could not say in what month, he met the deceased in the Hall-close. He took her for a travelling woman, and he ravished her-that was, he had concerns with her; but he did not lay violent hands upon. She had half a bottle of gin with her, which he took from her and drank; that was before he ravished her. He stayed with her about ten minutes, and then left her. In a few days afterwards he was married; had lived happily ever since, and never felt any uneasiness about this crime until the last two months; he made a similar statement to the constable, and said he was ready to suffer for his crime; and he subsequently told the chaplain of the gaol that what he had said before the magistrate was true. It was stated by the constable, in reply to questions from the learned judge, that he had heard that the prisoner had been considered insane by some persons, and that he had seen an order made out by the magistrates for his reception in the lunatic asylum. The witness, who had seen the deceased set out on the fatal night from her mother's house was recalled,

and said that he did not remember her taking a bottle with her; neither did it appear that any bottle was found near her in the close. Mr. Edward Tebbutt stated that his sister was not likely to have a gin-bottle with her, unless it was, that as his brother William was then a young housekeeper, his mother might send him little necessaries of that sort from time to time. There was not, he said, a more discreet, temperate, virtuous female in the whole county of Leicester than the deceased.

The prisoner, when called on for his defence, said that he did not say all what Murden had stated. There were two other men in the room at the time. Murden, he added, was a ranting preacher, and had told him that if he had committed the least sin and did not confess it, he never should enter the kingdom of Heaven, which was the way he had got it out of him. Mr. Justice Park summed up the evidence.

The Jury deliberated for about ten minutes more, and then returned a verdict of Not Guilty.

MAY it please your Excellency, The Executive Council, impressed with the oath they have taken to discharge the duties necessarily resulting from their appointment, "to advise the king and his representative in the government of this province," in the terms of the constitutional act, upon the affairs of the province," deem it incumbent upon them most respectfully to submit the following representation:

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The Executive Council recognise the truth of the opinion expressed by Lord Glenelg, that "the present is an era of more difficulty and importance than any which has hitherto occurred in the history of this part of his Majesty's dominions." This unhappy condition they ascribe, in a very great degree, to the hitherto unconstitutional abridgment of the duties of the executive council. It appears from the proceedings of the House of Assembly, and from the reiteration of established opinion in the country, that neither will public expectation be satisfied, nor contentment be restored, until the system of local government is al

tered and conducted according to the true spirit and meaning of the constitutional act. The delay of this just and indispensable course has already excited in the great mass of the people a lamentable jealousy and distrust, and has also induced the discussion of constitutional changes, the desire for which, unless speedily arrested, by affording the unrestricted operation of the 31st George III., chap. 31, will not only become more fixed, but rapidly increase to a greater and irretrievable extent.

The policy and measures which have led to the present condition seldom passed under the review of the executive council, or were submitted for their advice. Nevertheless, its members have been undeservedly subjected to heaviest reproach throughout the country, from a prevalent belief that they have been called upon to fulfil the duty imposed upon them by the constitution, as advisers upon public affairs. But, amidst the obloquy thus thrown upon them, they have studiously avoided any attempt at exculpation, by disavowing, in their defence, any

participation in the conduct of the affairs which they were erroneously supposed to have approved. The consequence of this silent endurance of political odium has been the perpetuation of the misbelief that the executive council are conversant with the affairs of the province upon which they are appointed to advise; and although an opposite practice has generally prevailed between former lieutenant-governors and their council, yet it has ever been notoriously contrary to the state of things presumed by the community to exist.

Public opinion respecting the executive council and their duties has been founded upon the terms of the 31st George III., chap. 31. to which statute the people used to express a firm attachment, an attachment which the council believe never would have been impaired had the constitution been administered either according to its letter or its spirit.

In several clauses of 31st George III., chap. 31, the executive council is mentioned in general terms. In the 34th clause the terms are, 66 together with such executive council as shall be appointed by his majesty, for the affairs of such province," and not, as it would otherwise have been expressed, "together with such executive council as shall be appointed by his majesty for that purpose." In the 38th clause the terms are "with the advice of such executive council as shall have been appointed by his Majesty, his heirs, successors, within such province for the affairs thereof," and not, as it would otherwise have been expressed, " with the advice of such executive council as shall have been appointed by his majesty, VOL. LXXVIII.

or

his heirs, or successors, within the province for that purpose.

The same may be said of similar terms used in the latter part of the seventh clause.

With respect to which clauses it may be further remarked, that had it been contemplated that the executive council were to act only in the matters therein specified, the words "on the affairs of such province" might have been omitted, without in the least impairing the legal effect. In the construction, therefore, of this statute, the above expression cannot be treated as surplusage, but must be taken to impose the duty which it imports.

From the language of this statute, therefore, it appears

1. That there is an executive council.

2. That they are appointed by the king.

3. That they are appointed to advise the king and his representative upon "the affairs of the province" no particular affairs are specified no limitation to any particular time or subject.

As the constitutional act prescribes to the council the latitude of" the affairs of the province," it requires an equal authority of law to narrow those limits, or relieve the council from a co-extensive duty.

Every representative of the king, upon arriving from England to assume the government of this country, is necessarily a stranger to it; and the law has provided for a local council as a source of advice, which, when given, is followed or not, according to his discretion.

In certain cases specified in the 38th clause of the 31st George III., c. 31, the concurrence of the coun

U

cil is required to give effect to certain executive acts. But these exceptions prove the general ruleviz., that while the advice is to be given upon the affairs of the province generally, it is only in the particular cases that it must harmonise with the pleasure of the crown, to give that pleasure effect. Indeed, if the law could be construed to limit the advice to the particular cases, it would follow that the council could not legally and constitutionally advise upon any others a proposition which, besides its manifest repugnance to the terms of the act, is contrary to received opinion and usage.

But while the constitution has assigned to the council this duty, it is only to a very subordinate and limited extent that they have heretofore had opportunity afforded them to perform it. It is submitted that the exigency of the statute can only be answered by allowing the affairs of the province to pass under their review for such advice as their consciences may suggest, preparatory to the final and discretionary action of the king's representative upon

those affairs.

The council meeting once aweek upon land matters, while the affairs of the country are withheld from their consideration and advice, is as imperfect a fulfilment of the constitutional act as if the provincial parliament were summoned once a-year to meet the letter of the law, and immediately prorogued upon answering the speech from the throne. In both cases the true meaning and spirit of the constitutional act require that the Parliament shall have a general and practicable opportunity to legislate, and the executive council to advise, upon the affairs

of the country. In the former case, the representative of the king can withhold the royal assent from bills, and in the latter reject the advice offered; but their respective proceedings cannot be constitutionally circumscribed or denied, because they need the expression of the royal pleasure thereon for their consummation.

The extent and importance of the affairs of the country have necessarily increased with its population, wealth, and commerce, and the constitution has anticipated the difficulty, by a division of labour and responsibility, from the active attention of the executive council to their duties. With the exception of those matters of so weighty or general a character as not properly to fall under any particular department, and therefore fitted for the deliberation of the council collectively, it is recommended that the affairs of the province be distributed into departments, to the heads of which shall be referred such matters as obviously appertain to them respectively. Upon this principle (recognised by the existing constitution of this province and of the mother country), the people have long and anxiously sought for the administration of their government, under the representative of the king; and the council most respectfully, but at the same time earnestly, represent, that public opinion upon the subject is so fixed, and becoming so impatient, as to preclude the possibility of denying or delaying the measure, without increasing public dissatisfaction, and leading to the final adoption of other views, as already too universally manifested, uncongenial to the genius of the constitution, and most dangerous to the connexion with the parent state.

The remedy, it is feared, is now proposed too late for all the advantages desired; but the longer it is withheld, the more alienated and irreconcileable will the public mind become. The present comparative calm and thankfulness arise from a belief that the council will second this exigency, in establishing a system of government according to the principles recognised by the charter of the liberties of the country-an expectation which the council are most anxious to realise.

Should such a course not be deemed wise or admissible by the lieutenant-governor, the council most respectfully pray, that they may be allowed to disabuse the public from a misapprehension of the nature and extent of the duties confided to them.

PETER ROBINSON.
GEORGE H. MARKLAND.
JOSEPH WELLS.
JOHN H. DUNN.
ROBERT BALDWIN.
JOHN ROLPH.

His Excellency's Reply. F. B. Head. The lieutenantgovernor transmits to the executive council the following observations, in reply to the document which in council they yesterday addressed to him.

The constitution of a British colony resembles, but is not identical with, the constitution of the mother country-for in England, besides the House of Commons, which represents the people, there exists an hereditary nobility, the honours and wealth of which, as well as the interests of the established church, are represented by a House of Lords, while the sovereign (who, by law, can do no wrong) is surrounded by a ministry, upon whom devolves the

entire responsibility of the measures they suggest, and who are consequently removable at pleasure. But in the colonial portion of the British empire, which, however rising, is, generally speaking, thinly inhabited, the people are represented by their House of Assembly, which is gifted not only with the same command over the supplies as in England, but which possesses within the colony most of the powers of the British House of Commons. The legislative council is intended, as far as the circumstances of a young colony can permit, to resemble the British House of Lords; and if the lieutenant-governor stood in the place of the sovereign, and if like his majesty, he could do no wrong, it would evidently be necessary that a ministry, executive council, or some other body of men should be appointed, who might be responsible to the country for their conduct.

This, however, is not the case. His majesty delegates his sovereign protection of his colonies to no one, but he appoints a lieutenant-governor, who is responsible to him for his behaviour, who is subject to impeachment for neglect ing the interests of the people, and who is liable, like the English ministry, to immediate removal; and the history of the British colonies clearly shows that there is no class or individual of his majesty's subjects to whose representation, prayer, or petition, the king is not most willing to at

tend.

The lieutenant - governor is, therefore, the responsible minister of the colony; and as not only his character, but his continuance in office, depends on his attending to the real interests of the people, it