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Experts in the business of drafting acts of Parliament are generally careful to use the same word whenever, in the course of their work, they have occasion to refer to a given subject or to describe a special thing. To this end an experienced draftsman will avoid synonyms or equivalents, because synonyms and equivalents can-not be alike in form, and may not be equal in value, to the words whose places they are employed to take. If, for example, such an expert means "Legislature" he would not, when drafting a law, write "Parliament," as these words, though germane to one another and colloquially interchangeable, are separated one from the other by several well-drawn lines of meaning. Were such an one, for example, acquainted with the acts passed for the government of the old provinces, and of the present dominion, of Canada, he would know that the Parliament of England had been careful to use the words we have named as terms of contrast, rather than as terms of resemblance, and, consequently, that they could not be used indifferently, or interchanged without loss. It is very important to keep in mind the distinction which has thus been drawn for us by the supreme authority, as it is by no means certain that grave mistakes have not arisen, and may yet arise, from a disregard of exactness in determining the "meets and bounds" of the words "Legislature" and "Parliament." Thus, when we find these words used in an Imperial Act to describe separate powers and separate authorities, we may be sure they are so employed for distinct uses, and are intended to describe, not one, but two political organizations, whose duties, powers and privileges, unless otherwise bestowed, must be sought for in the Act in which they were granted. Being words of grave weight and import, we may expect to find them carefully guarded wherever they are used, and only repeated in the same sense in which they were at first employed. The advantage of such a practice is obvious, for the occasions for doubting about the relevancy of language are lessened, and the work of interpretation is rendered comparatively easy. The commentator is relieved of the duty of assaying the weight, or of adjusting the value, of terms that may be similar but that are not alike; that may spring from kindred germs, and yet display marks more or less pronounced of divergence, if not of contrast, in their development. Such marks as are commonly observed between the looseness of conventional and the precision of legal phrases.

For the convenience of illustration, and by way of preface to the subject of this work, reference will be made to three acts of the Imperial Parliament and to the words employed when describing those political institutions, which colonists, from early association, and probably from a foregone interpretation, have regarded as "Parliaments," but which the mother country intended to be "Assemblies," or "Legislatures" and nothing more. The first example will be found in the Act 31st George 3rd, which authorized the separation of the province of Quebec into Upper and Lower Canada, wherein provision was made for the establishment "within each of the said provinces respectively of a Legislative Council and an Assembly." It is to be noted that the word "Legislature" is nowhere used in that act as an alternative expression, much less as an equivalent one for the word "Parliament," nor is the word "Parliament" used, even remotely, as a term applicable to the experiment then initiated of a new model of colonial government.

In like manner, in the Act of 3rd and 4th Victoria, 1840, which re-united the then separated provinces of Upper and Lower Canada, the like exactness in the use of words is strictly observed. "There shall be within the province of Canada one Legislative Council and one Assembly," "which shall be called the Legislative Council and Assembly of Canada," is the language of the act, for the word "Parliament" is nowhere applied to the legislature created by that act. Indeed, as we shall have occasion to observe presently, the word "Parliament," as applied to the legislature of Canada, with all "the powers, privileges and immunities" which that majestic and historic term seems to have been formed to express, was employed for no common use; but, like a cherished dignity of the highest order, was reserved for a later occasion and for a larger, a more imposing and expressive purpose." It will be observed that the powers conferred by the two acts to which we have referred were enabling and co-operative powers. They were "to aid His (or Her) Majesty, by and with the advice and consent of the Legislative Council and Assembly, to make laws for the peace, welfare and good government of the inhabitants of the respective Provinces."

The machinery by which such work was to be done was generally, rather than specially, described in what we are accustomed to call the constitutional acts. The aim was clearly stated, but the means seem to have been left to their intelligence who should be chosen to put the machine in motion. The right to make laws for the good government of the province included the authority to make rules for the good government of the legislatures. But such rules were to be subordinate to law, for the colonial Assemblies had neither inherited, or had conferred on them any freedoms, exemptions or advantages that were inconsistent with or superior to the law. No "powers," no "privileges," no "immunities" beyond the law-making power were given to the law makers. On the contrary, while those acts contained several disqualifying and disabling clauses they did not include one on which a special privilege could be fastened, or under which a personal immunity could be claimed. The Acts of 1791 and 1840, which thus authorized the establishment of Councils and Assemblies within the provinces of Canada, apparently were passed to enable certain persons chosen, or elected, for the purpose, to aid their Sovereign in making laws, that, under express limitations, were to be operative within, and not beyond, the boundaries of the respective provinces. The functions of such legislatures, as originally bestowed, if for convenience we may be allowed a diminutive form of expression, were municipal in their range, and the laws of such legislatures, like those of less imposing corporations, were only operative within, and not beyond the municipality, no matter whether such municipality was termed a district or a province. The duties originally discharged by such legislatures, though certainly more imposing and extensive, were scarcely more final and complete than are those which are now performed by county and city corporations. In either case the power exercised was of a statutory character. Every act passed was declared to be passed in virtue of the authority conferred by a higher legislature, i. e., the Parliament of England. Everything done by the Legislative Council and Assembly was done in virtue of the law which created such council and assembly, and of that only. It follows that as authority, like water, can rise no higher than its source, we may look only to the law to which those assemblies owed their existence as their warrant and justification for such things as they did, and for such immunities as they claimed. "Custom and usage" were exotics, and hence the common law could not properly be appealed to where the case to be dealt with was to be found only within the limits of a modern statute. Analogy afforded no help, for law and not "use" controlled the law makers.

The Canadian Assemblies, moreover, were experiments. One province was a thinly settled country with a newly organized government, and both provinces were to be made the scenes of new modes of administration. The hoar of age, the sanctity of tradition, and the hereditary influence being absent from, or not yet naturalized in, the new country, could have no place in the new Legislatures, and consequently "usage and custom," which derive from use and age, must have been absent also. Until the passing of the British North America Act of 1867 it may fairly be questioned whether a comparison could reasonably have been made between the statutory Councils and Assemblies of the British colonies in America and the Parliament of England. The phrase "image and transcript of the British Constitution" was a phrase of singular but exaggerated felicity, which nevertheless reflected most truly the feeling and desire of the enthusiastic and chivalrous Governor Simcoe. Unfortunately the charm of the phrase must be sought for in the regions of feeling and desire, of imagination and fancy, as it will be looked for in vain in the sober limits of a law which included no individual privileges, conferred no personal immunities and preserved no ancient customs, but which had come as fresh from the brain of the British Parliament as the coin that on the same day may have issued from the English mint. No doubt Governor Simcoe's picturesque words fell smoothly on the sympathetic ears of the loyalists to whom they were addressed, for they were laden with soothing euphony. They touched alike the hearts, the imaginations and the histories of all the Upper Canadians of that day. As an epigram daintily compounded of feeling and flattery, it quickened their spirit, and sank into their mind, while in later times it was caressed and fondled, remembered and quoted with satisfaction and excusable pride. Nor was such a result surprising. For however far removed the newly created legislature that first met at Newark, now Niagara, in 1792, was from the "ancient inquest of the English nation," it was highly agreeable, no doubt, for "Honourable Gentlemen and Gentlemen" who were members of that legislature to be informed by an authority so distinguished as the representative of Majesty, that the estates of the province of Upper Canada, there gathered within the four walls of the Legislative Council chamber, was a "Parliament," the image and transcript of that glorious constitution for which those loyal legislators had been willing to fight, and were ready to die; for that constitution whose origin they knew, or had been told, was to be sought for in the remotest times; the image and transcript of those grand estates whose early history they believed was to be found, not in the written law, but in "the deep trod footprints of ancient custom."

The Acts of 1791 and 1840 were conventionally and properly called "Constitutional Acts." And whatever legislative authority was exercised within the provinces was so exercised in virtue of the authority which those acts conferred. The laws passed by the councils and assemblies established by those acts, when assented to and left to their operation by the Parliament of England, were valid within the province in which they were passed; just as the laws of the local legislatures, when assented to and left to their operation by the Parliament of Canada, are now valid within the province in which they are passed. But the "privileges, immunities and powers" which from time immemorial had been held, exercised and enjoyed by the Parliament of England, and which by the terms of the "British North America Act" are "now held, exercised and enjoyed" by the Parliament of Canada, are not named in the acts of 1791 and 1840, nor are they alluded to in the debates and explanations that arose during the passing of those acts. It would therefore seem that the Imperial Parliament most carefully and with great exactness weighed the language of its laws; for the qualifications and conditions which in the acts of 1791 and 1840 seem to hedge the legislatures established by those acts, are repeated in 1867 and applied to the legislatures that were, or might thereafter be, established under the British North America Act. It would therefore seem that the British North America Act of 1867 may be regarded as the interpreter of the two previous acts, for it not only uses the words "Parliament" and "Legislature," but for the first time it defines alike their meaning and their powers. Indeed the discrimination is so broad that none can fail to understand the scope and relevancy of the two words. Both the "Parliament of Canada" and the "Provincial Legislatures" are the creations of the same Act, but the former, with the name and the title deeds, has been invested with the customs and privileges of ages, while the latter has succeeded only to such rights, duties and powers as the act itself specifies and confers. The British North America Act of 1867, in thus discriminating between words which in Canada have practically been treated as synonymous, pointedly suggests for our consideration a by no means unimportant fact, viz.: that as a "Legislature" is a body distinguished from and not identical with a "Parliament," so must it be ruled by the conditions of its creation, and not by the conditions under which the body from which it is distinguished was created. A "Parliament" possesses hereditary as well as inherent rights. A Legislature possesses only charter rights; for it has no other or higher powers than those contained in the act under which it is established, and therefore its authority, like the authority of a municipality, is absolutely limited by the law. If then this inference be just, it would seem to follow as an absolute conclusion that the "privileges, immunities and powers" claimed and exercised by the members of the old legislatures of British North America, and by the members of the different legislatures of Canada at the present time, were, and are, so claimed and so exercised without warrant or authority of the Parliament of England.

This mortifying discovery very naturally gives rise to an interesting question. If the Imperial authorities did not intend the legislatures which they created to exercise the functions of Parliaments, then, after what other pattern were they formed, and with what inquests lower than Parliaments may they be compared? Is it possible that, when providing the means of local self-government for the different provinces of North America the Imperial Parliament was more guided by the system of rule which obtained in Saxon England than by the grander and more imposing one that arose after the Norman conquest? For, although the former system was overridden and trampled down, so far as it affected the country at large, it nevertheless survived in certain forms, and still lives in a more or less modified condition, in every municipality in England. May not the ancient corporation of the city of London, for example, with its two orders of aldermen and councilmen, its limited area and charter rights, have suggested the form of local self-government, which was subsequently adopted, with respect to the two Canadas. The councillors and assemblymen of the legislatures, whether appointed or elected, like the aldermen and councilmen of a municipality, are taken from the democracy, and the limit of authority in either case is determined by exact boundaries, no matter whether they be civic or provincial. But, without dwelling unduly on this inference, there can, we think, be only one conclusion arrived at from the evidence which the three constitutional acts furnish of the aim and intention of the Imperial Parliament in passing those acts. We are no longer left to guess the meaning of the acts of 1791 and 1840, neither have we the right any longer to assume that they conferred powers that were not expressed. The British North America Act of 1867 not only interprets itself but furnishes the key by which we are to interpret its predecessors. The last named for the first time gives authority to create outside of the United Kingdom a Parliament whose members shall have such privileges, immunities and powers "as are held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the members thereof." As no such "privileges, immunities and powers" were conferred on any of the legislatures established by the three acts we have mentioned, and as they are by contrast actually withheld from the legislatures that are established by the last mentioned Act, it follows conclusively that the assumption in the past, or at the present time, by Provincial legislatures of the "privileges, immunities and powers" that belong only to Parliaments is an assumption for which no authority can be found in the acts under which those legislatures were established, and from whence all their authority is derived.

If, however, the intention of the Parliament of England was absolutely plain, the action of the legislatures of the two Provinces of Canada was still more expressive. While only swaddled in swathing bands those sturdy infants did not hesitate to cover themselves with the clothing of Britannia, or to claim, like their counterpart, the Parliament of England, that they also were "the heirs of the ages," the inheritors of the usages of a thousand years. Hence they lost no time in appropriating "privileges" that had not been conferred, in claiming "immunities" that had not been bestowed, and in exercising "powers" that had not been granted. The transaction was a charming compound of innocence and audacity. Nevertheless the "privileges, immunities and powers," though boldly asked for and adroitly appropriated, as if they had been the unquestionable accessories and attributes of legislative government, were not enjoyed without a challenge. There were some who doubted, and there were others who denied, that an Assembly was a Parliament. They questioned the right to claim, under cover of privilege, powers and exemptions that had no place in the law. But their scepticism was scouted by the legislature, and was not then carried into court, and so it came to pass that customs which had been appropriated without warrant were continued without law. And here a question of a qualifying character very naturally arises. As the "privileges, immunities and powers" so ostentatiously bestowed by the first Governor of Upper Canada, and more cautiously by the first Governor of Lower Canada, and their successors, were not so bestowed in virtue of any power authorized by law, it follows that if authority can be produced for the exercise of such powers it must be sought for elsewhere than in acts of Parliament Is it to be discovered in the Colonial office? or can it be found in the form of Royal instructions? Were the law officers of the Crown consulted, and, if so, where are we to look for their opinions? The point could hardly have been settled off-hand, for it included the two attributes of privilege and prerogative. Now a privilege, or an immunity, is commonly understood to be an exception to a law, while a prerogative, though a legal function, is a function above the law. This exception to law was claimed by Speakers of successive Assemblies, and was allowed by successive Governors. Thus a function above the law was exercised by successive Governors, and presumably by the authority that was delegated to them, but of which we fail to discover any evidence. It follows that successive Governors, in virtue of this actual or supposed authority, arrested the course of law, by stepping between debtors and creditors, to the serious loss and injury of the latter. In like manner, successive Governors set themselves above the law, and incidentally at all events, in virtue of the privileges conferred, gave authority to the legislatures to attach and imprison whom they would, without reference to the courts; and yet Governors and Speakers alike escaped open rebuke or pecuniary loss. No indemnity was sought for the exercise of what we think must now be considered to have been acts of questionable legality. Privilege and prerogative embraced one another, and results of a very irritating kind were the issue of the compact. "Privileges, immunities and powers," which we now know are the exclusive property of Parliaments, were seized and enjoyed by Assemblies that were not intended to be Parliaments. The appropriation, it must be allowed, was open and above board, and whether right or wrong, whether legal or illegal, the privileges, so far as words could convey them, were as fully given as they were frankly asked for. Governor Simcoe did not wait to balance phrases. He probably thought that as a Parliament was a Legislature it followed that a Legislature was also a Parliament, and consequently he looked upon the infant Legislature of Upper Canada as an infant Parliament. Again, he had enjoyed the advantage of sitting in the Parliament of Great Britain as a member for a Cornish borough, and consequently he was in all probability familiar with the forms and usages of the House of Commons. He had possibly been present at the election of a Speaker, and was therefore aware of the customs observed at such imposing ceremonials. In the new departure, when inaugurating a typical representative government for colonial use in Upper Canada and elsewhere, he would no doubt have been especially anxious to make a good beginning. He would remember the ancient rights and undoubted privileges that were asked for and granted in England; and reasoning from the analogies he had constructed, and fitted in his own mind, he would naturally conclude that the like privileges ought to be extended to, even if they were not inherent in, the members of the Legislature of Upper Canada. He did not pause to ask whether he could exercise a prerogative which he did not possess, or whether, without authority, he could bestow privileges which were to supersede the operation of law. It must of course be presumed that the members of the new Assemblies had reason to believe that their petition for privileges would be favourably received, and it must also be assumed that the Governors had, or thought they had, authority to grant what was asked for.

Nevertheless, from the circumstances that attended the election of the first Speaker of the Assembly of Upper Canada, and to which more particular allusion will hereafter be made, it is probable that this doubt was not wholly absent from the mind of Governor Simcoe, as an unusual delay occurred between the election of the Speaker and the customary prayer for privileges. But whatever may have been his doubts, Governor Simcoe apparently had arrived at the conclusion that no difference within their respective limits existed between the Imperial Parliament and the Local Legislature, and consequently it was His Excellency's pleasure to look on the latter as the "image and transcript" of the former. But it must be borne in mind that no license to observe a system of constitutional analogy was either directed or required by the constitutional act of 1791. And hence, in order to justify the bestowal on the newest Assembly in America of the "privileges, immunities and powers" of the oldest Parliament in Europe, it was necessary, in His Excellency's opinion, by an act of personal authority, to assent to a certain mode of procedure which should have the effect of grafting ancient custom on modern law, and of clothing with the privileges of ages the legislative experiment that was born on that day.

We have no knowledge that Governor Simcoe had any authority whatever for thus placing himself above the law, and it is very doubtful whether such authority could have been conferred by Royal instructions even had the attempt been made. Consequently we must assume that no such instructions were issued, for no evidence of their existence can be found. The act was a personal one, and took its rise in the error which was corrected seventy-five years afterwards by no less an authority than the Imperial Parliament, viz.: that two legislatures that were dissimilar in name, and unequal in their attributes, were likewise the reverse of identical in the inherent rights they severally possessed, and in the privileges and immunities they respectively enjoyed. It is probable that His Excellency's mind was undisturbed by doubt, and consequently that he made no effort to discover a difference between two disproportionate bodies that exercised unequal functions and were called by different names. Having, as he believed, in virtue of his prerogative, declared the lesser to be the image and transcript of the larger body, he established between the two a claim to identity, and was content to leave his opinions, and his epigram, to work like leaven in the Canadian mind, until at length few persons were found to question the soundness of the former while none denied the felicity of the latter. Nevertheless, if our inferences and conclusions are correct, we now learn that Governor Simcoe's opinion was unsound, and the language in which it was clothed inexact and misleading, for the Imperial Parliament has corrected both by publishing its own interpretation of its own words. After seventy-five years in one case and twenty-six in the other of erroneous practice, the meaning of the constitutional Acts of 1791 and 1840 is explained by no lower authority than the law maker, who informs all whom it may concern that a "Legislature" is not a "Parliament," and consequently that the "powers, privileges and immunities" which have been and still are exercised by Legislative Councils and Assemblies are nothing else than fond conceits, commenced without authority and continued without warrant. The error is easily explained. Apparently it took its rise in inexactness and a loose interpretation of words. But the mistake has run its course, and it is now corrected. We learn on the supreme authority of the Parliament of the United Kingdom that the words "Legislature" and "Parliament," which were commonly regarded in Canada as synonyms, are scarcely more equivalent in their meanings than they are alike in their forms. The illusion is dispelled. But it was not cherished, as there is reason for believing, without criticism, at the Colonial office, or without challenge in Canada. There were some in the Upper Province who denied that a "Legislature" was a "Parliament," and being consistent, for they were so to their cost, they asserted that the Assemblies arrogated powers that had not been granted to them, that they instituted comparisons that could not be drawn, and so arrived at conclusions that ought not to be reached.

We shall defer our further criticism and the narrative that has given rise to it, till a later chapter. In the meanwhile it may be observed that, as history generally sparkles with contradictions, so it need occasion no surprise if the events of past days in Canada now and then find expression in paradox. The political conduct of one generation will not always be found consistent with the received opinions of the next They were the reformers, for example, who grafted Parliamentary government on the Provincial legislatures, but they were the tories who, firmly believing that the written constitution of Upper Canada was the "image and transcript" of the unwritten one of England, firmly set their teeth at all gainsayers, and especially at those who sought to dwarf the dignity of their legislature by questioning whether it had, or ought to have, the powers, privileges and immunities of Parliament. The late Mr. Robert Baldwin, the late Mr. James Small and others succeeded even before the time had properly arrived, and notwithstanding the opposition of the tories, in clothing the legislatures with the attributes of Parliament, while the fathers of those gentlemen, viz.: the Honourable William Warren Baldwin, better known as Dr. Baldwin and Mr. John Small failed, notwithstanding the veiled sympathy of reformers, in their efforts to minimize local authority and individual importance, by asserting, and by acting on their belief, that the Legislature was not a Parliament, and, consequently, that the members thereof had no legal right or title to the immunities they claimed or the privileges they appropriated.

The story is curious, and at the time occasioned a good deal of commotion in "the town of York." Dr. Baldwin and Mr. Small were salaried officers of the government. Standing on what they believed to be their rights, they denied that "Assemblies" were "Parliaments," and, consequently, that members of the former could legally avail themselves of the shelter of privilege, as privilege was the especial and peculiar property of members of the latter. They went further, for, having the courage of their convictions, they provoked a test case by causing a member of the Assembly to be arrested for debt. A lively scene arose. The Legislative Council and Assembly, for a wonder, were thoroughly in accord, so they joined hands and entered into an offensive and defensive alliance. Of course the members of the Assembly lashed themselves into a vehement rage, which naturally articulated itself in the rhetoric of the gutter, for weak politicians generally use strong words, and Assemblies with limited powers usually indulge in unlimited talk. The reason was not far to seek. The members of those deeply agitated Houses were by no means satisfied with their own securities, for they had thought themselves to be the undisputed owners of more valuables than they actually possessed. It was surmised that they had mistaken pinchbeck for gold, and had possibly circulated counterfeit for real coin. Being threatened with forfeiture and loss, they displayed great tenacity in clinging to what they had appropriated. Wherefore they determined to stamp out heresy on the spot, and to this end used their heaviest words and their hardest measures. They not only passed violent resolutions, but followed them by acts of high-handed oppression. Dr. Baldwin, being the greater offender, was dismissed, without a hearing, from his place, while Mr. Small saved himself from deprivation by making an humble but skilful apology.