I CONSTITUTIONAL DEVELOPMENT 1840-1867 I RESPONSIBLE GOVERNMENT LORD DURHAM'S REPORT N order to remove the evils which led to the Rebellion government of the colony the governor should take the advice of responsible ministers. The suggestion seems so reasonable that we are disposed to inquire almost with impatience why it was not adopted at once. The answer is suggested by the development of the English constitution. Though the Revolution of 1688 shattered the theory of divine right, the new relations between the king and the people were not determined immediately. Many continued to regard the sovereign in the old light, and from their struggle with those who pressed for the revolutionary settlement was slowly evolved the constitution as we know it. The mere business of constructing the party system, the cabinet, and all the devices and conventions necessary to ensure popular control over the administration took more than a hundred years. In the case of Canada the theory of the governorship, which Lord Durham criticized, resembled rather closely the view which the Stuart kings held of their position. What Providence was to them, Downing Street was to the governor. Just as they had acknowledged their responsibility to God alone, and refused to allow the authority given them by Him to pass into the hands of parliament, so the governor felt that he could discharge his responsibility to the mother country only by controlling the administration. Lord Durham's Report may be taken, therefore, as in many ways parallel with the constitutional documents of the English Revolution. A considerable period was needed for its results to gain general acceptance. A great number of those interested in colonial affairs clung to the conviction that Canada could remain part of the empire only so long as the governor chose his advisers where he pleased. If only those persons could be named who enjoyed the assembly's confidence, they would naturally endeavour to force their views upon him, on the ground that, in order to retain their places in the assembly, they must shape the government's policy. But to yield to their demands would simply mean that the colony was independent, and free to adopt measures prejudicial to the interests of Great Britain and the Empire. Even those matters which Lord Durham regarded as purely local might easily take on an imperial character, and a piece of legislation calculated to have a purely local effect might in reality operate far beyond the boundaries of Canada. Such was the position of the powerful party which hesitated to adopt Lord Durham's Report. Over against them stood an increasingly large body who looked upon the Report as the Great Charter of Canada. These felt that it was quite impossible to govern Canada by keeping the executive distinct from the legislature as had been done before the Rebellion. They contended, therefore, that the governor's advisers should be acceptable to the assembly, and should be held responsible by it. They believed that for practical purposes the division between internal and imperial affairs could be maintained. In purely local matters the governor should take the advice of his council, but whenever a measure seemed to him to affect the interests of the home government he could use his authority to restrain the colonial legislature. They pressed, in other words, for the establishment of the limited monarchy and the constitutional machinery which the mother country had created. However, even had they not been confronted by a vigorous body of opinion which looked upon this solution as incompatible with the colonial status, their scheme could not have come instantly into operation. Men require training and experience to form parties, to serve in the ministries which in the British system secure harmony between the executive and the legislative powers. The Canadian people and their representatives had to be prepared for self-government. Thus the constitutional problem presented in Canada at the beginning of our period was virtually the same as that which confronted England after 1688. A similar solution had to be found. In the colony this required less time than in England, for the simple reason that the mother country had led the way. Hence between the years 1841 and 1849 the history of the British constitution during the eighteenth century was reproduced in microcosm on Canadian soil. In neither case did any large part of the constitutional practice find expression in the statute-book. The Act of Union, for example, determined that 'all powers, authorities and functions' vested by former acts in the governor or lieutenant-governor 'should . . . be vested in and may be exercised by the advice and consent of, or in conjunction, as the case may require, with such Executive Council or any member thereof as may be appointed by Her Majesty for the affairs of the Province of Canada or by the said Governor of the Province of Canada individually and alone in cases when the advice, consent or concurrence of the Executive Council is not required.' The question as to whether the governor's privilege of acting alone would be reduced to a vanishing point, or would be so far extended as to destroy the effectiveness of the executive council, the act left entirely unanswered. We must look for the answer in the custom of the constitution which the governors and the colonial secretaries established in their conduct of Canadian affairs. LORD SYDENHAM Lord John Russell and Lord Sydenham were both guided by the conviction that they must look to the affectionate In the same way the Instructions to the Governor, though they required that he alone should lay business before the council and obviously contemplated that he would be compelled to act against its wishes, left it quite open to him to work in harmony with it. The text of the Instructions, bearing on this point, underwent no change in our period, in spite of the revolution in practice. attachment of the Canadian people as the best security for British dominion. Hence in their judgment the immediate duty of the first governor after the Union was to secure harmony between the executive and the legislature. He could not, however, take a step in this direction until he became perfectly free to choose his advisers. For this reason Lord John Russell changed the character of the executive council, which had not merely been composed of the persons most obnoxious to the majority of the assembly, but had been virtually irremovable. Sydenham grasped the opportunity of appointing active politicians who would find support in the country and in the legislature. He considered it almost essential that they should have seats in one or other of the two houses, in order that they might explain and defend the policy of the administration. He agreed to the demand made by the assembly that the councillors should command its confidence, and drafted the resolutions of September 1841.1 Finally, he yielded to the requirements of public business so far as to make the councillors heads of departments, of which they were to assume the charge. There were to be two secretaries and two attorneys-general, one each for Upper and Lower Canada, Canada East and Canada West as they were called; a registrar of the province to fix the great seal, a receiver-general, an inspector-general of Public Accounts, a commissioner of Crown Lands, a surveyor-general, a president of the Board of Works, a solicitor-general, and the president of the council.2 Beyond this point, however, neither Russell nor Sydenham was prepared to go. The former believed that any plan which required a separation between the affairs of Canada and those of the Empire at large rested on a fallacy, for measures which were from one aspect purely local might from another have a direct bearing upon the reputation of the Empire. He laid stress, therefore, on the part which the governor should play in the administration. Sydenham 1 See' Parties and Politics, 1840-1867' in this volume. 1 Changes were made in the offices, as occasion required. In the BaldwinLa Fontaine ministry of 1848 there were an assistant-commissioner of Public Works and two solicitors-general. After 1851 the duties of the registrar were performed by the provincial secretary. took a similar view because of his keen sense of the responsibility under which the governor stood to the mother country. If the assembly advanced so far as to choose the governor's advisers and to hold them to account, they in their turn would insist on directing the government, and the governor would be compelled to take their advice and abide by it. Such Sydenham considered to be the inevitable outcome of the responsible government cry in its inadmissible sense.' It would make the governor sovereign in the colony, whereas he was actually a minister of the home government. The only means of forestalling this result was to treat the council as a council for the governor to consult, but no more.' 'I shall apply to them for advice when I think it expedient to do so if they cannot agree, there will be time for me to decide between their conflicting opinions and act according to what I deem best for the interests of the Crown.' Hence, though Sydenham put his councillors at the head of departments, he did not intend that they should become a cabinet, or exercise that joint control of affairs which as a cabinet they would necessarily have assumed.2 The division of work put the real burden on his shoulders. He was quite prepared to govern, himself, and even to interfere actively in the elections. With one powerful section of the population frankly hostile and with no strong and united parties, like those in England, upon which responsible ministries could be built up, Sydenham naturally felt it impossible to establish the British constitutional system. In his judgment it was necessary to begin with the foundations, and to create municipal institutions as the means of forming in the people habits of self-government. Meanwhile he was determined to provide such an efficient administration that in the enjoy ment of prosperity the country would put aside internal 1 Letter to Baldwin, June 13, 1841. Scrope, Life of Sydenham, p. 234: ... the absolute necessity of sending out as my successor some one with House of Commons and ministerial habits, ... a person who will not shrink from work, and will govern, as I do, himself. Such a man... not a soldier but a statesman . . . will find no difficulties in his path that he cannot easily surmount; for everything will be in grooves, running of itself and only requiring general direction.' |