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Date: 1833-03-14
By: Lower Canada (House of Assembly)
Citation: Lower Canada, Special Committee Appointed to Report the Alterations to be Made in the Constitution of the Legislative Council, Report of the Special Committee Appointed to Report the Alterations to be Made in the Constitution of this Legislative Council and the Means of Effecting the Same, in Conformity to the Resolutions of the 15th January, 1833 (1833).
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IN conformity with the order of Your Honourable House, Your Committee have occupied themselves with the consideration of the means of putting in practice, in such a moder as shall promote the good government of this Province, and the welfare of His Majesty’s Subject therein, the principle laid down by Your Honourable House in your Resolutions relative to the second Branch of the Provincial Legislature, as constituted by the Act of the Parliament of Great Britain, of the 31st Geo. III, Cap. 31.

It has been generally admitted, that the Legislative Council of this Province, has not, at any period of its existence, given proofs of that spirit of independence, and community of interests, with the Inhabitants of the Country, which could alone ensure that harmony in the proceedings of the Government, and give, in particular to each of its Branches, that degree of of confidence of public opinion, which is requisite to produce that effect.

It could, however, not be otherwise, when it is considered that the original constitution of that body, and its renovation in proportion as vacancies occurred, has been at the disposal of the Crown, at the recommendation of the Provincial Administrations, most frequently interested in surrounding themselves, in that second Branch, by Public Functionaries, or by other individuals known to be advocates of the measures of the Executive, and who became thus clothed with a legislative inviolability. No bounds were given to those appointments, and they were thus made, in great majority, from amongst those whose were the least connected with the Country, either in point of permanent interest, of services rendered to their fellow citizens, or of the esteem in which they were held. Hence the whole body became isolated from the people, none of the great interests of whom it represents,

The existence of this evil, althout it has for a long time formed the subject of remonstrances on the part of the Inhabitants of the Country, is not sufficient however to enable a remedy for it to be pointed out, so that the Provincial Government might be reconstituted upon basis which may at the same time coincide with those imitations of the Metropolitan Government, which it was evidently the intention of the Legislators of 1791 to introduce in the Canadas, and at the same time present that practical analogy, the results of which were, no doubt, not less their desire to introduce, and without which an apparent imitation in forms alone, would only produce a still greater anomaly.

Without the express orders of Your Honourable House, your Committee would have felt hesitation in reporting their own opinions as to means of providing a remedy for this constitutional defect in our Government, as the basis of representation to be made on the part of Your Honourable House. Although all the interests of the Country are therein fully and equally represented, those to whom a defective system o Government have given an unconstitutional preponderance, might make a handle of it to cause the expression of your opinion not to be looked upon as that of the population in general; and, by the operation of the same system, the representations of interested Public Functionaries, and of privileged persons in the Colony might reach the General Government of the Empire, carrying the same weight as those of Representatives freely elected by the whole people. This danger added to the wide local distance might cause measures adopted in the United Kingdom with the best intentions, but without practical and local knowledge, to be discordant with the true interests of the Province, and even to hurt those interests in essential points.

Your Committee humbly suggest, that in the event of the Imperial Government becoming convinced of the difficulties that have just been laid open, there would be the certain means of preventing them, by placing the people of the Country is general in a situation to express their opinion, and to recommend proper modifications through Delegates freely and indiscriminately chosen for that purpose, by all classes and out of all classes of the community, so as to harmonize with the interests of the Province, and with those of His Majesty’s Government, which can not be separated from each other. Such a body, constituted in virtue of an Act of Parliament of the United Kingdom, to whom they would have afterwards to make a report of their labours, would, whilst it could be no disparagement to the supreme authority of the Empire, be in unison with numerous examples in the free institutions of this Continent, with respect to which it has often been declared that England desired to leave nothing to be wished for by the Inhabitants of these Colonies.

A General Assembly of that kind, would prove to be a faithful interpreter of all the interests of the Colony taken collectively, including those which it was the intention to be caused to be represented by the Legislative Council, and those which that body claim to represent. Those interests would in effect possess therein all their weight and all their legitimate influence. Unless indeed it be maintained, that whilst the Executive Branch of the Colonial Government, established by His Majesty in the persons of His Governors, represents the interests of the Metropolitan State, there ought to be also another constituted Branch out of the Country, and compounded of elements without any affinity with the variegated states of being of those who inhabit it.

However that may be, in the event of Your Honourable House not considering it at the moment expedient to solicit such a measure, Your Committee, having shewn the result of their deliberations, will not take upon themselves to determine whether the entire abolition of the present Legislative Council of this Province, and the assimilation of its government to that of several of the adjacent Colonies, would tend to cause peace and harmony to be re-established in the conduct of affairs. The people of the Country, if they had an opportunity of being legally constituted for that purpose, would be the best judges to decide this weighty question. Your Committee have therefore proceeded upon the supposition that an intermediate Legislative Branch, may, in certain cases, produce more maturity in the deliberation and examination of Bills, than if only one body were called upon to assent to them; at the same time, circumstances of rare occurrence might happen in which the popular representation, might, for the moment, contravene the interests of the body of their constituents, and that those interests might be cherished in the second Branch, and guarded, until the wishes of the people were more fully expressed, either by more decided representation or by the means of new Elections.

The second Branch, as actually in existence, in no way connected, in the majority of its Members, with the superior and permanent interests of the Country, is not adapted to fulfil that end: and, even, putting the case, of which as yet there has been no example, that a Provincial Administration were to send to it a majority of men of opposite principles, the following Administration, or perhaps the same, might very soon hasten to recompose the body in such a way as to ensure its approbation of their measures.

The habits, the climate, the newness of the Country, the changeability of fortunes, the division of estates, and the laws which facilitate it, are obstacles to the existence of a permanent aristocracy, so that an hereditary Legislative Body, with the powers of the House of Lords, would be simply an impossibility in Canada. Landed property being here almost wholly owned in small lots, by the mass of the people, it would be impossible to make a choice so as to form a permanent Legislative Council, even supposing it to be a numerous one, of men who in their own persons, would present an essential portion of the existing means and capitals of the country; much more, they could not counterbalance in importance and in wealth may one single county of the Province; and even supposing that such a body could be collected, the above-mentioned circumstances would very soon bring it into decay. In fact, several persons heretofore called to the Legislative Council, and whom we may reckon, then possessed a large and permanent interest in the country, have since found themselves entirely destitute of fortune.

As to the idea of perforce creating an Aristocracy, through the medium of Law, either by endeavouring to establish a system of substitutions, (entails,) or otherwise, a state of things which the moral and physical circumstances in which the country is placed, forbids; or by making provision out of the public funds for legislators for life, and without responsibility; it is one that is so contradictory to the conceptions entertained of the constitution of England, as a practical model to go by, that your Committee will not stop to consider it.

A percuniary qualification required in the persons called to the Council, if the choice of them be left to the Executive, would not probably produce any perceptible change in the composition of the body, with relation to the nature of the various other portions of our colonial institutions. The appointments must in that case, necessarily be made upon the recommendations of Governors, who, being only transitorily in the country, and not having it in their power to become properly acquainted with the inhabitants of the country, until after a long residence, most frequently have recourse to irresponsible advisers in the colony. The persons who are qualified, being much fewer in number than those who would have to be chosen, the result would be, that the worst would be chosen of those, and that the supposed qualification would only serve to legitimate the abuse, and to render its disappearance more difficult. Then, although each of those who were called to the Legislative Council might be capable of having a sent there, the majority would collectively have been chosen in an exclusive sense, and from amongst such as had the fewest relations of interest and feelings with the people. We should see, as we have in times past, this body far from being attached to the country and making part of it, representing only favouritism, monopolies, and privileges; and through its unconstitutional influence upon the march of public affairs, perpetuating that tendency of the men in power in the province, to oppose themselves to every measure demanded by the people, and creating and maintaining a separate interest, and feelings of distrust and even hostility in the minority, instead of labouring in conjunction with your Honorable House, to unite all the inhabitants of the country by means of an uniformity of views and institutions, possessing the same confidence in His Majesty’s Government. The abuse here pointed out is, as your Committee humbly conceive, sufficiently exemplified in the present composition of the Legislative Council, the appointments made during the last few years, having only in a small number, a relation with the mass of the people generally, whilst the majority has been such as your Committee have supposed it would continue to be along with pecuniary qualification.

There only appears to remain for the consideration of your Committee, the principle of Election to rest upon, as being capable, in practice, of analogy with the second branch of the Imperial Legislature. Your Committee entertain no doubt of the result of the adoption of this principle, if the Election depended upon a numerous body of Electors, composed of the best ingredients and the best interests of the colony; and if the choice were confined to persons possessed of a certain easy degree of fortune, without, however, raising that qualification so high that such choice could only be made, in any case, but out of a small number of eligible persons. Your Committee would expect to see the best effects from a legislative body, constituted upon those bases, if, whilst its principle of action was found in the interests of His Majesty’s subjects in this Province, as a general and common motive, it found itself, in its formation and its proceedings, independent of the popular Assembly. It would undoubtedly be thus with the above qualifications, and with a different mode of renewal, so as to give more permanence to the body that is now in question.

It is upon these several considerations that your Committee submit the following details:–

An elective Legislative Council, chosen by landholders, having a nett annual income of £10 in the country, and £20 in cities; and who have been residents for at least one year within the circle wherein the Election takes place.

The eligibility to be restricted to the subjects of His Majesty having attained the age of at least thirty years; residents of the Province, and having resided therin at least fifteen years, and possessing an annual freehold income arising from property situated within the Province, of at least one hundred pounds for those elected for the Country, and of at least two hundred pounds for those for the Cities of Quebec and Montreal.

The duration of the Body limited to six years; the renewal to be made by one sixth part every year it being to be determined during the first five years by lot which of the Members chosen at the General Election shall have to retire. When there shall happen to be any vacancies, those who succeed to them to be Members only for the period which would have remained to their predecessors.

The number of the Members to be equal to that of the Counties, Cities, and divisions thereof, or other circles, sending Members to the House of Assembly, with the exception of Boroughs whose population does not amount to 2000 souls, who would only have to vote in the Counties of which they make part. So that the number of Councillors would be nearly half of that of the Members of the Assembly.

The Speaker or Chairman of the Body to be chosen by the Members, subject to the approbation of His Majesty.

The Judges to be ineligible, as well as the Clergy.

The Members of the present Legislative Council not to belong to the New Council, except they are re-elected: at all events should His Majesty’s Government insist upon retaining them, they should only be considered as supernumerary Members, and would have to justify their qualifications in landed property and resign their places of profit, in conformity with the present Report.

The Legislative Council not to be subject to dissolution.

The Members not to accept, otherwise than by Bill, places of profit or honor during good pleasure, excepting those of Justice of the Peace, and in the Militia, nor become accountable for public money, nor receive any directly or indirectly from the Executive Government, under whatever denomination, without subjecting themselves to a re-election.

The individuals who offer themselves as Candidates, shall make oath as to their qualifications; if the Candidates are not present, three Electors must make affirmatin as to that qualification to the best of their knowedge. The Members elected, shall, before they take their seats, take the same oath, and shall be bound to renew it at all times upon order of the Body.

When it happens that Members are elected at the same time both for the Legislative Council and for the Assembly, they shall make choice of either one or the other of the Houses, within a prescribed time.

Your Committee cannot close their Report without expressing their regret, that the special statement of the views of His Majesty’s Government on this important matter, promised by the Right Honourable Lord Viscount Goderich, His Majesty’s Principal Secretary of State for the Colonies, in his Despatch of the 7th of July, 1831, has not yet reached Your Honorable House, so that they might be aided in their endeavours to remedy an acknowledged evil.

The whole nevertheless humbly submitted.

E. BEDARD,

Chairman.

14th March, 1833.