be gratified by the reflection, that the patriotic and honourable men now contending for the principles of the British Constitution, and by whose side, as an humble auxiliary, I am proud to take my stand, whatever they may have suffered in the struggle, did not labour in vain.-I have the honour to be, with the highest respect, your Lordship's humble admirer, and most obedient servant, JOSEPH HOWE. 31 Geo. III, cap. 31. The Special consist of not wenty mem ers, and no business to be ransacted inless eleven De present. Repeal of pro- permanent aws; but all >ermanent aws to be aid for thirty lays before Parliament revious to beconfirmed. CXLI AN ACT TO AMEND AN ACT OF THE LAST SESSION OF (2 & 3 Victoria, c. 53.) 17th August, 1839. Whereas, an Act was passed in the thirty-first year of the reign of his Majesty, King George the Third, intituled “An Act to repeal certain parts of an Act passed in the fourteenth year of his Majesty's reign, intituled ‘An Act for making more effectual provision for the Government of the Province of Quebec in North America,' and to make further provision for the Government of the said Province," whereby among other things it was enacted that there should be within each of the Provinces of Upper Canada and Lower Canada respectively a Legislative Council and an Assembly, to be constituted in manner therein described, and with such powers and authorities as therein mentioned: And whereas an Act was passed in the last session of Parliament, intituled "An Act to make temporary Provision for the Government of Lower Canada," whereby it was enacted that from the proclamation of the Act until the first day of November one thousand eight hundred and forty so much of the said Act of the thirty-first year of the reign of his Majesty, King George the Third, and of any other Act or Acts of Parliament, as provides for the Constitution or calling of a Legislative Council or Assembly for the Province of Lower Canada, or confers any powers or functions upon them or either of them should cease; and by the said Act now in recital provision is made in the meantime for the appointment by his Majesty of a Special Council for the affairs of Lower Canada, and for the making of laws or ordinances for the Government of the said Province by the Governor thereof, with the advice and consent of the majority of the Councillors present at any meeting of the Council: And whereas it is expedient that some of the provisions contained in the said lastly-recited Act should be altered: Be it therefore enacted by the Queen'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 the number of Councillors forming the Special Council in manner provided by the said Act passed in the last session of Parliament shall not be less than twenty, and that no business shall be transacted at any meeting of the said Special Council at which there are not present at least eleven Councillors. II. And be it enacted that from and immediately after the passing of this Act so much of the said recited Act passed in the last Session of Parliament as provides that no law or ordinance made by the Governor of the said Province of Lower Canada, with such advice and consent as therein mentioned, shall continue in force beyond the first day of November, one thousand eight hundred and forty-two, unless continued by competent authority, shall be and the same is hereby repealed: Provided always that every law or ordinance which by the terms and provisions thereof shall be made to continue in force after the said first day of November, one thousand eight hundred and forty-two, shall be laid before both Houses of This Act was passed after the Act of Union was withdrawn in 1839 (see No. CXLII, note), pending Poulett Thomson's report on Canadian affairs. Parliament within thirty days after a copy thereof shall be received by one of her Majesty's Principal Secretaries of States, under the provisions of the said Act of the last Session of Parliament, if Parliament shall be then sitting, or otherwise within thirty days after the then next meeting of Parliament; and no such law or ordinance shall be confirmed or declared to be left to its operation by her Majesty until such law or ordinance shall first have been laid for thirty days before both Houses of Parliament, or in case either House of Parliament shall, within the said thirty days, address her Majesty to disallow any such law or ordinance. new tax to be taxes not to III. And be it enacted that from and immediately after the passing Repeal of the of this Act so much of the said recited Act passed in the last Session of provision of 1 and 2 Vict., Parliament as provides that it shall not be lawful, by any such law or cap. 9, proordinance as therein mentioned to impose any tax, duty, rate, or impost, hibiting taxasave only in so far as any tax, duty, rate, or impost, which at the passing tion; but no of that Act was payable within the said Province of Lower Canada, might evied except be continued, shall be and the same is hereby repealed: Provided always for public that it shall not be lawful for the said Governor with such advice and con- works and sent as aforesaid, to make any law or ordinance imposing, or authorizing objects of municipal the imposition of any new tax, duty, rate, or impost, except for carrying government; into effect local improvements within the said Province of Lower Canada, and such or any district or other local division thereof, or for the establishment or be appropriatmaintenance of police, or other objects of municipal government, within ed by Govany city or town or district or other local division of the said Province: ernment. Provided also that in every law or ordinance imposing or authorizing the imposition of any such new tax, duty, rate, or impost, provision shall be made for the levying, receipt, and appropriation thereof by such person or persons as shall be thereby appointed or designated for that purpose, but that no such new tax, rate, duty, or impost shall be levied by or made payable to the Receiver-General or any other public officer employed in the receipt of her Majesty's ordinary revenue in the said Province; nor shall any such law or ordinance as aforesaid provide for the appropriation of any such new tax, duty, rate or impost by the said Governor, either with or without the advice of the Executive Council of the said Province, or by the Commissioners of her Majesty's treasury, or by any other officer of the Crown employed in the receipt of her Majesty's ordinary revenue. alteration of IV. And be it enacted that from and after the passing of this Act Repeal of the so much of the said recited Act passed in the last session of Parliament as 1 and 2 Vict., provisions of provides that it shall not be lawful for any such law or ordinance as therein cap. 9, prohi mentioned to repeal, suspend, or alter any provision of any Act of the biting the Parliament of Great Britain, or of the Parliament of the United Kingdom, Acts of Paror of any Act of the Legislature of Lower Canada, as then constituted, liament; but repealing or altering any such Act of Parliament, shall be and the same is no law to be hereby repealed: Provided always, that it shall not be lawful for the said the Temporal made affecting Governor, with such advice and consent as aforesaid, to make any law or or Spiritual ordinance altering or affecting the Temporal or Spiritual rights of the rights of Eclessiastics, Clergy of the United Church of England and Ireland, or of the Ministers or the law of any other religious communion, or altering or affecting the tenure of of tenure. land within the said Province of Lower Canada, or any part thereof, save so far as the tenure of land may be altered or affected by any law or ordinance which may be made by the said Governor, with such advice and consent as aforesaid, to provide for the extinction of any Seignorial rights and dues now vested in or claimed by the Ecclesiastics of the Seminary of Saint Sulpice at Montreal within the said Province, or to provide for the extinction of any Seignorial rights and dues vested in or claimed by any other person or persons or body or bodies corporate or politic, within the Island of Montreal, or the island called Isle Jesus, within the said Province. V. And be it enacted that every law or ordinance to be made by the be published Laws, etc., to said Governor, with such advice and consent as aforesaid, shall, before the in Gazette. passing or enactment thereof, be published at length in the public Gazette of the said Province of Lower Canada. Definition of VI. And be it enacted that for the purposes of this Act the person Governor. Act may be mended, etc. authorized to execute the Commission of Governor of the Province of Lower Canada shall be taken to be the Governor thereof. VII. And be it enacted that this Act may be amended or repealed by any Act to be passed during the present session of Parliament. CXLII LORD JOHN RUSSELL TO THE RIGHT HON. C. POULETT THOMSON' [Trans. Imperial Blue Books relating to Canada, Vol. XIII.) Downing Street, Sir, The Queen having been pleased to confide to you the Govern ment of the British provinces in North America, I now transmit to you the various Commissions under the Great Seal, which authorize you to assume and execute that office. The intimate knowledge which, as one of Her Majesty's confidential advisers, you have acquired, of the progress of Canadian affairs during the last few years, and of the views of Her Majesty's Government on that subject, relieves me from the necessity of entering on various explanations, which it would otherwise have been my duty to afford you. But it is fit that I should on the present occasion record for your guidance the intentions of the Ministers of the Crown on the principal topics of Canadian policy, on which you will be called, as the governor of those provinces, to co-operate with them. The Bill introduced into the House of Commons during the present session of Parliament, embodied, as you are aware, the results of deliberate reflection on the various suggestions contained in the reports of the Earl of Durham. The hope of passing that measure into a law before the Parliamentary recess was defeated by various circumstances which occurred, and especially by the intelligence which, in the commencement of the month of June reached us from the Lieutenant-Governor of Upper Canada, of the state of public opinion in that colony, as expressed by the resolutions of the Council and Assembly. We have never concealed from ourselves that the success of any plan for the settlement of Canadian affairs must depend on the concurrence and support of the provinces themselves. To learn their deliberate wishes, and to obtain their co-operation by frank and unreserved personal intercourse, will therefore be the first and most important of the duties which you will be called upon to perform. In our anxiety thus to consult, and as far as may be possible, to defer to public opinion in the Canadas on the subject of constitutional changes, Her Majesty's Government must be understood as entertaining a very strong conviction in favour of the policy of the measure which they have proposed for the adoption of Parliament. Attaching minor importance to the subordinate details of that Bill, we have found no sufficient reason for distrusting the principles on which it proceeds. These are-a legislative Union of the two provinces-a just regard to the claims of either province in adjusting the terms of that Union-the maintenance of the three estates of the provincial legislature-the settlement of a permanent civil list for securing the independence of the judges, and to the executive government that freedom of action which is necessary for the public good-and the establishment of a system of local government by representative bodies, freely elected in the various cities and rural districts. From any of these 1 The union of the two Provinces was decided on as a result of Durham's Report. In 1838 a bill for that purpose was introduced, but withdrawn by the Government, owing to the protest from Upper Canada. It can be read in Public Bills, 1839, Vol. I. The new Governor-General, Charles Poulett Thomson, afterwards Lord Sydenham, was instructed to gather further information on Canadian affairs and to forward it to England. He reached Quebec September 17, 1839, and his work in Canada is illustrated in the following documents, which also throw light on the growing changes in British Colonial policy. For Sydenham's rule in Canada see A. Shortt, Lord Sydenham. principles Her Majesty's Government would be most reluctant to recede. After a full investigation of every other plan which has been suggested they have not been able to discover in any but this, the reasonable hope of a satisfactory settlement. It will, therefore, be your first duty to endeavour to obtain for that measure, such an assent in its general principles, and such a correction of its details, as may render it acceptable to the provinces, and productive of permanent advantage. There are various modes by which this object may be accomplished, and in giving an outline of them, Her Majesty has commanded me to express to you her reliance upon your judgment, to be formed upon the spot, as to the employment of such as may be most conducive to the contentment and advantage of her Canadian subjects. I. You may appoint, by authority of the executive, a certain number of persons of weight and experience, selected from each province, to frame articles of Union, to be afterwards proposed to the legislature of Upper Canada. 2. You may assemble the legislature of Upper Canada, and propose to them the appointment of a certain number of Commissioners, to confer with others named by the special Council of Lower Canada. 3. If you find that your overtures to the assembly of Upper Canadą are not met in a fair, conciliatory, and reasonable spirit, you may proceed to dissolve the present assembly, and appeal to the sense of the inhabitants of the Province. But in the late unsettled state of the province, in the presence of repressed disaffection, with the necessity of a second dissolution before the assembly of the united province can meet-this step must not be resorted to, without the gravest deliberation. In whatever method you may proceed, Her Majesty's Government will expect to receive from you, founded on competent authority, such a plan of representation, with a division into cities and districts, as may enable them to lay the scheme before Parliament with confidence in the data on which it has been formed, and in the justice of the general arrangement. I will not now argue on a further supposition, viz., that from difficulty of detail, or mutual disinclination, the plan of Union may be found altogether impracticable. Should you find, after all your efforts, that such is the result, you will lose no time in communicating to me, for Her Majesty's information, the grounds of your opinion, and the nature of any alternative which may seem to you more conductive to the general good. But above all things, it is important to avoid unnecessary delay. The discussion, which has already been protracted at the expense of so much evil, and still greater hazard to the interests of the Canadian provinces, and of this kingdom, cannot be too speedily brought to a close. Her Majesty's Government will, therefore, anxiously await the result of your inquiries as to the state of public opinion in the Canadas respecting the proposed Union, and the terms on which in your opinion it should be effected. I earnestly trust that it may be received in this country by a period sufficiently early to enable us to communicate it to Parliament at the commencement, or soon after the commencement, of the session of 1840, and then to proceed at once with such measures as may be required to meet the exigencies of the case. The intelligence which has reached me from Upper Canada, makes it probable that you may be called upon for some explanation of the views of the Ministers of the Crown, on a question respecting which the Bill to which I have referred is necessarily silent. I allude to the nature and extent of the control which the popular branch of the united legislature will be admitted to exercise over the conduct of the executive government. and the continuance in the public service of its principal officers. But it is evidently impossible to reduce into the form of a positive enactment a constitutional principle of this nature. The importance of maintaining the utmost possible harmony between the policy of the 1 For illustrations of Russell's dictum in connexion with the various constitutions of the self-governing parts of the Empire, see Jenkyns, British Rule and Jurisdiction beyond the Seas, pp. 61 ff. (Oxford, 1902.) legislature and of the executive government admits of no question, and it will of course be your anxious endeavour to call to your counsels and to employ in the public service those persons who, by their position and character, have obtained the general confidence and esteem of the inhabitants of the province.' The military defence of the Canadas is another subject of common interest to both provinces, on which it is necessary that you should be apprized of the views of Her Majesty's Government. In the correspondence between Lord Glenelg and Sir John Colborne, and especially in the despatches of the latter, you will find a full discussion of the plans which have been devised for that purpose. Amongst them is a scheme for extended fortifications, to be erected and maintaind at an expense, which it is not evident will be compensated by any equivalent advantage. For the present, at least, notwithstanding the deference so justly due to the opinions of that distinguished Officer, the Ministers of the Crown cannot recommend the adoption of this scheme. On the other hand, the plan suggested from this country and sanctioned by Sir John Colborne, of creating military settlements on the frontier, on the principle of veteran battalions, appears to the Ministers of the Crown as at once the most effective and the most economical plan of defence which could be pursued. Measures will be taken, with the least possible delay, for carrying it into effect; and in the meantime you will discourage and prevent, as far as may be compatible with the public safety, either the augmentation, or the continuance on foot of the volunteers, or the sedentary corps, which were embodied during the last winter as a reinforcement to the regular army. On all subjects of this nature, however, you will consult Sir Richard Jackson,' whose judgment and military knowledge will be of the greatest service to you. The only topic which it remains to notice, as affecting the two Canadian provinces alike, is that of raising an emigration fund from the proceeds of the sales of the Crown lands. Unfortunately, the very elaborate report communicated to me by Lord Durham on this subject, serves but to confirm, and to place in a still clearer light, the difficulties by which, as we were previously aware, the promotion of this most important object is obstructed. Such is the extent of land alienated, and so inconsiderable the proportion which still remains vested in the Crown, that the hope of rendering any effectual aid to emigration by the sale of such lands, cannot at present be reasonably entertained. The necessary preliminary to the introduction of any such system, would be the resumption of the large tracts of land held by grantees in a barren and unprofitable state. This could be effected only by the imposition of a tax on uncleared land, and by enactments for the collection of that tax, to insure the due execution of the law. In the Lower Province there exists, at the present time, no authority by which such a tax could be imposed. In the Upper Province it is hardly to be expected that, in the present state of affairs, the difficulties which encompass the subject will be effectually overcome. Amongst the benefits to be anticipated from the union of the provinces, it is not the least important that the united legislature would be able to act upon subjects of this nature with a great comparative freedom from the undue bias of local interests, and with a large view to the permanent improvement of the provinces. Such being the principal subjects of common interest to the two provinces, to which your attention will be immediately called, I have next to notice those which will relate exclusively to the province of Lower Canada. The Act which has been passed in the last session of Parliament, in amendment of the Act of the first year of Her Majesty's reign, providing for the temporary administration of the Government of Lower Canada, will relieve you and the Special Council from many of the impediments by which your immediate predecessor has been encountered in the attempt to promote the internal interests of the province. Sir John Colborne's de 1 See No. CLII. 2 Sir Richard Downes Jackson, Commander-in-Chief of the forces. See No. CXLI. |