THE PREAMBLE.

No IV.

Monday, 6 August, 1838.

I.

LORD DURHAM'S POWERS.

THE statute of the first of Victoria, chapter nine (1 Vic. 9.), is intituled, "An Act to make temporary Provision "for the government of Lower Canada;" and it was thereby enacted:

1. That so much of the 31st Geo. III., c. 31, and of every other act as provided for the existence in Lower Canada of a Legislative Council or Legislative Assembly, should cease to be of any force until the first of November, eighteen hundred and forty.

2. That the Queen, by commission under the great seal, or by instructions under the sign manual, and with the advice of the privy council, might constitute a special council for Lower Canada.

3. That, for the purpose of so constituting a special council, the Queen might appoint, or authorise the Gover

nor of Lower Canada to appoint,* such and so many special councillors as to the Queen should seem meet.

4. The Queen may make provision for the removal, suspension, or resignation of the Councillors.

5. No member of the special Council shall sit therein, until he shall have taken and subscribed before the Governor, or some person authorised by the Governor to administer such oath, the same oath which was required. to be taken by the members of the Legislative Council and Assembly.

6. Until the first of November, eighteen hundred and forty, it shall be lawful for the Governor of Lower Canada, with the consent of the majority of the said Councillors,+ present at a meeting or meetings to be for that purpose convened by the Governor, to make such laws for the good government of Lower Canada as the Legislature of Lower Canada was empowered to make.‡

7. Saving the disallowance of such laws by the Queen, they shall have the same force as laws passed before the passing of this act by the Legislative Council and Assembly of Lower Canada, and assented to by her Majesty, or in her Majesty's name, by the Governor of the Province.§

* It appears from the instructions to the Earl of Durham, of the 13th April, 1838 (see p. 108), that a general authority from the Queen, and an appointment by the Governor under that general authority, is considered to be sufficient for the creation of a special councillor, without his being named in any commission under the great seal, or in any instructions under the sign manual.

+ The words" who may be" are to be here understood.

It might as well have been more distinctly expressed, but it was no doubt intended in this provision, that such laws as it would have been necessary, if passed by the old legislature, to have laid before the imperial parliament previously to their receiving the royal assent, should now also be submitted to parliament: any other construction would give greater legislative powers to the Governor and five special Councillors, than the crown itself, and the whole legislature of Lower Canada, formerly possessed.

§ It has been remarked on this section, that no laws passed by the

8. No such law shall be made, unless the same shall have been first proposed by the Governor for adoption by the Council.

9. No such law shall be made, unless five, at least, of the Councillors shall be present when it is made.*

10. No law so made shall continue in force beyond the first of November, eighteen hundred and forty two, unless continued by competent authority.

11. It shall not be lawful by any such law to impose any impost, save only in so far as any existing impost may be continued.

12. It shall not be lawful to repeal, suspend, or alter any provision of any act of the parliament of Great Britain, or of the parliament of the United Kingdom.

13. It shall not be lawful to repeal, suspend, or alter any provision of any act of the legislature of Lower Canada, repealing or altering any act of the parliament of Great Britain or of the parliament of the United Kingdom.

legislature of Lower Canada ever were assented to "by her Majesty ;" but in this remedial act, the right construction is to suppose an ellipse at the close of the section, and to fill it up with the words "would have had.”

* Sir Edward Sugden expressed, in the House of Commons, a doubt whether the words "at least" did not make it necessary that more than five Councillors should be appointed: but, though the words shew that the appointment of more than five was contemplated, there is no authority or ground in law for affirming that the appointment of more than five is necessary to give validity to a law passed by the Council when five members have been present.

This provision confirms the opinion expressed in the note (†) page 104, in the sixth paragraph of this Abstract.

It may seem to be implied in this provision, that the legislature of Lower Canada had a general power of altering and repealing acts of the imperial parliament. But, whatever practice may have prevailed, the opinion of the Chief Justice and Speaker of the Legislative Assembly is recorded in the journals of that assembly, that this power did not exist, saving in particular cases; such as those in which provision was made for the provincial act being laid before the imperial parliament previously to the royal assent being given.

14. It shall not be lawful to appropriate any money in the hands of the Receiver-General of the Province, toward the payment of any sum issued out of the sum granted to her Majesty by an act in the last session of parliament, for advances on account of charges for the administration of justice and of the civil government of Lower Canada, unless upon a certificate from three or more of the Commissioners of her Majesty's Treasury; and, exclusive of such repayments, no appropriation in respect of the public service for any one year to be made by any such law, of money in the hands of the ReceiverGeneral of the Province, shall exceed the sum appropriated by law within the said province for the public service thereof, for the year one thousand eight hundred and thirty-two.

15. The Governor of Lower Canada is required, by the first convenient opportunity, to transmit to one of her Majesty's principal Secretaries of State an authentic copy of every law made under the authority of the act.

16. At any time within two years after any such law shall have been so received by such Secretary of State, it shall be lawful for her Majesty, or her successors, by order in council, to declare her or their disallowance of such law; and such disallowance, with a certificate under the hand and seal of the Secretary of State, testifying the day on which such law was received, being signified by such Governor by proclamation within the Province, shall make void and annul the same from the date of the signification.

17. For the purposes of the act, any person authorised to execute the commission of Governor of Lower Canada, shall be taken to be the Governor.

Papers have been laid before the House of Lords, since the passing of the act of the 1 Vic. 9, from which the following passages are extracts :

I.

Commission under the Great Seal, &c.

WHEREAS by five several Commissions under the Great Seal, &c. we have constituted and appointed you the said John George Earl of Durham to be our Captain General and Governor in Chief in and over each of our Provinces of Lower Canada, Upper Canada, Nova Scotia, and New Brunswick, and in and over our Island of Prince Edward, in North America; and we have by the said several Commissions made provision for the administration of the government of our said Provinces, and of the said Island respectively, in the event of your absence, by authorising the respective Lieutenant Governors or administrators of the governments of the said Provinces, and of the said Island respectively, in that contingency to exercise the powers by the said Commissions respectively granted to you: And whereas we have, by a Commission under the Great Seal, &c., constituted and appointed Henry Prescott, Esquire, Captain in our Royal Navy, to be our Governor and Commander in Chief in and over our Island of Newfoundland and its dependencies: And whereas there are at present certain weighty affairs to be adjusted in the said Provinces of Lower and Upper Canada, &c., we appoint you to be our High Commissioner for the adjustment of certain important questions depending in the said Provinces of Lower and Upper Canada, respecting the form and future government of the said Provinces; and we grant unto you full power and authority, by all lawful ways and means, to inquire into and as far as may be possible to adjust all questions depending in the said Provinces of Lower and Upper Canada, or either of them, respecting the form and administration of the civil government thereof respectively: And whereas, with a view to the adjustment of such questions, we have deemed it expedient to invest you with the further powers hereinafter mentioned: We do in like manner appoint you to be our Governor General of all the said Provinces on the Continent of North America, and of the said Islands of Prince Edward and Newfoundland: And we do hereby require and command all our officers, civil and military, and all other inhabitants of our