upon the subjects of the Laws to be enacted or considered; they think also they would have the power of expelling a Member convicted by any competent Tribunal of a crime of an infamous nature, and as to this latter instance, we are warranted by an opinion of Lord Mansfield and Sir Richard Lloyd in the year 1755. The right of regulating and ordering their own proceedings in their Assembly consistently with the Statute must necessarily be incident to them, and as to the privilege of deciding upon the right of sitting either in legislative Council, or the house of Assembly, this can no longer be a question of privilege, because such right is in certain cases given by the 31st of Geo. 3d. Ch. 31 to the Legislative Council as to their Members and is enacted by the Provincial Statute of the 48th Geo. 3d Chap. 21 as to the houses of Assembly. As to the question stated in the paper No. 2 which we have also returned with this Report "whether the course of proceeding therein "described is the legal course of proceeding in the legislative Council of "Lower Canada under the Statute of the 31st of Geo. 3rd. Ch. 31," we beg to report to your Lordship that we conceive the true meaning of a casting vote to be that of a second vote given to some Member of the constituted body in case there shall be an equality of votes including such members original vote: the phrase however is also in common parlance used as descriptive of the vote of some particular member or officer of such Body, who by its constitution has no vote in the original deliberation or decision of the question proposed, but whether it is to be understood in one sense or the other must be decided by the Charter or Act of Parliament constituting the body, if it be extant; or by antient and immemorial usage if no such Charter or Act can be found:-The ancient and immemorial usage of the house of Commons, manifesting the Law and Custom of Parliament, is the foundation of the practice of the Commons' House of Parliament, which does not, and cannot apply to the Legislative Council of Canada To decide the present question resort must be had to the Act of the 31st Geo. III, Ch. 31, for neither in the regulation of their own proceedings, nor in any other respect can the Legislative Council act against the provisions of that Statute. If the Parliament had meant that the person who should be appointed Speaker should be thereby deprived of any of his rights or franchises as an individual Member, and should not vote unless the other Members (exclusive of himself) were equally divided, we are of opinion the Statute would have been penned in very different terms; there is nothing in the Clause referred to which divests the Speaker of any of the rights belonging to him as a Member of the Legislative Council separate and distinct from the Office or Character of Speaker. Tho' the Legislative Council is not confined to any definite number yet it may frequently happen that the number of which it is composed, or the number which may attend, will be an even number; Upon such occasion if the Speaker were excluded from giving an original vote, a majority might exist on a question on which he might think with the minority, and by that means he would be deprived of the exercise of his right or franchise. To prevent the inconvenience of equal division, when his vote is included, it was, that the Statute gave the casting vote to him on an equality of Voices,—and we are of the opinion that the giving the casting vote in terms was meant to give a vote or power of voting superadded to his original vote as an abridgement or in derogation of his original and inherent right of voting as Member. We therefore report to your Lordship that we are of opinion that the proceeding stated in the paper No. 2 is the legal course of proceeding, and that the Legislative Council has put a right construction on the Act of Parliament. We have the honor to be Your Lordship's most To Rt. Hon Earl Bathurst. W. GARROW S. SHEPHERD My Lord. LXXXV SHERBROOKE TO BATHURST [Trans. Doughty and McArthur.] Castle of St. Lewis Quebec 15th July 1816 On my arrival here I received communication of Your Lordship's dispatch' of the 12th July 1815, marked "Separate and confidential" instructing Sir Gordon Drummond under particular circumstances to dissolve the Assembly; And having given to it the serious and attentive consideration it deserves, I feel it my duty to submit to Your Lordship the sentiments which have arisen in my mind on a perusal of it, and to request to be informed from Your Lordship how far I am to consider it as applying to the Government of my conduct under similar circumstances. It is not for me my Lord to remark on the risque of embarrassment and the possible evils that may arise from restraining the discretion of a Governour in those delicate and difficult circumstances which must often occur in the management of a popular Assembly; and in which, if left to himself, he might find means from his knowledge of the views and characters of the different parties to carry on the Public business without coming to extremities; These considerations, I am persuaded, had been fully weighed by His Majestys Government before they in their wisdom gave that instruction to which I have alluded, and by the very imperative terms of which I should have conceived myself debarred of all choice or discretion, if it had been addressed to me. But, as at present situated, I feel myself entitled to bring before Your Lordship's view, that the measure adopted by Sir Gordon Drummond in consequence of that command,-if it was intended to have its effect by changing for the better the Representation of the lower House, has entirely failed in its operation as far as I have been able to learn since my arrival; and not only so but has in no small degree aggravated the evil by causing much irritation both among the Representatives and in the country; and by leading to the general re-election of the same members, or, in those few instances where a change has taken place, it is believed to be for the worse, by the exclusion of the most moderate of the Canadian members of the former House. I cannot here avoid submitting to Your Lordship my humble opinion, that, in this Country, where there is no room for the exertion of a Salutary government influence such as exists in England the strong measure of a dissolution must in almost all possible circumstances of the country produce rather evil than advantage; And can never have that effect which may be given to it in England by the exertion of the different means that may be brought into action there for the correction of popular opinion and for securing to the Crown a stronger influence in Parliament. But notwithstanding this opinion, which, with the most respectful deference, I thus submit to Your Lordship, you will not doubt that I shall be ready to carry into full execution the strongest measure that His Majesty's Government shall think proper to prescribe. There does not appear any necessity for calling together the Assembly before the usual period, at the commencement of the winter; And I shall hope to receive before that time the pleasure of His Majesty's Government, (if it should still be thought necessary to give specific instructions) as to the course I am to pursue in case the House of Assembly recur as there is scarcely a doubt that they will, to the subject which has lately led to a dissolution of that body. I have the honour to be, My Lord etc. J. C. SHERBROOKE. 1 Bathurst had informed Drummond that he must dissolve the Assembly before it had time to embody resolutions in shape of specific charges such as impeachments. (Doughty and McArthur, p. 472.) LXXXVI RIGHT OF HOUSE OF ASSEMBLY TO INITIATE ALL MONEY BILLS [Trans. Doughty and McArthur.] RESOLUTIONS OF THE LEGISLATIVE COUNCIL OF UPPER CANADA Saturday, 21st March, 1818. 1. Resolved, that in making amendments to a Bill sent up from the Commons House of Assembly, intituled "An Act to make further provision for regulating the trade between this Province and the United States of America" this House acted upon the principle that its concurrence was necessary to pass the same, which it could not, in the exercise of its judgment and discretion, without amendment. 2. Resolved, That the Commons House of Assembly having hitherto rejected all Conference on the subject of Money Bills, no course remains to the Legislative Council but implicitly to submit to its judgment and reason, or to reject wholly the offered Bill; unless the House of Commons will continue as it has heretofore in many cases done, even during the present Session, to reject the amendments of the Legislative Council without notice, and re-enact the matter, so as to receive the concurrence of the other branches of the Legislature. 3. Resolved, That this House does not consider the necessary amendments to a Money Bill as a breach of the Privileges of the Commons House of Assembly; nevertheless as it is so considered by that House in the said Resolution, the Legislative Council will forbear all amendments to Bills for raising or levying money, and merely withhold its assent to the same. RESOLUTIONS OF THE HOUSE OF ASSEMBLY, UPPER CANADA 23rd March, 1818. 1. Resolved, that the Commons have never questioned the principle either of constitutional right of necessity of the concurrence of the Legis lative Council in passing Bills, but do insist that the exercise of its judgment and discretion on all Bills granting aids and supplies to His Majesty, or imposing burthens upon the people is by uniformly acknowledged precedent confined to assent without making any amendments, or to the rejecting totally such Bills; and that the admission of a contrary principle upon the part of the Commons would be surrendering a constitutional right always exercised by this House, and from time immemorial by the Commons of Great Britain, which this House will never consent to. 2. Resolved, that the foregoing resolution is equally applicable to meet the reasoning of the first part of the second resolution of the Legislative Council, and that in all cases when this House have rejected amendments of the Legislative Council without notice, and re-enacted the matter so as to receive the concurrence of the other branches of the Legislature, this House have done so from the most conciliatory disposition and regard for the interests of the Province, wherever the same could by strained construction be admitted; but in no instance where the amendments have been made to a Bill the direct object of which has been the raising, levying. or appropriating money. 3. Resolved, that the first part of the third resolution of the Legis lative Council, avowing that they do not consider the necessary amendments to a money Bill as a breach of the privilege of the Commons House of Assembly, cannot be considered by this House without weakening that right which, in the true spirit of our constitution, solely and exclusively appertain to this branch of the Legislature. 4. Resolved, that it is the opinion of this House that the collected consideration of the three resolutions of the Legislative Council require the following avowal. That this House consider it as their constitutional right to commence all money Bills, either granting aids and supplies to His Majesty or imposing any charge or burthen whatsoever upon the people, and to direct, limit, and appoint in such Bills the ends and purposes, considerations, limitations, and qualifications thereof, and that such grants, limitations and dispositions ought not to be interfered with by amendments in the Legislative Council, because such has never been permitted by the Commons of this Province, nor is it the usage and practice of the British Parliament. RESOLUTIONS OF THE LEGISLATIVE COUNCIL OF UPPER CANADA Tuesday, 24th March, 1818. The Honorable the Legislative Council, on consideration of the Resolution of the House of Assembly, delivered yesterday at the Bar of this House, 1. Resolved, that the Legislative Council and House of Assembly of the Province of Upper Canada are co-ordinate branches of a Limited Legislature, constituted by the Statute enacted in the thirty-first year of His Majesty's Reign. 2. That all powers, immunities and privileges of either branch are derived from that Statute, and extend to their respective advice and consent to His Majesty, to make laws not repugnant to that Act for the peace, welfare, and good Government of the Province. 3. That in adopting the order and course of proceeding to advise and consent to laws, this House does not assume the powers, authority and privileges of the Upper House of Parliament, grown out of the practice of ages, and unsuitable to the circumstances of this Colony. 4. That the House of Assembly, adopting as its type the Commons House of Parliament, and claiming all the powers, immunities and privileges thereof, is not justified by the words or spirit of the Constitution, more than the Legislative Council would be justified to assume for itself and its members the powers, immunities and privileges of the Upper House of Parliament. 5. That the origin of all supplies in either House or exclusively in the House of Assembly must be indifferent so long as either house retains the power of rejection, that the exercise of the right to amend an original Bill is equally indifferent except that without the exercise of that right, or the resort to amicable conference between the two Houses time is wasted and the Public service delayed. 6. That the House of Assembly did by Resolutions delivered at the Bar of this House declare that it would not accede to any conference on the subject of a money Bill. 7. That the amendments made to the Bill intituled "An Act to make further provision for regulating the Trade between this Province and the United States of America," by the Legislative Council, were to conform to a national regulation of trade imparted to both Houses by His Majesty's Government to reduce the burthen of the people of whom the individuals of this House are a part only distinguished by the duty imposed on them in their Legislative capacity to protect defend and support the interest of the whole. 8. That having no means of interchanging opinion with the House of Assembly, but by way of conference or amendments, the Legislative Council does not consider it reasonable that such amendments should be treated as a breach of privilege, and that having declared by its resolutions transmitted to the House of Assembly that it would forbear amendments to money Bills such resolution ought to afford reasonable satisfaction to that House (even if its privilege had been violated) and restore the course and harmony of proceeding in the Public business. RESOLUTIONS OF THE HOUSE OF ASSEMBLY OF UPPER CANADA 1. Resolved, nem. con. that this House, in persisting in their right to reject all amendments made by the Legislative Council to Bills for raising and appropriating moneys, and to decline all conferences thereon, are assuming to themselves no new privilege; but are only adhering to the form of proceeding which has been maintained from the first establishment of the Provincial Legislature, and in which they have taken for their guide the representative form of constitution in the Mother Country, by which that of this country is modelled, and by which the Legislative Council have in all their proceedings equally governed themselves; whatever it may suit their present purpose to disclaim. 2. Resolved, nom. Con., that as this House desire to make no innovation, so they are determined to suffer none, but will persist in maintaining in all their deliberations those rules which they have found established, and which, being coeval with their constitution, they consider it would be as inconsistent with their duty as it is repugnant to their inclination to abandon. 3. Resolved, nem. con., that the gracious Speech of His Majesty's Representative, John Graves Simcoe, Esquire, at the opening and prorogation of the first Parliament of this Province, and the answers thereto, be entered on the Journals of this House; that part of the Journals having been destroyed by the enemy in the late war. LXXXVII ACT RESPECTING ELIGIBILITY OF PERSONS TO BE [Trans. Doughty and McArthur.] An Act to repeal an Act passed in the thirty-fifth year of His Majesty's Reign, entitled, "An Act to ascertain the ELIGIBILITY of PERSONS to be Returned to the HOUSE of ASSEMBLY," and also to repeal an Act passed in the fifty-fourth year of His Majesty's Reign, entitled, "An Act to repeal and amend part of an Act passed in the thirty-fifth year of His Majesty's Reign, entitled ‘An Act to ascertain the eligibility of persons to be Returned to the House of Assembly," and to make further and more effectual provision for securing the freedom and constitution of the Parliament of this Province. (Passed 1st April, 1818, Province of Upper Canada.) WHEREAS, it is most desirable that the eligibility of persons to be proposed as Candidates for the Representation of the several Towns, Ridings and Counties in the Province, in the Commons House of Assembly, should be clearly and expressly defined: and whereas the provisions of an Act passed in the thirty-fifth year of His present Majesty's Reign, entitled "An Act to ascertain the eligibility of persons to be returned to the House of Assembly," and also of an Act passed in the fiftyfourth year of His Majesty's Reign, entitled "An Act to repeal and amend part of an Act passed in the thirty-fifth year of His Majesty's Reign, entitled, “An Act to ascertain the eligibility of persons to be returned to the House of Assembly," have not attained that object: Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Britain, entitled, "An Act to repeal certain parts of an Act passed in the fourteenth year of His Majesty's Reign, entitled, 'An Act for the making more effectual provision for the Province of Quebec in North America, and to make further provision for the Government of the said Province," and by the authority of the same, That from and after the passing of this Act, each of the said Acts respectively shall be and the same are hereby repealed. II. And be it further enacted by the authority aforesaid, That from and after the passing of this Act, no person or persons, of what condition |