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THE LEGISLATIVE COUNCIL i NOT CHARGEABLE WITH THE LOSS OF ■sw . iA^-y'% 1 wism A®®m©iFS2ATa®a' ®ij^a I ^•'^■:^Arv'' ■V:'<t ap« erally J peo- rht of large u this mons. masons 1 Par- 17 of free deliberation) on all grants of public money, to more than one branch of the Legislature. Upon this head, and upon the more extensive right exercised by the Senate of amending Monet/ Bills, as well as all other bills, Mr. Justice Story has these judicious satisfactory remark* (page 447). " There would be no small inconvenience in excluding the ** Senate from the exercise of this power of amendment and *' alteration ; since if any, the slightest, modification were *^ required in such a Bill to make it either palatable or just^ << the Senate would be compelled to reject it, although an " amendment of a single line might make it entirely accepta- ** ble to both Houses. Such a practical obstruction to the " legislation of a free government would far outweigh any " supposed theoretical advantages from the possession or " exercise of an exclusive power by the House of Represen- ** tativesr Infinite perplexities, and misunderstandings, and ** delays would clog the most wholesome legislation. Even " the annual Appropriation Bills might be in danger of a " miscarriage on these accounts : and the most painful dis- ♦* sentions might be introduced," ■ : - ^-^-'-'m -'- ■ ;...;":..■ ^ :.:v;.v. .;:^ • ■■■. v. .. i :,.:',-.;;■." What an instance of the truth of the case here supposed has the last session of our Legislature exhibited ! The As- sembly attempted to deprive the Council of their legitimate controul over a Money bill ; the consequences of the attempt have been, what Mr. Justice Story has supposed, the loss of the Appropriation Bill ; infinite perplexities, and misunder- sfandings, and delays, and most painful dissentions ! Having thus clearly established the existence, and propriety, nay the absolute necessity, for the principle I have laid down, in the case of the United States, I proceed now to consider that which is afforded by the British Parliament. The method of proceeding in matters of Supply in the British Parliament may not, perhaps be generally known.— 18 At a certain period of the year, estimates of tlie sum required tor the public service in each of the public departments are made out, and forwarded to the Treasury for the inspection of the Lords of the Treasury. These several estimates are there collected^ and carefully examined ; and, if approved of, the Lords sanction an application to the House of Commons for the amount : and without such sanction, the House will not entertain any application for a grant of public money.— Hatsell says — " Observations on Petitions on matters of Supply, page 175" : " the great number of petitions which " were presented to the House of Commons, at the com- " mencement of the Session which began in October 1 705, ** from persons either claiming an arrear of pay as Officers, " or making some other demand upon the public, made it " necessary for the House to put some restriction upon these Mif ** applications ; which, being after promoted by members - '^ <♦ ^ho vvere friends to the })arties, and carrying with them •* the appearance of justice or of charity, induced the rest of " the Hcnse to wish well to, or at most to be indifferent to, " their success ; and by this means large sums were granted " to private persons improvidently, and sometimes without sufficient ground^j. Very early therefore, in the next session, Dec Hth, 1706, before any petitions of this sort could be ** again offered, the House came to a resolution — " that they " would receive no petition for any sum of money relating to " public service, but what is recommended from the crown." This resolution was ordered to be read " June 11th, 171S, *' and then declared to be a standing order of the House. ** From this time, whenever any petition which desires relief '• by public money is offered, or any motion is made for this " purpose, — before the Speaker puts the question for bring- ♦* ing it up, it has been the practice, in conformity to this " order, that the recommendation of the Crown should be ** signified by some member authorised so to do ; and if thu ♦* Chancellor of the Exchequer, or person usually authorised « « " by the Crown, declines to signify this recomYilendation ; the ** House cannot properly receive the Petition." . From this extract it clearly appears that neither for the public service, nor for the satisfaction of a demand upon the public ; nor for any purpose of charity, will the House of Commons entertain any application, for a grant of public money, unless it comes recommended from the Crown, by some responsible Minister, by this arrangement a right of free deliberation is secured to the King, acting by his Mi- nister, while to the House a similar right of free deliberation is also secured, by the principle — that they hare the sole right of raising and modelling the supplies. This done, the Money Bill has received as much discussion as any other bills, hav- ing undergone a free deliberation by two branches of the Legislature, the King and Commons ; to the Lords, there- fore, is allowed only that power, which the King possesses in other bills, of either accepting or rejecting it : and it is pro- per that they should have a power of rejection, if, from any collision between the Ministers and the House, they think the Commons too lavish or improvident in their grants. Let us now turn to Provuicial a fairs. The Loyalists, as we have seen, came to this Province with very moderate ideas as respects taxation. — Their brother Colonists claimed only this — that no taxes should be imposed upon them, but with their own consent, given personally, or by their representa- tives. As to the mode in which taxes were to be imposed, or their consent given, it appeared to be matter of minor consequence in their estimation. I have carefully looked over the early Journals of the Legislature of this Province, and though there are in'many places clear indications of what General Carleton had in view, with respect to voting supplies for the public service, there is no clear developement of his plan, till the opening of the first session of the second As- ■y 20 sembly in 179S. In his speech, at the opening of the session, he makes a direct allusion to the practice, which I have de- scribed before, as escablished in the House of Commons. He says, " Gentlemen of the Assembly, I have directed the " necessary papers and accounts, together with the estimates ^^for the year ensuing, to be laid before you." The answer of the House in the Address to this passage is — " We thank " your Excellency for the directions you have been pleased " to give, that the necessary papers and accounts, together " with the estimates for the ensuing year, should be laid be- " fore us." Among the papers laid before the House, Feb. 23d., 1793, is " an estimate of expenses for the public ser- " vice of the Province, for the current year 1793." But although the House declared in their Address, that " they " recognised with perfect satisfaction the maxim, — that their ** proceedings should, in every instance, be regulated by that *< standard, which on similar occasions, had been established ** by the practice of the parent state, — convinced of the pro- " pnety of conforming to examples that have been sanctioned " and confirmed by the wisdom of ages," — it does not appear that they would consent to give to the Governor that right of free deliberation on Money bills, which is exercised in En- gland, by the King acting by his responsible ministers : while at^the same time they seem to have tried to exclude the Council from even a portion of ihat free deliberation, which is possessed by the Senate of the United States. And what was the result of that ** vaulting ambition which doth over-leap itself" ? Two years afterwards, as might have been expected, the very case occurred, which Mr. Justice Story supposes ; and a collision took place between the Council and Assembly, which brought in its train infinite per- plexities, and misunderstandings, and delays ; a succession of Appropriation Bills were lost (and revenue bills too), and the most painful dissentions were introduced. It is unneces- sary at this time to go further into the particulars of this are nisei m unhappy dispute or to make extracts from the public docu- ments drawn up on that occasion, except to insert in an Ap- pendix the very able letters of the Duke of Portland, to whom as Secretary for the Colonies, the dispute was referred, both by the Lieutenant Governor, and the House. And I the rather abstain from doing so, because I wish to draw more particular attention to the terms on which the two branches of the Legislature, then at issue, consented to ad- just the differences between them. These terms we shall find to be as follows — the Council withdrew the objection they had previously made to any grant of the public money for the attendance of Members of Assembly on General Assembly : while the House consented to give to the Council a right of free deliberation on all grants of Money, thus consenting to share, with another branch of the Legislature, the right of free deliberation on Money grants, — not, however, in the mode adopted in England, where the right is shared with the Crown : nor precisely as that adopted in the United States, where the Senate has a right of amending Money bills ; but by submitting to the Council the several resolutions passed by the House, for their concurrence or rejection, before they are inserted in the Bill of Appropriation. It is worthy of remark that this mode of transacting bu- siness has never been satisfactory to the Executive branch of ihe Legislature ; and various attempts were made, both by General Carleton, and General Smyth, to bring into opera- tion the mode adopted in the British Parliament. These at- tempts are so clearly described in a report of a Committee of the House of Assembly in 1823, tliat no apology will be deemed necessary for inserting the whole of that highly va- luable document. (Report of the Committee of Privileges.) <' The Committee of Privileges to whom was referred the :' f 22 Sm' Message of His Excellency, with the other documents accom- pany ing the same, to report thereon, beg leave to state, >.« " That they have made diligent research and inquiry into the usage that has prevailed in the different Legislative Assemblies of this Province, with respect to the subject matter of His Excellency's Message to this House, from their first establishment in the year 1786, until the present time — And the result is as follows, viz : , ■; ;; i m j ; '^J:? •;^»" i..fh''<^t': ■4-v ■r: : > . '''* That from the year 1786, the period when the Pro- vincial Establishment was completed and the Legislative Assembly instituted, until the year 1793, the mode uniformly pursued by the different Legislative Assemblies, was to in- clude in one Bill all items of A impropriation of what nature soever, as well matters recommended as those that originated with themselves, under the title of " A Bill for appropriating and disposing of the public monies." And during the period above stated, your Committee cannot discover that any ob- jections were ever made to this mode of proceeding by either of the other Branches of the Legislature. During the Ses- sion of 1793, they find that an estimate of expenses for the public services of the Province for that year, was laid before the House by order of His Excellency the Lieutenant Go- vernor ; but your Committee, on reference to the Appropria- tion Bill of that Session, observe that it not only did not make provision for the several objects recommended in the estimate, but that it did embrace various other matters and provisions originated by fhe House of Assembly ; and your Committee also find that a conference was requested by the Council with the House of Assembly, on the subject of a clause in the Appropriation Bill, grunting a certain sum for the purpose of aiding and assisting in the education of Youth, in each Parish of the Province. That the object of the Council in requesting the conference, was to state that the appropriating of money for the education of Children, in the different Parishes of this Province, was a new institution, and necessarily required particular regulations ; and that if ap- propriations of that nature were included in general Money Bills, the (/ouncil would not be left to decide freely on the merits of those regulations ; because, although they disap- 23 pfoved of them, they could not reject them, without At the same time rejecting every other article in the general Money Bill ; but at the s^ame time observed, that it is the sole and undoubted right of the Home of Assembly^ to originate a Mo- ney Bill and include therein not only what may be recommend- ed from the Executive Chair, but also such other sums as they think necessary for the Public good, which Bill the Council can neither alter nor amend, but must accept or reject in toto. — Your Committee cannot find that any further objections were made to the Appropriation Bill of this year, although it did not provide for measures that were particularly and earnestly recommended Jrom the Executive Chair, \ " That in 1791, the bill of appropriation had also the concurrence and assent of the other branches of the Legisla- ture, notwithstanding it did not make provision for the mea- sures so particularly recommended by His Excellency during the preceding Session, and to which he again called their attention, in his Address to the House of that year. ^ ** That in 1795, the appropriations were sent up by Bill as formerly, which Bill did not make provision (as recom- mended by His Excellency in his Message to the House) for the payment of certain services that had been performed by his directions. — The House deeming it their inherent right to consider and determine upon the expediency of all public ser- vices to be provided for by them, " That a conference was requested by the Council, on the subject matter of the Bill of Appropriation, at which confe- rence the following objections to the Bill were stated on the part of the Council, viz : " 1st. — " That it provides for the services not recom- " mended, which the Council conceive to be unparliamentary'* " 2nd. — That some of ths services snecially recommen- *• ded by His Excellency in this Session, remain unprovided " for, although those services are acknowledged to be for the *' general defence, and ought therefore to have been among " the first objects of provision, while on the contrary greater ** sums are appropriated for other objects." M r li:1! " ^rd. — " That the Appropriating of sums of money tO' ** the several Members for their attendance in General As" ** sembly, does not accord with Parliamentary usage.' >i ** To the first of which objections, the House of Assem- bly replied in the words made use of by the Committee of Council who managed ». conference with a Committee of this House on the 9th of March, 1793 — That it is the sole and un- doubted 'ight of the House of Assetnbly, to originate a Monei/ Bill, and to ijiclude therein not only what may he recommended from the Executive Chair, but also such other sums as they think necessary for the piblic good, " To the second objection — The House of Assembly observe, that it is their inherent right to consider and deter- mine upon the expediency of all public services recommended to them to be provided Jor — That the service* in question are mi- litary expenditures, and that all expenditures on military works in Canada, Nova-Scotia, and Newfoundland, for the purposes of public defence, have invariably been included in the extraordinaries of the army, and annually presented to the House of Commons, by the Secretary at War, in the es- timate of Army Extraordinaries. *" To the third objection, the House of Assembly ob- serve, that the payment of Members serving in Parliament, is constitutional and agreeably to the ancient usiige and cus- tom of Parliament — I'hat the circumstances and situation of this Province, render any other mode of payment than that hitherto invariably adopted by the Legislature, inexpedient. Thrt the same is conformable to precedents in our own Acts of Assembly (from which the House will not depart without good cause) and hath in estimates of expences laid before the , House by order of His Excellency the Lieutenant-Governor, been recommended to be provided for as a Public Service. And the House of Assembly further declare, that they con- sider the words made use of in the second objection of the Council to the Bill, ** and aught therefore to have been among the first objects of provision, while on the contrary, greater sums are appropriated for other objects," as a reflec- tion upon their proceedings, and an infriiigcmcnt of the privi- lfge.:i of the House of Assembly. 25 " That your Committee find at a subsequent conference between the Council and Assembly, tliat the committee of Council were pleased to admit the truth of the premises stated in the answer to the House of Assemble/ to the second objection urged bj/ the Council against the Bill, but in consequence of a Resolution of the Council declaring the usage of the House of Assembly, with regard to their Appro^riailon Bills, con- trary to Parliamentary usage ; and the same being considered by the Committee of Council in the nature of an Instruction to them, and from which they were not at liberty to depart, it precluded the Committee of Assembly from going into a full investigation ofthejirst and third objections of the Coun- cil to the Bill. And the House being prorogued on the fol- lowing day, the Appropriation Bill of that year did not receive the concurrence and ass'^nt of the other branches of the Le- gislature. '* That in 1796, the Appropriation Bill was sent to tha Council for the concurrence under the title ot '• A Bill for I raising a Revenue in this Province, and for .appropriating the same, together with the monies now in the Treasury." — Your Committee would here observe, that it did not contain [provision for expenses incurred by the direction of His Ex- [cellency the Lieutenant Governor ; the payment of which he particularly recommended to the House in his Address of [that year, but as heretofore, it embraced various matters not [recommended, and entirely different in their nature. — On the subject matter of this Bill, a conference was requested by the Council with tlie House, when objections to the foUow- ^rnr effect were made bv the Council to the Bill. y, " That the diflerent objects and services were so mixed " in the Bill as to preclude them from a free and distinct J" consideration of each service provided for and each article Jf' taxed — That it nominated persons for the performance of public services — That it provided in an unconstitutional ir or for the wages oi the Meni'ocrs of the House of Assembly, by taking the same out of the Public Treasury, instead of receiving it from their respective Constituents, S:c. &c." ** To the il^st of which objections, the House repiied — " That it was couched in such vague and general terms, as to render it impossible ior them to speak specifically to the ob- jects and services which were alledged in it, to be mixed in the Bill ; but that if the Council expected that each service prch- videdjbtj and each article taxed, should be sent up to them in a distinct and separate Bill,Jbr their approbation or rejection, the House considered such mode of proceeding would be contro' rxf to all Parliamentary precedents, and that if the mixture of objects and services generally alluded to in it, was meant to refer to the appropriatioM of the Revenue of that year in the Act which raises it, the House cannot help considering the insertion as an infringement of the privileges of the House of Assembly, ixho alone possess the right of disposinsr, as "xell as raising the public money, and in such manner as they only think proper — That the Bill is confined to one general object, the grant of supplies for the ordinary services and expenses of Government, and many Acts of Parliament comprehend a much greater variety of objects and services than are included in the present Bill." " That your committee find at a subsequent conference, it was admitted on the part of the Council, that it Kas not ex- pected of the Legislative Assembly, fo send npjor their appro* bation or rejection, in a separate Bill, each service j)t'Ovided\ for, and each article tayed ; and that it xmas not unparliamcrA tnry to appropriate the Revenue of the year in the Act thatl raises it, but that it had not been ever practised in this Pro*; vince, and that in case of disngreement of opinion between the two houses, upon any one article of either, the lossof tliei Revenue and Appropriation would be the consequence. •* The Revenue and Appropriation Bill did not pass the^ other branches of the Legislature at this Session. " That in 1798, the Appropriations were sent up to tlu Council for their concurrence, under the title of '* A Bill for raising a Re\jnue in this Province, and for nppropriatingtiiti|^ monies arisi.jg therefrom to the })ublic services therein men-J tioned. — Which Bill did not provide for the riyonunenda- tions of His Excellency, and was similar in its provision to those of the preceding Sessions. 27 4j.i 2.6' dt(-C ^Hif ru /•<' ill ** That in 1799, your Committee find the Ibllowing Re- solutions, on the Journals of the House of Assembly : — viz. ttt^ " Resolved, that by the Bills for paying off the debts x, '* of the Province for the year 1795, having passed the " Council, there thereby now remains no misunderstand- y " ing between the two Branches of the Legislature as to the " appropriation of public *Tionies." " Resolved, that to prevent ui future anyr misunderstand- IfU^ ** ing, this House will propose a conference with the Council, V- *' for the purpose of agreeing on a general plan for expedi- ** ting Revenue and Appropriation Bills." " The result of the conference, vour Committee cannot find stated on the Journals of the House of Assembly ; but they discover at the next Session of 1801, that the several / , resolutions for grants of money were sent up to the Council phtd^ for their concurrence, and such items of Appropriations as were returned from them approved of, were included in a Bill, under the title of " A Bill for appropriating certain monies for defraying the expenses of the Province," and sent ngain to the Council, in the usual way, for their concurrence. Anil your Committee find that this concession on the part of the Assembly, of their acknowledged rights, has been acceded to by the different Legislative Assemblies of this Province, < i from that period until the present Session ; and they would f| here particularly remark, that during the period before sta- ted, they carmot discover any one instance of a single item of Appropriation being inclnded in the Appro^. tion Bill, that hud previoitsly been rejected by the Council, although they find many instances of the arbitrary abuie of this uncon- stitutioiuil power on the part of that Branch of the Legisla- ture ; and they cannot but express their surprise at the reso- lution of the Council on the 22d of March Inst, as a pledge to His Excellency to support him in His Message to this House, and do consider it an unconslUutlonal interference with the ackno'wledged rights and privileges of this Honsey a rejlcctiun upon its proceedings, and as stipulating conditions to this House for the jmssing qfit'i Bills. '* But your Committee taking into consideration that 28 the resolution of the Council above alluded to, was not adopt- ed by the unanimous voice of that Body, but on the contrary, that but few of its Members were present at the time it was brought forward, and that four only of the Members present were in favour of it ; all of whom, in the situation of Execu- tive Counsellors, had recommended the Message of His Ex- cellency to this House, and consequently, in their legislative capacity, considered themselves obligated to give their assent to it, as a pledge to support him in the same, do not consider the resolution as the deliberative Act of the Council, and consequently do not feel a disposition to animadvert on it as it most justly merits, and as they would otherwise feel it in- cumbent on them to do. " The Message of His Excellency, your Committee think fully replied to by the Constitutional Authorities, ad- vanced by the Legislative Assemblies in their several con- ferences with the Council, on the same subject as stated in this Report ; but your Committee cannot but express their surprise, that His Excellency should at the last Session make that matter a subject of complaint, which in His Address to this House at a former Session, he particularly recommended to be adopted : your Committee here allude to the permanent provision for the expenses of the Legislature, particularly recommended by His Excellency in His Speech to this House in 1821, which was accordingly made by a Law at that Session, which Law at the time of His Excellency's Message, had not been disapproved of by His Majesty, but on the contrary has had the Royal Sanction. " And your Committee would further observe, that they 1 are equally surprised at the paragraph in the letter of Earl fiathurst, in reply to His Excellency's communication to him on the subject of his Message, which states ** the privilege claimed by them of appropriating the public monies without intervention of the other Branches of the Legislature," and they can account for it in no other manner than by the con- clusion that his Lordship had not correctly conceived the communication of His Excellency, otherwise they are of opi- nion it would have appeared most evident to his Lordship, that by the mode now praciised by the House of Assembly, of sendi jection, eluded i deration of the L Houses drawn tl at all tin the publ it is to b "1 those ser the £xe( «1 cised the vices of I ''A see no ^ and mo( Houses (( able Ho "■WlT^Ff 29 of sending up to the Council, for their concurrence or re- jection, each item of appropriation previous to its being in- cluded in the Appropriation Bill, a free and distinct consi- deration of each matter embraced in it, is given to that liranch of the Legislature. . ** That from this review of the proceedings of the former Houses of Assembly of this Province, your Committee have drawn the following conclusions : ** That the Legislative Assembly of this Province, have at all times claimed the Constitutional right, not only to raise the public money, but to direct and limit the services to which it is to be applied : " That they have claimed the right to direct and limit those services, whether they have been recommendf d from the Executive Chair or not : " That they have claimed, and at all times have exer- cised the right of including in their Appropriation Bills, ser- vices of a different nature. " And your Committee beg leave to state, that they can see no good cause for the House departing from the usages and modes of proceeding hitherto pursued by the former Houses of Assembly of this Province. " All of which is respectfully submitted to this Honour- able Hou«e." HUGH JOHNSTON, Junr. P. FHAe^ R, HARRY PETERS. Ordered that the Report be accepted. -■--..■ 3d The kight of free deliberation in two of the three Branches of the Legislature being thus established as Con- stitutional, no matter in which Branches, or in what mode effected, — whether in the Crown and Commons, or Senate and Representatives, or Council and Assembly ; nor whether the mode be by recommendation from th:; Crown with the concurrence of the Commons, or by bill from the Represen- tatives, with right of amending it in the Senate, or by reso- lution of Assemblv with the concurrence of Council, — it fol- lows, as a necessary inevitable consequence, that any violent attempt on the part of either branch to subvert this arrange- ment, is unconstitutional ; and a submission on the part of the other Branch to such attempt, would be a disgraceful sacrifice of the principles of the Constitution, and of the in- dependence of that branch. .>( v ; . / (j Ji- - But how far a change, to be effected hy mutual agreement between the several branches of the Legislature, might or might not be advantageous, is a question I am not prepared to an- swer. Each mode has its advantages and inconveniences : We have very high authority in Mr. Huskisson, for saying that the present mode by Resolution has been attended with the best consequences : it is not, however, free from great inconveniences, some of which tend greatly to lower the dig- nity of the House. If no petitions for money were to be received, nor grants of money considered by the House, un- less they came recommended by the Governor, which is the English practice, and also that of the Canadas, — that dis- graceful scramble which takes place every session in the Committee of Su})ply, would be avoided. No member would then have it in his power to move a grant of public money for the benefit, direct, or indirect, or in compliance with the wish, of one of his active canvassers. No opportunity would then be given to one member to charge another member, •with striving to get an undue portion of a great-road grant 31 laid out upon such a district, because he was himself the Su«- pervisor of it ; nor for that member to throw back the charge in the teeth of his accuser, by saying, that the object of his opposition was to get an undue share for the other district, because the Supervisor had been mainly instrumental in se- curing his election. It would then never be necessary for a member repeatedly to move that the Committee of Supply should report progress, because they were not in a proper frame of mind, were too much excited, to trust themselves to vote away the money of their constituents. These scenes would be avoided, and if so, it would 1 am sure, add much to the dignity of the House. " There is nothing which is so dangerous, or which ought to be so seduously avoided, as trusting to an irrespon- sible public body, the sole right of disposing of the public money. It is of daily occurrence that men do, when united in bodies, things which, if done by individuals, would over- whelm them with shame and disgrace : and they do them without compunction, because the shame which if concentra- ted would press an individual to the earth, would be light when divided and diffused over so many. It was no doubt a consciousness of the danger which attends possession of this sole righti that induced the House of Commons to throw off themselves, upon the responsible ministers of the Crown, the responsibility of originating money grants, and it was no doubt a similar consciousness of danger, which led to the solemn compact between the two Houses of the Legislature in 1799, so ably detailed in the Report of the Committee of Privileges in 1823. They could not invent, with all their ingenuity, a Kcheme more fraught with danger to the Country, nor with trouble and annoyance to themselves than that of claiming and securing a sole right to grant and model the supplies, freed from the controul which the Crown and its responsible ministers now possess over the House of Commons, and at rf 32 the same time unrestrained by that superintendance over thefr proceedings which the Council now posse:>s. How often has a Member succeeded in putting off an importunate suitor for a slice of the public loaf^ by telling him that it would be quite useless for him to make any such attempt, for that if he should get the grant through the House, the Council would not concur ! and how often have Members allowed grants to pass through the House, be™ cause they did not like to offend the parties for whose benefit they were designed ; knowing full well that the Council would do what they did not dare do — reject the grant ! But could they thus throw off from themselves upon the Council, all this odium, if they had the power of perfecting, as well as originating money grants ? No, they could not. And is not this supervision of the Council salutary and even necessary ? Let the last Session speak for itself. The report of the Fi- nance Committee strongly recommended strict and rigid economy, yet look at the numerous grants rejected by the Council, many of them of such sort, that the advocates of the House now declare they might well have been postponed, or even passed over altogether, I ask — without, however, the least desire of giving offence to any one — if the House of As- sembly of this Province is in general composed of such ma- terials, as to justify the extraordinary demand they now make for release from all restrictions ? Are the Members in gene- ral, persons to whom in other matters the country would be disposed to give, in addition to their irresponsibility, a total exemption from all controul ? Surely not ; — the country, however rashly they may act when under the influence of momentary excitement, when that excitement ceases, will never consent that their Representatives shall be relieved, both from the initiatory restraints which have been imposed upon, or which the House of Commons have imposed upon themselves ; and also from the subsequent revision of their 33 proceedings, which is practised by the Senate of the United States: and which the House of Assembly of 1799, with a wisdom and moderation alike honorable to themselves, and useful and iicceptable to the country, thought fit to offer to the Council. Never, no never, should any one public irre- sponsible body be entrusted with the sole right of granting away the public money. But still, if the House of Assem- bly, under the influence of that reverence for the institutions of the Mother Country, which is the glory and pride of Bri- tish subjects, should wish to exchange for the present system of transacting Legislative business, that adopted by the House of Commo!is, there would not, I am sure, be the least objec- tion oflfered to the alteration in any quarter. Let the House pass a standing order in the precise terms of that of the House of Commons of 1705 — declaring that they never will make a grant of money for any public service, which does not come recommended by the Governor ; and then honestly and fairly act up to it : — then would the Council without doubt absolve them from their obligation to the observance of the compact of 1799, and not in a greater degree interfere with Money Bills, than do the House of Lords. . y Before any alteration is made, let the circumstances J} t^/^ which led to the adoption of the resolution system be fairly and dispassionately considered. Several attempts have been made to throw discredit upon it. At one time it was said, that the agreement between the Speakers of the two Houses was not sanctioned by the House, but was the mere act of Mr. Botsford, the Speaker, unauthorised by the House, and disapproved of by its members ; and that submitting to it as they have done for so many years the House have been guilty of sacrificing their constitutional rights and privileges. The advocates of ihe House seem to attach great importance to this, and have laboured the point very sedulously but I think very unfairly. ■■-■%: 34 'h It is true, as the report of the House of 1820 says, that there is no specific mention in the Journals of the Assembly, of the agreement between the Speakers ; but there is enough recorded to shew beyond contradiction both what that agree- ment was, — how entered into, — by whom proposed, — and in what manner acted upon. But let us first see who were vl ^ ^ members of the House at that time. The Journals tells us — Messrs. Pagan, Attorney General Bliss, Sinionds, Gilbert, >^'" Younghusband and Smith, for St. John : Messrs. Botsford Gay, Siddall and Dixon, for Westmoreland : Messrs. Pa- gan, Campbell, Lindsey und Mowatt, for Charlotte : Messrs. Murray, EUigood, McLean and Agnew, for York : Messrs. Fraser and Lee, for Northumberland : Messrs. Coffin and Leonard, for King's : Messrs. Peters and Yeomans, for Queen's : Messrs. Glennie and Street, for Sunbury. ., . , Now I would take the liberty of asking the sons of these Gentlemen, whether they think it at all probable, that their Father's could have been either so negligent of their own rights, so faithless to the trust reposed in them by their con- stituents, as to surrender without sufficient reason one of the dearest privileges of the subject : or so weak and foolish as to be tricked into a measure which their better judgement would condemn. Among the members of the two Houses are several gentlemen who are either sons, or grandsons, or nephews, or have married daughters, neices, or grand daugh- ters of the persons who were in the Legislature at that time. And will they stand forward, and impeach the character of their deceased relatives ; and in the face of the country charge them, with having been wicked enough to barter away the people's rights, — those rights which they were elected, — were sworfi to maintain : or weak enough to suffer themselves to be tricked by Mr. Botsford ? Take the list as it stands. The name of Mr. James Simonds almost at the head of it : in the Council there is a son of that gentleman, and a gentleman I 35 who has married his grand-daughter : while in the House, there is also a son, and two gentlemen who have each mar- ried a grand-daughter of his. There is a nephew of Mr. Gilbert's in the House, and a son-in-law of Mr. Younghus- band's. In Council, a grand-son of Mr. Botsford*s, and in the House a gentleman who has married his grand-daughter. In Council, are two «ons of Mr. Peters, and two gentlemen who have each married a grand-daughter of his. In Council is a nephew of Mr. EUigood's, and also a gentleman who has married his neice. And in the House is a son of Mr. Street's. 1 1 I ^i The Members of Council who attended the Session of 1799, were Hon. Messrs. Chief Justice Ludlow, G. G^ Lud- /2p low. Justice Allen, Jhstij^ Winslow, Hazen, Bliss, Justice Saunders, Robinson, Odell, and Leonard — The names of Messrs. Justice Upham and Billopp do not appear on the Journals. Of the Chief Justice there is in the House a grand- son ; and also a son of Judge Allen's. In Council is a son and two grand -sons of Mr. Hazen. A gentleman who has married a grand-daughter of Mr. Odell' s, and a son and son- in-law of Judge Saunders : and of Mr. Robinson two sons are in Council. Now most of these gentlemen took an active part in bringing about the agreement. Shall their memory be now insulted for that transaction ? Shall their sons now stand forward, and in the face of the country charge them with either wickedness or weakness ? Shall their very chil- dren whom they nourished and brought up, seek to rob them of their fair, their well earned fame ; to degrade them from the high place which they have hitherto deservedly occupied in the public estimation ! No for the credit of the Country, for the credit of human nature, let it not be said that to pro- mote a temporary party purpose, a son has been the person, to cast the first stone at his Father's memory ! I should hope that we may be spared so humiliating a spectacle ! 36 But I will go a step further ; and ask them, whether they will permit such language as the following, every expression of which I have extracted from only one of the many articles which have lately i^peared in the Observer, to be applied to their Fathers, or to arrangements made by them. " The miserable si/stem agreed on by the Speakers" " The Repre^ sentatives of' the People-Chartered away one of their most ifn- portant privileges" — " sacrificed the rights oj their constitu- ents" — " this concession qf the Assembly was corrupt and un- justifiable" — '-" rights were treacherously surrendered" — " they basely yielded to another Branch o?ie qf their undoubted rights" — " betrayed their rights" — " the slavish and contemptible system of appropriation" — " the wretched degrading system" Will they permit any one to charge them with having intro- duced, or been tricked into a miserable, slavish, contemptible, wretched, degrading system ; and with having corruptly, un- justifiably, treacherously, basely, betrayed, bartered away, sa- crificed, surrendered, yielded up the rights qf the people P Will they allow the memory of their Fathers to be thus in- sulted by a Newspaper hireling, by a thing that is paid by the line for the abuse which he thus bestows upon those that are no more ? Let him revile the living if he choose — they have their remedy : they can either treat him with silent con- tempt, or bring him to account : but let him in common de- cency forbear to insult the dead ! ! — They never will permit it : let it not be laid to the charge of the members of either House, who are, as I have shewn, related to those gentle- men, — that out of (ilial respect for tiie memory of the depart- ed, if from no other motive, they resist the destruction of a plan which comes recommended, not less by its intrinsic excellence, than by the part which their deceased relatives look in it. — Di tibi, si qua pios respectant niumina, si quid Usquam justitia? est, et mens sibi conscia recti, , , Pnpmia dignu fcrant. one can 37 l«t US now look at the political character of some of the principal members of the House. One of the most conspi- cuous persons among tliem was the late Chief Justice Bliss, a Gentleman of deep erudition and extensive acquirements both legal and political, who though holding the high and respon- sible office of Attorney General, was ever esteemed in every point of view, a thoroughly independent Member. But the leaders of the popular party seem to have been Mr. Robert Pagan and Mr. Glennie. As a leader of the popular party in the Legislature, Mr. Pagan has ever stood high in popular estimation. No one ever could with truth lay to his charge, that he was afraid to do what he considered his duty, or to follow out what he supposed to be a correct principle : — no one can charge liim with trimming, or seeking to curry 1 either Court or Council favour : on tlie contrary, he has al- ways been looked up to as one of the ablest, boldest, and I firmest supporters of popular rights. The sentiments of Mr. Glennie are recorded by himself. I have before me his ad- I dress to the freeholders of Sunbury, aH; the opening of the Poll, for the election of this very House; and shall trans- cribe those parts in which he describes himself, his conduct, land his principles. In his speech he enumerates a number [of instances, in which \\\mt he calls salutary and beneficial Bills were lost to the Country tlirough the opposition of the Council. He declares himself alive to the ambitious views of the Council ; and expresses the utmost unwillingness to [accede to the proposition of the Governor supported by the ICouncil, viz, the granting of public money for no other pur- Iposes, " than those recommended by His Excellency, or [which comes to the same thing) than those which they choose to advise him to recommend, as they are a Council of advice, IS well as legislation. — An acquiescence in this in the part of iTour representaUves, I was then of opinion, and am so still, ^ould have been tantamount to an absolute surrender of your ^lurses, property, rights and liberties into the hnnds of the !' ! iirl \i 38 Council at once. But they spurned tlic idea of ever assent- ing to such doctrine; and acted on die occasion with that temper, firmness and spirit which became the representative body of the people- It is a proposition to w^hich 1 hope in God, no House of Assen ,\y will ever give its assent." — In regard to the qualifications of Representatives he says, that as a " vigilant opposition has ever been found necessary in the House of Commons, to preserve the rights and liberties of the people in Great Britain, it must certainly be doubly requisite here, wkej'ejrom the Councillors holding their seats onli/ during pleasurcj and from the Judges having seats therein, w^o are liable to be di^rnisred at a momejifs notice, o.nd from the Council being Executive as "well as Legislative, two branch- es of the Legislature are in a great measure thrown into one scale," and closes by reco imending himself to the Elector's rotice, in these words — " I have never made a sacrifice of yorr rights and liberties to please any man or set of men. — i 1 have n'^ver snrunk from the discharge of those duties, I owed to you or the community at large for fear of offending any man. — I have ever opposed to the utmost of my power, measures which I conceived to be unconstitutional, dange- rous in their tendency, or injurious to your real interests and those of the public. — And should ycu think it proper to choose ' nie on this occasion, you will, I flattei myself, find me to be I as watchful a guardian of your liberties and privileges, and as attentive to your convenience, prosperity and happiness, as, Ij am conscious I hitherto have bee-i." Thus premised — let us see what was doi.\e. Jouruals, Vol. 1, page 620, 1799. " A Message from the Council,) informs the House that the Council has concurred in passing] the long disputed Bills of Appropriation. Whereupon onl motion of Mr. Robert Pagan" Resolved, that by these BiilH having passed the Council, there thereby now remains iic| misunderstanding between the two Rranche* of the LegisJa- ture OS to the n})propr''5< the method adopted by the House to enforce it. — iNot. :• si ndiiig the practice of sending to the Council all the Ret,\;.inions in a separate shape, for their free delibera- tion, and inserting in the Appropriation Bills only such as Imet their concurrence, ye*^^ to guard against the inconvenien- Ices which would result to the Country, from the loss of all ithe Appropriations for the year, it has been customary to pc^Hl them up, fo: the Governor's assent, in three separate i's ; so that should he be advised to reject one of them tlie )ihers might be saved. They have usually been divided into 1 I 1 -I I '1 ■! ^'1 42 II three Bills, viz : Great Roads, Ordinary, and Miscellaheous Services. The author before us has told us how manv va- m rious opinions were floating through the House, as to the proper bill, to which the resolution of Appropriation rejected by the Council, should be tacked ; and that at last it was determined to tack all the three Bills together, and to tack to the end of them, 30 tacked together, the rejected resolution. Numerous and disgraceful were the blunders committed while the House was perpetrating this desperate deed ! If they had tried their utmost, they could not have added one more to tl:e shameful catalogue. It is not so much, however, the overt act which is to be regarded, as the violation of princi- ple. Upon the v L^nt attempt to deprive the Council of their right of free delibei. x I have already spoken. I have now to offer a few observations on the dangerous, and unconstitu- tional proceeding of tacking, to which the House so despe- rately resorted : and for this purpose shall again have recourse to Hatsell's Pi'oceedings, and Precedents. Tit. Bills tacked to Bills of Supply. " Whenever" he says, " this measure " o^ tacking to a Bill of Supply is attempted by the House " of Commons, with an intention of thereby compelling the " Crown or the Lords to give their assent to a Bill, which " they would otherwise disapprove of and reject, it is highly ^.ce — and such an ap})eal never can be made in vain [when addressed to the loyal sons of suffering Loyalists, to [give them the attention their paramount importance so justly [demands. — The sentiments of Mr, Justice JStory, one of tha iiiil i i ^ I \ !,i n 54 ■.llj'.l m [t^^ most eminent of the Judges in tLc United States on the con- stitution of the Legislature for a free Countr}/, and a British possession must and ever will be a free country. He says, chap. VIII., that all Legislative powers are vested in a Congress of the United States, consisting of a Se- nate, and House of Representatives. It may not be unin- stru'ctive to review some of the principal arguments by which this division of legislative power is vindicated. The first and most important ground is, thu*^ it forms a great check upon undue, hasty, and oppressive legislation. Public bodies, like private persons, are occasionally under the dominion of strong passions and excitements, and are impatient, irritable, and impetuous. The habit of acting together produces a strong tendency to what is called Tesprit du corps. Certain popular leaders often acquire an extraordinary ascendency over the body by their talents, their eloquence, their intrigues, or their cunning. Measures are often introduced in a hurry, and debated with little care, and examined with less caution. The very restlessness of many minds produces an utter im- possibility of debating with much deliberation, when a mea- sure has a plausible aspect, and enjoys a momentary favor. Nor is it unfrequent, especially in cases of this sort to over- look well founded objections to a measure, not only because the advocates oi' it have little desire to bring them in review, but because the opponents are often seduced into a credulous silence. A legislative body is not ordinarily apt to mistrust j its own powers, and far less the temperate exercise of these j powers. As it prescribes its own rules for its own delibera- tion, it easily rel^Mues them, whenever any pressure is mndel for an immediate decision. If it feels no check but its own will, it rarely has the firmness to insist upon holding a question long enough under its view to see and mark it in all its bearings, and relations in society. But it is not merely inconsiderate and rash Icgislntion which is to be guarded w 55 against, in the ordinary course of things. There is a itrong propensity in public bodies to accumulate power in their own hands, to widen the extent of their own influence, and to absorb within their own circle, the means, and the motives oi' patronage. If the whole legislative power is vested in a single body, there can be, practically, no restraint upon the fullest exercise of that power : and of any usurpation which it may seek to excuse or justify, either from necessity, or a superior regard to the public good. With a view, therefore, to preserve the rights and liberties of the people against un- just encroachment, and to secure the equal benefits of a free constitution, it is of vital importance to interpose some check against the undue exercise of the legislative power, which in every government is the predominating, and almost irresisti- ble power. The value then of a distribution of the legislative power between two branches, each possessing a negative upon the other, is, 1st. It operates directly cs a security against hasty, rash, and dangerous Legislation, and allows errors and mistakes to be corrected, before they have produced any public mischief. It interposes delay, and thus furnishes time for reflection, and for the successive deliberation of different bodies, actuated by different motives, and organized upon different pnrcinles. 2d. It operates direct.^ as ii preventive to attempt to carry private, personal, and party objects not counted with the common good, for it is far less easy to de- ceive, or corrupt, or persuade two bodies, than it is one, especially if the elements of which they are composed are essentially different. ' ' ',-f A Senate a3 a second branch of Legislature, distinct from and dividing the power with a first, must be in all cases a salutary check upon the government. The genius of the two bodies nuist however be dissimilar, and it must be politic to distinguish them from each other, by every circumstance, uiiich would consist with a duo haimony in all proper mea- 'til ; I I [i 56 sures, and with the genuine principles of repubHcan govei'tt* ment. ** (It is interesting to observe with w'.at facility this object is secured in the British Provinces, simply by rese?'v- ing to the Crown, the power of appointing the Councillors, instead of leaving them to be elected by the people according to the proposed new constitution ; were that done we should be compelled to have recourse to the various artifices, and adjustments to which they have been driven in the United States.') " It is a propensity of all single and numerous as- semblies to yield to the impulses of sudden and violent pas- sions, and to be seduced by factious leaders into intemperate, and pernicious resolutions. A body which is to correct this infirmity, ought to be free from it, and consequently ought tf) be less numerous, and to possess a due degree of firmness, and a proper tenure of office." ** The rapid succession of new Members will occasion too great a mutibility in the public councils ; from a change of men there must proceed a change of opinions, and from thence a change of measures. Such instability in legislation has a tendency to diminish respect and confidence abroad, as well as safety, and prosperity at home, and to impair the re- verence and attachment, which are indispensable to the per- manence of every political institution." It is difficult to impress upon any single body, which is numerous and changeable, a deep sense of the value of na- tional character. Holding iheir ituntion but a short time, little responsibility is felt, and little pride iiK.Iulged, as to the course of government. A Senate would keep alive a dne sense of national character. The frequency of change in the representatives would in many instances, impair their responsibility, for if there was but one Assembly, and that chosen only for a short pe- riod, it would be difficult to keep up the truiu of proper niea- 57 siires, or to preserve the proper connection between the past and the future, and the more numerous the body, and the more chargeable its component parts, the more difficult will it be to preserve the personal responsibility, as well as the uniform action of the successive Members to the great objects of the public welfare.'* „; . , j,v> iv - .f " Not only would a Senate operate as a salutary check upon the Representatives, but it would act occasionally upon the people themselves, against their own temporary delusions and errors. There are moments in public affairs, when the the people, stimulated by some irregular passion, or some il- licit advantage, or misled by the artful misrepresentations of interested men, may call for measures, which they themselves will afterwards be most ready to lament and condemn. In these critical moments, how salutary will be the interference of a body of respectable citizens chosen without reference to the exciting cause, to check the misguided career of public opinion, and to suspend the blow, u-" il reason, justice, and truth, can gain the authority over the public mind :" Deeply do I regret, that to keep within proper limits, I should have been compelled to omit, as I have done, any })art of tliis masterly statement. No one can form an idea I iiow much it has sufFeied by being abridged, unless he exa- mine for himself the splendid passage in the original. People Iwlio make up their minds without reflection, might perhaps' be induced to think, that it would be a very nice pleasant thing, to have the election of the councillors. But what would be the use of hpviiig a second branch in the Legisla- ture, were both ot them, ..ccording to the vulgar adage to be 1" larr'd with one stick." 1 o guard against this, in the Uni- Itod Stales, in the Ucpresentatrves, there is a Representative jof the people according to the relative population of each [State, upon a givt-n basis ; but in the Senate, it is not so, imnnHMi 58 far each State, bd it large, or small, there are two Senators. The representatives are chosen by the people at large ; not so the Senators — they are chosen by the Legislature of each State, the representatives are chosen every second year, the Senators are chosen for 52> years, one third going out, by ro- tation every second year. Now mark ihe contrivances to which these sagacious people have been compelled to have recourse, to accomplish an object, which in the Province, is achieved with a simplicity, and success, which leave nothing to be desired : the Councillors are appointed by the King ! ! and yet it is now sought to disturb this arrangement : and for what ! because the Councillors will not consent to do, what they are specially appointed j prevent others from doing. :i f— - • The Author having been unable to revise the proof sheets, some errors have una- v'oidnbly been committeJ. The Reader is requested to correct ihe following. p. LINE. FOa READ p. LINK. FOR RKAD 8 21 ihereforo before 33 22 Before But before 11 32 part' fact 86 26 it : let it ! Neither let 12 23 this' . Thii' 62 28 ivi-Jisant soi-disant 18 16 after' often 68 23 first into into 19 19 collision collusion' i< demands,— •The demands— the 81 22 possession the possoasion 54' 29 releases rbiaices. 1 1