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Title: Are Legislatures Parliaments? A Study and Review.
Author: Taylor, Fennings [John Fennings] (1817-1882)
Date of first publication: 1879
Edition used as base for this ebook:
   Montreal: John Lovell;
   Quebec: Dawson And Co.;
   Toronto: G. M. Adam;
   Ottawa: Durie And Son;
   New York: John W. Lovell, 1879
   (first edition)
Date first posted: 23 June 2010
Date last updated: 23 June 2010
Project Gutenberg Canada ebook #559

This ebook was produced by:
Marcia Brooks, Ross Cooling
& the Online Distributed Proofreading Team
at http://www.pgdpcanada.net

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by the Internet Archive/Canadian Libraries




ARE LEGISLATURES PARLIAMENTS?

A STUDY AND REVIEW.

BY

FENNINGS TAYLOR,

DEPUTY CLERK, AND CLERK ASSISTANT OF THE SENATE OF CANADA,

    _Author of "Sketches of British-Americans," with Photographs by Notman;
    "The Life and Death of the Honourable T. D'Arcy McGee;"
    "The Last Three Bishops appointed by the Crown
    for the Anglican Church of Canada_," & c.


    MONTREAL: JOHN LOVELL; QUEBEC: DAWSON AND CO.;
    TORONTO: G. M. ADAM; OTTAWA: DURIE AND SON;
    NEW YORK: JOHN W. LOVELL.
    1879.




Entered according to the Act of the Parliament of Canada, in the year one
thousand eight hundred and seventy-nine, by Fennings Taylor, in the office
of the Minister of Agriculture, at Ottawa.




THIS STUDY AND REVIEW,

BY HIS FRIENDLY PERMISSION, IS CORDIALLY DEDICATED

TO THE RIGHT HONOURABLE

Sir John Alexander Macdonald, K.C.B., D.C.L.,

&c., &c., &c.,

A STATESMAN

WHOSE LOVE OF LITERATURE AND ART

HAS NOT ONLY PROMPTED HIM EARNESTLY TO MUSE ON

THE WORKS OF

Theologians, Poets, Artists, Jurists and Satirists;

BUT WHOSE SYMPATHY WITH

Human Nature

HAS ENABLED HIM TO FIND REFRESHMENT IN NOVELS

AND

PHILOSOPHY IN ALL WRITINGS WHERE WIT SPARKLES,

OR

WHERE HUMOUR FINDS A TONGUE.

A STATESMAN,

MOREOVER,

WHO HAS GIVEN TO HIS COUNTRY THE FRUITS OF HIS LARGE EXPERIENCE, RARE
INDUSTRY AND MATURE WISDOM, ESPECIALLY ON THOSE SUBJECTS THAT RELATE TO

Parliamentary Law and Constitutional Government,

AS THEY ARE EXPOUNDED AND ENFORCED BY THE SUPREME AUTHORITY

OF THE

Mother Country.




For my part I look upon the Imperial rights of Great Britain and the
privileges which the Colonists ought to enjoy under those rights, to be
just the most reconcilable things in the world. The Parliament of Great
Britain is at the head of her extensive empire in two capacities, one as
the Local Legislature of this island, providing for all things at home
immediately, and by no other instrument than the Executive power; the
other, and I think her nobler capacity, is what I may call her Imperial
character, in which, as from the Throne of Heaven, she superintends all
the several inferior Legislatures, and guides and controls them all
without annihilating any.--_Burke's speech on American Taxation, Vol. I,
page 156, of his "Select Works" edited by E. J. Payne, M.A., Fellow of
University College, Oxford_.




PREFACE.


The inquiry which has suggested what follows is a very interesting and
important one, for it includes a good deal more than a question of
grammatical construction, and rises much higher than a mere play on the
value of terms that are commonly accepted as interchangeable. There need
be no controversy on the etymology of the words in our title page, for
their origin and derivation can easily be traced. It may at once be
admitted that they are popularly regarded as synonymous and convertible;
nor can their relationship be questioned, for the business of law-making
is inseparably interlaced with, and necessarily includes, the duty of
talking and consulting. But the question we propose to examine refers
less to the ordinary kinship, than to the official use, of the two words
"Legislature" and "Parliament." Such examination is the more necessary
as the suggested meaning of these words, as supplied by the English
statutes, is by no means identical with their common meaning, as given
in the English dictionaries. Nor does this divergence exhaust our
embarrassment, for the two words have been differently employed, and,
consequently, differently interpreted, by the Parliament of the United
Kingdom, and by the legislatures of the colonies. Were the distinctions
thus drawn only verbal they would scarcely deserve attention. But they
are not so. On the contrary, the Imperial Parliament has placed an exact
and limited meaning on these initial words, which has either escaped the
notice of, or has not been assented to by the provincial legislatures;
and, as the distinction made by the former includes some important
consequences to the latter, it may be worth while to give the whole
subject a patient examination. Indeed, the law of the case can scarcely
be interpreted apart from the history of the case, and the latter can
only be gathered by a careful reference to the practice of the
legislatures, as it is found in the journals and records of the
provinces, and these again must be studied with the aid of those lights
which actually, or presumably, have been shed on them by ministers of
the Crown in England.




ARE LEGISLATURES PARLIAMENTS?

A Study and Review.

CHAPTER I.


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 cannot 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.




CHAPTER II.


Exactitude in the use of terms, as we have already insisted on, is an
important aid to every branch of study, but it is especially so in
matters of science. Controversies would often be avoided were we to
agree beforehand on the meaning and the measure of the words to be
employed, and fix with precision their relative as well as their actual
value. In fact, a problem is said to be half solved when the terms in
which it is to be stated are previously settled. The science of
government, for example, depends very much on the systematic arrangement
of formulas, and the course of law is also hedged in with set phrases,
whose meanings have been established by usage and precedent. The truth
is that in all matters of serious concern great attention should be paid
to terms, and great caution observed in the use of supposed equivalents;
for a correct understanding of an instruction, and more especially of a
law, may depend on the condition whether the same things have uniformly
been described in the same words.

These observations bear very directly on the case under review.
Canadians of the last century substituted a gloss for the text of an
Imperial Act, and their successors, for two or three generations, moved
by considerations of example and convenience, continued the practice,
until at length time and use have done much to crystalize error and give
it the semblance of truth. But in tracing a wrong practice to its source
we must leave the responsibility where it should rest, viz.: with the
authors. They were the founders of our constitution, and notably
Governor Simcoe and the early legislators of Upper Canada who made the
first slip, and thus glided, innocently no doubt, and honestly we are
quite sure, into the mistakes of practice which Dr. Baldwin challenged,
and which the Imperial Parliament, fifty-five years later, endeavoured
by law to amend and correct. Let us bear constantly in mind that the
word Parliament as an equivalent for Legislature is neither to be found
in the text nor in the marginal notes of the Act of 1791, nor is it to
be found in the text, but as if by an oversight, it has crept into two
of the marginal notes of the Act of 1840. Dr. Baldwin's contention was
that a Legislature was not a Parliament, and, had he lived a quarter of
a century longer than he did live, he would have had his opinion
sustained by the concurrent testimony of the Houses of Lords and
Commons, for "The British North America Act 1867" expressly declares
there shall be one Parliament for Canada, and one Legislature for each
of the several provinces.

The "Parliament for Canada" shall consist "of the Queen, an Upper House,
styled the Senate, and the House of Commons."

There were also to be legislatures for the different provinces,
consisting in each case of the Lieutenant Governor and of one House, or
of two Houses, as might be deemed advisable.

The constitution of the supreme Parliament for Canada is in marked
contrast with the constitution of the subordinate legislatures. Indeed
the framework differs as much as the phraseology. "The image and
transcript of the British constitution," which is repeated and preserved
in the Parliament of Canada, becomes a fiction and disappears altogether
when we seek to apply it to the legislatures of the provinces. The
legislatures not only differ in their constitution from the Parliament,
but they differ from one another. The Sovereign is not expressly
included in their component parts, nor is it necessary that those parts
should be three in number. In fact, Ontario started with only two
estates, and other Provinces have followed, while others seem inclined
to follow the example of Ontario. Thus as strong an emphasis as language
can articulate is placed on the fact that the two bodies so created were
distinct and distinguishable one from the other, for, while there can be
no doubt that a Parliament is a Legislature, we have the authority of
law for saying that a Legislature is not a Parliament. Furthermore,
after explaining in what way the Parliament of Canada shall be
constituted, the Act, as if to clear away all ambiguity, adds in the
next clause that the "powers, immunities and privileges to be held,
enjoyed, and exercised by the members thereof respectively shall be
equal to, but shall not exceed, those at the passing of this Act held,
enjoyed and exercised by the Commons House of Parliament of the United
Kingdom of Great Britain and Ireland and by the members thereof." The
Imperial Parliament in 1867, as it previously had done in 1840 and in
1791, defines also, and be it observed in contradistinction to the
previous definition of a Parliament, in what way the Provincial
Legislatures are to be constituted and carried on. The two definitions
are fairly rounded and seem thoroughly complete. Positively we are
taught by the words of the statute what legislatures are; and negatively
we learn by the eloquence of silence what legislatures are not. The
conclusion appears to be irresistible. They are not, and consequently
never could have been, intended to be Parliaments; for they are not in
the latest, nor were they in the acts under which they were at first
incorporated penetrated with those quickening, animating and
distinguishing "privileges, immunities and powers" which are
emphatically declared to be the exclusive and especial possession of the
Parliament of the United Kingdom, and of the Parliament of Canada and of
the members thereof respectively.

It may, however, be advisable to refer to "The British North America Act
1867" and quote what it says. Under the head "Legislative Power" the Act
declares in the seventeenth clause, "there shall be one Parliament for
Canada, consisting of the Queen, an Upper House styled the Senate, and
the House of Commons." The clause following enacts that "the privileges,
immunities and powers to be held, enjoyed and exercised by the Senate
and by the House of Commons, and by the members thereof respectively,
shall be such as are from time to time defined by any Act of the
Parliament of Canada, but so that the same shall never exceed those at
the passing of this Act held, enjoyed and exercised by the Commons House
of Parliament of the United Kingdom of Great Britain and Ireland and by
the members thereof."

"The Parliament of Canada Act of 1875" enlarged the last mentioned
clause and made it more comprehensive. The amendment runs thus. After
"Canada," where it is last mentioned in the above quotation, the
remaining words are left out and the following substituted: "but so that
any Act of the Parliament of Canada defining such privileges, immunities
and powers shall not confer any privileges, immunities or powers
exceeding those at the passing of such Act 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."

Whatever the privileges that are "held, exercised and enjoyed" by the
members of the English House of Commons may be, whether they have their
roots in acts of Parliament or in ancient custom, whether they existed
"before the time of memory," or rest on the common law, no matter whence
or how derived, those "privileges, immunities and powers," neither more
nor less, have been gathered, consolidated and in the set form of law
extended to and conferred on the members of the Senate and House of
Commons of Canada. It is thus evident that the Imperial Parliament was
of opinion that the "privileges, immunities and powers" which they
enjoyed, whether inherited or acquired, were vested in themselves alone,
and could only be delegated to another legislature within the British
Dominions by a positive act of their own, an act moreover that should be
authenticated with all the forms and solemnities of Parliament. In the
absence of such a positive act, and the opportunity of passing one had
often arisen, it would seem to follow that the assumption of powers that
had not been conferred, like the assumption of titles that had never
been bestowed, was neither more nor less than a fond conceit, wrought,
it may have chanced, from the tissue of analogy and sentiment, but not
from the harder strands of law and authority.

Until the passing of "The British North America Act, 1867," no
legislature within the colonial dominions of Great Britain had been
established to compare with the Imperial Parliament, and hence when
colonial Assemblies, with excusable complacency, sought to clothe
themselves with powers which had not been conferred on them, or when
they claimed the privileges of a body whose name even they did not bear,
the proceeding was probably overlooked, or if noticed, the authors were
possibly regarded as harmless trespassers on a manor that was not
theirs, and perhaps excused because such assumptions could injure no one
beyond their own borders. It should nevertheless be borne in mind that
the Parliament of the United Kingdom neither directly, or otherwise,
concurred with the legislatures of British North America in the opinions
which the latter had formed on their "privileges, immunities and
powers," for had it done so there would have been no need to pass a new
law, no need, by a special act, to confer immunities that were already
assumed, to bestow privileges that were already possessed, or to grant
powers that were already enjoyed. The seventeenth and eighteenth clauses
of the British North America Act were new features in colonial charters
which expressed real meanings and not idle words. They gave authority
for doing what, so far as we can discover, had previously been done
without authority. They made that legal and right which before was
illegal and wrong. They removed doubts, for doubts had existed; they
quieted controversy, for controversy had arisen; and while they neither
condoned nor reviewed the past, they made the course of future conduct
clear. Indeed, had the eighteenth section been left out of the Act few
would now question the propriety of continuing a practice which was
begun in inadvertence, but which had been locally sanctioned by use.
Originally Governor Simcoe's epigram though felicitous was misleading,
and must we think be regarded as an exaggerated, and to a grave extent a
misapplied expression of opinion, which led to an exaggerated and
unlawful exercise of authority. But the like exercise of authority was
repeated by successive Governors and by successive Speakers. Indeed, no
successful resistance appears to have been made to the practice, and
consequently no abatement of the authority assumed took place for many
years. The forms and procedure were honestly continued after the fashion
which Governor Simcoe had set, nor were they modified, as we shall have
occasion to show, without causing what appears to have been a somewhat
violent wrench. In the meanwhile a precedent of eighteen years duration
was established in Lower Canada, and of a longer period in Upper Canada;
and precedents, we all know, usually bear fruit. In the words of Junius,
"what was yesterday a fact to-day is a doctrine; what was yesterday a
precedent to be challenged, to-day is a law to be obeyed." If the Act of
1867 had not said a new thing, and said it emphatically; if it had been
as silent on the points on which it has spoken as were the two preceding
acts, we should have assumed that the prerogative which had theretofore
been exercised was still exercisable, and that the "privileges,
immunities and powers" which had theretofore been enjoyed were still
enjoyable, and consequently that the sixty-fifth clause which ratifies
all that was lawfully done before 1867 would have ratified, for example,
what was done by successive Governors when they placed their authority
above the law and shielded debtors from arrest; and what was done by
successive Assemblies, when in the absence of prescriptive right they
peremptorily hailed offenders to attend at their bar, and exposed them
to the penalties of a tribunal which, without law or delegated
authority, peremptorily assumed the right to arrest, to try, to fine,
and to imprison. Thus does "the British North America Act of 1867" teach
us that Governor Simcoe, and many besides, who lived in "the good old
times," and since then, seriously exaggerated the "beneficence" of the
mother country, and drew only a caricature when they meant to make a
portrait of the "image and transcript of the British constitution," for
it was evidently no part of the Imperial plan to do more than to plant
the English colonies with Assemblies whose duties and powers should be
limited by law. Their Constitutions were to be, and were written ones,
and the acts in which they were embodied, from beginning to end, in the
text and in the intention excluded the very name of Parliament, and
consequently excluded the conditions that grow out of that name, viz.:
Parliamentary privileges and Parliamentary government, albeit the former
were retained in obedience to a passionate act of assumption, while the
latter were acquired by the courageous exercise of endeavour. In the
former case the law was possibly warped for personal ends, while in the
latter it was undoubtedly enlarged for the public good.

It has frequently been said that England was never without national
assemblies of some kind or other. Mr. E. A. Freeman writes that "the
germs alike of the monarchic, the aristocratic and the democratic
branches of our constitution will be found as far back as history or
tradition throws any light on the institutions of our race." Thus it may
have been that the early settlers of North America, in imitation of the
constitution of the British Parliament, and notably in the colony of
Virginia, were apt, of their own mere motion, to distribute the
governing power, when they were not interrupted in doing so, in three
parts. The first was lodged in the Governor, the second in a Council of
State and the third in an Assembly composed of representatives freely
chosen by the people. In referring to the colony of Virginia and to the
first representative body, if we mistake not, that ever assembled in
America, we may add that it was just such a body of select men as the
English race on sudden emergencies is apt to call into action. For,
though it was organized under the direction of a private company, it was
for all practical purposes nothing less than a self-constituted domestic
legislature, chosen for the purpose of regulating the general affairs of
the country. The experiment proved so acceptable to the people generally
that, in 1621, the ruling council of the company in England went a step
further. Without the shadow of authority, they issued an ordinance
which gave the new form of government a permanent sanction and with more
extended powers. This action on the part of the company, being an act of
independent and unauthorized legislation, offended King James; for it
was contrary to his opinions, and formed no part of his practice, to put
the royal authority into commission. Wherefore that monarch took a
peremptory way of stopping colonial imitations of English originals. The
company quailed under the King's displeasure, and retreated hastily
within their former lines, while matters of administration at once
reverted to the condition in which they were before the issue of the
objectionable ordinance. But, had the King's prerogative been also
seized and exercised without his consent, such a liberty, being viewed
as a personal affront, would no doubt have been visited with a
punishment more severe than a frown. Those adventurous colonists and
others who followed their example in establishing legislatures by and
with the advice and consent of trading companies, or of their own mere
motion, were thereafter careful to guard themselves on this point. They
did not claim to possess, nor did they attempt to use, the privileges of
members of the House of Commons. The time for doing so had not arrived.
Nevertheless after the revolution, and probably in imitation of the
Parliament of Great Britain such privileges and exemptions, to a
qualified extent, were extended to the Congress of the United States,
and were enjoyed alike by senators and by members of the House of
Representatives. The evidence of this fact will be found in the 6th
sub-section of the first article of the Constitution of the United
States wherein it is declared that "Senators and Representatives shall
in all cases, except treason, felony and breach of the peace, be
privileged from arrest during their attendance at the session of their
respective Houses, and in going to and returning from the same," and
"for any speech or debate in either house they shall not be questioned
in any other place."

It may now be interesting to turn to the early chapters of our Canadian
histories and see by the entries in the earliest Journals of Upper and
of Lower Canada, how such privileges came to be acquired and the
circumstances that attended their bestowal. By the Act of 1791 it was
declared that the Legislature of Upper Canada should consist of a
Legislative Council of seven members and of a House of Assembly of
sixteen members. The first Journal of the Legislative Council opens
thus:

      Newark, Monday, 17th September, 1792.

  Prayers were read by the Rev. Mr. Stewart.

            PRESENT:

  The Honourable          Richard Cartwright, jr.
      William Osgoode,    John Munro,
      James Baby,         Alexander Grant,
      Robert Hamilton,    Peter Russell.


The house was a full one, for all the members were in attendance. Then
the Honourable William Osgoode, who was also the Chief Justice of Upper
Canada, produced his commission, and was sworn in as Speaker of the
Legislative Council.

The Journals of the House of Assembly of the same day inform us that all
the members having met, and being sworn in by William Jarvis, Esq.,
unanimously elected John MacDonell, Esq., one of the members of the
county of Glengarry to be their Speaker. The name is suggestive, for
doubtless it belonged to one of that race whom fortune has favoured, for
subsequent history informs us that it has won a foremost place among the
governing families of Upper Canada. The election of the Speaker having
been made, the House of Assembly, in obedience to the command of His
Excellency Governor Simcoe, attended at the bar of the Legislative
Council.

Thus, according to Governor Simcoe's view of the occasion, were the
three estates of the Upper Canada Legislature, consisting of twenty-four
persons, assembled to make laws "for the peace, welfare and good
government" of the province. They met at the small town of Newark, now
Niagara, being the temporary capital, where some military works had been
erected. Whether the building wherein the infant legislature first
assembled is now standing we know not, but, as the town has since then
been made familiar with adventure and vicissitude, it is probable that
this interesting historical memorial is lost alike to sight and to
memory. The Council chamber in all probability was a small room, but
the ceremony must have been somewhat imposing, while the speech, which
crowned all, is grand enough for the most elaborate building and the
largest audience. After this manner His Excellency the
Lieutenant-Governor, John Graves Simcoe, addressed both Houses:

"Honourable Gentlemen of the Legislative Council, and Gentlemen of the
House of Assembly.

"I have summoned you together under the authority of an Act of the
Parliament of Great Britain, passed in the last year, and which has
established the British Constitution, and also the forms which secure
and maintain it in this distant country.

"The wisdom and beneficence of our Most Gracious Sovereign and the
British Parliament have been eminently proved, not only in imparting to
us the same form of government, but also in securing the benefit by the
many provisions that guard this memorable Act, so that the blessings of
our invaluable constitution, thus protected and amplified, we may hope
may be extended to the remotest posterity.

"The great and momentous trusts and duties which have been committed to
the representatives of this Province in a degree infinitely beyond
whatever till this period have distinguished any other colony, have
originated from the British nation upon a just consideration of the
energy and hazard with which the inhabitants of this Province have so
conspicuously supported and defended the British Constitution.

"It is from the same patriotism now called upon to exercise with due
deliberation and foresight the various offices of the civil
administration that your fellow subjects of the British Empire expect
the foundation of that union of industry and wealth, of commerce and
power, which may last through all succeeding ages. The natural
advantages of the Province of Upper Canada are inferior to none on this
side of the Atlantic: there can be no separate interest through its
whole extent: the British form of Government has prepared the way for
its speedy colonization, and I trust that your fostering care will
improve the favourable situation, and that a numerous and agricultural
people will speedily take possession of a soil and climate which, under
the British laws, and the munificence with which His Majesty has granted
the lands of the Crown, offers such superior advantages to all who shall
live under its government."

The seven gentlemen who composed the Legislative Council and the sixteen
gentlemen who composed the House of Assembly must have felt a good deal
elated by the speech to which they had listened, for it certainly
encouraged them to magnify their office and to think a good deal of the
positions to which they had been preferred, and of the distinctions that
had overtaken them. Nor were they without reasons for self-complacency
and legitimate pride. In their collective capacity, whether Municipal,
Legislative or Parliamentary, they were the founders and forerunners of
those representative governments which thereafter should be called into
existence in the colonies of England, and established also after the
pattern furnished by the Canadian Legislatures. More than this, the
modest gathering at Newark represented the germ of an imposing future.
Those seven Legislative Councillors and sixteen Assembly men very aptly
prefigured what came to pass seventy-five years later, when the germ
opened and blossomed into the Parliament of Canada, and the shanty hall
at Newark into the grandest pile of Gothic architecture on the continent
of North America.

The immediate effect of the opening ceremony showed itself somewhat
differently in the two branches of the Legislature. The members of the
Upper House appeared to have seen their way clearly as they proceeded at
once with the business of the session. The members of the Lower House,
on the other hand, apparently needed more time to steady themselves.
They hesitated as if seized with the thought that what they had done had
been done imperfectly, for on returning to their chamber a motion was
immediately made to adjourn, and the house was accordingly adjourned
till the following day.

The first entry on the journals of Tuesday, 18th September, 1792, seems
to have been intended to repair an irregularity, for it sheds some light
on the summary termination of the previous day's sitting. Some one,
probably the Governor, who, for reasons already stated, was no doubt
conversant with the forms of the Imperial Parliament, discovered on the
very threshold of the proceedings what he regarded as an important
omission, as well as a marked difference in the ceremonies observed
between choosing a Speaker at Westminster and at Newark; a difference
which His Excellency no doubt thought on this important initial occasion
should at once be removed, as it represented a serious blot on the
"image and transcript of the British constitution" which His Excellency
so dearly cherished and caressed. An error in substance as well as in
form evidently was supposed to have occurred, as the Speaker whom the
Assembly had elected had not been presented for His Excellency's
official approval. This, no doubt, was not only regarded as a lack of
respect, for the early settlers rarely failed when compliments were due
to the Crown, but as an oversight of serious constitutional importance.
It was considered to mean a good deal more than a mere question of the
approval of the person chosen as the Speaker, for it included such
matters as the liberty of speech, the right to offer counsel, and above
all freedom from arrest. As soon, therefore, as the house met the next
day the following entry occurs:

"On motion made and seconded, it was ordered, That Mr. White and Mr.
Jones wait upon His Excellency to know when he will be pleased to
receive the House, that the Speaker may be presented for his
approbation."

Later in the day those gentlemen "reported that His Excellency will
receive the House immediately."

"The House waited upon His Excellency accordingly."

"The Speaker reported that His Excellency had been pleased to approve of
the Speaker chosen by the House, and to promise that the Members of the
House shall enjoy freedom of debate, access to the person of His
Excellency, and be privileged from arrest."

The privileges of the British Parliament were thus, nominally at least,
and in exact terms, accorded to a colonial Assembly. The claim to
privileges seems to have occurred to the latter in the manner of an
after thought. We are not informed in what words it was made, but it was
evidently granted by the Governor without hesitancy, as if he had no
doubt of his right to do so. But where the authority is to be looked
for, since it cannot be found in the constitutional Act of 1791, or in
the Governor's commission, or in the Royal instructions, which are
regarded as explanatory of both, are questions more easily asked than
answered.

On Monday, the 15th October, 1792, after "prayers and a sermon" His
Excellency went to the Council chamber and required the attendance of
the House of Assembly; after assenting to several bills His Excellency
closed his interesting speech with the following suggestive sentence:
"Honourable Gentlemen and Gentlemen, I cannot dismiss you without
earnestly desiring you to promote, by precept and example, among your
respective counties the regular habits of piety and morality, the
surest foundations of all public and private felicity, and at this
juncture I particularly recommend to you to explain that this Province
is singularly blessed not with a mutilated Constitution but with a
Constitution which has stood the test of experience, and is the very
image and transcript of that of Great Britain, by which she has long
established and secured to her subjects as much freedom and happiness as
it is possible to be enjoyed under the subordination necessary to
civilized society."

Upper Canadians, with good reason, have always revered the character and
cherished the memory of their first Lieutenant Governor. It is easy to
see in reading his two speeches what manner of man he was, for the
spirit of enthusiasm that glistens in his words is of that ennobling
quality that quickens slower minds and raises inferior natures to higher
and purer levels. Had it been his lot to open the first Parliament,
instead of the first Legislature, of Canada, he would have approached
the duty in the spirit of lofty exultation, and, from the warmth of his
heart and the exuberance of his fancy would have spoken words of
congratulation, encouragement and hope. There would have been no
allusion to another confederation or to a fancied Utopia; there would
have been no hint of a rent in the British commonwealth, no suggestion
of a new departure for the English-speaking race. Governor Simcoe's
longings were Imperial, and, no doubt, were tempered with the opinions
that governed the statesmen of his age. It would have been impossible
for him to have harboured a thought, much less to have breathed a word,
on the subject of a "new nationality," for such a thought would have
represented a baffled mission and such a word would have meant a broken
Empire. The grace to inspire enthusiasm is not bestowed alike on all,
and they can but ill convey the gift whose nerveless breasts are haunted
with quailing fancies and shivering fears. Governor Simcoe did not gauge
the popular sentiment by a process of arithmetic, or determine the worth
of national will by a discipline of figures. Such labours were foreign
alike to his habits and his tastes. Duty and courage were his
watchwords, and to fulfil the former and display the latter were the
natural expressions of his true and loyal heart. Consequently his name
and memory have always been, and still are, regarded as precious
possessions by the descendants of the first settlers of Upper Canada.

At the close of His Excellency's speech "The Speaker of the Honourable
Executive Council" (_sic_) declared by His Excellency's command both
Houses to be prorogued to Monday, the thirty-first of December next.

The form adopted no doubt savours of the usage of Parliament, as, by an
exercise of the prerogative, for which no provision had been made, the
life of the two Houses was apparently continued, and, it may be added,
for a period nearly twice as long as was then customary in England or as
is now the practice in Canada. With respect to "the Parliament of
Canada" the formula observed at Westminster may properly be used, for it
has the authority of law, but whether it can with equal propriety be
employed by subordinate Legislatures, may reasonably be doubted, as
there is no evidence that such a technical continuity was ever intended
to be given to any of those Provincial Assemblies that were established
before 1867 or to those that are now established under the British North
America Act of 1867.

Again, the occasion of the prorogation of the first session of the Upper
Canada Legislature supplies what seems like a new example of
inexactness, for the words Legislative Council and Executive Council are
frequently used as interchangeable terms. In those early days, however,
the duties of the two bodies were practically united, and Legislative
Councillors were probably _ex officio_ members of the Executive Council.
Nevertheless, as the Government for many years was a personal one, it is
also probable that very little resort was had to Executive advisers, for
the Governors of that period affected to seek counsel only when they
required it, and that was very seldom. The excuse for such indeterminate
language is probably to be found in the fact that a select Council to
correspond with the Privy Council was necessary, in the opinion of
Governor Simcoe, to perfect in Upper Canada the image of the British
Constitution which had become impressed on his mind. Hence the
Legislative Council was called upon to support a dual character, as it
has since done in other North American colonies, and to bear a double
name. It was an advisatory body to the Governor and a Council of
assistance and restraint to the House of Assembly, and there is little
doubt the nominal arrangement was acceptable to His Excellency, chiefly
because the threefold expression of colonial rule presented a not
wholly inexact correspondence in his opinion with the three parts of the
British Constitution.

The form of the new Government was an experiment, and, but for Governor
Simcoe's stimulating rhetoric, it would probably have been carried out
on Municipal rather than on Parliamentary lines; for the interpretation
furnished by the British North America Act of 1867 leads to no other
conclusion than that a much less ambitious organization was intended
than the one which His Excellency's creative fancy called into
existence, and which his poetic temperament stimulated by a too free use
of analogies--of analogies that were but hazily examined before they
were actually applied. Instead of being indefinite and antique, the
accredited offspring of remote custom and ancient use, the powers
bestowed were exact and modern, experimental and newly born. They were
charter powers only whose nature and extent were to be found, not in the
transmitted usages of ages, but in the modern Act out of which they took
their rise. The two Houses of the Legislature, like clubs, or guilds, or
friendly societies could no doubt make rules and orders for their own
discipline and guidance, but such rules and orders would have been, and
would be, inoperative were they opposed to, or subversive of, the
supreme law.

It follows, then, that, should the Legislatures thus established have
found their work hindered or their usefulness impaired by reason of
their lacking certain incidents or attributes of authority which the law
did not bestow; should they have needed "privileges, immunities and
powers" beyond those which the law had conferred, it would have been
their clear duty to seek what was lacking at the source of supply and
ask the law makers to amend their own work. That they did not do so must
be attributed to the fact that the necessity for doing so had not
arisen, or having arisen had peremptorily been adjudged as inapplicable
and dismissed as inoperative, for, whether by right or by usurpation,
they exercised to the full the privileges, the immunities and the powers
of Parliament. Being in possession, so to speak, whether disputed or
otherwise, it was more adroit to avoid explanations than to make them,
to assume a good deal and to say nothing. Consequently it was highly
impolitic to ask ugly questions, or inquire too closely by what
authority such advantages were claimed and such things were done. But
policy, as an extinguisher, generally wears itself out. The light it is
intended to suppress commonly destroys it, and sooner or later the truth
is revealed. Thus it was on the occasion under review. Dormant issues
were revived, and a question that might have been looked upon as settled
and foreclosed was, by the British North America Act of 1867, so
thoroughly re-opened that it has again to be faced, again to be inquired
into, and again to be determined.

Judging from the course that Governor Simcoe took, the inference follows
that His Excellency was of opinion that the representative of the
Sovereign, like the Sovereign, derived his authority in all unprovided
cases from ancient custom and from the common law, so that whatever the
King could do in the British Islands, his representative could do in a
British Province. He seemed to think that the attributes of the
Sovereign belonged also to the representative of the Sovereign, and that
the rights of the Crown attached to, and could _ex-officio_ be exercised
by, the representative of the Crown. Moreover, successive Governors and
successive Assemblies appear very generally to have been of the same way
of thinking. It may therefore be of advantage to look closely into the
matter, and see to what extent and in what form the Crown devolved its
authority, and then inquire whether authority can legally be taken that
is not to be found in such form. We cannot logically admit two sets of
propositions that contradict one another. We are forced to recognize
facts that are self-evident, even though by doing so we should be
obliged to resist conclusions that imply the negative of such facts.
What then are the facts? The representative of the Sovereign exercises
his delegated powers either because such powers are functions inherent
in his office, or because he has been invested with them by the mandate
of the Sovereign. That they are not functions inherent in the office of
representative of the Sovereign is made clear by the fact that a
Governor is an Imperial minister, and his functions consequently are
limited and guarded by the articles of his service. No doubt he is the
representative of his Sovereign, but like other representatives of their
Sovereign, such as judges, sheriffs, and the minor officers of the
courts, his representation is limited by law, by the terms of an
Imperial act, by the restrictions of his commission, and by Royal
instructions explanatory of both. Apart from duties of police and
defence, which usually attach to the office of all Governors, and for
the exercise of which a wide discretion is allowed, there remain very
few questions that are not wholly controlled by what are conventionally
called constitutional acts, but which might also be described as local
charters. The powers themselves and the mode of exercising them will
generally be found in the instruments to which reference has been made.
There is small space either for vain conceit or for rash assumption, for
the orders and directions are stated generally with clearness. The
limits of authority are well laid down, and the inference to be drawn is
that the representative of the Sovereign is to act within his
instructions and according to law, and not beyond them. In an important
particular there is a special delegation of a royal attribute, in the
absence of which the Sovereign would be exposed to the danger of grave
misrepresentation. As the fountain of mercy, for example, means had to
be found for exercising the prerogative of mercy. The Crown, under
certain conditions and within certain restrictions, has conferred on its
representative this function of grace. He may pardon criminals, mitigate
penalties and remit fines. Thus were offences against the Crown brought
within the clemency of the Crown, and being matters of criminal law they
stand within the range of royal cognizance. But no such powers were, or
could be, delegated in matters of civil process. The King could not by
the exercise of a personal act command his representative to interpose
between debtors and creditors, and save the former from arrest by the
latter. He could not authorize his representative to raise Houses of
Assembly into courts of justice, because the act under which they were
established had placed exact limits to their powers, such limits indeed
as excluded the notion of indefinite expansion. Silence on these
subjects in the law, in the commission and in the Royal instructions
must be accepted as exclusive, for we learn as plainly in such passages
of silence what was withheld, as by the documentary evidence we read
what was granted.

Indeed the powers conferred on Governors were generally tentative and
rarely absolute. The words of the Royal instructions may easily have
been made to apply to other matters than acts of the legislature, for
they seem especially, though not expressly, to point to functions of the
Governor. They run thus: "And we do further enjoin you not to propose
any act whereby our prerogative might be diminished or in any respect
infringed without our special permission previously obtained." That the
acts of the Governor were not also included in the instruction
respecting acts of the Legislature is probably to be ascribed to the
fact that the Crown could not have anticipated that a Royal function
would have been appropriated and used by its representatives without
asking and obtaining the Royal permission to do so. But not only were
certain laws not to be proposed but some were not to be assented to, and
others were to be reserved for the signification of the Royal pleasure,
while those which received the Governor's sanction were liable to be
disallowed by the Imperial Parliament at any time after they had been
proclaimed in Canada. Even in the matter of patronage and official
appointments, the Governors walked in fetters. No Legislative
Councillor, no Judge, no important functionary could be appointed
without reference to the Colonial office. Neither were such references
mere matters of form, for it sometimes happened that the Governor's
recommendations were overruled by the Minister. Again, should the
representative of the Crown be called on to exercise vice-regal
functions, such as conferring titles of honour, a special dispensation
from the Sovereign was deemed necessary to the discharge of the special
duty. In fact all extraordinary exercises of authority were absolutely
forbidden. To confer "powers, immunities and privileges" not authorized
by law was an extraordinary exercise of authority, and should have been
regarded as absolutely forbidden. If small encroachments on the rights
of the Crown were to be resisted, larger ones were to be condemned. The
conclusion appears inevitable.

Thus it would seem that Governor Simcoe made a serious mistake when, in
the absence of law and authority, he used the King's name without leave
to do what the King personally was powerless to perform, for His Majesty
could not screen debtors from their creditors. In the absence of law the
King could not authorize the arrest, imprisonment and fine of offenders
by such self-constituted courts as Legislative Assemblies, any more than
he could do so under the authority of such statutory corporations as
County Councils. Neither could he by any exercise of personal authority
confer on such Assemblies privileges to which they were not entitled by
law, which Governors were powerless to bestow, and which the Sovereign
and Parliament of England evidently did not intend that they should
possess.




CHAPTER III.


About two months after the first session of the Legislature of Upper
Canada had been closed at Newark, the first session of the Legislature
of Lower Canada was opened at Quebec, but the initiatory proceedings in
the two provinces were more remarkable for their divergence than for
their similarity. The forms which are observed by the English House of
Commons at the beginning of a Parliament were overlooked or
misunderstood by the House of Assembly of the upper province. They may
perhaps, in the first instance, have been considered inapplicable when
we bear in mind that the provincial electorate did not exceed in number
the population of one of the smaller county towns of England, being
estimated at about ten thousand persons. But no such embarrassments
accompanied the initiatory proceedings in Lower Canada, for in that
province English precedents apparently had been as earnestly initiated
by the members of the Assembly as they were cleverly avoided by His
Excellency the Lieutenant-Governor. The customs and usages of the
Parliament of Great Britain, together with the exceptional advantages
which those phrases were understood to express, were assumed, equally
with the powers conferred by the constitutional Act, to be the
inherited and indefeasible properties of the Provincial Legislatures.
There seems to have been no difficulty as to the principle, but a doubt
appears to have arisen as to the question of degree. Some hesitated, as
if afraid to appropriate on no other authority than questionable
analogy, the privileges of another representative body, whose origin and
history was wholly dissimilar to the one of which they found themselves
members. Hesitation was succeeded by compromise, which found expression
in elaborate motions, long debates, and suggestive divisions, debates
that were not even exhausted when, after much expenditure of time and
thought, the discussions appear to have been brought to an abrupt and
unsatisfactory close, perhaps by the impatience of the Lieutenant
Governor, but at all events by the arrival of Black Rod. Indeed, the
order of procedure in the two Provinces was strangely contrasted. In
Upper Canada the forms observed by the English House of Commons were not
in the first instance followed, and this fact encourages the suspicion
that they were either unknown, or regarded as out of place, by those who
afterwards took advantage of them by making the Provincial ceremonial
conform to the Imperial pattern. Governor Simcoe, as we have already
surmised, in all probability suggested what he thought was wanting, and
in this way the missing link was supplied on the day following the one
on which the speech was delivered. Moreover, it seems to have been done
with little consideration and less debate. The result was that the
humble were exalted, for the Upper Canadian representatives, having
failed at the right time to ask for any immunities, were spontaneously
rewarded at the wrong time with a grant of all the privileges they could
desire, including some which, as we venture to think, they had no reason
to expect, and which His Excellency the Lieutenant Governor had no right
to bestow.

The concessions which had been so boldly made at Newark were more
cautiously considered at Quebec, for the example of Lieutenant Governor
Simcoe was rather avoided than followed by the Lieutenant Governor of
Lower Canada, Major General Alured Clarke, afterwards Sir Alured Clarke.
Indeed the difference of procedure was so marked that the thought arises
whether it was due to maturer counsels, to a more careful reading of the
law to a severer view of duty, or to some timely caution on the
important subjects of authority and competency. In the presence of the
facts we shall presently state, it is difficult to dismiss the belief
that observations in some influential quarter had been made on the
question of privileges between the time when the opening ceremonies of
the Upper Canada legislature were observed, and the time when those of
Lower Canada were being considered. Unlike the Upper Canadian
representatives, who avoided debate and forgot to petition, the
representatives of Lower Canada invited discussion and boldly claimed
for the provincial representatives all the immunities which the members
of the English House of Commons enjoyed. The enumerated privileges may
have caused the Lieutenant Governor to reflect, for they were
comprehensive enough to provoke hesitancy, to subdue rashness, and to
make him call a halt seriously to inquire where such pretentions were to
be found. That His Excellency did something of the kind seems evident
from the narrative of what subsequently took place, for while the
Speaker, on behalf of the Assembly, demanded for its members special
privileges, the Lieutenant Governor, on behalf of the Crown, promised
only lawful ones.

The occurrences of the 17th December, 1792, and those of the two
following days were very interesting. Since the conquest of England,
when Saxons, Danes and Normans united in blending as in treble strands
the traditions of their races, and thus gradually developing what
eventually became the Parliament of the English people, no such
Legislative partnership of international members had been attempted as
that which was formed at Quebec on the 17th December, 1792. Wolfe and
Montcalm, victor and vanquished, each in a shroud of glory, but in
distant graves, lay peacefully at rest, but the recollection of the
decisive battle which transferred half a continent to Great Britain was
well remembered, not only in England and France, but by the elders of
that period resident in Canada. Time, we may conjecture, had scarcely
sufficed to cool the blood, much less to heal the scars that war had
wrought. Reconciliation to the new rule could only be looked for as a
later condition, and as the result of justice and kindness on their
parts who should be called on to represent the new sovereignty. Time and
space were alike needed to effect their perfect work. Nevertheless, what
seemed so unpromising actually occurred. The enmities of opposing races
were not only appeased but they were exchanged for friendliness and
peace. The experiment which Saxons, Danes and Normans had successfully
made centuries earlier was again to be attempted. Under other names the
descendants of the same peoples co-operated for the like ends and with
the like results. The natural enemies of one another, as the English and
the French had been popularly regarded, became friends, each according
to his light, and both under a solemn oath, swearing by God's help to
work together for their common country and for the common good. The
scene must have been an impressive one, for the poetry of it still
lingers in the fancy, and it would be well were the historical parallel
studied and worked to completion, for it is generally an act of wisdom
to imitate what experience has pronounced very good. And what is that
parallel? Though remembering with pride the races from which they
sprung, the Saxon, the Dane and the Norman were content to lay aside
their cherished names, and mutually to submit to a new baptism in the
presence of such sponsors as patriotism and peace. And by the new name
they thereafter became known through all ages as Englishmen. So also
might the English and French races in British North America, even while
cherishing the memory of their ancestors, and prizing, as each has the
right to do, their heritage of fame, be well content to interlace their
historic rivalries with their historic laurels, and thereafter to
appropriate to themselves the name of the country in which they were
born or in which they dwell, and, without hesitancy or resort to
qualifying adjectives, call themselves "Canadians". Nor does the
parallel end here. As the "councils" or "inquests" of the Normans, the
Danes and the Saxons eventually merged into and became the Parliament of
England, so also did the Legislatures of British North America,
composed, though not equally, of English and French members, eventually
become the Parliament of Canada. In both countries the "grand inquest"
enjoys the advantage of having sturdy relations. In England, beside the
High Court of Parliament, there will be found a group of time-honoured
municipalities and ancient guilds which have gathered wisdom,
accumulated wealth, preserved customs, practised hospitality, bestowed
honours and dispensed charity; which have guarded property, protected
life and suppressed crime; which have also promoted health, built
highways and lighted streets; which have housed the houseless, fed the
hungry, sheltered the sick, and educated the ignorant; which in times of
peace have pursued their way in quietness and confidence, but in times
of war have proved towers of strength to and imposing outworks of the
Great Parliament of England. No doubt many of these municipalities and
guilds have their party colourings, as well as their political bias, but
such considerations have been and are generally subordinated to the ends
for which the institutions were created, viz.: the amelioration and
improvement of localities and the happiness and benefit of individuals.

Neither is moral aid wanting to the Parliament of Canada. Like her
English prototype, she has federal as well as municipal supporters, and
these again under different names, but with similar organizations,
labour by kindred plans towards common ends. It is the duty of the
municipalities of Great Britain and of the municipalities of Canada,
irrespective of their names or of their territorial extent, to care for
localities, to advance improvement and generally to promote peace, order
and contentment. But besides these common obligations, the
municipalities of the mother country, in some instances are the
repositories of especial privileges which by reason of their antiquity
as well as of their value they have shown a praiseworthy anxiety to
cherish and protect. In like manner the local legislatures possess local
authority and civil rights, which they enjoy under the guarantee of a
statute of the United Kingdom; but in both cases, we venture to think,
the possession rests on the authority of law, or on the guarantee of
treaty, and not on usage merely, much less on constructive assumption.
Such privileges, when menaced, have been asserted in the past, and such
rights, if interfered with, would be insisted on in the future. Less
than forty years ago the corporation of London successfully resisted the
Parliament of the United Kingdom when it attempted, without having
obtained the consent of that ancient guild, to interfere with the police
arrangements of the municipality; and so in like manner would the local
legislatures spring to their feet were any effort made by the Parliament
of Canada to curtail their lawful rights, or abridge the powers they
have received from the Parliament of the United Kingdom. It is not of
course to be expected, and perhaps not to be wished, that a body of
public men should have colourless opinions on political subjects, as
such a condition is scarcely consistent with a healthy representative
system, or with the nature of men who have been educated and brought up
in the habits of such a system. But on the other hand it is very much to
be desired that politics should not control subjects with which they
ought to have no connection and to which they do not properly belong.
The heat requisite to the full development of a colour may often be
oppressive, and is sometimes unbearable, but it may nevertheless be
necessary for the purpose for which it is employed. On the other hand,
the influence of "burning questions," being too frequently forced upon
and blended with the discussion of every-day subjects, not only frets
the speakers and warps the argument, but hampers the discharge of duty
by hindering, and rendering acrid, the efforts of honest endeavour. The
result is usually deplorable, for where questions that are reasonable
and local are controlled by passion and foreign considerations the
chances are that faction will triumph while justice will hide herself
for shame.

To return to our narrative. As in our last chapter we made an abstract
from the earliest journal of the Assembly of Upper Canada, so in this
one we shall supply a like abstract from the first journals of the
legislature of Lower Canada. On Monday, the 17th December, 1792, the
legislature of Lower Canada was assembled for the first time, Major
General Sir Alured Clarke being the Lieutenant Governor. The Legislative
Council was composed of fifteen members and the House of Assembly of
fifty members. The names of the Legislative Councillors present were as
follow:

    The Honourables

    William Smith, _Chief Justice of the Province, and also Speaker of the
    House_.

    Hugh Finlay.
    Joseph de Longueuil.
    Picotte de Bellestre.
    Charles de Lanaudiere.
    Thomas Dunn.
    George Pownall.
    Edward Harrison.
    R. A. de Boucherville.
    Franois Baby.
    John Fraser.
    John Collins.
    Henry Caldwell.
    J. G. Chaussegros de Lery.

    For some reason, not apparent on the face of the writs, they seem to
    have been thus recorded by the Clerk of the Crown in Chancery: Writ of
    Summons to the Upper House of Assembly or Legislative Council.

    (Signed), "Finlay, C. C. in ch."

By referring to the constitutional act of 1791, as well as to the
debates thereon in the Imperial Parliament, it will be noted that a much
greater amount of care was observed in creating the Upper, than in
forming the Lower, Houses in the two Provinces. Legislative Councillors
were not only to be nominated for life, but, in the discretion of the
home government, provision was made for the formation of a hereditary
aristocracy. These considerations should not be lost sight of, for they
suggest the thought that, as more precaution was observed in
constituting the Upper, than the Lower Houses, so was it the intention,
at least at first, to lean more on the nominated, than on the
representative bodies of the constitution for the good government of the
respective provinces.

It is also to be observed that the style used in the journals of the
Legislative Council and of the Legislative Assembly in describing the
first meeting of the two Houses is different. In this respect the Upper
House seems to have taken the grand attitude, for in their proceedings
they use the language of the Lords and not the language of the statute.
The words employed in the journals of the former body are:

"At the Provincial Parliament begun and holden at Quebec, in pursuance
of an Act passed in the Parliament of Great Britain." Then the title of
the Act of 1791 is quoted, but that act, as has already been stated,
created a Provincial Legislature and not a Provincial Parliament. The
House of Assembly in their journals, on the contrary, made no mention
of the word Parliament, but were content to be guided by the Imperial
statute, and thus called itself a "House of Assembly."

The incidents connected with the election of the first Speaker of the
House of Assembly of Lower Canada are alike interesting and suggestive.
In a House of forty-six, out of fifty Members, Mr. Jean Antoine Panet,
the grandfather of the present Deputy Minister of Militia, was elected
Speaker by a majority of ten votes.

Three days afterwards, the following entries occur, and as they relate
to privileges, we shall quote at length:

Thursday, 20th December, 1792.

"Mr. Speaker elect having taken the chair proposed as questions to the
House, and on which he wished to take advice of the House (to wit),

"That the Speaker, being presented at the bar, he should say:

"I humbly pray Your Excellency to consider that I cannot express myself
but in the primitive language of my native country, and to accept the
translation in English of what I have the honour to say."

"The translation to be read by a Member of the House."

"My incapacity being as evident, as my zeal is ardent, to see that so
important a duty as that of the first Speaker of the Commons House of
Assembly of the Representatives of Lower Canada be fulfilled, I most
respectfully implore the excuse and command of Your Excellency in the
name of our Sovereign Lord the King."

"If the election of the Speaker is approved of he may say,

"I most humbly claim, in the name of the same Assembly, the freedom of
speech, and generally all the like privileges and liberties as are
enjoyed by the Commons of Great Britain, our Mother Country.

"That the proceedings of the Representatives may receive the most
favourable construction, and that whatever the Speaker shall say may be
imputed to his ignorance and not to the Commons, that he may resort
again to their House for declaration of their true intent, and that his
error may be pardoned."

Lastly, "That, as often as necessary for His Majesty's service and that
the good of the commonwealth shall require he may, by direction of the
House of Commons, have access to the person of His Excellency the
Governor of the Province."

Whereupon Mr. Grant moved the following Resolution, viz: "That when Mr.
Speaker elect shall be approved by His Excellency the Lieutenant
Governor, he do immediately thereafter, by humble verbal petition to
His Excellency in the name and on the behalf of this Commons House of
Assembly, lay claim to the like rights and privileges as the Commons of
Great Britain in Parliament exercise, hold and enjoy, particularly that
the persons of the members of the Assembly, their estates and servants
may be free from arrests and all molestations; that the members may
enjoy liberty of speech in all their debates, may have access to His
Excellency's person whenever occasion shall require, and that all their
proceedings may receive from His Excellency the most favourable
construction; that whenever Mr. Speaker speaks that may be taken in evil
part, may be imputed to his ignorance and not to the Commons.

"An important amendment was made to the above resolution by which the
words 'servants and estates' were left out, but on the question being
put whether the resolution as amended should pass, it was resolved in
the negative by a majority of twelve votes."

"Then M. P. L. Panet moved, that the Speaker do demand from the Governor
the rights and privileges of this House as amply as they are enjoyed by
the House of Commons of Great Britain."

Mr. Panet's amendment seems not to have been put to the House; though,
from what took place afterwards in the Legislative Council, it evidently
expressed the sense of the House of Assembly. Apparently the whole
proceeding was interrupted by the appearance of Black Rod, who, in His
Excellency's name, commanded the members to attend him in the
Legislative Council House (_sic_), with their Speaker.

We may accompany the Lower to the Upper House. After an apology for
addressing His Excellency "in the primitive language of his native
country" and some confessions of humility, Mr. Panet said:

"I most humbly claim in the name of the House of Assembly the freedom of
speech, and generally all the privileges and liberties that are enjoyed
by the Commons of Great Britain our Mother Country."

To this His Excellency answered, and it must be confessed with discreet
vagueness:

"The House may depend on being allowed the full exercise and enjoyment
of all just rights and lawful privileges."

His Excellency's speeches at the opening and closing of the Session,
though not wanting in congratulatory words, were much more guarded in
the opinions they expressed on the constitutional powers of the
provincial legislatures than were the speeches of Governor Simcoe on the
like subjects in Upper Canada. The privileges conceded to the members of
the two Assemblies, whatever they may have been, were such only as could
lawfully be given, for they possessed no other value than the value they
derived from the law. Hence the most generous, open-handed Governor,
could only bestow what he possessed, and if such possessions were not to
be found in, and authorized by the law, the gift, whatever it may have
seemed, was in point of fact nothing worth. Thus the privileges so
honestly asked for and so ostentatiously bestowed, when fairly examined,
will be found so meagre, not to say worthless, as scarcely to be
distinguished from a blank cheque. The ceremonial dialogue when stripped
of its effusiveness, and being withdrawn from the pageant to which it
was indebted for any merit it had, represents only a collection of well
chosen vapourish words. Being paraphrased they mean this and nothing
more: "That the Governor, as an act of duty to his Sovereign and of
courtesy to the people whom he had been appointed to rule, will grant
their representative free access to his person on all seasonable
occasions. They will also as a matter of right, and irrespective of His
Excellency's will, continue to enjoy all the rights of British subjects
under the common law, together with any special advantages which they
may be able to claim under the constitutional Act of 1791." "The
privileges, immunities and powers" of Parliament had been asked for, no
doubt, but they had not been granted by any one having competent
authority to make such a gift. They had been seized and appropriated,
and for seventy odd years enjoyed, but they were not actually bestowed
until 1867, nor even then were the Provincial Legislatures the
beneficiaries of such exceptional gifts. Hence it follows that whatever
was done in the earlier days, and whatever may be done in the present
time in virtue of such seizures, or under such pretences, was and is
done without the sanction of law by which those Legislatures are
created, and with only the shadow of insufficient authority.

The first session of the legislature of Lower Canada was brought to a
close on the 9th May, 1793, when, after finishing his speech, the
Lieutenant Governor said: "I do in His Majesty's name prorogue this
General Assembly to Monday the seventeenth day of June next, and the
same is prorogued accordingly." It thus appears that the claim to
privileges was put forward in a somewhat tentative way. In the Upper
Province the application reads like an afterthought. In the Lower
Province it appears clear that the majority of the House of Assembly
thought it safer to ask for general than for particular powers. The
answer, moreover, is the reverse of encouraging, for the Assembly was
informed that they should continue to exercise and enjoy what they
undoubtedly possessed, viz.: their just rights under the common law, and
any lawful privileges they could find in the constitutional act; for
neither of which was any special permission needed.

It sometimes happens that names or designations assumed for convenience,
or in deference to a personal wish, or to the claims of euphony, and
remaining unchallenged, in the lapse of time are accepted as matters of
right, and as beyond the range of cavil or dispute. For example the
Legislative Council of Lower Canada, without the slightest authority
that we have been able to find, beyond what the etymology of the word
affords, began their first days of journal by styling the two Houses of
their Assembly "The Provincial Parliament." This was the commencement of
a course of self-appropriated advantages. To associate valuable things
with valuable names was natural enough, but it led to the error of not
distinguishing between things that were not the same, and were intended
by the supreme authority to be different. Moreover the word Parliament
especially commended itself to the French mind, for it came of Gallic
parentage. It was pleasant to hear, and convenient to repeat, so it was
soon adopted by the Canadian and other colonial legislatures. No doubt
the title was assumed in good faith, for it was the common belief then,
as it has continued to be with the majority of people since, that the
words "Parliament" and "Legislature" were synonyms, and meant one and
the same thing. But this belief, though general enough, was not
universal. Whether the subject received any consideration from the
authorities in England is a question on which only indirect evidence, so
far as we have been able to discover, can be obtained.

In 1809 the forms observed in the ceremonial of electing a Speaker
underwent important modifications. The vigour and fulness of the
language between 1792 and the last mentioned year disappear, and as the
change apparently took place in both provinces at the same time, and
resulted in the adoption by both legislatures of a uniform style, it is
fair to assume that it was done in obedience to identical orders, and
that those orders were made by competent authority. But whatever may
have been the opinion entertained in the mother country, there were men
in the colonies who not only had their doubts, but who found an occasion
to express them. Foremost among those who did so was one who, having the
courage of his convictions, boldly and in a very emphatic way took
occasion to declare his incredulity and to provoke a test. That one was
the Honourable William Warren Baldwin, better known in Upper Canada as
Dr. Baldwin and as the father of the late Honourable Robert Baldwin,
both of Toronto. The contrast is curious, for the former sought to
minimize the powers of the provincial legislature by denying that it was
a Parliament, while the latter in later times succeeded in magnifying
the provincial legislature by grafting on it powers that were
pre-eminently parliamentary. The interval that separated the two
transactions was one of thirty years, and may easily have passed out of
the recollection of all who had no particular reason for retaining it in
their memories. Nevertheless the doubt of the father, though it eluded
the mind of the son, may have become blended with the traditions of the
Colonial office, and have found a handy place among the things to be
remembered. Perhaps that doubt, and the circumstances which attended its
expression, were not without influence on the transactions that occurred
thirty years later. If a check had successfully been given to the
appropriation by the Legislatures of Imperial privileges in 1809, why
should not a check have been as effectually given in 1842 to the
appropriation of Royal prerogatives? This inquiry will be dealt with at
greater length in another chapter, when some allusion will be made to
Sir Francis Hincks' observations on those events on the occasion of his
address to the Irish National Society at Montreal in October last.

In 1812, when Major General Sir Isaac Brock was the Lieutenant Governor,
and Great Britain and the United States stood face to face on the
threshold of war, the following curious entries appear in the Journals
of the Legislative Council and Assembly of Upper Canada:

    House of Assembly.

    Tuesday, 11th February, 1812.

    Read a letter from Alexander McDonell, Esq., a member representing the
    County of Glengarry, to His Honour, the Speaker, and it is in the
    following words:

    York, 8th Sept., 1811.

    Sir.--I feel it a duty incumbent on me to state to you, for the
    information of the Commons House of Assembly, that William Warren
    Baldwin, Esquire, has grossly and flagrantly violated the privileges of
    that Honourable Body by issuing as Deputy Clerk of the Crown, endorsing
    and putting into the hands of the Sheriff of the Home District, as
    Attorney at Law, a writ for the purpose of arresting my person about the
    15th day of July now last past. The Deputy Sheriff (Mr. Hamilton) told
    Mr. Baldwin, when the latter put the writ in his hands, that, as a
    member of the House of Assembly, I was privileged from arrest; this Mr.
    Baldwin denied, and insisted on his complying implicitly with the tenor
    of the writ. Mr. Hamilton declined, and referred the circumstance to the
    decision of the Sheriff who, being more versed in the duties of his
    office than Mr. Baldwin appears to have been in _his_, declined
    executing the writ.

    This violation of privilege is more unpardonable in Mr. Baldwin than it
    could possibly be in any other attorney, for as Master in Chancery, he
    is the organ of communication from the Legislative Council to the House
    of Assembly, and at this late period he has the assurance to deny to the
    latter branch of the Legislature a privilege which they have already
    contended for, and which has invariably been admitted. Immaterial to the
    House that the writ has not been executed by the Sheriff Mr. Baldwin put
    the finishing touch to that part of the transaction which has a
    reference to his office as Attorney, and the infraction of privilege is
    as deeply wounded by his endorsing the writ as if my person had been
    taken into custody. To the decision of the House I submit the case, not
    doubting but every individual member will coincide with me in opinion
    that Mr. Baldwin in his threefold capacity of Deputy Clerk of the Crown,
    Attorney, and Master in Chancery, has violated the privileges of the
    House of Assembly.

    (Signed), Alex. McDonell.

"On motion of Mr. Gough, seconded by Captain Fraser, it was ordered that
Thomas Hamilton, Deputy Sheriff, do attend at the Bar to-morrow."

The above seems not to have been the only offence that Dr. Baldwin had
committed, for on the same day the following entry occurs:

"Mr. Gough again moved, seconded by Mr. Rodgers, that William Warren
Baldwin, Esq., barrister, has been guilty of a false, scandalous,
audacious, contemptuous libel of this House by publicly charging this
House, in the hearing of several members thereof, with injustice to his
father Robert Baldwin, one of the Commissioners for amending and
repairing the public highways and roads for the District of Newcastle."

On the question being put on this remarkable resolution the yeas and
nays were called for, when it was resolved in the affirmative in a house
of twenty members, of whom seventeen were in attendance, by a majority
of fourteen. The nays being Messrs. Mallory, Willcocks and Elliott.

"Then Mr. Gough, seconded by Mr. Rogers, moved that William Warren
Baldwin, Esq., barrister, has been guilty of a breach of the privileges
of this House by suing out a _capias_, and putting the same into the
hands of the Sheriff of the Home District to execute against the person
of Alexander McDonell, Esq., a member of this House.

"Which resolution was carried in the affirmative.

    "Wednesday, 12th February, 1812.

"The Sergeant-at-Arms informed the Speaker that Mr. Thomas Hamilton
attended at the Bar of the House in obedience to the order of yesterday.

"Mr. Thomas Hamilton was then called to the Bar of this House and, being
examined by the House, declared that a writ of _capias ad respondendum_
had been put into his hands by William Warren Baldwin, Esq., as Attorney
against Alexander McDonell, Esq., a member of this House, on the 26th
day of July 1811.

"That he did not execute this said writ, because he conceived Mr.
McDonell to be privileged from arrest. That Mr. Baldwin urged him to
make the said arrest, insisting that this House was not entitled to
privilege, as being a House of Assembly and not a House of Parliament.
The writ of _capias ad respondendum_ was then produced by Mr. Hamilton,
which was read at the Table and returned to him.

"Then Mr. Gough moved, seconded by Mr. Willcocks, that John Small, Esq.,
Clerk of the Crown, be ordered to attend at the Bar of this House at ten
o'clock to-morrow morning. The same was ordered accordingly."

In passing it may be noted that Mr. Small, like Dr. Baldwin, is, we
believe, remembered as a liberal politician, and, so far as a public
official could be so, in sympathy with the reform party.

    "Thursday, 13th February, 1812.

"The Sergeant-at-Arms informed the Speaker that John Small, Esq.,
attended at the Bar of this House in obedience to the order of
yesterday.

"Being examined by the House, Mr. Small declared that the oath on which
the _capias_ against Alexander McDonell, a member of this House was
issued, was taken by Mr. Jordan, and administered by himself; that he
had no intention to infringe upon any of the privileges of this House,
and that if he had done so inadvertently he prayed that this House would
pardon him.

Mr. Small's conditional "if" was somewhat roughly treated, for

"Mr. Gough, seconded by Mr. Rogers, moved that John Small, Esq., Clerk
of the Crown, has been guilty of a breach of the privileges of this
House by issuing from his office a _capias_ against the person of
Alexander McDonell, Esq., a member of this House, but Mr. Small having
made an apology to the satisfaction of this House he be dismissed.

"The House accordingly resolved the same, and

"The Speaker informed Mr. Small of the said Resolution, and that, in
consequence of his apology, he was permitted to retire from the Bar."
But the proceedings in this curious matter were not yet at an end, for
no sooner had Mr. Small retired than

"Mr. Gough again moved, seconded by Mr. Rogers, that a message be sent
to the Legislative Council, with the Resolution of this House of the day
before yesterday respecting the conduct of William Warren Baldwin, Esq.,
whom this House knows to be an officer attending their Honourable House
as a Master in Chancery, assuring them of the reliance of this House
that their Honourable House will proceed towards the delinquents as to
their wisdom may seem meet and to justice may appertain."

"Which was ordered accordingly."

Turning to the journals of the Legislative Council we find that the
Upper House was singularly in accord with the Lower one in regarding Mr.
Baldwin's offence as very heinous indeed, and meriting all the
punishment it was in the power of the Legislative Council to bestow.

    "Journals of the Legislative Council

    Thursday, 13th February, 1812.

    Present:

    The Honourable Mr. Scott, Speaker.

    Honourable Jas. Baby.   Honorable John McGill.

              neas Shaw.               Wm. Claus.

A deputation from the House of Assembly was announced.

It was admitted, and delivered at the Bar the following message:

    'Mr. Speaker,--We are deputed by the House of Assembly to carry up to
    this Honourable House several resolutions which have passed the House
    respecting an officer of this House.'

    Commons House of Assembly.

    February 13, 1812.

    Samuel Street, Speaker."

The three resolutions are those of the House of Assembly of the 11th and
13th February, and are printed above.

"The resolutions having been ordered to lie on the table, the
Legislative Council adjourned."

On the following day, Friday, February 14, the list of Members present
in addition to those of the previous day includes the name of the
Honourable Richard Cartwright.

"The message and resolutions of the House of Assembly on the conduct of
William Warren Baldwin, Esq., were considered in a Committee of the
Whole House," of which the Honourable Mr. Cartwright was the Chairman.

The following resolution was agreed to and sent to the Legislative
Assembly:

    "Legislative Council,

    "February 14, 1812.

    "Whereas certain resolutions of the Commons House of Assembly, passed
    on the 11th day of February instant, signifying that William Warren
    Baldwin, Esquire, had incurred the displeasure of that House, were on
    the 13th instant communicated to this House by a message from the
    Commons House of Assembly at the Bar of this House,

    "The Legislative Council, in consideration of the same, do

    "Resolve, that the said William Warren Baldwin, Esq., be dismissed from
    the attendance on this House, and be no longer considered as an officer
    thereof, and that the Speaker do forthwith communicate this resolution
    to the Speaker of the Commons House of Assembly.

    Attest.

    (Signed), John Powell, Clk. L. C."

It will be observed that the Legislative Council expressed no opinion on
the question of privilege violated, or of disrespect shown. They made their
resolve without descending to particulars or hampering themselves with
reasons. Dr. Baldwin was evidently no favourite, and in those days of
"stump law" it probably occasioned little surprise when the Council
resolved to turn him out. The Doctor, besides being outside the official
pale, was also one who indulged in a little independent thinking, and who
probably could, if he so wished, be exceedingly disagreeable, if not
absolutely contumacious. The Council apparently neither asked questions nor
made inquiries. Action rather than investigation was their forte, and so at
the bidding of the House of Assembly they degraded themselves by dismissing
their officer. The act was one of suspicious severity, and seems to have
been carried out without any reference to the question out of which it
arose. Indeed, when it is borne in mind that the Chief Justice of the
province was the Speaker of the Legislative Council, it almost justifies
the impression that the Upper Canada legislature was most anxious to
repress inquiry, and to intimidate, and run to earth any one who should
venture to make it. Though the Legislative Council abstained from
expressing an opinion, it evidently concurred with the House of Assembly in
treating the question of the "privileges, immunities and powers" of their
respective bodies as a sealed question, which no one should be permitted to
open, and as a settled question, which even the courts of law should not be
allowed to disturb by their intervention or destroy by their judgment.

Dr. Baldwin had not the privilege of a trial, for apparently he was not
summoned by either house. There may have been reasons in policy for not
questioning him directly, as he was known to hold inconvenient views on
some matters of administration, and one, by way of specimen, he had
communicated to Mr. Hamilton. The latter was evidently regarded as too
destructive for discussion, and as it struck at the root of privilege it
was dismissed by both houses. Nevertheless the question was destined to
re-assert itself thirty years afterwards, and at the end of twenty-four
more years to become crystallized and preserved in an Imperial Statute
whose short title is "The British North America Act," 1867.

There is a sequel to the proceedings above narrated which, though foreign
to our subject, is interesting in relation to Dr. Baldwin, as it directly
informs us for which of the two offences he was so summarily dismissed. In
the absence of the light thrown by this message on the transaction we might
have doubted whether he was punished for acting courageously, or for
speaking unadvisedly, as he was the object of a double attack. At best it
was a sorry proceeding in regard to which both Houses must have felt and
ought to have looked dreadfully ashamed.

    "Legislative Council Journals,

    Saturday, February 15, 1812.

    Members Present:--

    The Honourable Thos. Scott, Speaker.

    Honourable Messieurs
    James Baby,
    John McGill,
    Richard Cartwright,
    William Claus.

    Prayers were read.

    A deputation from the House of Assembly was received with the following
    message:

    "Mr. Speaker,--We are directed by the House of Assembly to inform the
    Honourable the Legislative Council,

    "That the House of Assembly express the thanks of their House for the
    message of the Honourable the Legislative Council of yesterday so
    satisfactorily supporting the privileges of the Commons of Upper Canada,
    and to assure the Honourable the Legislative Council that the House of
    Assembly, though jealous of their privileges, disclaims whatever might
    appear vindictive, and that the House of Assembly feel a confidence that
    your Honourable House, from the prompt decision they made in support of
    those privileges, will be pleased to extend their mercy and accede to
    the earnest and unanimous solicitation of the Assembly that your
    Honourable House will be pleased to restore William Warren Baldwin,
    Esq., to his former situation in your Honourable House.

    "Commons House of Assembly,

    15th February, 1812.

    Samuel Street, Speaker."

Whereupon the following resolution was adopted and sent by message to
the House of Assembly: "Resolved, that William Warren Baldwin, Esq., be
restored accordingly to his former situation as an officer of this
House."

Thus ends a curious episode in the Parliamentary history of the early
days of Upper Canada. Before pursuing the subject it may be worthy of
note that Dr. Baldwin either was not required, or, being required, would
not apologize for what he had said and done. That abject ordeal was left
to be undergone by less sturdy offenders. The chief delinquent was
tolerably well known, and men generally understood what he could and
what he could not be got to do. He was not the man to sacrifice his
convictions, whether erroneous or the reverse, by apologizing for them;
hence he was, we suppose, studiously kept out of sight and out of
hearing, beyond the reach alike of justice or of fair play.

By a pre-eminently tory legislature he was charged, condemned, punished
and restored without a trial, or an apology for one. Doubtless policy
was on their side who persecuted him. Apparently there was no law, and
the lips of the judges gave no knowledge. Rough and ready legislation
was one of the marks of the "good old times," and the "turn him out"
expedient was by no means an unfamiliar one. It was a handy way of
dealing with a difficulty, and represented what "Jimmy Wilson," a member
of the old Upper Canada Legislature, used to describe as "stump law,"
being, as we conjecture, a primitive compound of arrogance and force.




CHAPTER IV.


Although the Legislative Assemblies of the two Provinces of Upper and
Lower Canada subsequently adopted the like formulas when they presented
their Speakers to the Governors for approval, they did not use the same
prayer when they claimed the customary privileges, nor were their claims
allowed in the same words; for the language used at the Western capital
was more pointed and emphatic than the language employed at the Eastern
one.

In 1801, the Honourable J. W. Smith, who for the second time had been
elected Speaker of the House of Assembly of Upper Canada, claimed "in
the name of the Assembly the freedom of speech, and generally all the
like privileges and liberties as are enjoyed by the Commons of Great
Britain our mother country."

In answer, the Speaker of the Legislative Council on behalf of the
Lieutenant Governor said that the Assembly "may depend on the
uninterrupted enjoyment of all its privileges," which was a very
different kind of dependence from that promised at the opening of the
first session of the Upper Canada legislature. In Lower Canada, Mr. Jean
Antoine Panet was successively elected six times to be Speaker of the
House of Assembly. On the first four occasions he uniformly petitioned
"for the privileges in use and which are of right claimed by the Commons
of Great Britain." The answer he received at the opening session in 1792
has already been given. On the second and two subsequent occasions he
was uniformly answered by the Speaker of the Legislative Council on
behalf of the Governor in Chief in the same words, viz.: "That His
Excellency in Her Majesty's name allows them all their privileges in as
full and ample a manner as ever they have heretofore been granted." The
value of the grant as expressed by command of Lieutenant Governor Sir
Alured Clarke, has already been dwelt on, nor do we see that its
original worth was increased by amplifying the words in which it was
subsequently repeated. In both instances, however, an indirect rebuke
was administered to the enthusiastic Governor Simcoe for his effort to
bestow what he had no authority to convey; and also for describing by
implication the new constitution of Upper Canada as "the image and
transcript" of that of the mother country, when in fact the points of
dissimilarity were quite as numerous as, and more important than, those
of resemblance.

The forms of petition above referred to appear to have been continued in
both Provinces till 1809, when a very important and suggestive change
took place. Why the alteration was introduced we have no means of
knowing, but it may fairly be assumed that a qualification so serious,
even of a disputed advantage, was not made at the instance of the
Assemblies who would suffer loss by the change. The alteration seemed to
enter authoritatively into our history, as if it had a right to be
there, and, judging from the qualifications that followed, we are forced
to conclude that it was made in obedience to a remonstrance, in the
nature of an order, from headquarters. It is possible, however, that the
colonists generally, were indifferent alike to remonstrance or order, as
they were wholly disinclined to accept the conclusions to which they
led. Governor Simcoe had taught them to believe that their legislatures,
like the Parliament of England, enjoyed the advantages which the latter
possessed under the common law, and that, irrespective of the ordeal of
petition, they really had, in virtue of ancient custom, and without
praying for them, the privileges in use, and which are of right claimed
by the Commons of the United Kingdom. Being thus impressed, the members
of the Assemblies would have felt, and probably did feel, much chagrined
at the discovery that contrary opinions were held elsewhere. That such
contrary opinions were so held was obviously the case, and that
instructions in harmony with them were issued seems almost, if not,
absolutely certain. At all events impartial critics must arrive at the
conclusion that whether any rights analogous to those enjoyed by the
Parliament of the United Kingdom could be claimed or not, it is clear
that their quantity was uncertain and their value doubtful.

The change appears to have first been made in 1809, when the Honourable
Mr. Panet, for the fifth time, was elected to the office of Speaker of
the House of Assembly of Lower Canada. In his address to His Excellency
on that occasion, Mr. Panet dropped the analogies he had previously
employed, and made no allusions whatever to the Commons of Great
Britain, or to the privileges in use and enjoyed by them. On the
contrary he substituted for the vigour of the earlier prayer a modified
formula of little value, but which we suppose must have been previously
agreed on as a kind of lingual compromise between the old style and the
new. Apparently the diluted prayer answered the purpose for which it was
employed as it enabled the Speaker of the Legislative Council, by
command of His Excellency to say something that meant nothing. Whether
satisfactory or the reverse, the new form was subsequently adopted by
the Legislatures of Upper and Lower Canada, and it became the one in
established use in both provinces when Speakers were chosen. The change
may, and probably at first did offend the ear, but the eye was
conciliated, as no alteration was made in the pageant. The drama of the
"opening day" was preserved intact, and the Speaker's supplication for
small mercies, like meandering music, had a beguiling effect, for it
soothed the critics, and enforced silence. No one cared to analyze the
dialogue of the two Speakers, or curiously to inquire into the actual
value of what was asked for and what was granted. A settling day would
come, but the time of its arrival was then far off, and there was no
inclination to forestall the future. In the meanwhile the following took
the place of the older form.

The Honourable Mr. Panet, "by humble petition on behalf of the Assembly,
lays claim to all their rights and privileges, particularly that they
may have liberty of speech for the better management of their debates,
access to His Excellency's person on all seasonable occasions, and that
their proceedings may receive from His Excellency the most favourable
interpretation."

The petitions in both provinces were alike, but the answers which the
Speakers, by direction of the Governors, returned to them were not the
same.

In Lower Canada the answer ran thus: "The Governor in Chief will always
respect the just rights and constitutional privileges of the Assembly,"
or the Governor in Chief "recognizes the accustomed and constitutional
rights and privileges of the Assembly."

The words employed are different, neither have their meanings equal
value, for to "respect" or to "recognize" are not equivalents for
"granting" or "allowing." In Upper Canada the answers given by the
Speakers of the Legislative Council by command were these: "The
Lieutenant Governor grants, and upon all occasions will recognize and
allow, their constitutional privileges."

Unfortunately the Upper Canada journals of the period, and for years
afterwards were kept only in manuscript, and are incomplete. In some
instances they cannot be found, as the originals were destroyed by fire,
and the copies were lost in transmission to England. The journals of
1813, the war period, cannot be accounted for. They are supposed to have
fallen a prey to the vigilance of some ship of war, or to have been
filched on their passage to England by an American privateer. We are
enabled, however, from what remain to arrive at a tolerably fair
conclusion as to when the form in Upper Canada was changed.

At the proceedings consequent on the election of a Speaker in 1808 the
early use was observed. The journals of both Houses for 1813, when a new
Speaker would have been elected, are missing; but the journals of 1817,
show that the change from the earlier to the later form had previously
been made, as the procedure observed by the legislature of Upper Canada
on that occasion is in exact harmony with the procedure adopted by the
legislature of Lower Canada in 1809. Nevertheless, the House of Assembly
of Upper Canada evidently had not taken kindly to an abbreviation of
their privileges, and it is quite conceivable that they had a particular
dislike to the substitution of the new for the old form, as the latter
had a substantial value which the former lacked. The whirligig of time,
moreover, brought to light unpleasant recollections, and disturbed a
question that many supposed had quietly been laid at rest. The shield
had been completely reversed, and Dr. Baldwin's discomfiture in 1812
was followed by the Assembly's humiliation in 1817. As a matter of
curiosity, it would be satisfactory to know how the result was brought
about; and at whose instance and through whose intervention the
Assemblymen were taught to know their place. Was Dr. Baldwin himself the
audacious leveller, and did he fire the shot that damaged their pride,
and destroyed their privileges? Perhaps so; for he was a man of
education and ability, and by no means disinclined to humble the
exalted, or to give them, especially if they were tories, severe lessons
in humility. Moreover he was a liberal, and belonged to the reform
party, a party which at that time, and afterwards, was a good deal
discredited by the conduct of its allies, and thoroughly distrusted by
its church and state opponents. Authority, in such a crisis as dawned
upon Canada in the early part of 1812, would naturally, and perhaps
necessarily, become imperious, and, if such should have been the case,
all the estates of the legislature would have caught the tone of the
chief ruler. The reform party, as then constituted, had reason to fear
that the Council and Assembly would exaggerate their powers to the
utmost, and glide with facility into practices that might prove
intolerant and would be oppressive. They knew with what glibness such
words as "sedition" and "reform" were interchanged, and passed about;
nor were they unaware of the fact that under the cover of "loyalty" many
wrongs had been wrought and many inoffensive people threatened.

Taking counsel of their experience as well as of their fears, liberals
were to be excused in their efforts to restrain an influence which they
had felt was arbitrary, and believed was unjust. Hence they did what
they could to limit the privileges, and abase the powers, of a body of
representatives who were apt to show but scant consideration to opinions
not in accord with their own. The episode, moreover, to which we are
about to refer, was fairly co-incident in time with the change of
procedure. In 1809 the new use was first observed at Quebec, and it is
quite probable that the reason of the change was also known at Toronto
before 1811, when Dr. Baldwin issued his writ against Mr. McDonell; an
act which in the following year, 1812, resulted in the proceedings
already related. All speculation, however, is idle; though why it should
be so is a question that might possibly be answered by another--why not
recover what seems to be, but is not, lost? The despatches, the
directions, the official and semi-official correspondence of that
period, as well as of earlier and later times, are much to be desired,
for they would supply a key to many of the doubtful, and some of the
obscure passages of our history.

Mr. Nichol in his day was evidently a prominent member of the House of
Assembly of Upper Canada, and, like Mr. Gough in 1812, was apparently of
the opinion that the strongest words should be used everywhere, for all
purposes, and on every occasion. As will be seen presently, Mr. Nichol
took refuge in an abstract resolution, hoping, as we gather by a highly
emphasized declaration of opinion on the part of one branch of the
Legislature, to recover and keep the privileges which no longer could
legally be enjoyed by either branch.

    "4th February, 1817.

    "On motion of Mr. Nichol, seconded by Mr. Robinson:

    "Allan McLean, Esq., knight, representing the County of Frontenac, was
    unanimously chosen Speaker.

    "Then Mr. Nichol, seconded by Mr. Burwell, moved:

    "That the Speaker do demand from the Lieutenant Governor the rights and
    privileges of this House as amply as they are enjoyed by the House of
    Commons of Great Britain"--_which was carried unanimously_."

But His Excellency, though not intimidated, returned an evasive, rather
than a spirited, answer to the "demand."

By command of His Excellency, the Speaker of the Legislative Council
politely assured the Assembly "that their privileges should be
respected." What those privileges were was a piece of information that
all, no doubt, wished to get, but which none obtained. His Excellency
probably took refuge in mystery, for his answer is a fair illustration
of a strong meaning ambushed in soft words. Had the privileges been as
"ample as those enjoyed by the House of Commons of Great Britain" His
Excellency's answer would have been explicit instead of being, as it
was, inconclusive, if not empty. Such resolutions as Mr. Nichol's, and
such unanimity as the Assembly showed in dealing with them, bore no
fruit; for thereafter and until 1841, the form introduced at Quebec in
1809 was also used at Toronto, and the older and more stimulating one
was laid aside. But, though the words were modified, the advantages they
were intended to determine and bring to a close, were neither forgotten
nor given up, for the privilege from arrest, together with the
immunities and powers of Parliament, as originally claimed, were enjoyed
and exercised as fully and effectually as if the right to do so were
inherent, and had neither been denied nor questioned. Time moved on; Dr.
Baldwin's challenge was forgotten, and the curious incident that
attended and followed it had passed clean out of mind, but the cause of
challenge remained, and waited only the occasion for a revival of the
old contention. Well nigh thirty years had elapsed from 1812 to the
passing of the Act for reuniting Upper and Lower Canada. Among the
particulars wherein the last-mentioned Act differed from the Act of the
31st Geo. 3rd, 1791, may be noted the fact that provision was made for
the election of a Speaker, and also for the manner in which vacancies in
the office of Speaker were to be filled. The duty was to be discharged
not as theretofore by direction of the Governor, but in virtue of the
authority given by the Imperial Act of 1840, 3rd and 4th Vict., cap. 35,
and which is described in these words: "Be it enacted that the members
of the Legislative Assembly of the Province of Canada shall, upon the
first assembling after every general election, proceed forthwith to
elect one of their number to be their Speaker." The authority thus given
was to be exercised in accordance with a modern law, and not in
deference to ancient custom. It was to be the first legislative act
under the new constitutional charter, and it was to be done by the
Assembly alone, without either vice-regal direction or vice-regal
approval. Lord Sydenham was appointed Governor General for the express
purpose of bringing about the reunion of the two Canadas, and of
initiating an act that would not only include the terms and conditions
of such union but would indicate the mode in which the two houses of the
legislature should be constituted and continued. This was done with
singular care and ability, and, as Lord Sydenham is supposed to have
been the real author of that act, though his views were put into words
by another hand, he must also be supposed to have known what he meant to
do and on what lines he intended to carry on his work. Those who came
into official contact with Lord Sydenham, albeit they are now few in
number, will recall without difficulty the imperious character of his
will and the strong vein of self-assertion that ran through his nature.
When he had determined on a particular course, and when the time arrived
for making such determination known, he would in the most direct way,
in a few well chosen words, express his views and make some effort to
enforce their meaning. Hence we may be sure that he knew what he
intended when he drew up his breviate of the Union Act, and also in what
way he meant to carry out such intentions.

It should be borne in mind that, from Governor Simcoe to Lord Sydenham,
no Governor had been sent to Upper Canada who had previously been a
member of the House of Commons or who had been acquainted, either with
ministerial tactics or Parliamentary procedure. The early Governors were
generally soldiers of the revolutionary period who had fought against
democracy in America and in Europe, while the later ones, having done
service in the field and won national distinctions, were afterwards
clothed with civil authority, which they generally discharged in a
soldierly way. Nor did the Governors-in-chief at Quebec differ very much
from the Lieutenant Governors at Toronto, for although some of them were
peers of high rank with seats in the House of Lords, and one of them,
the Earl of Durham, had been a Cabinet Minister, they were, with few
exceptions, Generals, and Generals rather than statesmen, whose
education and experience savoured more of the barrack and of the camp,
than of the House of Commons and the Cabinet. We have seen how Governor
Simcoe, who had sat in the House of Commons, commenced his rule, and in
what light he regarded the legislature of Upper Canada. We have also
seen that the analogies which he, with chivalrous devotion, sought to
establish between the constitutions of Great Britain and Upper Canada
were for the most part the creations of his imagination which could not
be really established for lack of legal authority. In less than twenty
years the powers and privileges which he thought he had the right to
bestow with a free and open hand were reduced and diluted to a condition
that rendered them harmless either for good or for evil. But the blow to
local self-complacency which fell thirty-two years later was more
effective than the one which struck the legislatures in 1809. On the
latter occasion we learn particularly, by the teaching of a master
highly skilled in the science of Parliamentary government, the exact as
well as the relative measure of our legislative status. We learn, even
when we close our eyes to the truth, that the three estates of the
Canadian Legislature, though governing a territorial area that was
formerly ruled by two separate legislatures, were still limited in
matters of administration by geographical boundaries. They could not
overstep the municipal lines by which they were enclosed. The re-united
Provinces may have seemed more imposing, and may have received more
consideration than the separated ones, nevertheless, beyond the Canadian
boundary, the larger Legislature had no more power than the smaller
ones. It was not in the statutory sense a "Parliament," but something
subordinate to it, which, by way of distinction, had been styled in the
English law a "Legislature." Its proportions, no doubt, had been
enlarged, but they rested on the old foundations--hence its increased
size, though it added to its importance, did not change its species.
Like its predecessors, it continued to be exactly what the Parliament of
the United Kingdom had declared it to be, a "Legislature" and a
legislature only.

In writing of the early limits by which the power and authority of what
may be termed the experimental provinces of British North America was
restrained and circumscribed, it would be instructive, and it ought to
be possible, to learn by whom and under what authority those old lines
in their more minute bearings were suggested, and by whose hand they
were traced. The inquiry belongs to the early history of the British
possessions in North America on which stray books and forgotten
newspapers shed but feeble light. They do not particularize the source,
neither do they afford any clue to the authors of many matters on which
it would be desirable to possess information. One would like, so to
speak, to have a pass to the green-room of the play, to be introduced to
the author, to chat with the prompter, and to look at the pageant from
the side scenes, as well as in front of the stage. It would be
interesting to see the manager, to listen to his directions, to note the
actors, and even to glimpse "the properties." The early Canadian drama,
homely as it may have been, suggests many subjects of Inquiry. A search
among letters and papers might disclose information that would be
curious, and perhaps valuable. In any case it ought to be within reach.
It would be interesting, for example, to learn how it came about that
Governor Simcoe took for his style a royal pattern, and appropriated the
language of his Sovereign, together with the prerogatives of the Crown,
when he officially met for the first time the Legislative Council and
Assembly of Upper Canada. The constitutional act could not have been his
directory, for no hint of such a ceremonial as he and his successors
adopted is to be found in any of its provisions. He may, of course, have
been authoritatively instructed as to the forms he should use, and
perhaps plainly told in what way, and to what extent, he was to imitate
the manner and use the language of his Royal Master. But if such were
the case, those instructions should be accessible, if not in this
country, at least among the records of the Colonial department, or in
some office connected with the Royal household. It is, however,
difficult to believe that the ceremonial which Governor Simcoe observed
was ordered by the King, or suggested by His ministers, for so far as we
have been able to discover, neither the Sovereign nor the statesmen of
England had ever given any directions on the subject. Both, no doubt,
must have acquiesced in what was done, though there is reason for
believing that neither assented to what was said. They uniformly
distinguished between "Parliament" and "Legislature," and quietly
withheld from the latter those rights and privileges which time,
struggle and use have inseparably associated with the former. No doubt
Governor Simcoe had to find some way of communicating with the two
Houses of the Legislature, and we venture to think he could as legally
have done so by message as by speech, by his Secretary as in person. He
chose the latter course for what, no doubt, he thought constitutional
reasons. He had to establish a precedent, and the form he thought fit to
adopt was convenient and imposing, while it veiled some serious
fallacies, which eventually became the subjects of controversy in
Canada, and possibly also of correspondence with the home government.

In the meanwhile the Legislature, for no particular reason that we can
discover, fell into the habit of declaring itself to be a Parliament,
and consequently, in imitation of the English use, it followed that it
could not perfect the resemblance, or begin its work, without the
assembling in one chamber of the three estates of the legislature. The
English original was carefully studied, and the lessons in the laws of
analogy and imitation were learned with amusing exactness. This
gathering in one chamber of the Governor, of the "great men" and the
"Knights, Citizens and Burgesses" included ceremonies which could not be
carried out in a picturesque way without the aid of ushers and
sergeants, and so it was that the Upper house received the garnish of a
black rod, and the Lower one the glitter of a gilt mace, while the
sanctity of religion was gracefully recognized in the appointments of a
chaplain to each. With such picturesque representatives of dignity,
learning and religion, the two houses in their scenic surroundings were
brought into a state of weak resemblance with the houses of Lords and
Commons. Men made no deep scrutiny into the meaning of terms which they
did not seem called upon to examine, or to refer to statutes and
dictionaries that they might contrast, as well as compare, the meaning
of words. Having a real legislature composed of three parts they easily
gave it an interchangeable name, with brevet rank, and crowned both by
adding outward symbols of striking significance. Then it should also be
borne in mind that the phraseology of the legislature, and of
proclamations relating to it, was in like manner brought into harmony
with the language used on like subjects and occasions in the Mother
Country. The former may be read in the courtly dialogues that took place
in the Legislative Council at the opening of a new "Parliament," or at
the closing of a session; and the latter will be seen in those
stereotyped proclamations, issued at special intervals, wherein the
Lieutenant Governor summoned his "well beloved and faithful the
Legislative Councillors of the Province of Upper Canada, and the
Knights, Citizens and Burgesses elected to serve in the Legislative
Assembly of our said Province, summoned and called to a meeting of the
Provincial Parliament of our said Province," and in these and other ways
the idea was formulated and became a conviction that the legislature
was a "Parliament." Thus the fallacy was encouraged and hardened by such
ceremonials, and it was preserved and carried out in proclamations and
probably in less authoritative public documents. It was crystallized in
colloquies and repeated in printed papers, and hence it followed that
the ordinary talk of the common people gave force and consistency to all
that had been said and done. The consequences were natural enough; for
the habit of thought thus acquired was transmitted from generation to
generation with continually increasing distinctness. The words
"Parliament" and "Legislature" came to be regarded as synonymous
expressions, but the former, being the more imposing of the two, was
used with pretentious ostentation, while the latter fell into
comparative obscurity and well nigh dropped out of the Canadian
vocabulary.

But this view of the question, which from a careless habit had almost
acquired the force of law, received a rude shock on the arrival of Lord
Sydenham, when the first session of the Legislature of reunited Canada
assembled at Kingston.

A few preliminary words of explanation are necessary for the information
of such persons as are unacquainted with the facts of the case, or from
whose memory they have escaped.

The constitutional act of 1791 contained no directions as to the way in
which a Speaker of the House of Assembly was to be elected. Wherefore
Governor Simcoe naturally enough fell back on the forms observed in such
cases by the House of Commons. Contact with these forms suggested that
the rule of analogy should be carried thoroughly out. These included the
presentation of the person chosen to His Excellency for approval, as
well as for the bestowal of privileges, including the particular one
that was subsequently challenged, viz.: freedom from arrest.

We have noted elsewhere that the last mentioned privilege having been
improperly allowed, was cleverly and incidentally, though not
specifically and in exact words, withdrawn. A weaker form of expression
was substituted for the one first employed, in which no trace could be
found of any reference to the privileges that Dr. Baldwin had
challenged, and had resisted unsuccessfully. In fact it was generalized
into space, and lost in the effort to interpret it anew. But if the
members of the legislature surrendered a privilege it was not intended
they should possess, the Crown also was about to lose a function which
it neither asked for, nor wanted, but which it acquired, it would seem,
in virtue of one of those acts of imitation which Governor Simcoe had
introduced and which his successors had continued. The change arose in
this way:

On the 2nd November, 1827, the Honourable Louis Joseph Papineau, who had
continuously been Speaker of the House of Assembly of Lower Canada from
1815, was re-elected to that honourable office. It so happened that
differences of a bitter personal character had arisen between him and
the Earl of Dalhousie, the then Governor in Chief. The latter no doubt
was exceedingly angry, perhaps he had cause to be so, but he took a
passionate way of showing his resentment. When Mr. Papineau on the
following day, in accordance with custom, presented himself at the bar
of the Legislative Council for His Excellency's approval; the Speaker of
the Legislative Council, by command of the Governor, said, "That the
choice made by the Assembly was disallowed, and they were to go back and
choose another person for their Speaker." This slap in the face, of
which only two examples were found in English history, one in the Tudor
and the other in the Stuart times, could only be answered by the
Assembly in one way, and that way was adopted by their immediately
re-electing Mr. Papineau. Lord Dalhousie was thus ignominiously thrust
to the wall. Only one course was open to him, and that he took. He
prorogued the Legislature at once by proclamation, resigned his office,
and went home. He was succeeded by the Lieutenant Governor of Nova
Scotia, Sir James Kempt, who had no objection to offer to Mr. Papineau's
election as Speaker. As an incident of the affair, and consequent on it,
certain declaratory resolutions were adopted by the Assembly which were
true enough in relation to a Legislature created by a special statute,
but which would not have escaped criticism had that Legislature been a
Parliament. Their adoption destroyed a fiction that apparently had been
firmly believed and fondly cherished, viz.: that the Legislature of
Lower Canada, like the Imperial Parliament, derived its privileges from
the common law of England, whereas the resolutions, by implication if
not actually, declared that it was created by a special statute, and
that therefore it was controlled by the obligations of a modern law and
not by forms derived only from ancient custom.

Lord Dalhousie's petulant act, followed as it was by resolutions of
doubtful wisdom, led, it is believed, to the alteration in the procedure
that took place in subsequent times. The late Mr. Cuvillier, who had
charge of the matter in the Lower Canada House of Assembly, declared in
one of his resolutions, all of which were adopted by that House, that
"the approval of Mr. Speaker by His Excellency was an act of courtesy
and not an obligation of law." This no doubt was true, for as the
legislature of Lower Canada was not an outgrowth of the common law of
England, but a creation of the Act 31st George the Third, it followed
that it was not immemorial use, but exact law, that was to control the
proceedings. As the obligation of law could not be found in the
constitutional act, neither could any practice be insisted on that was
not traceable to and authorized by that act. Presenting the Speaker for
approval, so the allegation ran, was merely a matter of local
spontaneity, and expressed only a compliment and not an obligation. The
act of grace having been abused by the Governor, it was alleged could be
withdrawn by the Assembly, and as we shall see presently it was
withdrawn not only by the Assembly, so far as a declaratory resolution
could effect that end, but by the Imperial Parliament in deference to
the desire expressed in that resolution. The supreme authority thus
concurred with the Lower Canada Assembly in opinion that the latter was
governed by law and not by custom and usage. Whether the Assembly acted
wisely is a question that scarcely admits of doubt, for if there was
anything to lose the loss was theirs. They could no longer pose, as they
had done, on the common law, and on the constitutional act. Having a
choice to make, they deliberately cut the painter, if such existed, that
fastened them to the former, and in the irritation of the moment, and
for a mere passing triumph, gave up all claims, whether well founded or
the reverse, to the use and custom of the ages. Thus in appealing to the
clear and written law they surrendered their right, if they had any, as
theretofore they thought they had, to walk in the "deep-trod footmarks
of ancient custom." No such occasion was likely again to arise, for the
stock of petulant rulers is limited; and as the victory lay with the
Assembly it would have been wiser not to have wasted their strength by
passing declaratory resolutions, whose effect was to lower their own
status, and to weaken, if not to destroy, the line of argument that
could be urged as a basis whereon to rest their claim to privileges.
The use to which their resolves was put was seen in the Act for
reuniting the Canadas, for it gave colour and authority to the attitude
taken by Lord Sydenham when the first Speaker of the Legislative
Assembly of the United Provinces was chosen.

The thirty-third Section of the Act reuniting the two Canadas runs thus;
"33. And be it enacted, that the members of the Legislative Assembly of
the Province of Canada shall upon the first assembly after any general
election proceed forthwith to elect one of their number to be Speaker,
and in case of his death, resignation or removal by a vote of the said
Legislative Assembly, the said members shall forthwith proceed to elect
another of such members to be Speaker, and the Speaker so elected shall
preside at all meetings of the said Legislative Assembly."

The House of Assembly met on the 14th June, 1841, when the proceedings
which theretofore had been observed in Upper and Lower Canada were
seriously changed, and changed, be it noted, in obedience to the terms
of the act from which the last mentioned clause is taken. The Journals
read thus: "After the members were sworn by the commissioners appointed
for that purpose, the proclamation summoning the legislature for the
despatch of business was read by the Clerk and

"The thirty-third Section of the Imperial Act 3rd and 4th Victoria, Cap.
35, having been also read,

"It was then moved by Mr. A. N. Morin, seconded by Mr. William Hamilton
Merritt:

    "That Mr. Austin Cuvillier be their speaker, which was unanimously
    agreed to.

"The Speaker was then conducted to his chair with the usual ceremonies."

"It was then moved by Mr. Simpson, seconded by Mr. John S. Macdonald:

    "That the House adjourn till to-morrow at two o'clock P.M.

"Upon which the House divided.

"For the yeas, Mr. Aylwin (Teller), 47.

"For the nays, Mr. Manahan (Teller), 27."

"So it was again resolved in the affirmative and the House adjourned."

The crop of debates that grew round the above proceedings are alike
interesting and suggestive, for the changed procedure is distinctly
traceable to the interpretation given by the Imperial Parliament to Mr.
Cuvillier's resolution of 1827. Consequently the new act made a very
important alteration, for which the Assembly was wholly unprepared, in
the use which had theretofore been observed; nor was it a subject of
wonder that such surprise should have found animated expression in
debate. Perhaps such debates might not have arisen, or having arisen
might have taken a new direction, had the antecedent question "Are
Legislatures Parliaments?" been asked and answered. On this point it is
needless to inquire. The light of later legislation had not then shone
on it, and consequently the Assemblymen of that period would in all
probability have been governed by local precedents, and have declined to
discuss hypercritical definitions. Lord Sydenham, no doubt, had reason
for the course he took. At all events he had the law with him; but
whether he wished to conciliate the Assembly by thus abrogating an
executive function, or whether by anticipation he saw the Imperial
distinctions that were to be drawn twenty-six years later, we have no
means of knowing. All that need be said is, that in his speech on
opening the session His Excellency, in a very marked way, distinguished
between "Legislature" and "Parliament," and only used the latter word
when he referred to the Parliament of the United Kingdom. A very
discursive and a very lengthy debate followed the motion for
adjournment. Mr. Aylwin, after referring to the thirty-third section of
the Union Act, objected that the Parliament had not assembled, as His
Excellency had not met the Assembly together "with the great men of the
land" obviously meaning the Legislative Council. "If," said Mr. Aylwin
with playful force, "if we are as badly off as a starved out jury, after
two days confinement, we cannot adjourn. If the law of Parliament has
been altered, Her Majesty's advisers should show wherein it has been
altered."

"Mr. Viger inquired, What is the commencement of a Parliament? It is to
be opened by the attendance of the Sovereign, or of the Sovereign's
representative, after the two Houses have been assembled by
proclamation. Then the Sovereign commands the Commons to proceed to the
election of their Speaker. If you introduce irregularities, what
irregularities will you not pass over! I tremble for the consequences!"

"Mr. Morin said, We have not the power of abolishing the common law of
England. By that law the King comes down to the House of Parliament and
commands the Commons to proceed to the choice of a Speaker."

"Mr. Draper said that the 33rd section of the statute for the reunion of
the Canadas had made it unnecessary that our choice of a Speaker should
receive the sanction of Royalty." This remark may have recalled to Mr.
Cuvillier's mind his contention in 1827, when he informed Lord Dalhousie
that the presentation of the Speaker for approval was a matter of
compliment and not an obligation of law. Mr. Hincks "believed that
to-day's proceedings must be null and void. It is evident that His
Excellency has been badly advised. The only way left is to adjourn
Parliament until to-morrow, since Her Majesty's legal advisers decline
to bring forward any precedent."

Mr. Boswell said "we have made a Speaker conformably to the Act, but,
though the Speaker be chosen, Parliament has not met. I see no way
unless His Excellency be advised to come down to us."

But that was precisely the sort of advice that Lord Sydenham would have
declined to follow, for His Lordship could not easily be taken where he
was unwilling to go. So, having elected their Speaker according to law,
the Assembly adjourned to the next day, when His Excellency opened the
Legislature by a gracious speech to both Houses, having, however,
previously assured the House of Assembly, in answer to the stereotyped
prayer preferred by their Speaker, that "he grants and on all occasions
will recognize and allow their constitutional privileges."

It was then fifty years since the Act 31 George the Third was passed,
and only one year less since Governor Simcoe, supposing that he had the
right to do so, went through the form of conferring on the members of
the Upper Canada legislature privileges, similar to those at that time
enjoyed by the members of the Parliament of Great Britain. Eighteen
years later, in 1809, these privileges were explained away, by
substituting for the clear form of words in which they were at first
conferred, a string of phrases whose value was determined by popular
superstition rather than by local precedents or exact law.

Three years later, in 1812, Dr. Baldwin sought to bring the privilege
question to an issue. He had the hardihood to promote the arrest of a
member of the Assembly for debt, asserting as his reason for doing so
that such persons were not privileged, as "an Assembly was not a
Parliament." Fifteen years later, in 1827, the House of Assembly of
Lower Canada, on the resolution of Mr. Cuvillier, declared that the
initiatory proceedings on choosing a Speaker were obligations of law,
and not matters of compliment. In other words, that they were done under
the authority of a special statute and not in virtue of ancient custom
and usage; and, lastly, Lord Sydenham's having gathered together the
broken threads of past controversies, and probably being also aware,
from reference to sources of information within his, but out of our,
reach, what were the intentions of the Parliament of Great Britain in
1791, and as well as what were the intentions of the Parliament of the
United Kingdom in 1840, and also how one Act had been, and how the other
would be, interpreted by the authorities in England, put a construction
on the law that was not only agreeable to his own views, but to theirs
also who had promoted and who had passed that law. His Excellency,
probably without being aware of it, acted in accordance with the opinion
expressed by Dr. Baldwin, thirty years earlier, "that an Assembly was
not a Parliament," and with the opinion expressed by Mr. Cuvillier,
fourteen years earlier, that proceedings "that were not obligations of
law" could not be enforced as matters of custom. Such views apparently
harmonized with, and seemed to control, Lord Sydenham's conduct. "If,"
(we may imagine His Excellency to have said), "the Legislature of Upper
Canada was only the 'creation of a statute, and if the Legislature of
Lower "Canada was only the creation of a statute, then the Legislature
of reunited Canada could claim no higher rank and rest on no other basis
than the Act which authorized, and called it into existence.
Consequently the members of such Legislature collectively and
individually may not claim, nor may I bestow, any privileges, any
immunities, or any powers, that are not plainly found in the written
constitution as it is distinctly set forth in the law entitled '_An Act
to Reunite the Provinces of Upper and Lower Canada and for the
Government of Canada_,' because they have no prescriptive, but only
statutory rights."

Having noted what was done at the opening sessions of the Legislatures
of Upper and Lower Canada in 1792, and also what was done by the
Legislative Assembly of re-united Canada in 1841, it remains only to
direct attention to the proceedings at the first session of the
Parliament of Canada in 1867, when the newly-elected Speaker of the
Commons, accompanied by the members of that House, in obedience to the
command of the Governor General, attended at the bar of the Senate.

If a doubtful value attached to proceedings theretofore had by
successive Governors, it might have been expected that, when the
irregularities had been cleared away by statute, the course to be
followed would have been sufficiently plain. And so it was, but it did
not take the direction which many persons imagined it ought to have
taken. "The British North America Act 1867." seems to have been drawn
for the express purpose of meeting difficulties and removing doubts.
Certainly it sets at rest all such contentions as Dr. Baldwin had made.
The legislature of Canada was succeeded by the Parliament of Canada, and
this succession included an answer, emphatically given in the negative,
by the Parliament of the United Kingdom to the important question "are
Legislatures Parliaments?" The Queen, the Lords and the Commons say no,
they are not. The change from a doubtful and obscure to an exact and
statutory status it was commonly supposed would make new formulas
necessary, or possibly revive some of those early ones that had
evidently been disallowed. Thus the new departure included several
points of speculative interest, and in the minds of some persons gave a
novel attraction to those occasions, and to those ceremonies, where the
gracious utterances of Her Majesty's representative had theretofore been
regarded as meaningless, and consequently valueless. Now, however, for
the first time in colonial history, "the privileges, immunities and
powers" exercised by the Commons House of Parliament of the United
Kingdom and by the Members thereof, were bestowed on the supreme
legislature of Canada. What these included we learn from the Lords'
Journals of 1874. The entry is as follows. When Mr. Brand was re-elected
Speaker of the House of Commons, after the Lord Chancellor, in Her
Majesty's behalf, had approved of the choice, Mr. Brand said:

"I submit myself with all humility and gratitude to Her Majesty's
gracious commands, and it is now my duty, in the name and on the behalf
of the Commons of the United Kingdom, to lay claim, by humble Petition
to Her Majesty, to all their ancient and undoubted rights and
privileges, particularly to freedom of speech in debate; to freedom from
arrest of their persons and servants; to free access to Her Majesty when
occasion shall require; and that the most favourable construction should
be put upon all their proceedings, and with regard to myself I pray that
if any error should be committed it may be imputed to myself, and not to
Her Majesty's loyal Commons."

By Her Majesty's command the Lord Chancellor "most readily confirmed all
the rights and privileges which had ever been granted."

Such, as Mr. Brand enumerated, were the privileges acquired by the
Parliament of Canada under "The British North America Act, 1867." No
change, however, was made in the ceremonial of electing the Speaker, for
the mode prescribed in the Imperial Statute of 1840, though amplified in
practice, was continued in that of 1867. There was no difference in the
words of the address of the member elected to be the Speaker, and there
was no enlargement of his usual prayer, when on behalf of the Commons,
he made his petition for privileges. The qualified, and almost
meaningless, form that was introduced in 1809 and repeated till 1863 was
continued without alteration in 1867. The opening ceremony would of
course have seemed incomplete without the usual accompaniments, and so
the time-honoured dialogue between the Speakers of the two Houses was
repeated in the old words. It was evident the authorities were of
opinion that the enlarged powers conferred by "The British North America
Act, 1867," did not render necessary a correspondingly enlarged mode of
expressing them. Nevertheless, at first sight, the occasion, its
analogies, and its increased authority, very naturally suggested as
close an approach as possible to the forms and words observed at the
like ceremonies by the Imperial Parliament. The doubt however disappears
before a moment's reflection. The Parliament of Canada possessed the
privileges they needed under a better title than the good will and
condescension of the most exalted Viceroy, for they held them under the
authority of a law passed by the Parliament of the United Kingdom. They
were therefore not disquieted by the continuance of the modified
formula, nor were they disappointed that the early style of 1792 was not
revived in 1867.

With the passing of "The British North America Act, 1867," and the
creation of the Parliament of Canada, the time came when all controversy
should cease as to the exercise of the "privileges, immunities and
powers" of Parliament. Thenceforward they were to be held by a title
that could neither be challenged nor counterfeited. They were acquired
by an Imperial Statute, and could neither be altered nor qualified by
any authority lower than the one which had conferred them. Indeed the
ceremonial observed by the Parliament of Canada is an idle, and, but for
the pageant, which from the force of association few persons would be
willing to miss, an unmeaning one. The Governor cannot take exception to
the person chosen by the Commons to be their Speaker, neither will it
avail him to refuse the Speaker's supplication for small privileges,
since the Imperial Act grants these minor favours, and some others of a
much higher and more important character. The question arises, if for
the exercise of these "privileges, immunities and powers" by the
Parliament of Canada a statute of the Parliament of the United Kingdom
was necessary, how, in the absence of the like instrument, can the
subordinate Legislatures in Canada take authority to exercise the like
"privileges, immunities and powers?" The question is pertinent, and can,
as we venture to think, receive only one answer.




CHAPTER V.


The story of his failure to restrain the House of Assembly of Upper
Canada from using privileges and exemptions that solely belonged to the
Parliament of the United Kingdom no doubt remained indelibly impressed
on Dr. Baldwin's memory. It was too personal and too spiteful to be
forgotten by one who had suffered in his effort to give effect to what
he believed was lawful and right. But what Dr. Baldwin had good reason
to remember, other people were easily excused for forgetting, for they
lacked, at the early period of our history, those daily criticisms that
now fidget their readers about times past, present and future. The
inhabitants of the "Town of York" were much to be envied, for they
escaped some of the miseries to which their successors at Toronto are
exposed. In their simplicity they thought, as some think now, there were
greater blessings in this world than a multiplicity of newspapers. One,
in those days sufficed to furnish them with information, and they seem
not to have required a second to suggest incredulity, or a third to
supply invective. At that sylvan period there were no publishers, and
apparently there was neither occasion nor desire for any. The public
records were not printed then, nor till years later, and consequently
such irritating and debatable documents as public accounts, and
departmental papers, were snugly lodged with the spiders in peaceful
pigeon holes, and, being well entrenched in dust, were not likely to be
interfered with by man. Such privacy, however, was of the less
consequence since they were rarely examined and never explained. The
finance ministers of that period were ill skilled in figures, and there
were no deputies to supply what was lacking in the chiefs. Moreover, the
common folk of the earlier epoch possessed great faith, and were little
given to pry. Incredulity is the development of later days, when men
persist in making their neighbours uncomfortable by not taking
everything for granted, and insisting that sight is a condition of
faith. Such sceptics obstinately persevere in not regarding the public
accounts, for example, as veiled mysteries, but rather as exhibits to be
critically analyzed by experts, to be threshed, winnowed and scattered
broadcast, like seed from a full hand, into the moral soil of the
country, and there left to instruct and worry the electorate. In the
good old times inquisitiveness was not pointed with scepticism, for men
were prone to believe whatever they saw in print. Doubt is a product of
later days, and belongs to the progressive period of railways,
photographs and telephones. Print had not become a local power
sixty-seven years ago, and, consequently, Dr. Baldwin's grievance was
not leaded in repeating type, or preserved in manifold papers. Between
the angry episode on Parliamentary privileges in 1811 and the famous
resolutions on Parliamentary responsibility in 1841, there was time
enough for many events to happen, to be discussed, and to pass into
oblivion. Opinion, moreover, had wrought several changes which found
expression in an equal number of surprises. The tories of the early
period had disappeared, like the Dodo, or, if specimens were here and
there preserved, they resembled those species that are only found in
petrifactions and fossils. The reformers, on the other hand, exhibited,
as is their habit, an uncomfortable vitality. They were so thoroughly
impregnated with the principle of growth and animation as to "wax fat
and kick." Thus they not only spread themselves out with a view to win,
but eventually, to the amazement of the tories, acquired control of the
situation. The heirs of the latter, like their English namesakes, were
obliged to hold their titles in suspense, and ambush themselves behind
the colourless designation of conservative. Dr. Baldwin had been a
reformer during the dark era, when it was alike unfashionable and
compromising to be so. He was a reformer when such a confession of
political faith meant social exclusion and political outlawry. Taking
into account the disabilities to which his opinions exposed him, it was
natural, and perhaps wise, on his part to do what in him lay, to pay the
grudge he owed to his political enemies, and to do it with coin of any
denomination. To this end he sought to abridge the powers, and abate the
pretentions of those in authority, to arraign all analogies or
conceits, whether real or fictitious, before the proper tribunal, and,
if found to be shams, to strip the wearers in the open courts, and
admonish them in the set forms of law not to offend again. Dr. Baldwin
failed to effect his ambitious purpose in the way he intended to do so.
The interests he assailed were too strong for him, and so he was
answered with rough words. His indictment was quashed, and a question
that ought calmly to have been settled by the judges was rudely hustled
out of court. The assumption of privileges having been as passionately
affirmed as it had been violently denied was comfortably enjoyed. It
would really seem that the Chief Justice was in league with the
Legislature in stifling inquiry and in asserting his, and their,
supremacy over the law. Against such odds there was little hope of
renewing the combat with success. No one again adventured to do so.
Reform virtue subsided into indifference, and the creditors of
impecunious members of the Legislature into dissatisfied students of
privilege. The arbitrary rule that individuals having seats in the
Assemblies were above the law had been substituted for the law, and
objectors found it was only lost labour to dwell on the incompetence of
the authority by which such substitution had been made. A new and
pleasant way had been discovered for paying, or for postponing old
debts, and the discoverers, in spite of Dr. Baldwin's animated protest,
were by no means inclined to part with the patent that supplied them
with such peculiar advantages.

One of the consequences that followed the rise into power of the reform
party became apparent thirty years afterwards. Dr. Baldwin had either
changed his early opinions or he held them in suspense. It may have been
that to the Doctor's medical eye the diagnosis presented new features
and required a course of treatment with which he was unacquainted when
he first examined his patient. Be this as it may, there can be little
doubt that the policy of success was susceptible of very different
combinations to those required by the experience of failure. Elation and
not depression characterized the new departure, for the popular aim was
not only to retain privileges that had never been successfully
challenged but to invade prerogatives which theretofore had been
jealously guarded. It would, under such circumstances, have been highly
inconvenient to revive an episode in colonial history, where a
hereditary reformer of the purest type advocated a system of shrinkage
in what were then regarded as constitutional rights, because he was now
called upon to promote a system of expansion, by seizing prerogatives
that were generally looked upon as royal possessions. The faculty of
forgetfulness came then, as it often does now, as a blessing to men. No
one, save Dr. Baldwin himself, in all probability, remembered the civil
process of 1811, or the violent proceedings to which the service of it
gave rise in 1812. The able and painstaking son seems, if not to have
changed the opinions of the conscientious and defiant father, at least
to have set a seal on his lips and lulled his patriotic conscience into
a state of sympathetic repose. Thus were Dr. Baldwin, the unsuccessful
advocate of Legislative contraction, and his son, Mr. Robert Baldwin,
the successful champion of Legislative expansion, brought into accord.
The pessimist of 1811 and the optimist of 1841 compared their contrary
experiences and discovered that, by diverging paths, they had reached or
might reach a common end. The contrast, moreover, might be carried
further, for the father failed while the son succeeded. Moreover the
father failed, though the law would probably have sustained him, while
the son succeeded without the aid of law, in the very teeth of
authority, and in spite of every form of official prejudice, by means of
a declaratory resolution only. Nevertheless, though the subjects and
proceedings were different, the reasons that determined them were nearly
alike. Political rapacity and a greed for rule clings to the roots of
both events. In 1811 the Assembly had shown a resolute unwillingness to
surrender a privilege which they clearly had no right to possess but
were determined to keep, while in 1841 they were as fully bent on
appropriating powers which had never been bestowed, and which the Crown
had shewn a marked indisposition to grant. "Fortune favours the bold."
The representatives of the Canadian people shewed spirit alike in their
defence and in their attack, and eventually appropriated the fruits of
resolute tenacity and successful aggression.

Between the years 1811 and 1841 public opinion in Canada underwent
several transformations. The Colonial legislatures, having outgrown
their swaddling clothes, began to articulate their wishes plainly, and,
after the manner of exuberant youth, aspired to a higher status and more
consideration. In their tender childhood they had found themselves equal
to the emergency of appropriating privileges that did not belong to
them; and now, in their dawning manhood, they resolved to acquire
prerogatives that belonged to some one else. But, before the grand
panacea for colonial ills was invented, before the resolutions on the
subject of "responsible government" were adopted, some intermediate
occurrences took place that deserve to be noted, for they throw much
light on the history and progress of public opinion in Canada.

The immigration that followed the peace of 1815 brought into British
North America new classes of settlers from the United States and from
Europe. The former country contributed a good many people who were
practically familiar with the working of republican institutions and
generally preferred a democratic to a monarchical form of government. In
like manner, the British Islands poured out thousands whom war and its
exactions had made miserable, to seek in the new world the happiness and
plenty that had eluded them in the old one. Such persons had been, for
the most part, actively or passively at war with the age and with its
institutions, so that, whatever hue their political opinions had
acquired was deeply tinged with levelling, not to say revolutionary,
pigments. Such persons belonged to the open-mouthed classes who said
what they had to say in loud tones and few words, and those words, from
force of habit, and perhaps a natural instinct, were usually directed
against the government. Thus passionate forms of expression became
common, for men who, in the old world, had learned to believe that kings
were the root of all evil and the authors of all ills, were not likely
in the new one to discipline their speech to those tones of heartiness
which the loyalists habitually used when addressing their Sovereign
through his accreditated representative. The new opinions changed the
old manners, while they gave rise to fears that were too acute to be
shadowy, as to what would come next. True to their hereditary instincts,
the tories were equally ready to threaten or to fight, but they would
not parley with men whose political objects were pursued, and whose
political aims were reached, by ways that they thought were crooked and
by means which they regarded as evil. Consequently, they stood aloof and
looked with disdain, not unmingled with dread, on the educators of the
passing and approaching era. In the meanwhile republican experiences and
radical opinions became more intensely active. Their owners and authors
joined hands, and by their union made alarming headway in a Province
that was euphemistically called "the retreat of suffering loyalty." But
the recollection of the cost at which "the retreat" had been acquired
worked like a charm. The tories had no wish to buy over again what had
once been purchased with great personal sacrifices. They could no longer
look on passing events with stoical indifference. On the contrary, an
occasion arose when they became boisterously indignant, and loudly
claimed the interference of the Legislature. The cause of alarm was that
the objectionable immigrants from over the border and across the sea,
not only had the hardihood to complain of grievances, but had the
temerity to discuss them at "A Convention of Delegates." A convention of
Delegates! The apparition was too horrible to be endured. It recalled to
the minds of the loyalists one of the many mischievous contrivances
which it was hoped they had left, with their estates, behind them, when
they abandoned republican for monarchial America. Their sacrifice would
have been dearly purchased if the change did not give them good
institutions by way of equivalent for the loss of good possessions,
hence it was not to be endured that democratic innovations should be
tolerated under the shadow of the old flag. Their indignation, became
contagious. The Lieutenant-Governor caught it actively, and shewed that
he had done so in the following way:

On opening the Legislature at the "Town of York" on the 12th October,
1818, Sir Peregrine Maitland said, "Should it appear that a convention
of delegates cannot exist without danger to the constitution, in framing
a law of prevention, your dispassionate wisdom will be careful that it
shall not unwarily trespass on the sacred right of the subject to seek a
redress of his grievances by petition." The House of Assembly in their
answer assured His Excellency that "we remember that this favoured land
was assigned to our fathers as a retreat for suffering loyalty, and not
as a sanctuary for sedition." Such a neatly turned sentence could
scarcely fail of bearing fruit. Indeed it bore much fruit, for two days
afterwards "the dispassionate wisdom" to which His Excellency had
appealed, unburdened itself in the following words. The Journals
preserve the picturesque resolve which shall be given entire.

"On the motion of Mr. Jones, seconded by Mr. Vankoughet, it was

    "Resolved, that no known member of the meeting of persons styling
    themselves Delegates from the different Districts, of this Province
    shall be allowed a seat within the bar of this House."

The resolution must have expressed the popular sentiment with tolerable
clearness, for it was carried almost unanimously, only two members, Mr.
Secord and Mr. Casey, voting "nay." Why the last-named gentlemen were
not expelled from the Assembly for giving such an independent vote is
not apparent. Surely the occupants of "the retreat" of the true blue
type, should have chased away all birds of doubtful plumage from their
House, even though they were powerless to effect more stringent
measures.

Nothing daunted, however, and in spite of this emphatic expression of
"dispassionate wisdom," "Hickory Yankees," "English Luddites," "Scotch
Radicals," and "Irish Exiles" continued to flow into "the retreat"
disturbing alike the serenity of its atmosphere and the sanctity of its
traditions. Unhappily for the "suffering" loyalists the new opinions
spread with provoking rapidity, and converts were gained in increasing
numbers. The tories were worried and became belligerent. They resented
in all directions the utterance of glib speeches and petulant squibs
about personal wrongs and popular rights. Besides the classes that felt
and complained of political grievances there were the usual number of
"Adullamites," generally to be found in all communities, who from one
cause or another commonly gravitate towards the party in opposition.
Such people are generally unhappy, dislike their neighbours and oppose
the government. Thus it may have been that in the same "cave" were
mustered, in addition to the political forces proper, all who had wrongs
to avenge or slights to remember; all whose personal aims had been
baulked, or whose social ones had been blighted; all who had missed
their rewards, or whose recompense had been unequal to their services;
and all who had laboured towards fixed ends, but whose labours had never
borne fruit. These and the like forces being brought into contact very
soon lost their individuality. They not only became fused and welded,
but naturally took the colour of the largest body. In thus obeying the
law of gravitation the party of resistance eventually became the party
of reform. Moreover it was this party, made moderate by the many parts
of which it was composed, that controlled the constituencies when Lord
Sydenham met the Legislature of reunited Canada in the month of June,
1841.

These observations very naturally lead to a second point in the
legislation of Canada which is usually regarded as the commencement of
our constitutional history. There are passages in the early pages of
that history on which Sir Francis Hincks, in his lecture to the St.
Patrick's National Association of Montreal, has made some interesting
observations, coupled with certain suggestions which deserve
examination. It may seem presumptuous to criticize the judgment of one
who has sat within the inner circle, and has probably enjoyed the
opportunity of looking behind the scenes. Our place, on the contrary, as
a spectator has generally been in front of the stage, and not within the
"corner" of any of the combatants. But as a bystander we venture to
think that the history of the period to which Sir Francis Hincks has
referred admits of a different reading from that which he has given it,
and the difficulties by which it was marked admit of a fairer solution
than the one which Sir Francis Hincks has seen fit to apply.

As we have endeavoured to show elsewhere, the privileges of Parliament
were claimed and enjoyed by the legislatures of Upper and Lower Canada
in spite alike of the law, and in the former case of Dr. Baldwin's
opinion to the contrary. It followed that the possessions, no matter how
acquired, which the separated legislatures resolved not to part with,
were retained with a firm hand by the legislature of the reunited
Province. The old question was not again raised. It was settled so to
speak by the law of limitation. The trail of 1811 had been carefully
covered, and Dr. Baldwin was in no mood to open it in 1841. He kept
silence, and wisely, for a new and more ambitious issue was to be raised
under the guidance of his conscientious son. No whisper was then heard
on the subject of privilege, for it was essential to the work that Mr.
Robert Baldwin had in hand that the fiction, which his father had
challenged thirty years earlier, should be recognized as a fact, viz.,
that legislatures were parliaments. Consequently the legislature of
Canada being what it was, was entitled not only to enjoy Parliamentary
immunities, but also to administer Parliamentary government. The former,
as we have seen, under irregular conditions had been forcibly assumed.
Might not the latter under favouring circumstances be resolutely
acquired? The irregular, not to say spurious, parentage of the
proceedings must be kept well in mind if we would understand aright and
judge impartially of what subsequently took place.

Suggestions for a system of responsible, or parliamentary government, in
different forms and in different places, had frequently been made, but
it will generally be admitted that they did not take shape till 1841.
Lord Sydenham it is true required his chief departmental officers to
find seats in the legislature, but he did so to further his own plans of
personal government. They were there to express his views, and to
expound his policy, for he had previously complained that members of the
Assembly holding office and receiving the pay of the Crown had
continually voted against his measures. Whatever opinions Lord Sydenham
may have formed on the abstract question of responsible government, it
is safe to say that his mode of administering public affairs was
controlled by his individual resolve to rule as well as to govern. The
resolutions which were agreed to on the 3rd September, 1841, are as
follow:

    First. "That the Head of the Executive Government of the
    Province, being within the limits of his Government, the representative
    of the Sovereign is responsible to the Imperial authority
    alone; but that nevertheless the management of our local affairs
    can only be conducted by him, by and with the assistance, counsel
    and information of subordinate officers in the Province."

    Second. "That in order to preserve between the different
    branches of the Provincial Parliament that harmony which is
    essential to the peace, welfare and good government of the Province,
    the chief advisers of the representative of the Sovereign, constituting
    a Provincial administration under him, ought to be men
    possessed of the confidence of the representatives of the people,
    thus affording a guarantee that the well-understood wishes and
    interests of the people, which our Gracious Sovereign has declared
    shall be the rule of the Provincial Government, will, on all occasions,
    be faithfully represented and advocated."

    Third. "That the people of this Province have, moreover, a
    right to expect from such Provincial Administration the exertion
    of their best endeavours that the Imperial authority, within its
    constitutional limits, shall be exercised in the manner most consistent
    with their well-understood wishes and interests."

These resolutions were cordially agreed to, receiving the almost
unanimous assent of the Legislative Assembly. The occasion and the
author are remembered throughout the country with honour and affection.
For although the resolutions in their amended form are associated in the
journals with the name of the late Mr. Harrison, yet all who knew that
high-minded gentleman must also be aware, that his keen sense of honour
made it impossible that he should wish to appropriate and use as his own
either the handiwork, or brain work, of another. Mr. Harrison's name was
only accidentally associated with those resolutions. Mr. Baldwin was
their true parent. Indeed Mr. Harrison's suggested amendments amounted
to little more than grammatical alterations, to which Mr. Baldwin
cheerfully assented, playfully adding that, in furtherance of such an
important end, "he gladly accepted Lindley Murray as an ally." The
principle which those resolutions expressed had previously received the
qualified assent of the Earl of Durham, and a nod of approval from a
statesman so distinguished was not without advantage to Mr. Baldwin.
Unfortunately that self-contained, and self-willed nobleman did much
towards neutralizing the value of his mission by petulantly deserting
his post and returning to England without leave. However, though he
received less rebuke than he deserved, much less than he would have done
had he been a person of lower rank and less consideration, he
nevertheless had to endure a good deal more than he was very well able
to bear. The shadow of the Queen's displeasure, and the frown of the
court, were novelties to him, besides he missed what he cared for, the
applause and welcome of his countrymen. Less was, consequently, made of
his services than those services merited and, less was probably said of
his report than would have been the case had he not stained his great
trust with political pique and personal insubordination. Nevertheless,
his report was generally, if not officially, regarded as an exceedingly
valuable narrative, and was especially commended by the mass of colonial
reformers who affected liberal opinions.

Returning, however, to Mr. Baldwin's resolutions, and the proceedings
from which they should not be separated, we arrive at some important
conclusions that are, perhaps, worthy of consideration, and should be
kept in view by all who would reach a fair judgment on those points
which Sir Francis Hincks has raised as between the colonial office and
the Canadian assembly in the matter of Lord Metcalfe's rule, including
the instructions by which he was presumably governed and the principles
which he endeavoured to carry out.

In the first place it should be borne in mind that Mr. Baldwin's
resolutions were nothing more than a declaration of the opinion of the
Legislative Assembly. No effort was made to make them express more than
the sentiments of the popular branch of the legislature. The Legislative
Council was not invited to concur in them, neither were they
communicated by address to the Governor General though His Excellency
had no doubt previously seen them, and probably had some hand in shaping
them to the form they eventually took. Be this as it may they
nevertheless halted for the lack of support, as they expressed the
opinion of one only, of the three estates of the Canadian legislature;
and even this imperfect opinion, so far as we can discover, was not
communicated to the colonial Secretary.

In the second place, Lord Sydenham had received from Lord John Russell,
the colonial Secretary, more than one preliminary caution, coupled with
a positive instruction as to how the question of responsible government
should be dealt with, in the event of its being presented to him in any
form whatever. Writing to Lord Sydenham on the 14th October, 1839, Lord
John Russell said: "You may encounter much difficulty in subduing the
excitement which prevails on the question of what is called 'responsible
government,' I have to instruct you, however, to refuse any explanation
which may be construed to imply an acquiescence in the petitions and
addresses on this subject." The despatch is too long to quote in full,
but it ends as it commenced with a caution "against any declaration from
which dangerous consequences might hereafter flow." The lesson, in
brief, evidently was "don't compromise the government, and keep the
prerogative free." The conclusion we draw is, first, that the concurrent
voice of the Canadian legislature was not expressed on the question of
"responsible government;" and, secondly, had the two houses of the
legislature with one voice, and in the same words, affirmed their
resolves, those resolves would have been incomplete in the absence of
the concurrence of His Excellency the Governor General, as the
representative of the Crown. Such concurrence, however, was neither to
be looked for nor expected, because His Excellency had previously been
instructed by his official superior to do nothing "that might be
construed to imply an acquiescence in the petitions and addresses on the
subject." Therefore, had the resolutions been put into the form of an
address, which they were not, or had they received the concurrence of
the two houses, which they did not, or had they in any way been
officially presented to His Excellency the Governor General with a
request that they should be transmitted to England, which they were not,
then the case would have presented aspects that it did not wear, and it
might have justified such conclusions as those which Sir Francis Hincks,
as it seems to us, has somewhat precipitately reached.

Then, again, it is not easy to arrive at a clear idea of the value that
Lord Sydenham attached to "responsible government" as applied to a
colony, for his views on that subject as expressed in 1839 are scarcely
in accord with the views expressed for him by his biographer in 1843.
But whatever those views were, we think it quite certain that His
Excellency's standard differed widely from the standard that Mr. Baldwin
had set up. Both of those eminent men, so to speak, put in a plea for
responsible ministers, but the divergence of interpretation began as
soon as the plea was fyled. Both were willing to employ the same means,
but they were altogether at variance when they compared the ends for
which those means were to be used; Lord Sydenham wanted ministers who
would represent and express his personal opinions, while Mr. Baldwin
wanted ministers who would represent and express the opinions of the
people. The former seemed to look at the question as a handy instrument
of executive convenience, while the latter regarded it as the source of
representative government. Lord Sydenham, perhaps from the force of
circumstances, or from the chronic illiberality that so frequently
lodges in the breasts of liberals, seemed to think, that government in a
colony should of course be popular, but that its popularity should
centre in the Governor; while Mr. Baldwin, on the other hand, thought
that government should in like manner be popular, but that its
popularity should depend on, and find its expression in the voice and
will of the people. Now Lord Sydenham in his native land was a liberal
of the liberals, but in Canada, like his predecessor Lord Durham, he is
remembered for the imperious qualities of his character, for the
despotic fibre of his will, and for the adroit phases of his rule. He
had unbounded faith in himself and in his plans of government. Indeed
his waverings were not due to hesitancy or weakness, for he was
controlled by neither one nor the other. When he paused in his plans, it
arose rather from his inability to find suitable instruments to carry
them out, than from any doubt of the soundness of the principles on
which they rested. Actuated by a splendid egotism, he was of too
absolute a nature to consent to aught that would weaken either his own
or the Queen's prerogative. Lord Sydenham was a whig and something more.
Like Lord John Russell, he thoroughly understood how unsatisfactory it
was to attempt to confine principles of government to exact terms, as
well as the extreme hazard of making any such attempt. Critics no doubt
are more adventurous than statesmen, for the latter generally avoid
verbal definitions when they are required to deal with general
principles. They do not care to place inelastic shackles either on the
functions of the Crown, or on the powers of the two Houses of
Parliament, or indeed on themselves. They prefer to look at the question
of ministerial responsibility as in many respects an open one. We may,
for example, think we know nearly what contingencies should oblige a
ministry to resign, but the authorities are by no means agreed as to the
time when such resignation should take place. The verdict of the
constituencies may suffice for popular conclusions, but as Parliament is
the only recognized court of appeal, their contention is not without
force who say that a ministry should await the judgment of that court
before they act upon the verdict of the constituencies. It has seemed to
some authorities as scarcely respectful to such a tribunal as the high
court of Parliament, to assume that it is incapable of being impartial;
that it is wholly controlled by foregone conclusions; that it would
decline to hear fresh arguments, and be obstinately unwilling to take a
new view of an old case. It fairly may be questioned whether, in the
absence of a proper hearing in the proper place, the issue is ripe for
judgment. No trial can authoritatively be had, no verdict can officially
be rendered, until the whole electorate, in the persons of its
representatives, has collectively been appealed to. Parliament should
hesitate to abdicate its functions, and pause before it substitutes the
individual voice of isolated polling booths for the congregated wisdom
of the "grand inquest." The early theory was to listen to the advice of
the people as expressed by their representatives in Parliament, and not
by a direct appeal, in the nature of a _plebiscitum_, to each voter
registered in the electorate. A minister of the Crown is the custodian
of his own responsibilities and the fittest judge of his own duties;
and, when not misled by his temper, may safely be trusted to act wisely
and in accordance with usage. Usage now points in two directions.
Nevertheless a word may be said and a plea put in for the earlier one;
as Parliament does not consist of the House of Commons only. For though
it is true that an administration does not now resign in consequence of
an adverse vote in the House of Lords, it is also true that such an
incident gives a ministry a fearful shaking. Parliament ought not to
dissipate its powers, neither should it put its prerogative into
commission. That high court was formerly regarded as the place of trial,
where a ministry was judged by its peers. To relegate this important
duty to the poll booths alone is a decline in usage, and may prove a
loss in fact. The late examples in the United Kingdom, and the more
recent one in Canada, of ministries resigning on what was accepted as an
adverse vote of the constituencies, are so many tributes to the
high-mindedness of Mr. Disraeli, of Mr. Gladstone and of Mr. Mackenzie,
for they exactly express the course which they, and men like them, might
be expected to take in such circumstances. Those gentlemen thought fit,
and doubtless with good reason, to assume that they had lost the public
confidence, and therefore, in deference to the general convenience,
rather than to constitutional usage, they also thought fit to act on the
assumption, by declining to be any longer responsible for governing the
country. The question under review, like most questions relating to
government, is one that is encompassed with formalities; and
formalities, be it remembered, that are not only crisp with the hoar of
experience, but are also valuable securities against the weight of
numbers or the oppression of one. Nevertheless the age, whether wisely
or not, probably pays as much homage to modern convenience as it does to
ancient forms; but there is danger in such shiftiness, for in our
eagerness to lay hold of what is convenient we run grave risk of missing
what is best. If a ministry receives nominally from the Sovereign, but
actually from Parliament, a charge to do certain things, should it not,
irrespective of the question of success or failure, give an account of
its doings to the authority from which the charge is received? The
question no doubt has two sides. We have presented in part the view that
was not adopted. The course that was pursued need not be discussed. The
matter is chiefly referred to as illustrative of the wisdom of those
statesmen who decline to give exact definitions when dealing with
elastic principles. Indeed the most ardent admirers of the British
constitution may not like, but cannot help, admitting that it rests on
illogical foundations. This fact not infrequently provokes foreigners,
because it blocks some favourite theory or destroys some
well-constructed argument. Englishmen, on the contrary, have no sympathy
with the theoretical disappointments of the most accomplished critics.
They are satisfied with their possessions, being well aware that those
possessions, however wanting in symmetry, rest on the broad basis of
severe experience and established use.

Now, responsible government as applied to a colony was an abstract and
untried question, and constitutionalist though he was, Lord John Russell
looked at it as one to be avoided. Moreover, he saw that several very
critical subjects nestled in its folds, and prominently among them, one
of great importance, viz., the Royal prerogative in its relation to the
patronage of the Crown. Hence we may conjecture his Lordship earnestly
instructed Lord Sydenham "to do nothing at variance with the honour of
the Crown." By way of making the instruction more emphatic, the latter
was referred to the resolutions of both Houses of the Imperial
Parliament of 1837, which treated of certain speculative questions of
Canadian rule and of certain practical ones on the subjects of
prerogative and patronage. Thus between positive instructions and
Parliamentary references Lord Sydenham's conduct, irrespective of his
opinions, was put under severe control. Mr. Baldwin was probably aware
of the fact, and perhaps also of the peculiarities that governed His
Excellency's opinions, and consequently he may not have wished to submit
his resolutions to the ordeal of an adverse criticism by causing them to
be officially sent to His Excellency. Be this as it may, the important
proceedings of that eventful day were supplemented within the next
twenty-four hours by two events, each of which seriously controlled the
course of affairs, and probably hastened those changes in the mode of
administration for which the public mind in Canada had scarcely been
prepared.

Mr. Baldwin's resolutions, judging from the space occupied by the
reported proceedings, must have been adopted on the evening of the 3rd
September, 1841. On that day, the whig administration under Lord
Melbourne was succeeded by Sir Robert Peel, as leader of the
conservative party who became for the second time the first Lord of the
Treasury, while the late Earl of Derby, then Lord Stanley succeeded Lord
John Russell as Secretary of State for the colonies. But the change of
ministry in England would probably not have seriously affected the
administration of affairs in Canada had it not been accompanied by a
local calamity of a very serious kind. On the following day, viz., 4th
September, 1841, when taking his usual afternoon ride, Lord Sydenham's
horse suddenly fell, causing such complicated fractures, and other acute
injuries to the rider, as to result in his comparatively early death a
fortnight later. Thus, at a most critical juncture in our history, when
standing on the threshold of a new career, and not knowing whether
Parliamentary government in Canada, being so crudely introduced, would
be conceded or not, two apparently untoward events took place. There was
a change of ministry in England, and, for all practical purposes, there
was a collapse of the government of Canada. For it should be remembered
that Lord Sydenham was no ordinary Governor, and the period of his rule
was a time of transition from a mode of administration that the country
had outgrown, to another form of government which was only in a process
of taking shape. Lord Sydenham was the grand figure of this transition
period, for he really seemed to be.

    "Lord of himself and all beside."

He was not only the Governor General and the chief of the local
administration, but practically he was the leader and whipper-in of the
government in the legislature. He soothed the refractory with fair
speeches and allowed honours to dangle before the eyes of the ambitious.
Trade and commerce, finance and banking he took naturally to as a matter
of course, for they were parts of his political heritage; but foreign
affairs and matters of local self-government were subjects on which he
was by no means inclined to be silent or to affect indifference. All he
wanted appeared to be suitable instruments, men who would obey his
orders and who possessed the skill to develope his plans. Ministers in
his day, like silver in the time of Solomon, "were nothing accounted
of." His judgment was the crucible to which all subjects were to be
brought, and his mind the channel through which all opinions were to
find expression. But, alas! the clear head and the firm hand, though
they achieved much, could not resist the inevitable. They surrendered
in company, and now rest within the walls of the old parish church at
Kingston.

The two events just referred to should be kept in mind, for the
derangements in Canadian affairs that almost immediately took place, and
to which Sir Francis Hincks has made particular allusion, may be, and we
incline to think are, due to the meeting together of those important
occurrences, viz., the sudden change of the ministry in England and the
sudden death of the Governor in Canada. It will also bear repeating that
the resolutions expressed the opinions of the Legislative Assembly only.
Mr. Baldwin may have doubted whether the Legislative Council would agree
to them, and silence in that case was wiser than a conflict of opinion.
It certainly would have been impolitic to bid for a negative. Besides,
being on his death-bed, the Governor General was tied by his
instructions, and could scarcely have returned a colourless answer to
such an important communication. In the language of Lord John Russell's
despatch he might have said "that he was bound by his instructions to
refuse any explanation which might be construed to imply an acquiescence
in the petitions and addresses on this subject." Moreover, His
Excellency's opinion would be read and criticised by people in the
mother country who would not trouble themselves to look at the question
out of which it arose. Thus Mr. Baldwin kept his treasure intact. He
neither exposed it to the chilling resistance of the Legislative Council
nor to the official condemnation of the Governor General. Having
honestly acquired for his resolutions the affirmation of the body whose
opinion he most valued, he determined to keep those resolutions
undisturbed till the time should arrive when they could be appealed to
with advantage, and put into force with the consent of all the estates
of the legislature.

In the meanwhile the subject was hampered by incomplete arrangements,
and perhaps hindered by the obligations of official routine. The votes
and proceedings at that time were not, as they now are, printed daily
for the use of members. The newspapers were not as generous then as they
now are in supplying reports of legislative proceedings, and the
manuscript breviates of routine matters, furnished to His Excellency
under the direction of the clerks of the two Houses, were more
remarkable for conciseness than for fullness of detail. So far as we
have been able to discover there is no evidence to show that those
resolutions were sent to the Governor General, or were forwarded to the
colonial Secretary, or formed one of the miscellaneous collection of
state documents that in the Imperial Parliament are grouped under the
head of "Canada Papers." As neither resolutions nor address were to be
found in the Governor General's office, Sir Richard Jackson, Lord
Sydenham's interim successor, may fairly be excused if he failed to make
any communication on the subject to the colonial Secretary, for the
routine method of sending copies, when published, of the journals of
the two Houses to England can scarcely be regarded as a special
communication. Sir Francis Hincks may have had access to sources of
information not within our reach, and they may have force sufficient to
overthrow our hypothetical fabric. Our findings are so meagre and
unsatisfactory as to press home the conclusion that the colonial
Secretary was scarcely aware of the existence of such resolutions, until
the fact was suddenly brought to his knowledge by the appearance in his
presence of the first victim to the new principles which those
resolutions expressed. The reflections to which such an incident must
have given rise were alike new and inconvenient. The Imperial authority
had been wholly set aside; for questions of prerogative had been dealt
with irrespective of all reference to the source of prerogative. A
declaration of opinion by one branch of a colonial legislature had
suddenly been substituted for the earlier, and till then the recognized
procedure as the rule of government, and the Queen's representative,
apparently without authority, and in spite of instructions to the
contrary, had accepted the substitution. As a consequence, the Queen's
government found themselves in a maze of grievances which they had no
part in bringing about, but which they were required peremptorily to
redress. Intelligence arrived with unpleasant rapidity. The stereotyped
story of a breach of faith though articulated by new voices was told in
the old words. The vision of a crowd of colonial officials "whose
services had been dispensed with" was too disquieting to be meekly
borne. A colonial Governor had acted without authority, and by exceeding
his instructions had laid on the colonial Secretary duties beyond his
power to discharge. There must be a check to, if not a reversal of, such
a system of rule, and a Governor was required who would prove equal to
the occasion. A state of ignorance had been for too long a time
continued, but as it was fairly excusable, it should not have occasioned
surprise. Accident had been a powerful factor, while change and
indifference had been skilful allies. The three influences had
successfully, by strange misadventures, combined to intercept knowledge
and divert attention from matters that were nevertheless urgent. The
concurrence at the same time of the death of Lord Sydenham, of the
resignation of the whig ministry, and of the interregnum in the
government of Canada, represented disturbing elements of a very active
kind. Lord Sydenham died before the information reached Canada that Lord
John Russell had been succeeded by Lord Stanley at the colonial office.
What might have chanced had his life been prolonged it were idle to
conjecture. Important communications in due time would have been made,
and the colonial Secretary apprized of the drift that had set in towards
Parliamentary government. Nevertheless the crisis had not actually
arisen. Lord Sydenham's ministers remained in office, for the period was
the midsummer vacation, and hence they were not disquieted by the
sessional worries of an unconfiding legislature. But such a paradise of
peace could only last for a short time. The season of crisis drew
rapidly near. Unhappily the Queen's interim representative was not
supposed to be much interested in, or acquainted with, our colonial
politics, so that he scarcely felt called upon to note their character
and tendency. The commander of the forces, Sir Richard Jackson, on whom
the administration of the Government devolved on the death of Lord
Sydenham, was a soldier rather than a statesman, and, consequently, the
precision which usually attaches to the former character would be
observed in the mode of transacting his civil duties. We may assume that
Sir Richard read his orders and obeyed them. He sent to the colonial
Secretary what he was required to send, and he abstained from discussing
what he was not called on to consider. As the Assembly had expressed no
wish to send Mr. Baldwin's resolutions to the colonial Secretary, why
should they be sent? Being the opinions of one branch of the legislature
only, they were incomplete utterances, and without any force of law. Why
trouble the Secretary with crude and imperfect papers? If such were the
facts, Sir Richard Jackson may fairly have thought that his duty was
best discharged by attending only to such matters as lay within his
reach, or in regard to which some desire had been generally expressed
that he should perform them. Such seems to have been the state of
affairs between September, 1841, and February, 1842, when the
administrator, Sir Richard Jackson, was relieved of his duties by the
arrival of the new governor general, the Right Honourable Sir Charles
Bagot.

Then the dormant life of Mr. Baldwin's resolutions suddenly became
active, and the awaking was followed by much whispering and many
surprises. What had theretofore been regarded as an abstract proposition
possessing only a theoretical value, was found to be an active principle
seething with practical force. What were once merely declarations of
opinion not only became rules of conduct, but were, ere long, and in
various uncomfortable ways, destined to be borne into the inner chambers
of the colonial office. Moreover they were of sufficient importance to
arrest attention, for they represented Imperial as well as Colonial
issues They included a change in old usages, a departure from old
traditions, and a reversal of received opinions. The order of the
colonial service was challenged, and its discipline was to be placed
under colonial control. "Powers, privileges and immunities" had
violently been retained, and now patronage and prerogative were to be
boldly appropriated. The time had come for authority to speak, for
strange truths were being brought home, accompanied with interpretations
that were exceedingly disturbing. Moreover such revelations were made,
not by a dainty process of patient endeavour, but by means of a rude
shock and a breach in the wall. New bearings had to be taken to suit the
new era, for evidently the point of a fresh departure had been reached.
The question clamoured for settlement, whether the new way should be
followed or the old one persevered in. Lord Stanley was officially
required to examine the policy which Sir Charles Bagot had pursued and
the course he had taken. He was required to see whether it was complete
in itself and whether it was in harmony with the royal instructions.
Such an inquiry having presumably been made, the result must have
disclosed two facts, and suggested one conclusion. The facts being that
the resolutions expressed only the opinions of one branch of the Canada
legislature, and that those opinions were inconsistent with the positive
instructions that Lord John Russell, the immediate predecessor of Lord
Stanley in office, had sent to Lord Sydenham. The conclusion arrived at,
in all probability, was that Mr. Baldwin's resolutions were not only
inconsistent with English policy, but that they were directly opposed to
ministerial orders. Nevertheless, the issue raised would scarcely have
ruffled the equanimity of Downing Street had it not been pointed with
injustice as well as inconvenience; but such were the facts. The
abstract question was made to fit into a personal one, in respect of
which the subject of a very serious colonial wrong had the advantage of
the counsel and aid of a learned and very influential imperial ally.
Thus, the resisting forces, besides being well placed, were able and
energetic, having, moreover, a backing of sufficient strength to
command the attention of colonial office officials. Parliamentary
privileges, by dint of perseverance, had practically been retained by
the local legislatures, in spite of cautions from England and of
remonstrance in Canada. Indeed remonstrance had been destroyed by the
heat with which it was encountered, and hence no second occasion had
arisen for reviewing the judgment of the legislature, or for challenging
the decision of the courts. Silence, thenceforward, became the best
security. In like manner Parliamentary government would, in all
probability, not only have been cheerfully conceded, but garnished with
compliments, had not its introduction been attended with entangling
conditions, official inconveniences and personal ill-usage.
Unfortunately the theoretical question was compromised by the practical
one, for it encouraged men to think, and not unnaturally, that a system
whose introduction was attended with wrong to individuals could scarcely
be worked with benefit to the community. There can be little doubt that
responsible government in Canada was blemished on the threshold of its
history by an act of injustice. The incident, moreover, threatened to
become an example that might be followed in other places with exact, or
perhaps aggravated, imitations. The narrative to which we shall refer,
included an ugly passage that not only touched the honour of the
Sovereign, but threatened the colonial office with critical
difficulties, for, while it altered the conditions of service, it
practically changed the source of patronage, and, above all, it menaced
the authorities at Downing Street with the untiring importunities of
placemen out of place.

By means of a special council of his own selection, Lord Sydenham had
succeeded in governing Lower Canada, but he had made no approach
whatever towards conciliating the good-will of Her Majesty's subjects of
French origin. He managed to get through the first session of the
legislature of United Canada with the help only of ministers of the
English-speaking race, but the way was alike hard and indefensible to
him and them. It was therefore most undesirable that the strategy of the
first session should be repeated in the second, and perhaps no one
better than Lord Sydenham knew that any such attempt would result in
failure. The time for continuing an irritating and exclusive policy
could not be indefinitely prolonged, but, until the arrival of the new
Governor General, there seemed to be no one with authority sufficient to
initiate a fairer and wiser rule. Such was the state of affairs when Sir
Charles Bagot arrived at Kingston on the 12th January, 1842. The
ministers that his predecessor had bequeathed to him were eight
gentlemen, all of whom were of the English-speaking race. With them it
would be his duty to take counsel, for the act would have been deemed
unconstitutional had he sought advice beyond the privileged circle of
his sworn advisers. The difficulties of the situation were clearly seen
by Sir Charles Bagot, who made some ineffectual attempts to overcome
them. Although the aim of his effort was appreciated, the mode did not
find favour with the class in whose interests it was made. Matters moved
on unsatisfactorily and with increasing friction till the 8th of
September, when the Legislature met "for the despatch of business."
Having the opportunity, and acting within the limits of its supposed
authority, the Legislative Assembly lost no time in recording its
opinions on several important subjects. Mr. Baldwin, for example,
seconded by Mr. Barthe, availed himself of his constitutional right to
move an amendment to the address in answer to the speech from the
throne, in which amendment the principle enunciated in the resolutions
on responsible government of the former session was reaffirmed. It was
declared that the "chief advisers of His Excellency constituting the
provincial administration under him should be men possessed of the
confidence of the representatives of the people," adding, by way of
illustrating his meaning, that such "confidence is not reposed in His
Excellency's present advisers." The amended address no doubt would have
passed had not Sir Charles Bagot anticipated the obligation, which the
adoption of that amendment would have laid on him, by sending for Mr.
Lafontaine. The interview led to a correspondence that resulted in the
retirement of messieurs Draper, Ogden, and Sherwood from the
administration, and to the substitution of messieurs Lafontaine and
Baldwin in their stead. The conciliation of "our fellow subjects who
are of French origin" was a very satisfactory feature of the new start,
and found expression in the emphatic words of a resolution, which, on
the motion of Mr. Dunscomb, seconded by Mr. Simpson, was adopted almost
unanimously by the Legislative Assembly, only five members voting "nay."

The correspondence between Sir Charles Bagot and Mr. Lafontaine on that
important occasion is very interesting and instructive. Though no
reference was made in terms to the question of responsible government,
it nevertheless led to the observance of those conditions on which the
principle is supposed to rest; for a provincial administration was
formed, with His Excellency's sanction, of "men possessed of the
confidence of the representatives of the people." In his effort to
redress the wrongs of a race, His Excellency practically established
that system of constitutional government which Mr. Robert Baldwin had
advocated, and to which he had given expression in his celebrated
resolutions. It is nevertheless important to bear in mind the
distinction between what His Excellency did and what he intended to do,
for there is nothing in his letter to show that the radical changes to
which it immediately led were present to his mind. His Excellency's sole
aim appeared to be to gain the good will of, and to do justice to, "the
population of French origin," and this was accomplished without direct
references to any abstract question of government. Unfortunately, the
work of redressing wrongs was not accomplished without creating wrongs.
No doubt the class irritation that culminated in the troubles of 1837-8
had scarcely subsided. Passion, when quickened by revolt and coloured
with blood, does not cool suddenly, nevertheless it can scarcely be
questioned that the relief of a race which had been slighted and
overlooked would have been more wisely obtained had it not have been
accompanied by injuries done to individuals of another race who were
guiltless of wrong. In his laudable endeavour to effect the object that
Mr. Lafontaine had at heart, His Excellency assented to the sacrifice of
an official whose interests he was especially bound to protect. The act
was more than a blunder, for if it did not show what responsible
government meant, it taught by an ugly example what responsible
government would include and might effect. The lesson was not lost in
England. On the contrary it apparently made a great impression there,
and for a time not only disquieted the colonial office but arrested the
course of constitutional government in Canada.

Sir Charles Bagot had not been a member of the House of Commons, and
personally was unacquainted with the duties of a cabinet minister.
Nevertheless his experiences as a diplomatist must have been valuable,
for they probably qualified him to assay character, to overcome
differences, to conciliate enmities, and to draw together those who had
been estranged. To a mind thus educated, and to habits thus acquired,
were added great colloquial gifts, and a superb presence, for Sir
Charles Bagot was a grand specimen of manly beauty. Thus equipped by
nature, education, and experience the new Governor was by no means ill
prepared to face the difficulties that met him on his arrival at
Kingston. There was method, too, in his mode of going to work. Lord John
Russell's instructions to Lord Sydenham on the subject of responsible
government, it should be remembered, were not cancelled by reason of the
change of the English administration, neither could Sir Charles Bagot
recognize as law the resolutions of one branch only of the law-making
power. His Excellency appears carefully to have avoided the discredited
expression "responsible government," for those words have no place in
his letter. Of course he was not the man deliberately to violate his
instructions, for the instinct of obedience in his case had not only
been cultivated by experience, but was a habit of his life. Nevertheless
his agreement with Mr. Lafontaine included the exact conditions which
Mr. Baldwin had endeavoured to enforce, and against the adoption of
which Canadian Governors had been more than once cautioned. Local
criticism may have shed unwelcome light on His Excellency's act,
enabling him perchance to see by the interpretation put on it that he
had really overstepped the limit of his instructions, and had wandered
into forbidden paths. The correspondence between the colonial Secretary
and himself, to which the act gave rise, could have been known only to
few, and was no doubt confidential in its character. That it included
some expressions of surprise as to the course that had been pursued is
probable enough, and it may have been that these recollections and other
trials lodging in his mind prompted his dying injunction to those around
him "to defend his memory." His wish has been abundantly respected in
Canada, and by none more reverently than by the "inhabitants of French
origin" whom he served so faithfully.

On his arrival in Canada Sir Charles Bagot must have felt, what
everybody said, that "the peace, welfare and good government of the
country" could only be carried on by the hearty co-operation of the
English and French speaking peoples. There was no difference of opinion
on this point, but as the latter had stood resolutely aloof, it became
the duty of His Excellency to inquire the reason, and then smooth the
way to such an alliance between the races as would make government not
only possible but satisfactory. Whereupon His Excellency sent for the
head and representative of the French Canadian party, and put himself
into official communication with him. Thus arose the correspondence
between Sir Charles Bagot and Mr. Lafontaine. It soon became clear that
nothing could be done without the aid of the latter, and it therefore
was necessary to inquire on what terms his assistance could be obtained.
The answer will be found in the memorable correspondence of the 13th
and 16th September, 1842. It is too long for quotation in full, but
there are three points to which it is necessary to refer, and these must
be kept steadily in mind if we desire to possess the key to those events
that subsequently occurred.

A way had to be found for the introduction into the executive council of
certain gentlemen of French origin, who should represent the majority in
Lower Canada, and to this end vacancies had to be forcibly made, and,
the incumbents had, in the interests of public policy, to be relieved
and set at large. The office of Attorney General for Lower Canada was
one of those which Mr. Lafontaine required to be vacated. But in
assenting to this condition, and in assigning the succession to the
last-named gentleman, Sir Charles Bagot caused it to be distinctly
understood "that provision should be made for Mr. Ogden commensurate
with his long and faithful services." The like condition was attached to
the case of Mr. Davidson.

In his answer Mr. Lafontaine fell in with the views that had been
expressed by Sir Charles Bagot, adding, however, an important
qualification with respect to Messrs. Ogden and Davidson in the
following words: "That the proposition to make provision for the
retiring officers, Mr. Ogden and Mr. Davidson, be considered an open
question." This modification, which was a mistake alike in policy and in
justice, received His Excellency's assent. Thus it was that Sir Charles
Bagot assisted at the deprivation of an officer whose commission like
his own was derived from the Crown, with this difference, however, that
the condition of service in the case of the Attorney General was
expressed originally in the words "during good behaviour," and in the
case of a Governor in the words "during pleasure." Thus His Excellency
fell into the error of exchanging an absolute for a conditional
security. In a moment of high-minded trustfulness, His Excellency parted
with the control of the case, and left to the action of an unfriendly
Legislature the interests of a public servant whom he was bound to
protect. The misfortune was aggravated by the fact that Mr. Ogden was
then absent from Canada on leave, and could not therefore personally
defend his rights. The transaction was easily epitomized. "In the
interests of public policy His Excellency was constrained to sacrifice a
public servant" This kind of offering is occasionally necessary, but the
sacrifice ought not to be aggravated by unmerited suffering. His
Excellency was evidently of this opinion, but he had rendered himself
powerless, and the discovery was made only too late. In less than three
weeks afterwards he tried to recover what he had lost, but found to his
sorrow his effort end in failure. He had, at Mr. Lafontaine's request,
consented to the question of remunerating Messrs. Ogden and Davidson
being left an open one, but when he sent his message on the 3rd of
October his recommendation was evaded and postponed. No motion for
consideration followed the reading, and when nine days afterwards Mr.
Hincks, seconded by Mr. Harrison, moved that the message be considered,
he was tripped by an amendment, which was carried in a House of fifty
members by a majority of twenty, that the consideration be postponed to
a future Session. It may here be added that the indicated session
arrived, but the subject was not revived. Sir Charles Bagot had died,
and Mr. Ogden had carried his complaint to England.

Mr. Ogden had reason to think that he had fallen a victim to conflicting
views. His Excellency the Governor General on one hand, and the
Legislative Assembly on the other, had looked at his claims from
opposite points, and had arrived at opposite conclusions. The
postponement of the consideration of a question so simple in itself, and
at the same time so serious to His Excellency and to the subject of it,
admitted only of one interpretation. Wherefore Mr. Ogden took his
course, turned his back on the Legislature of his native country, and
determined to see whether he could obtain in England the justice that
had eluded him in Canada. The state of parties in the mother country
favoured his application, for Lord Lyndhurst, his near connection, if
not a relative, was the Lord Chancellor at that time. Mr. Ogden knew
well that his case would be considered by his kinsman, and he knew
further that that kinsman was credited with the keenest intellect in
England. The case was prepared with the greatest care, for law and
rhetoric contributed to make it perfect. It was then severely reviewed
by friends in Canada, and when stripped of all redundancy, and every
point sharpened by the action of wisdom and temper, it was finally
copied and sent home. Lord Lyndhurst gave his friendly and sympathetic
thought to the narrative, and by appointing the subject of it to the
office of Attorney General for the Isle of Man plainly shewed that, in
being displaced from his situation in Canada without compensation or
equivalent, Mr. Ogden had not forfeited his claim to the consideration
of the crown.

How the whole question was viewed by Lord Lyndhurst has not been
disclosed, neither is it known to what extent Lord Stanley's views may
have been influenced by the opinion of his colleague. It is not
difficult to believe that Lord Lyndhurst saw as clearly as Mr. Baldwin
that "responsible government" had been conceded in fact if not in words,
and that, as a consequence of the concession, the prerogative of the
crown had, so to speak, been put into commission, and that
thenceforward, unless the evil could be stayed, patronage could only be
exercised in the colonies in deference to the will of a provincial
administration, composed of men possessing the confidence of the
representatives of the people. Thus the condition against which
successive Governors had been cautioned actually arose. The new theory
of colonial government had been practically explained by an example,
and the illustration and the man were alike within reach. It was not, it
may be admitted, wise to introduce the new reform in a raiment of wrong,
and furnish a gentleman of clear intellect and high character with a
grievance of almost startling force. Such an introduction would prove in
the last degree damaging in Downing street. Mr. Hincks and Mr. Harrison
wisely sought to avert the evil, but they failed, and the reform party
suffered in their failure, for it is by no means improbable that the
wretched struggles of the next seven years were more or less due to the
doubts that arose, and to the irritation that was occasioned by the
evasion of the Legislative Assembly to make a suitable provision for Mr.
Ogden in 1842. People who scarcely trouble themselves to examine
abstract principles becomes exceedingly sensitive when brought face to
face with actual examples.

It must be borne in mind that the rights of the Crown had been touched
without leave, for while the colonial office had hazy views on the
subject of "responsible government," it held clear ones on the subject
of patronage. The latter had been assailed, and the assault reverberated
as a note of alarm in every corridor of the colonial service. It was
easy to see that compassion would block preferment, and the recognition
of old claims would stand in the way of new candidates. Thus a noxious
vision of "returned empties" floated before the minds of an army of
eligibles who were eagerly waiting for vacant robes or earnestly looking
for knightly ribbands. "Responsible government" had previously been
approached on all sides, but it had also been uniformly declined by
colonial secretaries and persistently discredited by colonial governors.
Now, however, it was examined by a new class of investigators, and
condemned, without doubt, as a horrible invention, opposed alike to the
prerogative of the crown as well as to the reversionary interests of
those who were candidates for royal favours. For different reasons the
Colonial Secretary found himself surrounded by large numbers of
interested critics who had motives in common for preventing the spread
of the new heresy, while he, on his part, was immediately concerned in
limiting the number of crown beneficiaries and of getting rid altogether
of visitors from the colonies burdened with grievances.

The conclusion suggested by these speculative considerations is not far
to seek. Had no personal issue, consequent on a disturbing act of
injustice, been raised; had Mr. Ogden been disburdened of his grievance
when he was deprived of his office, it is probable that parliamentary
government, like parliamentary privilege, though irregularly acquired,
and doubtfully exercised, would have become without noise or violence
one of the smooth fittings of the Canadian constitution. Had not Mr.
Ogden been armed with a grievance, sharpened by a loss which Lord
Lyndhurst regarded as a wrong, it is most probable that the course of
our history would have flowed onwards undisturbed by Lord Stanley's
constitutional heat, or Lord Metcalfe's paternal philosophy. The
theoretical disquiet of that period would not have arisen. The alarm of
authority would not have been experienced. The talks between Lords
Stanley and Metcalfe would have occasioned no anxiety. The meaning of
"responsible government," as we now understand it, would never have been
challenged, and the literary torture to which the words were exposed
under the rule of Lord Metcalfe would not have occurred. The
Lafontaine-Baldwin administration of 1842 would not have been relieved
of office in 1843, nor, we venture to think, would the new principle of
parliamentary government have been subjected to a baptism of fire in
1849. Mischief and misery are the common fruits of individual wrong and
personal injustice; for if there is sweetness, there is also danger in
revenge. Torture not unfrequently gives strength to weakness, and men
are surprised at the blow which an injured person can inflict. Had Mr.
Hincks and Mr. Harrison succeeded in preventing a case being made for
counsel, and such a counsel as Lord Lyndhurst in 1842, no occasion, we
believe, would have arisen either for the criticism of Sir Francis
Hincks on what must be regarded as an obscure and unsatisfactory passage
of our history, or for our adventure in suggesting a new reading of an
old story.

"Are Legislatures Parliaments?" The question again arises, and suggests
a historical parallel. As in 1792 His Excellency Governor Simcoe,
without any authority that has been shown, saw fit, in words at all
events, to graft the powers, privileges, and immunities of the
parliament of the United Kingdom on the legislature of Upper Canada, so
also in 1842, His Excellency Sir Charles Bagot, in the face of
instructions to previous governors, saw fit to graft, in fact if not in
words, the system of parliamentary government that obtains in England on
the system of legislative rule that was provided for Canada. The boons
thus bestowed were in excess of the authority of the givers, and both,
it is believed, became subjects of correspondence by successive colonial
secretaries. One was passively and without much resistance retained, but
the other was only acquired after a violent and prolonged struggle. Now,
however, parliamentary privilege together with parliamentary government
have passed into the undisputed possession of the Parliament of Canada,
for the terms of their conveyance are distinctly stated in an act of the
Parliament of the United Kingdom. Henceforward no one will question the
worth of those possessions, for they bear the sterling marks, and were
granted only to the supreme legislature of Canada. They were the growth
of experience as well as of controversy, not only in spite of, but
through difficulties and oppositions that seemed altogether
insurmountable. The words appear equally applicable to states as to
persons:

    "There's a Divinity that shapes our ends,
    Rough hew them as we will."

Though separated by an interval of fifty years, Governor Simcoe and Sir
Charles Bagot seem to have been alike desirous of raising the local
legislatures to the highest rank, and to this end to clothe them with
the attributes of parliament. Those eminent men, with the intuition of
statesmen, apparently saw, though afar off, to what authority those
limited inquests would eventually grow, and hence they did not hesitate
by word and deed to promote as far as in them lay whatever was best
suited to advance and strengthen such growth. We are witnesses of what
has taken place, and if we are wise we shall contentedly appreciate the
greater freedom our political institutions have acquired, and the fuller
consideration we have consequently won. In passing, it may be noted that
Governor Simcoe and Sir Charles Bagot were of the same political school,
and held sympathetic opinions of the value to the empire of "ships,
colonies and commerce." They were both tories. Both were large-hearted
and open-handed rulers. They withheld nothing it was in their power to
grant, and even when, under the guidance of an attractive illusion, they
professed to bestow what they had not the right to give, the intention
betrayed a generous and far-seeing purpose, for its aim was to promote
the happiness of the Canadian people and not to advance the private or
selfish ends of their rulers. Superfine cynics say of such persons, and
of others like minded, that they belong to the "stupid party." It would
be easy to exchange sneer for sneer, and answer such imputations in
words conveniently chosen from the vocabulary of scorn. But it is not
necessary, for, were the reproach true, it would not change the fact
that Canada is as much and many think more indebted to the party thus
defamed than to the party of its defamers for the most valuable, and the
most enduring parts in her system of constitutional government.




CHAPTER VI.


Although the principle of responsible or parliamentary government had
been accepted as a dogma and placed among the verities of government by
its conscientious author, as well as by other professors of the same
political faith, it was not as thoroughly liked by less advanced
students who had not been educated in the same school. They regarded the
novelty with suspicion, and did not trouble themselves to appreciate
what they made little effort to understand. In the minds of such persons
opinion had not taken an exact or trustworthy form, for it had neither
been hardened by observation, nor rounded by experience. The subject, no
doubt, received much attention from ardent politicians of the
professional type, but it was scarcely appreciated by less ambitious
people--and such persons represent the majority in most communities, for
the indifferent classes, if less influential, are generally more
numerous than the active ones. Indeed, lovers of quiet regarded the new
tenet as a menace to their peace, and assailed it chiefly because they
thought it would create enmities and encourage disturbance. Some were of
opinion that the experiment would disagree with the country, and did not
like to try what threatened to be injurious. Others, again, caricatured
the advocates of the new doctrine, and assailed them with gibes and
epigrams, as if their theory of government were not only a crudity to
be examined but a jest to be laughed at. All, however, agreed that the
latest article of political faith could not be accepted as final or
complete, because it was the confession of one branch only of the
Provincial Legislature. Thus, on the very threshold of its career, and
apart from the question whether parliamentary government could properly
be grafted on a legislature that had not been promoted to the dignity of
a parliament, the new deliverance was subjected to the common ordeal of
critical examination, sharp discussion and suspicious resistance.

Nor was it in the provinces only that people doubted and looked askance.
The authorities at Downing street cordially sympathized with Her
Majesty's sceptical subjects in Canada, and evidently discouraged what
colonial governors had frequently been instructed to resist. No doubt,
in the period of his administration, Lord Sydenham had played with the
subject, but it was not to fondle it as a lover, but rather to discredit
it with his doubts, if not to mock it with his scorn, that he stooped to
examine it. For, whatever Lord Sydenham's views may have been on the
abstract question, they were exceedingly unlike, if not absolutely
contrary, to those of Mr. Baldwin. Indeed, they were more in harmony
with the opinions afterwards expressed by Lord Metcalf; for both of
those noblemen agreed that their ministers were to be responsible to
them and not to the people, and they were to be consulted only when
their advice was required. Lord Sydenham apparently did not entertain
very exalted views of the provincial legislatures, and, consequently had
no encouraging words at command when he described their way of doing
ordinary work. It was, therefore, no part of his endeavour to increase
the actual powers or to heighten the assumed importance of legislative
bodies that, even in their subordinate places, had not only made
themselves troublesome, but had evinced an uncomfortable disposition to
become aggressive. Nevertheless, had the Parliament of the United
Kingdom previously enacted that the legislatures of British North
America should respectively be composed of "The Queen, an Upper House,
styled the Legislative Council and a Lower one, styled the House of
Assembly," and had it furthermore declared that such organizations
should be parliaments, it is probable that His Excellency would not have
treated the question of responsible government as one foreign to the
bodies to which it had been applied, neither would he have made it, in
its enlarged form, a mark against which to direct his cynical
observations; as, for example, when he wrote, "I have already done much
to put it down in its inadmissible sense, namely, the demand that the
council shall be responsible to the assembly, and that the Governor
shall take their advice and be bound by it." * * * "They are a council
for the Governor to consult, and nothing more." In His Excellency's
opinion, they were a council responsible to him and not to the people;
to be the exponents of his views and not of theirs whom they had been
chosen to represent. Moreover they were expected so to influence the two
houses of the legislature as to secure support for His Excellency's
policy and the passage of His Excellency's measures. In short, they were
to be used only when His Excellency required their services, to receive
instructions rather than to offer advice, and to be active in the
assembly but reticent in the cabinet. Thus, in one way and another, by
skilful tactics and the adroit use of familiar weapons, Lord Sydenham
succeeded in scrambling through the first session of the legislature of
re-united Canada. This was all, it should be added, that he had proposed
to himself, all that his health enabled ban to accomplish. But a period
of a painful kind, one quite beyond his reckoning, was put in another
form to his work, for all his plans were baulked by his early death.
Whether His Excellency should not have commenced the new career in a
more conciliatory and considerate temper it were idle to inquire. He
made the fact tolerably clear that, in his opinion, it was only a
legislature of limited responsibilities and inferior rank that he had to
deal with, and that, therefore, it was only entitled to his qualified
consideration. He had obeyed his instructions, and had neither
entertained memorial nor petition having for their object the
enlargement of the powers, or the increase of the responsibilities, of
colonial government. He had done his part in starting the newly
constituted legislature; but he had done nothing, nor did he wish to do
anything, towards raising that legislature to the rank and dignity of a
parliament. As he had made it, so he left it, a legislature and nothing
more.

When the end of the session arrived, thoughtful persons, irrespective of
party bias, began to reflect on the blemishes by which it had been
marked. Many of them recalled with unfeigned regret the irritating
election tricks and unworthy contrivances that had preceded that
session, as well as the uncomfortable antagonism that had been
maintained between the English and French speaking races. Thus it
chanced that hope became heavy laden and looked inquiringly into the
future; for it seemed as if the new vessel was stranded as soon as she
was launched. Sir Charles Bagot, Lord Sydenham's immediate successor,
had no sooner examined the difficulties which he had inherited, than he
found himself obliged seriously to qualify, if not absolutely to
reverse, Lord Sydenham's policy, and to assume with Mr. Baldwin, not
only that the Canada legislature was a parliament, but that, being a
parliament, it should enjoy parliamentary government. Perhaps in his
generosity of thought Sir Charles Bagot was incautious, and went further
than he had authority to go, and possibly conceded more than he had a
right to grant. Practically he acted on a settlement that lacked
signatures and seals, that was inconsistent with the instructions which
his predecessor had received, and presumably with the brief which he
had especially been retained to hold. Without, as we venture to think,
any sufficient warrant, Sir Charles Bagot anticipated by twenty-five
years the action of the Parliament of the United Kingdom when all doubts
were removed, for, by giving effect to Mr. Baldwin's resolutions, he
partially clothed in 1842 the legislature of the re-united provinces
with the prerogatives and powers that were only perfectly conferred in
1867, when the "Parliament of Canada" was established under the
authority of the British North America Act.

His Excellency's proceedings occasioned much criticism in Canada, but
there is reason to think that the authorities at Downing street were
even more disturbed by what had taken place. The new way of governing
colonies must have suggested many difficulties, for it seemed to include
an inconvenient usurpation of the royal prerogative. Nor was the outlook
improved by the consideration that the new and large powers had been
appropriated and used without the authority of the Imperial Parliament.
People anxiously inquired whither such a policy would lead, and whom it
would strike. The Downing street atmosphere was unsettled and laden with
disturbances. Squalls from the provinces threatened the authorities at
home, while abasement in various shapes seemed to menace the public
servants abroad. But, to make matters worse, not only was the new way
precipitous and alarming, but he who began to travel on it had been
taken ill, and was in danger. The crisis was serious, for not only was
the pilot disabled, but the owners were unacquainted with the chart by
which he had been steering. However, they appeared to think that two
duties were at once to be discharged. One was to recover the old method
of colonial management, and the other was to send out a successor to Sir
Charles Bagot who would prove equal to the duty of making the recovery.
They lost no time in accomplishing the latter, but how the former was
attempted we shall see presently.

Though a liberal and something more in his relation to English politics,
Lord Metcalfe had the reputation of being a skilful administrator, which
all liberals are not, and a blameless representative of personal
government, which few persons, whether liberals or tories, have enough
ballast and calmness successfully to be. He was, there is reason to
believe, among other reasons, chosen to repair the mistake that Sir
Charles Bagot had made, or was supposed to have made, and if such were
the fact, perhaps no fitter instrument could have been found to
accomplish the work, assuming, of course, that such work was worthy of
accomplishment, and was within the reach of administrative capability.
Lord Metcalfe had a large heart, a strong will and an open hand. He was
high minded, clear headed and benevolent. His cheques appeared to be
made upon an inexhaustible exchequer, for apparently he was unable to
overdraw his account. Whatever the object, the contribution was
gracefully offered as if the donor thought that charity should always be
censed with sweetness and wrapped in smiles. It might, we think, be
truly said of him not only that he never turned his back on any poor
man, but that he never closed his purse to any worthy object. His
Lordship, no doubt, had been accustomed to rule, but it had been his
practice to do so in a fatherly way, for, bachelor though he was, he
appeared to think no form of government was better than a fatherly one.
Nor can there be any doubt that such opinion is well founded, provided
always that the theory is illustrated by such examples as were supplied
in Lord Metcalfe's person and manner of life. Unfortunately these
qualities are not usually found in alliance, for there are people, and
unfortunately their name is legion, who are familiar enough with the
despotism that never heard of, much less experienced, the paternity.

But, to return to our subject, it may well be doubted whether Mr.
Baldwin's resolutions were actually present to Sir Charles Bagot's
thoughts at the time he gave them practical effect. It was His
Excellency's duty to carry on the Queen's government, and he desired to
do so by and with the assistance of all the Queen's subjects. The
Canadians of French origin had till then retired within their own lines,
and consequently had stood aloof. They had reason for doing so, for,
having been slighted and treated as unworthy alike of confidence or
favour, they felt aggrieved and were resentful. It was, therefore,
necessary that the irritation thus occasioned should be removed, and the
removal could only be affected by fairness and conciliation, accompanied
with personal intercourse and mutual explanation. In his effort to
accomplish what was obviously just Sir Charles Bagot exactly carried
into practice Mr. Baldwin's principle of "responsible government." It is
true His Excellency said nothing about the legislature being a
parliament, or the form of government being parliamentary, but, when he
chose as his chief advisers "men possessed of the confidence of the
representatives of the people," he sought to graft, so to speak, and for
the first time on a lower legislature, attributes and powers that were
pre-eminently parliamentary.

But the introduction of this new system was at first attended with
consequences so practically inconvenient and apparently unjust that the
home authorities were taken aback, and suddenly driven to consult old
books, to examine old papers, in order that they might recover the old
way of doing colonial work. As a result of such research it is probable
that Lord Metcalfe, with other duties, was charged with the work of
restoring, if possible, the earlier and what was then supposed to be the
fairer and less harassing method of rule. In performing what he had
undertaken to accomplish, he, like his predecessor, Lord Sydenham,
played with the phrase "responsible government," and no doubt found
comfort in shewing in what way and to what extent the principle was
inapplicable to a subordinate legislature. The shadowy view of the
subject which His Excellency endeavoured to present must have made it
impossible for Mr. Baldwin to recognize his own more perfect picture.
The resemblance was lost in the contrast, for Lord Metcalfe's benevolent
softly-clad republican was wholly unlike Mr. Baldwin's sturdy half-naked
democrat. In point of fact, between the resolutions of the Legislative
Assembly and Lord Metcalfe's interpretation of them, there flowed a sea
of separation which no sophistry could fathom and no art could bridge.
The weight of responsibility had not only been weakened but it had been
placed elsewhere than on those upon whom it was intended it should rest.
Nevertheless the people of Upper Canada were not generally dissatisfied,
for mere abstract questions of constitutional government were at that
period but little studied and less cared for.

In candour it must also be admitted that there were in those days a
large number of persons who much preferred Lord Metcalfe's to Mr.
Baldwin's theory of colonial rule, for there was an element of
fatherhood in it which touched the hearts of a good many people, even
when it eluded their comprehension. The party of indifference is a
tolerably large one in all communities, and it is one, moreover, that is
more apt to receive than to make impressions. Personal considerations
and individual likings influence such persons much more than subtle
principles of law, or nice dissertations on usage and custom. With all
such persons Lord Metcalfe's character had more weight than his
opinions; admiration of the former acted like a charm. It could scarcely
have been otherwise, for, under the glamour of his goodness, men refused
to see a fault and hence they ceased to criticize and declined to argue.
It occasioned, therefore, no great surprise when the elections that
followed the resignation of the Baldwin-Lafontaine administration were
over that the victory lay with the Governor General. Unfortunately the
issue became a personal one, for His Excellency's supporters in many
instances were known as the Governor's candidates. Thus was it that
parliamentary government received a check, and the blossoming hopes of
its friends were for several years blighted. The triumph, no doubt, was
a calamity, for it resulted in disappointment to the Governor, and
misfortune to the country. It placed the former in an attitude, in which
no Governor should be found, of personal hostility to one of the two
great parties into which English-speaking communities are usually
divided, and it encouraged people to talk of the "supporters" and
"opponents" of His Excellency. The latter, in like manner, suffered
loss. For at a very critical time, when political education was in its
infancy and the amenities of party warfare had only began to be
cultivated, the electorate was passionately disturbed by unfair and
disquieting cries which obscured or withdrew attention from the
question at issue and encouraged people to resort to acts of violence;
and thus to settle by force questions that might perhaps have been
easily quieted by reason.

But, if a restless policy obtained in Canada, a somewhat uncertain one
ruled at Downing street. We have noticed Lord John Russell's
instructions to Lord Sydenham on the subject of responsible government,
and we may fairly conjecture that those of his successor, Lord Stanley,
were not less direct and emphatic. Indeed we may do so without much risk
of falling into error, for the compliments which Lord Metcalfe received
from the Colonial Secretary on his retirement from the service would
have been pure irony had they not meant that, in the opinion of the
Government, he had faithfully carried out his instructions, and had
scrupulously discharged his duty. Letters and despatches cannot always
be printed with advantage. Lord Metcalfe's biographer has not, we think,
in this respect shown discretion in his memoir of that nobleman, for
many of the letters were evidently confidential and ought not to have
been printed. Perhaps for the same reason it might be inexpedient to
make public the despatches that were written by the "fiery Tybalt," the
"Rupert of debate," as the late Earl of Derby, when a member of the
House of Commons, was sometimes called. As Colonial Secretary that
impetuous statesman had in all probability to send instructions to Sir
Charles Bagot and also to Lord Metcalfe on very delicate subjects; what
those instructions were we know not, but they could scarcely have been
expressed in the same words. The policy of Sir Charles Bagot had no
doubt occasioned disquiet, and he was probably warned and recommended to
observe caution. The policy of Lord Metcalfe, though not in harmony with
the newly adopted views on colonial administration, was of a character
which had been approved by experience and by Downing street traditions,
and therefore, as we venture to think, the words of recognition were
pointed with encouragement, and more, and made emphatic with honours,
for they were supplemented with a coronet. A review of those passages of
our history by such a critic as the late Earl of Derby would no doubt be
pleasant reading to all, especially to those who can remember not only
the political drama, but the social characteristics of the period. The
tangle of public and private life was frequently amusing and sometimes
instructive, for the wear and fret which interrupted the former, though
inconsistent with, was accompanied by the mirth and fun that brightened
the latter. If men in these days fought more and reflected less, they,
at all events, were more mirthful than their successors, and had the
knack of making pleasantry contagious. But other qualities than social
ones were needed. The state of parties in those days of irritation made
the work of government always difficult, and occasionally impossible,
while the suggested modes of escape from sudden entanglements showed
how far people had drifted from safe ideas of administration. The
Draper-Caron-Lafontaine correspondence is still an amusing piece of
reading. The subtle art with which Mr. Draper, like the spider in the
fable, sought to tempt Mr. Caron into his parlour was sufficiently
clever, but it failed of its purpose. Whether it produced any effect on
Mr. Caron's mind is uncertain, but it did not beguile Mr. Lafontaine and
his friends to break their ranks or weaken their power by dividing it.
On the last-named gentleman Mr. Draper's coaxing ways were alike
importunate and vain, for they neither impressed the imagination nor
influenced the conduct of those whom they were designed to reach. Mr.
Lafontaine, moreover, had stated reasons for standing aloof, as he had
mature opinions not only on what the government should be, but also on
the position which his countrymen of French origin should fill in the
government. For the purposes of administration the re-united province
was according to his plan to be again separated, as it was his desire to
rule by a double ministry in the same cabinet, and a double majority in
the same legislature. Mr. Baldwin's idea, on the contrary, was
administrative unity, irrespective of sectional majorities; and his
there can be no doubt was the more convenient and practical view.
Representatives of localities we may be quite sure will always look
after their sectional interests, and hence no obligations to do so need
be exacted. Nevertheless their general conduct and procedure are
expected to be controlled by influences held in subordination to their
higher duties as representatives of the whole people. For they are
trustees for the commonwealth, and not delegates of sections or
caretakers of localities.

But just as those gentlemen had reached a serious point in their
literary skirmishing, and it was prolonged for about ten months, Lord
Metcalfe's illness obliged him to resign and to go home. His
Excellency's departure brought the Draper-Caron-Lafontaine
correspondence to a sudden and uncomfortable close, for it not only
ended in reproaches and recrimination, but it left the political issues
of the country in a state of more hopeless antagonism than ever.
Government became more and more difficult, and in this condition it was
found when Lord Elgin was welcomed as Governor-General on the 30th
January, 1847. His Excellency's arrival and the succession of Earl Grey
to the office of Secretary of State for the Colonies represent an
important epoch in the history of the British Colonies, and they suggest
some reflections that are pertinent to the study and review in which we
are engaged.

As in the matter of parliamentary privileges the British Government
seems to have been silent, or, if it had spoken at all, the tones were
so muffled as to escape the ears of those whom they chiefly interested,
so also in the matter of responsible or constitutional government,
Colonial secretaries for the most part had only quoted the phrase to
scout the principle it represented, while the two Houses of the Imperial
Parliament had spoken with one voice to warn all whom it might concern,
to have nothing whatever to do with it. But the teachings of seven
years, though they wrought no change in the action of the Parliament,
were not without effect on the opinion of the people of the United
Kingdom. We know in what words Lord John Russell instructed Lord
Sydenham in 1839, and, in the absence of exact information, we may be
tolerably sure that Lord Stanley's directions to Sir Charles Bagot, as
well as to Lord Metcalfe, were not less exact and emphatic, for the
whigs and tories of those days generally held common sentiments on the
way in which the government of the colonies should be administered.

It was, however, about the year 1839, and partly in consequence of the
break down of the system of colonial rule in the two Canadas, that the
teachings of the new school of colonial reformers began to influence
public opinion. Men were constrained to bestow more attention on such
subjects than they had done theretofore. Earl Grey was among the early
converts to the theory of constitutional government, and Lord Elgin was
perhaps the earliest Governor who fairly and frankly put the theory into
practice. In 1846, Earl Grey, apparently regardless of the unanimous
resolves of the Imperial Parliament, and of the instructions of his
immediate predecessors in office, conceded, under another name, all
that Mr. Baldwin had asked for, or had hoped to obtain. The instrument
in which the conveyance is to be looked for is sufficiently imperfect,
and appears to have no legal value, for it rests, so far as Canada is
concerned, on the resolutions of one estate of the Legislature, and, so
far as the mother country is concerned, on a conversation between Lord
Grey and Lord Elgin. Still the resolutions and the conversation became
vivified and hardened by the use to which they were put, and perhaps in
these results have been found as real, and in many respects more
operative, than some other measures that have received all the force
that law can give them. Whatever the advantages may have been, and few
will deny their importance, they seem to have reached us more by chance
than by law, for they have been appropriated by the Canadian, rather
than granted by the Imperial, legislature. Until the passing of the
British North America Act, 1867, a ready answer could scarcely have been
given to the question: "by what authority do ye these things, and who
gave you this authority?" So far as the British Government is concerned,
the authority rests on the fluctuating opinions, nominally, of
successive administrations, but practically of successive Colonial
Secretaries, who, as we have seen, in the short space of seven years,
promulgated three sets of conflicting, and in two instances of
contradictory, instructions. So, also, it was within the competency of a
fourth or a fifth Colonial Secretary to make further changes in the
mode of administration, though it was beyond their power to make any
alteration in the law. Of the latter, the Parliament of the United
Kingdom, as we venture to think, was alike the custodian and the
interpreter.

No doubt the first governors of Upper and Lower Canada acted under
instructions, but there is reason to think that such instructions were
general, rather than exact, in their terms. The constitutional act was
to be administered, but the way in which it was to be done, as well as
the ceremonials that were to accompany it, were matters on which, so far
as we have been able to discover, no orders were issued, and on which we
may therefore conclude that a liberal exercise of judgment was
permissible. Having to use a large discretion, Governor Simcoe, no
doubt, desired to use it consistently. To perfect the constitutional
model he had set up in his mind it was necessary to assume, and it was
not difficult to do so, that legislatures were parliaments, and, having
gone thus far in constructive analogy, it was quite natural to go a step
farther, and in like manner to assume that, being parliaments, they were
also courts, and, being courts, they ought to receive the consideration
that is due to the highest tribunals, especially when such courts are
periodically used as palaces wherein the representative of majesty
officially presides. Thus it came about that the provincial
legislatures, before and since the confederation of the provinces,
apparently assumed that their Upper House of Assembly or their only
House of Assembly was and is a court, to be furnished with a throne, and
to be manned with apparators of different ranks, including dignitaries
of such stateliness as ushers, and sergeants with emblems suggestive of
royal grace, such as black rods and gilt maces, swords, lace, buckles,
embroidery and collars of gold. Imitation is probably the sincerest form
of flattery; and it was due to the intensity of their desire to preserve
and perpetuate in the new provinces the customs of the mother country
that the founders of our usages took what pains they could to preserve
in miniature as fair a copy as possible of those official ceremonials
which some of them had seen, and which all of them wished to cherish.
That provincial legislatures were not intended to be parliaments, but
only common councils of an earlier pattern, was a view that seems not to
have been taken by any one. On the contrary, it was generally believed
in the past, and it is by no means wholly discredited at the present
time, notwithstanding the light which Imperial laws have shed on the
subject, that the terms are convertible, and that the powers, privileges
and immunities that are distinctly conferred on parliaments may be
seized and appropriated, if they cannot otherwise be obtained, by
legislatures. The old, and so far as Canada is concerned, the
hereditary, habit of thought, survives Imperial corrections, for there
are many persons who, with ludicrous fidelity, and almost fanatic
faith, still cling to what must be regarded as an erroneous, as well as
an exploded rendering of words. No doubt the crown, if it imposed no
restraint on its representatives in matters ceremonial, did much towards
encouraging them to assume the functions and imitate the style of their
sovereign. To this cause it may probably be attributed that the
furnishings of the upper house of their Assembly included a throne; and
although the governors were powerless to bestow orders or confer
distinctions, yet they thought themselves qualified to appoint officers
whose titles in the mother country were and are inseparably associated
with the blue ribband of English knighthood and the highest court of the
United Kingdom, viz., the Order of the Garter and the High Court of
Parliament. The conceit was, no doubt, very popular, and few suspected
that it was also misleading. Indeed had not the delusion been disturbed
and shattered by the Parliament of the United Kingdom, the simple faith
of generations that have passed away would have remained unchallenged
and unbroken. Nevertheless, had patience in the form of doubt stood on
the threshold of our political existence, had a cold-blooded
metaphysician and a severe economist, instead of a warm-hearted
enthusiast and a natural poet, been appointed the first governor of
Upper Canada, then the question which has given rise to this review
would have been examined, and no doubt with disappointing results. A
pause certainly would have followed, and, perhaps, an answer might have
been given that, among other direct and indirect consequences, would
have shut out from our view the military pageant, the vice-regal
presence, and the imposing ceremony of opening our provincial
legislatures, together with the picturesque accessories that wait on
that event. Had the question been patiently thought out when the
Legislature of Upper Canada began its modest career at Newark, then we
fear that three generations of Canadians would never have heard the
dialogue between the two speakers at the beginning of a Parliament, and
would never have seen the ceremonial at the opening of each session,
where successive Black Rods have indulged in picturesque pantomimes in
the upper house, and taken a bold attitude of command in the lower one;
the double duty having been gaily assumed on the strength of their
remote connection with a grand chapter of knighthood, and their direct
contact with a High Court of Parliament. The day of humiliation and
disappointment, happily for them, was far off, and they passed away
without being aware of what we must regard as the fact that, as there
was neither a grand chapter of knighthood nor a high Court of Parliament
in Canada, they represented neither the one nor the other, and therefore
their office only commenced in its true dignity when the Parliament of
Canada was created under the authority of the British North America Act,
1867.

However, these superfluous ceremonies did not exactly express labour
lost, but only labour exegetical if not misapplied, for there are
analogies between things that are not the same. The legislatures of the
Provinces thus became schools of instruction, and black rods and gold
maces were assiduously doing their parts as educators of the state. Men
learned in what way they ought to acquit themselves in matters of
secular ritual, and so when the time arrived for them to possess in its
fulness what they had theretofore seen only dimly and in shadow, they
were quite prepared to recognize the distinctions that had been drawn
for them, and to appreciate the exchange of a legislature for a
parliament. And such knowledge was being acquired under the most
favourable conditions. The public men of the period believed that they
were required to do as they had done, for they thought substantial
verities were expressed, as in truth they are, in ceremonies and
formulas. The Parliament of the United Kingdom had given them
constitutions, and had left to them the duty of working them out. It had
not gone out of its way to instruct or to control them. It did not
humble them with an imposition of superior knowledge, or make their
darkness visible by shedding over it a flood of legal light. That ordeal
was reserved for 1867, when they were to learn by a process of very
emphatic and direct teaching, not only that legislatures were not
parliaments, but that, like corporations of less pretence, their
authorities and powers were limited by the terms of the statute under
which they were created.

We are quite aware of the fact that in times past, and before 1867, very
interesting questions on the jurisdiction of local legislatures were
from time to time submitted to the courts. Without saying a word on the
judgments rendered in those cases, for it would be unbecoming in us to
do so, we may perhaps be excused for remarking that the judges had not
then the advantage of seeing the interpretation which the Parliament of
the United Kingdom, by the British North America Act, 1867, has
impliedly, and by retrospect, put on the constitutional acts of 1791 and
1840. Had the fact been otherwise it is probable that some doubts would
have been removed, possibly some opinions would have been qualified and
others might have been changed. Judges might peradventure have said
that, as the legislatures of Canada are not parliaments, we are not
required to express any opinion on the subject, much less to transfer to
the former privileges and powers that belong only to the latter.
Parliament derives its authority from ancient custom or established
usage, and not only from law. Legislatures, on the other hand, rest on a
written basis which is plainly set forth in the Imperial statutes. Some
such difficulty must, we think, have been present to the mind of the
late Chief Justice Sir John B. Robinson, one of whose earlier judgments
bears directly on the question under review. It was delivered about half
a century ago, and will be found in "Draper's King's Bench Reports of
Upper Canada." The action was one of trespass and false imprisonment
brought by the late Sir Allan N. MacNab against Messieurs Bidwell and
Baldwin, members of the House of Assembly, the former being the Speaker.

The defence was that the House of Assembly had a constitutional right to
call persons before it for the purpose of obtaining information; and, if
the house adjudged the conduct of such persons in answering or in
refusing to answer before a select committee to be a contempt, the house
has the right to imprison them for such contempt.

Sir Allan N. MacNab having committed a contempt within the meaning of
the above words was arrested on the Speaker's warrant, and imprisoned
during the pleasure of the house from the 16th of February to the 3rd
March. Hence the action.

In giving judgment the Chief Justice took exception to the
exemplification of the case and administered a reproof to those who had
drawn it up because they had used the word "Parliament" instead of
"Legislature," as it was "technically wrong for any local legislature to
assume other designations than those assigned to it by the British
statutes." It would have been more proper, the Chief Justice added, "to
have preserved the precise names assigned to our legislature and its
several branches in our written constitution." Having pointed out the
"inaccuracy which had better have been avoided," his lordship delivered
an elaborate judgment, which, however, was entirely adverse to the
pretentions of the plaintiff. But it is worthy of note that, while the
Chief Justice deprecated the interchange of terms as "an inaccuracy
which had better have been avoided," his judgment, nevertheless, seemed
to rest on the idea that the names were interchangeable, for it pointed
directly to the assumed analogy between the powers and privileges of the
local legislature and those of the Imperial Parliament, adding, by way
of zest, to his argument "that the absence of such powers would reduce
the legislature to an utterly helpless and contemptible condition."
Judge Sherwood, following and concurring with the Chief Justice, added
"that the authority to make laws included the duty of making inquiry,
and this duty implies a right to compel the persons examined to answer
all lawful questions." The Judge did not pause to inquire whether a
House of Assembly was a court, and, if not, whence came the power to
compel. The difficulty, though in another aspect, did not escape the
Chief Justice, who observed, "that the authority of the House of Commons
to commit has, when questioned, been sustained by the courts upon the
grounds of precedent and usage only." This view seems to have
represented a difficulty, and, at the same time, to have suggested a way
of escaping from it, for the Chief Justice continued: "it is material to
consider that this usage must have had a beginning, and that, in the
first instance, we must suppose the power to have been assumed and
acquiesced in from a conviction that, upon principle, it might and ought
to be exercised." Of course usage, or the necessity for it, precedes
law, "as nothing can come into an Act of Parliament but it must be first
affirmed or propounded by somebody." But the difficulty thus admitted is
suggestive. Whether the mode of escape thus indicated is the only one,
is a question to which a very thoughtful answer should be given.

The analogies which the Chief Justice described as existing between the
powers and duties of the legislatures and those of the Imperial
Parliament were then supposed to be absolutely correct. No one at that
time imagined they rested on different, if not opposite, foundations. Of
course they were regarded as applicable by Governor Simcoe, for he was
the first to institute such analogies. They were naturally accepted and
easily transmitted, and would, in all probability, be now received as
true and well established had they not been virtually controverted, if
not absolutely destroyed, by the British North America Act 1867.

Nor should it be overlooked that, while the two Canadian provinces
appear to have arrived at a thorough agreement on the way in which
certain things ought to be done and on the words in which such doings
should be expressed, the other provinces in British North America seem
to have adopted a form which apparently was derived from the older
province of Nova Scotia though we do not know how it came to be
introduced there. For example, in the two Canadas all the proceedings
of the Legislature ran in the name of the Sovereign. Every law was
"enacted by the King's (or Queen's) Most Excellent Majesty by and with
the advice and consent of the Legislative Council and Assembly of the
Province." In like manner, when laws were assented to, the assent was
given in the name of the Sovereign, thus "in His (or Her) Majesty's name
His Excellency the Governor General, or Lieutenant-Governor assents to
this Bill." In Nova Scotia and New Brunswick the enacting clause of the
laws ran thus: "Be it enacted by the Lieutenant-Governor, Legislative
Council and Assembly as follows." In like manner the laws received the
personal assent of the Lieutenant-Governors in the words "I assent to
this bill." But when bills were reserved they were so reserved for the
"signification of Her Majesty's pleasure." It may also be remarked that
Governor Simcoe in the first session of the Upper Canada Legislature,
gave his personal assent to bills without using the name, or authority,
of His Majesty. In the next session the form was changed to "His
Majesty's name." The Prince Edward Island form ought not to be
overlooked, for it includes a distinction that has been somewhat lost
sight of. Before the confederation of the provinces, when the island was
an immediate dependency of the Crown, the assent to bills was given in
the Queen's name. Since the island has become a province of the
Dominion, and consequently one of the legislative planets, that revolve
round the central Parliament of Canada, the form has, we think, been
properly adapted to the new system, for the Lieutenant Governor
personally assents to Bills. In the province of British Columbia,
curiously enough, the matter is reversed, and the change is all the
other way. When that province was directly connected with Great Britain
the laws were enacted by the Governor by and with the advice and consent
of the Legislative Council, while since Confederation "Her Majesty" is
substituted for the Governor. These varieties of formula shew that the
new page in Canadian history has been differently understood by
different readers, and, consequently, a large crop of doubts,
accompanied with some perplexities and many disappointments, has
steadily grown up. Authority has been unduly warped and misapplied, for
the legislatures have steadily sought to appropriate privileges and
powers that were conferred on parliament alone. It, therefore, became a
duty to restrain vaulting ambition and to rebuke local assumption. It
was necessary to refer provincial statesmen to the indentures under
which they had taken service, and to tell them politely that the
difference between a legislature and a parliament is a very real and a
very wide one, and that the former was never meant to be the counterpart
of the latter. The idea of the two words meaning the same thing
evidently was as absent from the mind, as the intention was from the act
of the mother country.

Since the earlier part of this review was written some interesting
questions have arisen that will probably lead to important statements
that may remove doubts on the relations that should subsist between the
Parliament of Canada and the legislatures of the respective provinces.
Without hazarding a conjecture as to the nature of those statements we
may, at all events, assume that one disputed point will be set quietly
at rest. Dr. Baldwin's contention in 1812 on the subject of privileges
will probably be reconsidered, and the local legislatures will be left
exactly in the situation in which they were intended to be placed by the
law makers, and were placed by the law. The fallacy that legislatures
cannot be distinguished from parliaments will disappear, for few will be
found of sufficient hardihood to assert that two organizations with
different titles and unequal powers may properly be described as
identical organizations with the advantage of having interchangeable
names.

The twelfth section of the British North America Act, 1877, reads as
follows:

    All Powers, Authorities, and Functions which, under any Act of the
    Parliament of Great Britain, or of the Parliament of the United Kingdom
    of Great Britain and Ireland, or of the Legislature of Upper Canada,
    Lower Canada, Canada, Nova Scotia, or New-Brunswick, are, at the Union,
    vested in or exerciseable by the respective Governors or Lieutenant
    Governors of those Provinces, with the advice, or with the advice and
    consent, of the respective Executive Councils thereof, or in conjunction
    with those Councils, or with any number of members thereof, or by those
    Governors or Lieutenant Governors individually, shall, as far as the
    same continue in existence and capable of being exercised after the
    Union, in relation to the Government of Canada, be vested in and
    exerciseable by the Governor General, with the advice, or with the
    advice and consent of, or in conjunction with the Queen's Privy Council
    for Canada, or any members thereof, or by the Governor General
    individually, as the case requires, subject, nevertheless, (except with
    respect to such as exist under Acts of the Parliament of Great Britain
    or of the Parliament of the United Kingdom of Great Britain and Ireland)
    to be abolished or altered by the Parliament of Canada."

It will be observed that the hinge on which all authority is made to
turn is law. It may be colonial law or it may be imperial law, but it
must be law. Usage, custom, resolutions, conversations, despatches,
instructions, have no place in the clause. Being absent, such conditions
or qualifications must, we apprehend, be regarded as excluded, and,
consequently, of little value when we search for the legal meanings of
plain words. If by their written constitutions the local legislatures
are shut out from the advantages which parliaments derive from custom
and usage, then the law alone must be their directory, for they are not
at liberty to go elsewhere for guidance. The conclusion, therefore,
seems to be that they may use any powers or privileges that are given to
them by law, but that they have no right to use what they take without
leave. No doubt such results as these, if they are well founded and
fairly arrived at, would carry with them some disappointing, as well as
some desirable consequences. Among the latter, and by no means the
least important, is the relative status of legislatures as compared with
parliaments, and by how many well drawn lines of distinction they are
separated one from the other.

The British North America Act 1867, under the head of the distribution
of legislative powers, sheds further light on the subject of this
inquiry. For example, certain special matters are assigned to the
absolute control of the Parliament of Canada, while other matters
equally special are assigned to the absolute control of the legislatures
of the provinces. There appears, however, to be a suggestive proviso in
respect to unenumerated subjects which is worthy of note, for it has
already given rise to differences of opinion as well as an interesting
correspondence between the local and federal governments. The United
States constitution provides that "the powers not delegated to the
United States by the constitution, nor prohibited by it to the states,
are reserved to the states respectively," while the constitution of
Canada seems to reverse this procedure, for it includes in the powers of
parliament "all matters not coming within the classes of subjects by
this act assigned exclusively to the legislatures of the provinces." In
the former case the separate states appear to receive the benefit of the
doubt, while in the latter the benefit adheres to the federal
government. Since public bodies, like private individuals, do not
generally desire to court a diminution of power, it is probable that
this, among other questions that may have seemed tolerably clear to the
authors of the British North America Act, will eventually be relegated
to some disinterested and impartial tribunal, either in Canada or in the
mother country. In the meanwhile, and until the practice is reversed by
authority, we may conclude that whatever powers were not expressly given
to the provinces will be looked upon as trusts to be administered for
the whole people by the Parliament of Canada.

It should also be borne in mind that the provincial legislatures which
were created by the Act of 1867 are not equal in power and authority to
the legislatures whose places they have taken. This must obviously be
the case, for the authority within their municipal limits, which the
former legislatures exercised, was in several important particulars
transferred to the Parliament of Canada. The reflection naturally
arises, if those legislatures were not parliaments in the halcyon days
of their existence, much less are their successors parliaments now, for
they lack several of the conditions which shed a pleasing, but delusive,
glamour over the earlier period. The governors of provinces, for
example, are no longer officers appointed directly by the Crown, but
only a part of the administrative staff of the Parliament of Canada. The
Governor General being the representative of the crown, absorbs in his
own person the delegated attributes of the crown, and intercepts, so to
speak, the direct current of prerogative. This function of prerogative
was given to him to administer, and to him alone, and we doubt if he
has the power to delegate it to another. In a despatch to the Governor
General of the 7th January, 1875, Lord Carnarvon said: "They, the
Lieutenant Governors of the Provinces of the Dominion, however important
locally their functions may be, are a part of the colonial
administrative staff, and are more immediately responsible to the
Governor General in Council. They do not hold commissions from the
crown, and neither in power nor privilege resemble those governors of
colonies to whom, after special consideration of their personal fitness,
the Queen, under the great seal and her own hand and signet, delegates
portions of her prerogatives and issues her own instructions."

If Lieutenant Governors are not officers of the Crown, we naturally
inquire in what degree they stand related to the representative of the
Crown. Are they not the Deputies, in their respective provinces, of the
Governor General of Canada? They receive their appointments, under the
advice of the Privy Council, from His Excellency, and they hold their
appointments, under certain conditions, during the pleasure of His
Excellency.

The difference which at first sight may appear sentimental becomes very
real as we examine it more closely, for it not only touches the
executive, but it disturbs the legislative authority. Not only does
there exist a great difference between the powers of a parliament on one
hand, and a legislature on the other, but the distinction is broader
and more strongly marked when we examine the component parts of those
bodies.

In a report of a Committee of the Honourable the Privy Council, approved
by His Excellency the Governor General in Council on the 1st of April,
1875, the committee advised that an act passed by the Legislature of
Ontario, intituled "An Act respecting Escheats and Forfeitures," should
be disallowed. The reasons for the advice include an elaborate argument
of the then Minister of Justice, Mr. Fournier, from which a few
suggestive extracts may be made. It is true that the argument did not
turn out to be conclusive, for it was, as we understand it, subsequently
set aside on the ground that it failed to embrace considerations that
existed before, and that were not invalidated by, the passage of the
British North America Act, 1867. Apart, however, from the issues of fact
and of law thus raised, on which it would be highly presumptuous for us
to offer any remark, we may take advantage of Mr. Fournier's
observations on the question that is more immediately under
consideration. Mr. Fournier, in speaking of the relative authority of
the parliament and of the legislatures, took occasion to observe that
under the British North America Act, 1867, the Parliament of Canada is
defined to consist of the Queen, the Senate and the House of Commons,
and the mode of legislation by parliament is defined to be that of the
Queen, by and with the advice of the Senate and House of Commons.

On the other hand, the legislature of each province has a different
definition. Take that of Ontario, for example. It is found to consist of
the Lieutenant Governor, and of one house styled "the Legislative
Assembly of Ontario." In continuation, Mr. Fournier says: "It is true
that the legislatures of the different provinces, in enacting laws, have
used the terms: 'Her Majesty, by and with the advice of and consent of
the Legislative Council and Assembly of the Province' (or, in respect of
Ontario, of the Legislative Assembly of Ontario alone), and it may have
been thought expedient to adopt that formula; yet little doubt can be
entertained that the same is incorrect, and that the enacting party
should be, under section 92, 'The Legislature' of the Province." "A
Lieutenant Governor" (not having been appointed by the Queen) "has no
power," Mr. Fournier says, "to assent to any laws of a legislature in
the Queen's name, inasmuch as the Queen herself has not that power, and
cannot therefore depute it."

"The only instance in which," to the knowledge of Mr. Fournier, "there
is an express delegation to a Lieutenant Governor of privileges of the
Crown is in the commission of the Governor General, the sixth section of
which is thus worded: 'And we do further authorize and empower you to
exercise, from time to time as you may judge necessary, all powers
lawfully belonging to us, in respect of assembling or proroguing the
Senate or the House of Commons of our said Dominion, and of dissolving
the said House of Commons, and we do hereby give the like authority to
the several Lieutenant Governors for the time being of the provinces of
our said Dominion with respect to the Legislative Councils or the
legislative or general assemblies of those provinces respectively."

On this passage we do not propose to dwell, for, as we have elsewhere
remarked, it seems by the different formulas that have been adopted, to
have been differently understood by the authorities in the different
provinces.

Mr. Fournier continues to observe that the foregoing allusions and
others that we have not extracted "are made as supporting the view
already expressed, that the Parliament of Canada, to which "the Queen is
an actual party by name and the actual enacting power, by and with the
advice and consent of the two Houses of Parliament, is the only
legislative power which can operate in matters not left to the
provincial legislatures; and that the Queen, not being in any way an
enacting party, or power of such a Legislature, Her Majesty's name is
improperly used in provincial legislation."

The Lieutenant Governor of a Province, next to the Governor General of
Canada, fills one of the most responsible situations in the Dominion. It
is more than imposing, and requires no doubtful bracing for its support
and no borrowed burnishing to make it shine. Plain and unadorned the two
words "Lieutenant Governor" convey no doubtful meaning, for they are
alike suggestive of simplicity and strength; moreover, they have a
sterling ring about them whose tone could not be improved by any amount
of borrowed plating. There are, however, graver reasons why this process
of embellishment should be avoided. Shams of all sorts are generally
distrusted, and are to be looked upon with suspicion, but shams in high
places are especially to be condemned, for they provoke imitation in low
ones, and excuse, if they do not give rise, to pretence and imposture.

But while governors have displayed a lack of subordination by consenting
to assume distinctive titles that belong only to the Governor General,
so also have the legislatures become insubordinate by attempting to
seize powers that belong only to the Parliament of Canada. The latter
have seemed to resent, so to speak, the state of political life in which
they were placed by the mother country. With the natural aspirations of
ordinary people they have striven to become more than they were intended
to be, and with concerted energy have endeavoured to lift themselves to
a higher plane in the political orbit. Reasoning from analogy, they may
have thought that as Lieutenant Governors had adopted, and apparently
had retained, the distinctive title of "Excellency" without any audible
expression of dissent having been heard, so also might provincial
legislatures appropriate the name of "Parliaments" without any fear of
either criticism or rebuke. There was, however, a difference in the two
transactions. Both were irregularities, and in different degrees were
breaches of courtesy, but neither lacked the support of arguments that
were wholly fallacious. The discourtesy in the case of Lieutenant
Governors was qualified by the creditable desire it displayed to connect
their office directly, rather than intermediately, with the supreme
authority, for they, no doubt, wished to be accounted representatives of
Her Majesty. The offence of the local legislatures was of the like
character, but it included consequences of more serious importance. If
not actually envious of the "Parliament of Canada," the legislatures did
what people sometimes do who are overcome with the spirit of
covetousness. They desired to possess themselves of the like privileges,
immunities and powers to those which had exclusively been granted to the
Parliament of Canada. Instead, however, of applying to the source whence
the Parliament of Canada received such exceptional advantages, they
sought, by the adoption of a unique expedient, to confer them on
themselves. By a vote of their own, which was formally hardened into an
act of their own, they determined, by and with the advice of the Queen's
Most Excellent Majesty, and irrespective of the Parliament of the United
Kingdom, to confer on themselves the like privileges which that
Parliament had exclusively bestowed on the "Senate and House of Commons
of Canada, and on the Members thereof."

For the sake of convenience we shall follow the course of the narrative
from whence our information is derived, rather than the chronological
arrangement which at first sight might appear more convenient. In a
despatch addressed to the Minister of Justice the Lieutenant Governor of
Manitoba, in the year 1874, complained that a bill intituled "an Act
defining the privileges and immunities of the Legislative Council and
Assembly of Manitoba," to which he had given his assent, had been
disallowed. The Lieutenant Governor naturally thought that act was
within the competency of the legislature of his government, because the
legislatures of Ontario, Quebec and British Columbia had passed acts of
a similar character, all of which had been left to their operation. This
conclusion was only true in part, for those acts were looked upon as so
important and unusual that the authorities at Ottawa, and notably the
Minister of Justice, adopted the wise and safe course of referring two
of them to the Colonial Secretary, in order that they might be submitted
to the Law Officers of the Crown for their opinion. In the course of
time the opinion sought for was received, and it was found to be
entirely adverse to the provincial legislatures and to the acts which
they had respectively passed. Those acts were _ultra vires_, and in
excess of the powers which the local legislatures had received.
Consequently, the Ontario and Quebec acts were disallowed, while the act
of the Legislature of British Columbia was repealed in the same session
in which it was introduced.

This episode in the history of provincial legislatures is alike
suggestive and instructing. The discrimination made by the British
America Act 1867 between "legislatures" and "parliaments" was not an
idle one, having only a verbal value. On the contrary it drew broad
distinctions and carried real meanings, whose importance can scarcely be
exaggerated. The Parliament of Canada had been made the recipient of
honours and trusts that had not only been withheld from the legislatures
of the Provinces, but which had not, till then, been conferred on any of
the colonies. The legislatures, no doubt, desired to become possessed of
the privileges and advantages which had been conferred on the Parliament
of Canada. And the question arose as to how they might be acquired. They
could not, as in the earlier days, be appropriated as a matter of
course, as if they were integral parts of Governor Simcoe's image and
transcript of the British constitution. The British North America Act of
1867 had placed such a proceeding beyond reach. What was to be done? As
authority could not be taken either under the sanction of custom, usage
or Imperial law might it not be acquired under the sanction and
protection of colonial statutes. The effort was made in four provinces.
The acts of two legislatures of the larger of those provinces were
submitted to the law officers of the Crown, with what result we have
already seen. Their rendering reads like a verdict, and it seems to echo
Dr. Baldwin's contention, expressed more than sixty years earlier.

There is another parallel, for even in this question of privilege
history repeats itself. In his judgment in the case of MacNab _vs._
Bidwell and Baldwin, the late Chief Justice, Sir John Robinson, took
occasion to rebuke the parties to the suit for inexactness in the use of
terms, and for styling the Upper Canada legislature a parliament and the
legislative assembly a house of commons, so in like manner, but
forty-six years later, exception is taken by the Minister of Justice,
Mr. Blake, for the like inexactness to that for which the old
legislature of Upper Canada had been reproved. When reporting on an act
intituled "An Act respecting the election of members of the Legislative
Assembly of the Province of Quebec," Mr. Blake took exception to the
phrases "parliamentary electors" and "holding of parliamentary
elections" and calls the attention of the Lieutenant Governor to such
irregularities. The like objections were also taken to a similar act
passed by the Legislature of Manitoba. Inexactness leads to confusion.
Had the early governments of the different provinces been careful in
their official formulas to use for descriptive purposes the language
only of the acts under which their legislatures were constituted, there
would have been no justification for Dr. Baldwin's contention in 1812,
and probably no excuse in 1879 for this

    Study and Review.


=Transcriber's Notes:=
Page 52, "the actunder which" changed to "the act under which"
Page 65, "Assembly in in their" changed to "Assembly in their"
Page 72, "indentical orders" changed to "identical orders"
Page 120, "species hat are" changed to "species that are"
Page 140, "accomplished critits" changed to "accomplished critics"
Page 144, "Legislative Assemby only" changed to "Legislative Assembly only"
Page 148, "the Governmont devolved" changed to "the Government devolved"
Page 162, "beeomes exceedingly" changed to "becomes exceedingly"
Page 164, "is sweeetness" changed to "is sweetness"
Page 164, "can infliet" changed to "can inflict"
Page 164, "sueh a counsel" changed to "such a counsel"
Page 166, "the happeness" changed to "the happiness"
Page 169, "because it it was the" changed to "because it was the"
Page 177, "it been placed" changed to "it had been placed"




[End of _Are Legislatures Parliaments?_ by Fennings Taylor]
