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said Provinces and of our said Islands respectively, to be obedient, aiding, and assisting unto you, in the execution of this our Commission, and of the several powers and authorities herein contained : Provided nevertheless, that in the execution of the powers hereby vested in you, you do in all things conform to such instructions as may from time to time be addressed to you for your guidance by us, under our Sign Manual and Signet, or by our order in our Privy Council, or through one of our principal Secretaries of State : Provided also, and we do hereby declare our pleasure to be, that nothing herein contained shall extend or be construed to extend to revoke or to abrogate the said Commission under the Great Seal of our said United Kingdom of Great Britain and Ireland, appointing the said Henry Prescott Governor and Commander in Chief of our said Island of Newfoundland and its dependencies, as aforesaid: And we appoint, that you may hold the said offices for and during our will and pleasure.
[Dated at Westminster, the 31st day of March, 1838.]
Instruction under the Royal Signet and Sign Manual
authorising the Governor of Lower Canada to con
stitute a Special Council. .. Given at Windsor, the 13th day of April, 1838. Whereas by an Act passed in the first year of our reign, &c., it is amongst other things enacted, that it shall be lawful for us, by any Commission or Commissions to be from time to time issued under the Great Seal of our United Kingdom, or by any instructions under our Signet and Sign Manual, and with the advice of our Privy Council, to constitute a special Council for the affairs of our said Province of Lower Canada; and for that purpose to appoint or authorise the Governor of our said Province to appoint such and so many special Councillors as to us should seem meet, and to make such provision as to us should seem meet for the removal, suspension, or resignation of all or any such Councillors : Now know you, that in pursuance of the powers so vested in us by the said recited Act, we have, with the advice of our Privy Council, by these present instructions under our Signet and Sign Manual, thought fit to constitute, and with the advice aforesaid do hereby constitute, such special Council for the affairs of Lower Canada, and for that purpose have authorised and do hereby authorise you to appoint not less than five special Councillors for the purposes of the said Act. It is nevertheless our pleasure, that such persons only shall be appointed by you special Councillors in pursuance hereof, and of the said Act, as shall be persons of approved loyalty and good life, and as shall be of the full age of twenty-one years, and as shall be our subjects, natural born or duly naturalized: And we do hereby provide and declare, that all or any such Councillors may at their pleasure resign such their offices, and that it shall be competent to you, upon any good and sufficient cause to you appearing, to suspend any such Councillor: And we do hereby reserve to us full power and authority from time to time, as to us shall seem meet, to remove all or any such Councillors.
Copy of Form of Mandamus by which Members of the
Executive Council* in Lower Canada have usually been appointed. Victoria R. Right trusty and well beloved, we greet you well. We, being well satisfied of the loyalty, integrity, and ability of our trusty and well-beloved A.B. Esquire, have thought fit hereby to signify our will and pleasure that forthwith upon the receipt of these presents you swear and admit him the said A. B. to be of our Executive Council of Lower Canada. And for so doing this shall be your warrant.
* It is to be observed that this relates merely to the Executive Council, which, although its authority as a court of appeal depends on statute, is appointed by virtue of the prerogative of the Crown, and is distinct from the special Council which, by the Act of 1 Vic. 9, is substituted for the two Canadian houses of legislature.
Given at our Court at
this day of in the year of our reign. By her Majesty's Command. [Countersigned by the Secretary of State. ]
Addressed to the Governor of
the Province for the Time being.
Note. It has been customary for the Governors of Lower Canada, without a mandamus under the royal signature, to make provisional appointments to the Executive Council; which appointments, unless disallowed by her Majesty's Government, were valid to all intents, except that, until confirmed by mandamus under the Royal Sign Manual, the member so named was not competent to sit in the Court of Appeals.* Colonial Office, Downing Street,
9th July, 1838.
• The functions of an Executive Councillor could scarcely give rise to a question of competency in any other case. Ed.
THE CANADIAN LAW OF PROPERTY
The point on which, for purposes of practical legislation, the greatest difficulty will be felt from the irreconcilable views and notions of the French and the British races in Lower Canada, is the law of property in land. From time to time, for the last half century, attempts have been renewed to bring the adverse parties to look at this matter in the same light: but the following extracts may serve to indicate what on one side has to be overcome. The document, of which they form a part, is a comment on a report of the Legislative Council to Lord Dorchester, in 1790 ; but it was reprinted so recently as in 1830, in the appendix to one of the most intelligent and cleverest of the publications on the affairs of Canada which have been written by the French Canadians; and though it has been thought advisable to withdraw this document from the later editions of the work, those who are acquainted with the province know, that the dislike of the British system of landlord and tenant was not expressed more strongly in 1790 than it is still felt in 1838, by one class at least of the French Canadians. The foot notes upon the paper of Messire Bedard are those of the author of " A Political and Historical Account of Lower Canada.” London: Marsh and Miller, 1830.
Observations on the Report of the Committee of the whole
Council, respecting a Change in the Tenures of the
Of all the legislators who have preceded the present age, those have been the wisest who have come nearest to an establishment of equality among the subjects. The wisest of all, because he had the Spirit of God, whom we adore, was Moses ; he divided thelands amongst the Hebrews with so much justice and equality, that the smallest complaint was never heard. But it would have been little to have established this equality, had he not used the means of maintaining it. To succeed, he rendered these lands by their nature inalienable, and with so much wisdom, that the inalienability constantly supported itself against the efforts of avarice, which generally overturns all things. In such manner, that if any one had alienated his estate in a time of calamity, he, or his heirs, if he had any, recovered his property the year of the jubilee. Thus, every fifty years, the ancient distribution was reestablished, in full right. He did more: he provided in such manner for the liberty of individuals, that, if any one had trafficked away a part of his property, he recovered it at that epoch. Thus lost members were restored to their country, who, in reentering into the possession of their lands, recovered the title of citizens, and found themselves in a condition to fulfil the functions of a citizen. Hence, among them were never known those seditious demands of new registers, or new partitions, so common in Greece, any more than those agrarian laws so often asked by the Romans.
If it was at present a question of a new establishment, of giving a form to a new people, a more excellent model could not
* On the 25th of August, 1790, a reference was made by his Excellency the Right Honourable Guy Lord Dorchester, to the Honourable the Legislative Council of the Province, upon the expediency of changing the tenures of the country into the tenure by free and common soccage ; and it is upon their report that the above observations were made. For further information, see first and seventh Reports of the Committee of the House of Assembly.