eNtublishes a right to be paid out of the real estate the sum stipulated or due, fur which purpose all lands may be brought to sheriffs sale. ......... Some of the consequences of such a state of things may not be difficult to be imagined, although it could be hardly possible to state them all. I may suppose a case : A. B. C. & D., like most others in Lower Canada, may have respectively passed notarial acts, or otherwi^ie constituted general and tacit mortgages or hypo- thiques in any of the various modes in which they can be effected. A. sells a farm to B. ; the farm is liable for years to be brought to sheriff's sale, not only for all the hypothecary or mortgage claims constituted by A., but also for those constituted by B. B. sells the farm in a few months to C, and it becomes further liable to tlie hypothecary claims against C. C. in a year or two sells the farm to D. The farm has gone on with increasing burthens, and is now charged with all the claims against A. B. C. & D., whcTi perhaps a British emigrant purchases, pays for it, and after increasing its value by the outlay of money and labour, is called upon to pay some of the claims, and in consequence abandons the property. The case sup- posed is not fancy, but fact. I have known even a lawyer purchase property, which, after making payments to the vendor and creditors, he afterwards abandoned to the claims of other creditors, whose demands he had previously no means of knowing ; and I have known lawyers lend money on mortgage or hypothique, and after a lapse of eight years be deprived of principal and interest by an unsuspected claim of twenty years standing. I have been in tins predicament myself. Sheriff's titles are indeed held to bar all hypothecary claims except the French dower, and I have sometimes, for this object, obtained- a sheriffs title. On one occasion it cost me upwards of £30, and on another upwards of £25, which last waa more than the land for which I obtained the title would sell fur Minutest 2t>3, 264. Here we see that the right of dower takes precedence of an ordinary hypotheque. Now this dower, by the Custom of Paris, where there is no stipulation in the marriage contract to the contrary, consists of the usufruct of half the immoveables or real property of the husband, (commencing from the day of his decease), which he either possessed at the time of marriage, or which fell to him during the marriage by direct inheritance. This usufruct belongs to the widow during her life, the property being reserved to the husband's heirs, who have, in security of this their customary right, a hypotheque on the entire property of their father from the day of the espousals and marriage benediction : the father not having it in his power either to alienate or hypothecate those estates subsequently to the marriage, except as subject to this prior charge. But I go further. There are various other charges which a SheriflF's sale does not purge, and every lawyer in the Province knows it. Call Mr. Neilson. %\ u 1^4 Are slierlfF's sales very common P^They have been very common. Whnt is tlie cause of their being so common ? — They have become very common tfiiice the cloHe of the last war, because the country became poor ; real property particularly diminished in value ; those that had claims upon it insisted upon pay* ment, and sued, and then it was seized by the sheriff and sold. Uas that been resorted to as the securest mode of conveyance in consequence of the defect of the law ? — It has in several instances ; the Legislature passed a hill providing for voluntary sheritf' s sales. That is a proceeding something like a dccret under the French law ; the parties come into court and say that they wish t>) have the benefit of a ducret ; under this proceeding there is public notice to all the world that such property is to be sold, so that every one may come forward and put in his cliiim ; then the sale takes place, and the whole is under the inspection of the court to see that every one gets his due ; then every one having got his due, the title to the property is more secure than it would otherwise be. Then a large portion of public property has fallen under sheriff's sales on account of the defects of the law ?..,.... Do they bar a prior mortgage upon the estate ? — Yes, all mortgages except rights ■>f minors and persons absent ; persons in fact that cannot come forward and answer for themselves. Then it is not a secure title against them ? — It is not a secure title against per* sons that have it not in their power to exercise their right of coming forward, tbey c'lnnot be deprived, that is universally so understood. — Minutes, 1 18. But I shall venture to go still further. There are various other cliarges which a Sheriff's sale do not purge. Is it not thus with the chef-cens ? So I understand article 357 of the Custom. Is it not so with le droit d'emphyteose ? If not, what mean these words ? Les auteurs detiideut que le proprietaire des heritages donnes a bail einphyteotique, n'est oblige de former opposition au decret qui s'en poursuit sur le preneur, que quand la duree du bail est expiree. These leases may be for any term exceeding nine years, and under a hundred. Lastly, is it not so with substitutions dont le droit n'est pas ouvert ? Of the effect of this insecurity respecting a clear title, on parties wishing to purchase or to lend on mortgage, but incapable of forming any tolerable estimate of the risk, one may judge confidently without the help of testimony. However, that nothing may be wanting in this respect, I must beg to iippeal again to Judge Gale. Does tliat mode of conveyance which you have described as existing in the w'igneuries interfere at all with the transmission of real property ?— It renders it always very uncertain and very insecure. And I have known a number of per- !Vhat effect has it upon the interest of money lent upon mortgage ? — It has this effect, that it is generally very difficult, and tliat there is often no such thing as getting it upon mortgage ; and that keeps back the improvement of the country ; because if money cannot be borrowed upon the credit of land, there must be a great deficiency of requisite capital to be employed in its improrement..^Af>nufe«, 113. 125 And what is the efltBct as it respects improvements ? Mr. Ellice. Witness Is it consistent with your own knowledge, that nanny persons who come out with the intent to settle in Lower Canada, have been induced from the difficulties that obstructed tliem to pass over the boundary and settle in the United States ? — There can be no doubt of it. I have had, in particular instances, two or three successions of British and American tenants upon the same land, who, after experience of the French tenure and restrictions, have abandoned their improvementii, which any agents have re-entered into possession of, and sold to a considerable profit. — Min. 65, And what effect have these hypotheques on commerce ? and how does it appear that they cheat the British Merchant P Answer Mr. Gillespie. In what way do the dissensions which prevail in the Lower Province obstruct the operations of commerce, and the improvement of the Canndas? — By preventing the enactment of laws necessary for the security of trade. There is no such thing as knowing, at present, when real property is mortgaged or not, and we are, in the general course of our trade, in the habit of advancing to different people merchan- dize, taking security on their property, and frequ. ntly finding, in the end, that this security is good for nothing, inasmuch as it has been mortgaged before to its full value, and we lose the whole advance : this I know from experience as u merchant. In what way have you experienced the inconvenience you mention ? — In conse- quence of taking security for goods advanced to people who were ready to offer their property as security ; but when we came to discuss the property, we found that others had previous mortgages on it. Have you any reason to think that this has frequently happened ? — In our general trade it has frequently occurred to us. — Minutes, 210. If Mr. Gillespie had sought as closely into the policy and legal maxims of the Franco- Canadians as I have been seeking lately, he would hardly have attributed the prevention of enactments necessary to the security of commerce to " dissensions" as the cause, but rather to the cause of those dissensions — namely, a determination to with- stand whatever would be likely to further British interests, or inter- fere with French Supremacy. Had Mr. Gillespie been aware of this, perhaps his house had been less frequently exposed to imposi- tion. If further evidence to this effect be wanted, I refer to Mr. M'GlLLIVRAY, p. 101, Mr. VioER having, in the course of his evidence, observed, — " the laws of our country with respect to prescription are, generally, pretty simple ;" and offered some statements in proof, was asked this question : — Then how are you satisfied that a good title is produced, either for ten years, or for twenty years, or for thirty years, as the case may be ? — It would depend upon particular circumstances ; you must examine whether there are absentees, and [whether] there are minors, or other persons incapable of exercising their rights ; all this is very easy for a man of experience, but it would be difficult to explain it X 120 t* ^loriinns not exnrtly nRqiiiiintod with the prinniplea of our law. . . Tt would \w iieoMNury to Miy, thiit if thiTi^ U any fear of hypothvquei, the only means we have at preitent, niiil the only poitMible niennK, I think, in any good st/tlem, is to have fiToiirse to a ducret (HlieritT h mi)«), that would, to use a techuical plu-ase, be suffi'- <'.ient to purge all charges except duwer. — Minuteg, 14(>. This gciitluinan must have thought — and perhaps he was not much out in thinking — the Select Committee " pretty simple," or he would never have thought to gull them afiter this fashion. It is not true that Sheriff's sales purge all charges except dower : and what means this " If there is any fear ?" Mr. Vioer evidently wished the Comniitt«.'e to believe that the fearful cases were very rare 1 Tiien how comes that to pass which every body knows, and in proof of which I quote Mr. M'Gillivray, p. 101, that they " are so general, that if you take up a Canada newspaper, particularly the Quebec Gazette [now the Official Gazette'], you generally see half irf'it occupied with Sheriff's sales." Tlixa fetch of Mr.ViQER reminds me of the piissage quoted ante, p. 92. Let us suppose him address- ing a new-catchod Johnny thus. ' You, Mr. Immigrant, are not aware, perhaps, that what is called feudal law in Canada, has no precise analogy with what is called feudal law on your side of the Atlantic ! Ours is of the ancient pedigree and noble parentage : yours is of a low-born bastard breed ! Ours was brought direct from the father-land of feudality, and is still preserved in all its native purity and simplicity : yours has been defiled with what your com- merce-lovers arc pleased to call improvements and reforms! No quints and lods ct rentes, no liypotheques and sheriff's purges in your system! Ours is the feudality — [aside, — at the same time winking to his right-hand friend,] for us !' IIow do you know the former state of the title of any property which you may wish to purchase ? — There is no possiuimtv of knowing it. Must not that lead to a great many lawsuits ? — An immense number of law- suits AM) FKAUUS. I have seen widows and orphans, whose money had been lent upon mortgage, deprived of their all. There is scarce a term in any of the 4/ourts that piisses, without numbers of those frauds being brought to light Judge CwE. Min. 28, 29. Now, is not this an admirable system for harpy Seigneurs, sustaining and sustained by harpy Lawyers ' Such fiends to scourge mankind, — so fierce, so fell, Heaven never summoned from the depth of hell ! A virgin face, with wings and hooked claws, Death in their eyes, and famine in their jaws I Besides the heavy tax imposed on the seller, in addition to fines. 127 by the expense of a SheriiF's sale, (see the above>quoted evidei. *( Judge Galb, from p. 2G4), I have spoken of a further *' tremendous loss" 08 not unfrequently resulting. To explain my meaning I will suppose a case. A gentleman wishes to sell a property worth £800i The confirmation of title, as it is called, and which now takes place of the decret volontaire of the Custom of Paris, will cost £10. The expense of the Sheriff's sale depends on circumstances. I will be very moderate, and suppose £20 ; and these together reduce the value to £770. But £770 less quints and lads et vetites, must come down to £600 ; and this is all the seller must expect to get. But what now if, at the sale, £500 only should be offered ? Docs the law of Canada, like that of England, allow the seller a reserved bid, so as to save his fines ? I trow not. What, then, can be done ? The owner, to prevent the sacrifice of his estate, can get a friend to buy it in, as they say in England : but mark the consequence. That friend, too, must have a confirmation of title, with all the beautiful machinery of SheriiTs purge and Seignorial fines, before the owner must venture to take back the property. Why ? Because, though that friend should have it in his possession only half an hour, in half that time he may have involved it for more than it is worth ; and not only so, but he may have so involved it twenty, thirty, fifty years ago ! in which case, observe, should he be found insolvent, the estate is gone forever ! Such are the conditions imposed on transfers of estates by the simple, admirable system of Canadian Law. < No road but this. Sir Vendor ! and if you pass this gate, you pay the toll !* Now mark ye, men of Canada ! All this James Stephen Jun. knows : all this the Colonial Department, of which he is the Counsel, must all along have known ! and if less than all this be known to all the members of Her Majesty's Privy Council, it is a shame that they should exercise the functions of a Court of Civil Jurisdiction, in the last appeal. I put a plain question ; — let those who please consider it, — let those that please take fire. Canada is distracted — soulless — sunken. Does the British Government wish to see it otherwise ? Mark me ; — the event will presently discover. All things, as if by miracle, — unless it be the want oftoill, — concur for its immediate and complete emancipation and prosperity. Why do I say unless? Canada has been treacherously handed over, in the teeth of a Royal Procla- mation, to the tender mercies of a code of antiquated, anti-commer- Fi 128 dal, anti-English laws and customs : have the Government, notwith- standing all the light that has lately burst in upon them respecting Canadian afiairs, so much as yet begun even to entertain a thought of our redemption? In a case of such importance, I would not judge rashly : but actions have a voice, and I have eyes and ears. Th« Minutes of Evidence which I have so repeatedly quoted, do they not contain proofs the most convincing of the obstructing, cramping, terri- fying, locust-like devouring influence of our barbarian laws ? What then ? Did the Parliamentary Committee, in their Report, urge tho necessity of a reformation ? Here is the answer. The Committee cannot too strongly express their opinion, that the Canadlana of French extraction should, in no degree, be disturbed in the peaceful enjoyment of their Religion, Laws, and Privileges, as secured to tliem by BriliHh Act* of Parliament. — Report, To my judgment, this one fact is more convincing, as to t')o real purpose of the parties, than would be fifty thousand fine-spun spr'cches and professions. Religion forsooth ! For what purpose is this obtruded ? Had any body said a word or even whispered a wish for its disturbance ? Some Protestant Liberals are mightily attached to, and wonderfully sensitive about the enjoyments of, the Roman Catholic Religion. What can be the fellow-feeling that makes them so wondrous kind ? Is that religion so very friendly to the spread oi l^glit, and truth, and liberty ? Is it so very zealous to diffuse among the people the power resulting from mental cultivation ? Its priesthood, instead of being leaders of the blind, — are they so emphatically lights op the WORLD ? The Liberals can court the people, — rouse the people, — give knowledge and frightful power to the people, — when they happen to want their help ; just as they can court and convert to liberality the Catholics : but when, instead of being the outs, these gentlemen happen to be the ins, they presently begin to sing,^ — " Now the case is alter-ed !" and now you shall see them set to work to soothe the people, and to bambooBle them with empty professions and high-flown promises of future blessings : and yon shall see them engaging, a» their worthy coadjutors in this turncoat work of wheedling and selling lying expectations, those who, like O'CoNNELii, are Dons at blarney ; and those who, like his Master, best know how to forge shackles for the mind, and to lead the people blind and bound. I have no wish to interfere with any man's religion, nor would I now have mentioned the subject if it had not 129 II « ot thuii been needlessly obtruded. If certain men are pleated to make tbemselvcs apes and owls, thinking thua to do God service, or wishing others so to think of their rational and dignified doings, — why let them ; but they must not think to make apes and owls of all men, nor yet to make all men admirers of their apish tricks and owl- songs : — no, nor must our Rulers think t<» make us, for their aakea, aliens and outcasts, — hewers of their wood, and drawers of their water. We were not born for this, nor will wo bear it. Our Governor, in his Message to the Legislative Council of the Upper Province, observes, — •* For several years the condition of the Canadas has occupied a large portion of the attention of Parliament :" and again, " the experience of the last few years amply testifies, that the Imperial Parliament has been sparing neither of the time it has devoted to the investigation of their atfuirs, nor of the expendi- ture it has sanctioned for their protection." I admit that troops have been sent for our protection, and supported by the Parent State ; and that, so far, is generous and kind. Steam-ships, too, are about to be established and maintained without charge to the Provinces : and this again gives proof of kindness. What then ? Neither this nor that gives proof of kindness of the proper kind. What has Canada to do to live on charJiy, and be a pauper ? Is it for this that God has given us " unbounded materials of agricultural, com- mercial, and manufacturing industry?" Why, I ask, possessing these unbounded elements of wealth, do we continue poor and help- less ? Because, when we demand our birthright, our Rulers give us a mess of pottage ! We are faint and famishing by their fault, and for their low-souled liberality we are expected to be grateful ! They ought to know — what now I tell them plainly, — they are mis- taken. We are not the men to be thus cheated. Much time has been devoted to investigations of our affiurs ! Yes indeed ! and much to little purpose I Investigation of men's conduct, as contrasted with their profes- sions, has been the most serious and arduous occupation of my life. Of these investigations the object has been twofold, — a knowledge of what is true in principles, and a thorough knowledge of human- kind. What was the course of my proceedings ? Did I go to work as the Government go to work in their investigation of our affairs ? Not so. If I wanted to know the doctrines &c. of the Church of England, I read Hammond, Hooker, Taylor, Pearson, &g. If I ,i |1 130 wnntcd to know what Mothorliiini M-nn, I road the writingR of Jonw Wkmi.kv and John Flbtciieh. If I wanted to invcHtigat« th« €al* viniMtic MyHtom, rigid and mudoruto, I n>ad tho works of Cai.vin & (!o. If PhiloMo|)hical NucuHHity excited my curioiiity, I read Pkie8TL.bv, OROMniii:, IloriitM, and Colmnh. If MotaphyMcs, nERKEi.KV, LocKK, IIiiMK, MAiiKimAxriii;:, HiiowNK, and Duoald Stkwart. In short, I never drank from a mu(hly ditch when I was ahlu to rvnvh the spring. Is not this the proper course ? Rut has this heen the course of tlie Governm<>nt investigations of our (Canadian affairs? When I wanted to sean^h into the character of «Mir Canadian Constitution, I did not go ahout to enquire of John, Jamks, and Pktkr, what were their opini(»ns : I read the Articles of ('npituhition, the Prochunations, and the Acts. When I wanted t«t lnve»«tigate the character of our Canadian Law, I studied, as far a'4 circuuistancos wouM permit, the Coutume de Paris ; and to see the working of the system, and to ascertain the sources and the character of the evidence whicli furnished the ground or pretext for the measures of the administration, I read the Minutes and Report of tlie Select Connnittee, and the Despatches, &c. of Sir F. B. Hkad. Have the Ilonu; Government, ardently desiring — (so says our Governor) — as does every Dritish Statesman, our contentment and prosperity, — have tln!y proceeded thus ? The Canadians, of French extraction, arc not to he, in any the least degree, disturbed in the enjoyment of tlteir laws. What knows the Homo Government, what knows the Imperial PaiTiameiit, ahout the character of those laws? Have they investigated like men who wished to know? Has so much as a single man among them read the Coutume de Paris ? I doubt it. But they have heard the evidence of Mr. Viger respecting it ; and the evidence of Mr. CuvitiUER ; and the evidence of Mr. Neilsox, the author of tiie wise criterion of a good govern- ment ! (.lute, p. 92); and the evidence of Mr. William Parker, who said of the French Canadians, " They are, in my opinion, the best subjects that this countri/ has in any part of the world r Yes, and they have heard the all-subduing dictum of the Counsel for the Colonial Department ! and they have heard the solemn admonition of the Right Hon. R. G. Wilmot Horton, a Member of the Committee : I think the Union Bill of 1822 was defective in not more explicitly securing the rights, privileges, iinmunitics, uud advantages enjoyed by the French population 131 nnAn their own Inw*, ami making lurh lairt lo far permanent, a$ to he ineapahU oj'rtpeal hij Ihtt ofutulion iij'thit United Lnjiituturv.*. — lUinutei, 301. Tho British Purlianioiit may, if tlipy think proper, nttompt to make those laws j <(>rii)ant>iit ; hut tho Hritixh Purliainent, hcforo it venture! on t*uch a wino proceeding, had hutter pau«io a little longer, and in- veHtigato a little further. Hut (it will prohuhly ho ohjerted) heside tho evidence above men- tioned, did not tho ('onunittee hoar that of MoHMrti. Kli.ick, and Gii.LEsiME, and M'Gii.i.ivaAV ? Yes, and thoy hoani that of Judge Oai-k : and because it exposed the iniquity of their favourite system, never was witness in a jury-box more severely cross-ipiestioned, — with tho hope that ho might be confounded, and so convicted of self- contradiction. Was any feeling of this kind manifested to any of the favoured — all but treason-proa('liing — Franco-Canadian wit- nesses ? For his manly testimony, .fudge Gai.e was attempted to be hunted down, expelled society, blasted in character, and ruined. Spring Rice pursued him like a bloodhound. Tho Parliament of the United Kingdom, in all their plenitude of power, would not dare to do directly, what, by maintaining our Franco-Canadian Laws and Privileges, tliey are doing indirectly. The Province is barbarized. The nritish population, though living under liritisli Government, and promised, by Royal Proclamation, the Laws of Enoland, find themselves subjected to old — barbarian — long since exploded from the laud of their nativity — French laws and customs, by which they are robbed and driven out. Seeing this (as any man may see who reads this pamphlet) ; seeing also that tbe Home Government know it : that they have been told it by wit- nesses whose word they dare not call in question : and seeing, not- withstanding, tliat they receive with all complacency, and adopt '^^vithout a dissenting voice, the cannot-too-strongly-be-expressed opinion, that the institutions which work such consequences should, • Why wna this Right lion. Gentleman examined ? It rould not be for the information of the Commiltoo. No, but tluit his evidoiu-o might bo pubiislied, and so form part of tliat apologf for measures tliat had been pre-detormined, t'l" materials for which it was the very object of this investigation to collect. Through all '-r.h "rpentine proceeding I can clearly trace a pre- determination to uphold, and as far as possible to perpetuate those French Canadian " rights" which are our wrongs; those " advant.iges" for them, which deprive British Canadians and Britons born of the art vantage of living under British Laws ; thus robbing us of our " rights"— our very birthright, by making us aliens and outcasts in a conquered Colony. And wa» it for Uiis, shade of the valiant Wolfe I that Britain mourned her victor slain ? 132 notwithstanding, be maintained inviolate, — have I not a right to conclude, that jealousy instead of generosity stands at the helm of our affairs ? — that it is feared that no bonds of union, however strengthened, will have strength to hold us, unless we be kept down, — divided, poor, and paralyzed ? In a word, have I not a right to conclude, that the keeping of tlie Province poor and paralyzed, dis- tracted and dependent, by means of tlie French system of British robbery and expulsion, is part and parcel of the low-souled policy that now prevails ? jC'it why say now prevails ? Has it not all along prevailed ? Perhaps not. The situation of affairs in 1791 was very different from the present. However much we may deplore the consequences of the division of the Province, that was not the original transgres- sion. The fatal Act was that of 1774. I know it is pretended by French Lawyers and their English friends, that the Laws of Eng- land never were introduced into Lower Canada, and that the King of England never had the right to introduce them. Some persons found their opinion on the Articles of the Capitulation. Will any one among them have the goodness to point me to the part that will justify this conclusion ? Mr. Viger grounds his objection (see ante, p. 84) on the civilized law of nations. I think I can quote authorities and precedents against him quite as civilized as is his beautifully simple and civilized Coutume de Paris. I have already quoted Chitty (p. 58), but he is English. I have also quoted Puffe^'dokp (ibid.), but he is not French. I had thought to appeal to Grotius, and for that purpose had read chapter 8 of the third book of his admirable work on the Law of War, &c. (that chapter treating on the Sovereignty acquired over the people and territory conquered ) but he too, I suppose, would be rejected as anti-civil ! In vain does Alexander the Great inform us, in Q. Curtius, that "it be- longs to the conqueror to give the law, and the vanquished to receive it." Who is Alexander the Great, compared with Mr. Viger ? Well, turn we then to Montesquieu : he at least is French, and will h'lrdly be rejected as anti-liberal. In his Spirit of Laws, 1. 10, c. 3, be not only admits the right of the conqueror to give the law, but even to reduce the vanquished people to slavery, and to continue them slaves, when and so long as the preservation of the conquest shall require. In truth, the matter is so plain, the right so obvious, that one would think it needed only to be mentioned in order to 133 admission. Gian'None says, (Civil History of Naples, v. 1.1. 1.) " By the Law of Nations, the vanquished were always subjected to the laws of the victorious." The conclusion is, that the treacherous betrayal of 1774, in handing back the whole Province of Quebec, including both the Canadas, to the tender mercies of barbarian French laws, and still persisting in their maintenance, is not only indefensible, but is one of the foulest legislative frauds that history has recorded. But what now, in 179l> was Mr. Pitt to do ? What had been so recently abandoned, could he reclaim ? What had been so recently established, could he throw down ? He had a choice of evils ; and though it may be easy for us, who have seen and felt the evil con- sequences resulting from the choice, to say that it was evil, It might be very honestly questioned, by others, whether the case, at that time, admitted of any thing better. I say, '< at that time :" for consider. There had been war and revolution in the west; and France was heaving and writhing under democratic convulsion, por- tending a far more fearful revolution. All men could see the gathering storm, could hear the distant thunder. Black rising clouds the thickened ether choke, And spiry flames shoot through the rising smoke ! With keen vibrations cut the sullen night, And streak the dreary sky with dreadful light! That was a time, if ever there was a time, for England to concen- trate all her powers. Was Canada to be abandoned ? I have not read a word of the history of the transaction beyond the debates in the House of Commons, but this is my conjecture. However, right or wrong in this respect, I know enough of the character of Mr. Pitt to be confident of this, that had he possessed the opportunities which have been presented to the Government since the conclusion of the war, the barbarity of Canadian law would not have been tolerated as it has been. A re-union is at length to be effected, and the all- important question is : Are we, or are we not, to have a re- establishment of British Laws ? Another and a still more important question is : Are we, or are we not, to have a Constitution of Government, in any tolerable degree approaching to that of Eng- land ? I fear the low-souled policy that now prevails. " The laws op England are the birthright op the PEOPLE theaeof : and all the Kings and Queens who shall z 134, ascend the throne of this realm, ought to administer the government of the same according to the said Imcs." — 12 and 13 W. III., c. 2. According to this charter of our country, are not its laws our birth- right ? Wliat are the limits of " this realm ?" Are we without its pale ? Many of us are literally English, — there born and bred, — there taught in childhood, that the Laws of England were as much our RIGHT as was the Crown of England that of England's King. Have we done any thing to forfeit tliis our high prerogative ? Yes ! We have come to Lower Canada, a British Province; and here we learn, to our astonishment and indignation, that by an Act of the British Parliament, — sixty-five years old, and not yet repealed, not even intended to be repealed, — in all that relates to property and civil rights, we are British outlaws — doomed, so long as we here continue, to be barbarian French ! We will not presume to (piestion the legal right of the Parliament of England to treat us thus, or in any other manner they may think proper ; but there is a higher Legislature than that of England ; and there are Thrones and Dominions of a higher order : and we know and wish our Rulers to remember, that an Act of England's Parliament may be an Act of Treason at that Tribunal. Must we then, appealing in vain to our earthly Legislators, be compelled to protest against such treat- nient, and appeal to Heaven ? Should we be thus compelled, let our Rulers know, that it will be to the eternal infamy of those by whom we have been betrtayed — by whom we ought to have been protected. That they take the children's bread and cast it to dogs, is not our grievance. We call no men dogs for being foreigners, nor will we show a dog-like spirit in refusing to impart the blessings possess. There is enough for all : there is a rich abundance ! we Wiiat we complain of is, that being children, we ai'e compelled to submit to treatment not fit for dogs. This cannot last. By our brawny breasts and British hearts, this shall not last ! Thy spirit, Independence ! let me share — Lord of the Lion heart and Eagle eye I Thee will I follow with my bosom bare, Nor heed the storm that howls along the sky 1 What sort of independence will we follow ? Ay ! that is the ques- tion — of which the solution (see the motto of this pamphlet) " depends upon the present decision of the Imperial Legislature." In plain terms then, we do not mean to be paltered with and out- 133 LA WED AS WE HAVE BEEN. If it iiiust be this, or a bold stroke for anti- British Independence — be it so. In that event, we will not court " conciliation ;" — well knowing that Britons must not hope for "equal justice." If we must fight — pro Aris et Focis — for our Altars and our Hearths —as our fathers have often fought before us, those who thus compel us will have something different to deal with from a Franco-Canadian outbreak. Greek then meets Greek, — then comes the tug of war ! Is this to be desired ? Is it to be lightly chosen ? By all that is great and solemn in eternity, I answer No. This is not what we wish. This — if we may have honourable treat- ment — is what, (believing it to be, next to slavery and insult, the greatest of earthly evils) rather than do, or suffer to be done, we will peril life and sill. Then what is it that we want ? Our prayer is that we may be no longer outlaws : — that, on the contrary, we may have in Canada, what our Laws inform us an Englishman has every where, " as much of English Law and Liberty as the nature of our situation will allow." All in one word ; — for us as for our fellow- Britains, the British Constitution. This is our claim, and nothing less than this. We prefer it as Britons born, ever true to Britain's Crown, ever proud of her Dominion ; ready to share her every danger, praying to share her power and freedom. I have much more to say to complete my engagement. It must form the subject of a second letter. Your most obedient Servant, CHARLES SCOTT. Montreal, December, 1839. p.S The subjects remaining to be discussed are — the provisions of " a Bill for re-uniting the Provinces of Upper Canada and Lower Canada ;" including a Review of the various measures pro- posed for making " permanent provisions for the future good govern- ment of the Provinces," &c., proving that such measures will not be " permanent ;" and that the Government by such means to be estab- lished will not be " good :" that, on the contrary, the effect of such measures will be to perpetuate our " eternal squabbles," if not our intestine tumults, — hf/ certain Statesmen conceived to be the worthy because only practicable means for the perpetuation of our depen- dence. Lastly : suggestions for a Colonial Constitution, breathing the true spirit of the Metropolitan : — such a Constitution as should prevent intestine broils, everlasting official interference, aristocratic domineering, and democratic revolution.