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NO. III.

ENCROACHMENTS ON THE CONSTITUTIONAL POWERS OF THE LEGISLATIVE COUNCIL BY THE ASSEMBLY AND THE GOVERNOR.

En 1791, le corps législatif n'était composé que d'une chambre, sous le nom d'Assemblée Nationale Législative; et c'est principalement ou au moins en grande partie de cette imprudente concentration de la puissance en un seul corps, jointe à l'initiative qui lui était exclusivement déférée, que la France a du le commencement de cette longue série de malheurs dont les effets et les suites pèsent encore sur nous si douleureusement. TOULLIER.

THE essential character of a free government is, that it is a government of laws and not of men; and whatever false covering may be given to it, or however specious may be the pretexts, wherever the laws are made to bend to the will of individuals, or powers exercised by public bodies which the constitution of the state has not vested in them, or other powers withheld from bodies with which the constitution has clothed them in that country civil liberty is endangered; nor is it any alleviation of the evil, but on the contrary a high aggravation, if any of the public constituted bodies of the government tamely acquiesce in acts like these. Powers conferred on them by the law and the constitution, are powers not held by them in absolute property to be used or abused at their pleasure; they are powers held by them in trust for the people, for the due exercise of which they are accountable as men, to God, and as citizens to the state.

In the ordinary acts of deliberative bodies, error does not always justify blame; men equally enlightened and equally honest, might and do differ as to the measures most conducive to the public weal. It is otherwise as to the assumption of

ENCROACHMENTS BY THe assemblY & THE GOVERNOR. 11

powers not given by law, or the surrender of those which are so given: for these things nothing can be said in palliation nor in mitigation; they bless neither him that gives nor him that takes. As a lover of just freedom, it is the duty of every good subject vigilantly to watch the conduct of the public bodies in whom the law has vested the high power of making laws, to satisfy himself of their reverence to that law to which they owe their own political being. After a careful review of the whole of the proceedings of the last Session of the Provincial Parliament, I have been led to the painful conclusion, that the House of Assembly, in various acts during the Session, assumed to itself powers not given to it by the Constitution, and derogatory to the just powers of the Legislative Council. The object of the present paper is to bring under the consideration of the public some instances wherein it is conceived that the Assembly has exposed itself to the foregoing reproach, and before doing so, I beg leave to recall to the recollection of my readers the nature of the functions and powers of the Legislative Council of Lower Canada.

By the Constitutional Act of Lower Canada, the Legislative power is vested in the Legislative Council and the Assembly, concurrently with his Majesty, represented for this purpose, in the colony by his Governor. The Legislative Council has been sometimes erroneously assimilated to the House of Lords in England, the points of difference between which two bodies are so numerous, and so great, that to detail them would be to institute a comparison, which if not odious, might be deemed invidious. But although the members of this body are not lords of parliament, still the functions assigned to them by the Constitution, are of the highest importance, being analogous to those which are exercised by the Senate of the United States of America. The division of the Legislature, it has been well and truly said, "into two separate and inde"pendent branches, is founded in such obvious principles of "good policy, and is so strongly recommended by the une"quivocal language of experience, that it has obtained the

"general approbation of the people of this country. The great "object of the separation of the Legislature into two Houses, "acting separately, and with co-ordinate powers, is to destroy "the evil effects of sudden and strong excitement, and of pre"cipitate measures springing from passion, caprice, prejudice, "personal influence, and party intrigue; and which have been "found, by sad experience, to exercise a potent and dangerous "sway, in single assemblies. A hasty division is not so likely "to arrive to the solemnities of a law when it is to be arrested "in its course, and made to undergo the deliberation, and "probably the jealous and critical revision of another and a "rival body of men, sitting in a different place, and under "better advantages to avoid the prepossessions and correct "the errors of the other branch. The Legislatures of Penn"sylvania and Georgia, consisted originally of a single House. "The instability and passion which marked their proceedings "were visible at the time, and the subject of much public "animadversion; and in the subsequent reform of their con"stitutions the people were so sensible of this defect, and of "the inconvenience they had suffered from it, that in both "States a Senate was introduced. No portion of the political “history of mankind is more full of instructive lessons on this "subject, or contains more striking proof of the faction, insta"bility, and misery of States, under the dominion of a single, "unchecked Assembly, than that of the Italian Republics of "the middle ages; and which arose in great numbers, and "with dazzling but transient splendour, in the interval be"tween the fall of the Western and the Eastern Empire of "the Romans. They were all alike ill constituted, with a "single unbalanced Assembly. They were all alike miserable, "and all ended in similar disgrace."*

It is known to all there are certain funds appropriated for the contingent expenses of the House; and legally, neither the House nor any of its officers have any right to apply them to

• Kent's Commentaries.

any other purposes; it is a trust fund, in the expenditure of which, doubtless, a certain degree of discretion may be exercised, but still a discretion having certain limits; for it is quite manifest that if the House could legally apply this fund to purposes other than those for which it was specifically appropriated, they would for all the purposes of such application, exercise sole legislative power, to the exclusion of the other two branches of the Legislature. The first instance in which this abuse occurred, was one which at first sight might perhaps excite a smile, but further reflection and the experience afforded by acts similar in principle, but more grave in character, would induce us to consider this aggression with feelings very different from those of levity.

Soon after the close of the last Session, four honourable members of the House, considering the fragility of human life, and desirous of perpetuating to the remotest posterity, the memory of the forms which had enclosed their patriotic souls, had four pictures made of themselves, of three deceased speakers and one ex-living one. The family for which these pictures were intended was not the family of each, any, or all of the pictured men, but was the one great family of Lower Canada; thus far it might be considered as a mere gratuitous testimony of the importance which they considered themselves to have in the eyes of their fellow citizens, and of satisfaction with their own faces-a matter upon which but few men are difficult to please. But the thing did not stop here; these faces were paid for out of the public chest of Lower Canada; they were charged against and paid out of the fund appropriated to defray the contingent expences of the Legislature; they were so paid for, without competent order or authority; they were hung up in the public rooms of the Assembly without its sanction. It forms no part of the subject in hand to make any observations upon the temper of mind which dictated this act, nor to enquire how far the assumption of such a distinction was consistent with the respect which they owed to the House, and to the country; I look at it simply and merely as

an application of monies to objects different from that to which they had been appropriated, an application which the House itself could not legally have made, and an assumption of a power which could only have been exercised by the Legislature. The sum it is true is small, but the precedent is dangerous; and we accordingly find it followed in a resolution of the House, passed on the 27th day of January last, whereby the fund of the contingent expences of the House came to be charged with the postage of all letters received by members during the Session. The resolution bears date the 27th January, 1831, and is as follows:

"Resolved, That the postage of all letters and manuscripts, addressed to any member sitting in the House during the Session, be paid by the Clerk thereof, and charged in the contingent accounts of the House."

It may or may not be reasonable that the letters of members should be paid for by the public, but the only power competent to determine that question is the Legislature; and the form of determining it in the affirmative is by passing a law making an appropriation for that purpose.

The House having thus adopted the practice of appropriating monies by votes, the secret could not long be kept that this principle once admitted, and this practice acquiesced in, the power of the Legislative Council would be essentially abridged.

The proceedings to which I shall next proceed, are those relating to the nomination of an Agent to represent the Province in England, and these will abundantly illustrate how fatal the exercise of such a power is to the constitutional powers of the Legislative Council.

For many years past, Bills have from year to year been sent up to the Legislative Council authorizing the nomination of such agent and providing for his remuneration. Differing as the Legislative Council and Assembly have done for years past upon all the leading points of the internal policy of the colony, it is not very surprising that these two bodies could