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William Lyon MacKenzie
Chapter III - Upper Canada under the Constitutional Act


IN the year 1824, when Mackenzie, as a journalist, commenced his public career, the province of Upper Canada was being governed under the Constitutional Act of 1791. The Quebec Act of 1774, which it supplanted, was found inadequate for the purposes it was intended to serve. This was owing to difficulties inherent in the situation, but which tended, nevertheless, to the extension of popular government. The Act made no provision for an elective legislative body; the only body for legislative purposes was a council appointed by the Crown, composed principally of English residents, notwithstanding the great numerical superiority of the French population. The repeal of the Act was due to the uncertainty and confusion arising out of the French legal system, which had been made applicable to the English as well as the French sections of the country, the agitation in the legislative council against that system and in favour of the introduction of English law, the backward state of legislation in the province, and the agitation and demand for an elective assembly which followed the immigration into Canada of the United Empire Loyalists. These immigrants, who had left the thirteen colonies when the latter declared themselves independent of the mother country, had been accustomed to representative institutions in the colonies which they abandoned, and brought with them a natural desire for similar institutions in this country. In about a year after they colonized the continental part of Nova Scotia, which was in 1784, the home government created the present province of New Brunswick, and gave it a legislative assembly. This stimulated a demand for the same kind of a body in what was afterwards known as Upper Canada, and also amongst the English residents of Lower Canada. These latter hoped thereby to secure an elective assembly for the whole province of Quebec, in which, with the help of the representatives chosen by the new English incomers, they would be able to counterbalance the French vote in Lower Canada. Even the French themselves joined in the demand for such an assembly, influenced partly, no doubt, by the progressive ideas of the time, but also by the hope of finding in a French assembly a security for their language, laws and institutions, more especially their ecclesiastical system, which they could not find in a legislative council controlled by men of a different race and creed.

The Constitutional Act had several distinct objects in view. One was to confer legislative authority in Lower Canada on a French assembly, and so overcome the difficulties in regard to the old ecclesiastical system, and especially the old civil law, to which the legislative council had been inimical. A second object was to give the like legislative power to an English assembly in Upper Canada. The third object was to enable the two races to work out their own political future apart from each other, under a constitution resembling that of Great Britain, as far as the circumstances of the country would admit.

The debate on the bill in the House of Commons was conducted in the main by three of the most famous men in parliamentary history, Pitt, the younger, Burke and Fox. Pitt said that the question was, whether parliament should agree to Establish two legislatures. The principle was to give a legislature to Quebec in accord, as nearly as possible, with the British constitution. The division of the province was liable to some objections, but to fewer than any other measure. He regarded the division as essential, as he could not otherwise reconcile the clashing interests known to exist. "I hope," he said, "this separation will put an end to the competition between the old French inhabitants and the new settlers from Britain and the British colonies." Burke approved of the division. "For us to attempt," he said, "to amalgamate two populations composed of races of men diverse in language, laws and habitudes, is a complete absurdity. Let the proposed constitution be founded on man's nature, the only solid basis for an enduring government." He thought the English ought to enjoy the English constitution, the French, the old Canadian constitution. Fox was on the whole rather against the division of the province. But, in discussing the policy of the Act, he laid down a principle which was destined, after half a century, under the Union Act of 1840,1 to become the rule of colonial administration. "I am convinced," said he, "that the only means of retaining distant colonies with advantage, is to enable them to govern themselves." On the question of the legislative council he favoured an elective body, whose members should possess qualifications higher than those of the House of Assembly, and to be chosen by electors of higher standing than those having votes for the Lower House. It was during this debate on the Constitutional Act that the memorable quarrel took place between Burke and "Fox which severed their long private friendship.

The Constitutional Act, as an instrument of government, was far in advance of the Quebec Act, and was a remarkable step in the political development of the country. Its effect upon the French was beneficial in one important particular: it educated them to a considerable extent in self-government, and taught them to appreciate its advantages. But at the same time it continued the work, which the Quebec Act had practically commenced, of strengthening them as a distinct nationality desirous of perpetuating their own favoured institutions. This, it has been said, was an influence which did not make for a homogeneous nation, and, by segregating the French from the other provinces, was not in the interest of the French-Canadians themselves. The British statesmen, however, who were responsible for the Constitutional Act had no wish or desire to destroy the national life and character of the people of French Canada. The Act as a whole was the handiwork of Pitt. He remembered that, in less than ten years from the time that the French power was broken in America, the thirteen colonies, having no longer the dread of French aggression, declared their independence. In his speech in the House of Commons he said that the real object was to create two colonies separate from and jealous of each other, so as to guard against a repetition of the rupture—"the great Anglo-Saxon schism"—which had separated the thirteen colonies from the mother country. It was a shortsighted policy, but is not to be wondered at. English statesmen could hardly be expected at that time to foresee the advent of colonial self-government half a century afterwards, and its successful reign in the subsequent years, much less the germ of the federal system which was undesignedly introduced by giving each province the control of its own affairs.

Under the Constitutional Act, the former province of Quebec, or what remained of it after the revolutionary war, was divided into the two provinces of Upper and Lower Canada, the division taking effect on December 26th, 1791, by an order of the king in council. The division line was practically the river Ottawa, which separated roughly the French and English settlements, and left most of the seigniories, relics of the Canadian feudal system created under the French regime, in Lower Canada. A legislative council and a legislative assembly were constituted Within each province, by whose advice and consent the sovereign, represented by the governor, or (in the case of Upper Canada, the younger province,) the lieutenant-governor, and appointed by him, should have power "to make laws for the peace, welfare and good government" of the separate provinces. In Upper Canada the legislative council was to consist of " a sufficient number of discreet and proper persons, being not fewer than seven," who were to be summoned thereto, under the great seal of the province, by the governor or lieutenant-governor, or person administering the government, every such person to hold his seat for life, subject to be vacated in certain cases defined by the statute. The Speaker of the council was to be appointed and removed by the lieutenant-governor. His Majesty was also empowered by the Act to confer upon any subject of the Crown by letters-patent, under the great seal of either province, "any hereditary title of honour, rank, or dignity of such province," and " to annex thereto, by the said letters-patent, an hereditary right of being summoned to the legislative council of such province." This provision for creating a political aristocracy emanated from Pitt, and was favoured by Burke but opposed by Fox, who, as we have seen, declared his preference for an elective instead of a nominative council.

The legislative assembly was to consist of not less than sixteen members, who were to be chosen by electoral districts of which the limits and the number of representatives of each district were fixed by the lieutenant-governor. This representation was increased twice in subsequent years, until, under the regime of Sir Peregrine Maitland, it vas made self-regulating by an Act passed for that purpose. In 1828, when Mackenzie was first elected, the number of members was forty-eight.

One other element of the provincial constitution was the executive council, who are referred to in four sections of the statute1 as being "appointed by His Majesty, his heirs or successors, within such province, for the affairs thereof"—which meant, of course, by the lieutenant-governor.

There was thus in Upper Canada, under this instrument of government, a reproduction of the British civil polity—a lieutenant-governor, who represented the Crown, a legislative council, nominated by the Crown, corresponding to the House of Lords, an assembly, elected by the people, corresponding to the House of Commons, and an executive council, representing the confidential advisers of the sovereign. These features of the new system were emphasized by General Simcoe, the first governor of the province, in his speech at the close of the first session of the first parliament of Upper Canada, on October 15th, 1792. He congratulated his yeomen commoners on possessing "not a mutilated constitution, but a constitution which has stood the test of experience, and is the very image and transcript of that of Great Britain." "Though it might be the expressed image in form," says Mr. Goldwin Smith, "it was far from being the express image in reality of parliamentary government as it exists in Great Britain, or even as it existed in Great Britain at that time. The lieutenant-governor, representing the Crown, not only reigned but governed with a ministry not assigned to him by the vote of the assembly but chosen by himself, and acting as his advisers, not as his masters. The assembly could not effectually control his policy by withholding supplies, because the Crown, with very limited needs, had revenues, territorial and casual,1 of its own. Thus the imitation was somewhat like the Chinese imitation of the steam vessel, exact in everything except the steam."

Lord Durham's commentaries on the political constitutions provided by the Act of 1791, as already outlined, are highly instructive. These disclosed, as he could not help noticing, common weaknesses and defects. "It is impossible," he says, "to observe the great similarity of the constitutions established in all our North American provinces, and the striking tendency of all to terminate in pretty nearly the same results, without entertaining a belief that some defect in the form of government, and some erroneous principle of administration, have been common to all; the hostility of the races being palpably insufficient to account for all the evils which have affected Lower Canada, inasmuch as nearly the same results have been exhibited among the homogeneous population of the other provinces." A common defect is also observed in of timber on the Crown lands and from other sources, and, for a long time, were held and appropriated by the lieutenant-governor and his officials instead of by the House of Assembly, which should have controlled these and all other public moneys. This species of finance, as long as it lasted, was naturally a subject of constant contention between the Crown officials and the representatives of the people, the irritating relations between the executive and the popular body. "It may fairly be said that the natural state of government in all these colonies is that of collision between the executive and the representative body. In all of them the administration of public affairs is habitually confided to those who do not co-operate harmoniously with the popular branch of the legislature ; and the government is constantly proposing measures which the majority of the assembly reject, and refusing its assent to bills which that body has passed."

Turning to counterparts in the Canadian constitution of King, Lords and Commons in Great Britain, he deals first with the governor, or lieutenant-governor, and says: " The fact is that, according to the present system, there is no real representative of the Crown in the province ; there is in it literally no power which originates and conducts the executive government. The governor, it is true, is said to represent the sovereign, and the authority of the Crown is, to a certain extent, delegated to him; but he is, in fact, a mere subordinate officer, receiving his orders from the secretary of state, responsible to him for his conduct, and guided by his instructions."

"It has, therefore, been the tendency of the local government to settle everything by reference to the colonial department in Downing Street. Almost every question on which it was possible to avoid, even with great inconvenience, an immediate decision, has been habitually the decision of reference; and this applies, not merely to those questions on which the local executive and legislative bodies happened to differ—wherein the reference might be taken as a kind of appeal—but to questions of a strictly local nature, on which it was next to impossible for the colonial office to have any sufficient information."

One of Durham's recommendations to the imperial authorities was a revision of the constitution of the legislative councils under the Constitutional Act, so as to make the second body of the proposed united legislature a useful check on the popular House, and so prevent a repetition of those collisions between the councils and the assemblies which had been such a fruitful cause of dangerous irritation. "The present constitution of the legislative councils of these provinces " (i.e. under the Act of 1791), he says, " has always appeared to me inconsistent with sound principles, and little calculated to answer the purpose of placing the effective check, which I consider necessary, on the popular branch of the legislature. The analogy which some persons have attempted to draw between the House of Lords and the legislative council seems to me erroneous. The constitution of the House of Lords is consonant with the frame of English society, and, as the creation of a precisely similar body, in such a state of society as that of these colonies, is impossible, it has always appeared to me most unwise to attempt to supply its place by one which has no point of resemblance to it, except that of being a non-elective check on the elective branch of the legislature. The attempt to invest a few persons, distinguished from their fellow-colonists neither by birth nor hereditary property, and often only transiently connected with the country, with such a power, seems only calculated to ensure jealousy and bad feeling in the first instance, and collision at last."

Having noticed the collisions between the executive and the representative body (ante p. 56), he points out that " the collision with the executive government necessarily brought on one with the legislative council. The composition of this body . . . must certainly be admitted to have been such as could give it no weight with the people, or with the representative body, on which it was meant to be a check. The majority was always composed of members of the party which conducted the executive government; the clerks of each council were members of the other; and, in fact, the legislative council was practically hardly anything bift a veto, in the hands of public functionaries, on all the acts of that popular branch of the legislature in which they were always in a minority. This veto they used without any scruple."

In the scheme of government initiated by the Constitutional Act, the position and powers of the House of Assembly were of vital consequence to the future well-being of the province. A voice in the selection of persons in whose administration of affairs it could feel confidence, and the control of the public revenues, were powers which were essential to the usefulness of such a representative body. Although the financial disputes were more easily arranged in Upper than in Lower Canada, the assembly was systematically deprived from the outset of any control over the executive government. The argument which Lord Durham presented against this stultification of the assembly was most incisive and convincing, and, coupled with his arraignment of the abuses to which it gave rise, was a complete vindication of the policy and attitude of Mackenzie and the Reform party.

"The powers," he says, "for which the assembly contended appear to be such as it was perfectly justified in demanding. It is difficult to conceive what could have been their theory of government who imagined, that, in any colony of England, a body invested with the name and character of a representative assembly could be deprived of any of those powers which, in the opinion of Englishmen, are inherent in a popular legislature. It was a vain delusion to imagine that, by mere limitations in the Constitutional Act, or an exclusive system of government, a body, strong in the consciousness of wielding the public opinion of the majority, could regard certain portions of the provincial revenues as sacred from its control, could confine itself to the mere business of making laws, and look on as a passive and indifferent spectator, while those laws were carried into effect or evaded, and the whole business of the country was conducted by men in whose intentions or capacity it had not the slightest confidence. Yet such was the limitation placed on the authority of the assembly of Lower Canada;1 it might refuse or pass laws, vote or withhold supplies, but it could exercise no influence on the nomination of a single servant of the Crown. The executive council, the law-officers, and whatever heads of departments are known to the administrative system of the province, were placed in power without any regard to the wishes of the people or their representatives; nor indeed are there wanting instances in which a mere hostility to the majority of the assembly elevated the most incompetent persons to posts of honour and trust. However decidedly the assembly might condemn the policy of the government, the persons who had advised that policy retained their offices and their power of giving bad advice. If a law was passed after repeated conflicts, it had to be carried into effect by those who had most strenuously opposed it. The wisdom of adopting the true principle of representative government, and facilitating the management of public affairs by entrusting it to the persons who have the confidence of the representative body, has never been recognized in the government of the North American colonies. All the officers of government were independent of the assembly; and that body, which had nothing to say to their appointment, was left to get on, as it best might, with a set of public functionaries whose paramount feeling may not unfairly be said to have been one of hostility to itself."

"A body of holders of office thus constituted," he proceeds to say, "without reference to the people or their representatives, must in fact, from the very nature of colonial government, acquire the entire direction of the affairs of the province. A governor, arriving in a colony in which he almost invariably has had no previous acquaintance with the state of parties, or the character of individuals, is compelled to throw himself almost entirely upon those whom he finds placed in the position of his official advisers. His first acts must necessarily be performed, and his first appointments made, at their suggestion. And as these first acts and appointments give a character to his policy, he is generally brought thereby into immediate collision with the other parties in the country, and thrown into more complete dependence upon the official party and its friends. Thus a governor of Lower Canada1 has almost always been brought into collision with the assembly, which his advisers regard as their enemy. In the course of the contest in which he was thus involved, the provocations which he received from the assembly, and the light in which their conduct was represented by those who alone had any access to him, naturally imbued him with many of their antipathies; his position compelled him to seek the support of some party against the assembly; and his feelings and his necessities thus combined to induce him to bestow his patronage, and to shape his measures to promote the interests of the party on which he was obliged to lean. Thus, every successive year consolidated and enlarged the strength of the ruling party. Fortified by family connection, and the common interest felt by all who held, and all who desired, subordinate offices, that party was thus erected into a solid and permanent power, controlled by no responsibility, subject to no serious change, exercising over the whole government of the province an authority utterly independent of the people and its representatives, and possessing the only means of influencing either the government at home, or the colonial representative of the Crown."

"It is difficult to understand how any English statesman could have imagined that representative and irresponsible government could be successfully combined. There seems, indeed, to be an idea that the character of representative institutions ought to be thus modified in colonies; that it is an incident of colonial dependence that the officers of government should be nominated by the Crown, without any reference to the wishes of the community whose interests are entrusted to their keeping. It has never been very clearly explained what are the imperial interests which require this complete nullification of representative government. But, if there be such a necessity, it is quite clear that a representative government in a colony must be a mockery, and a source of confusion. For those who support this system have never yet been able to devise or to exhibit, in the practical working of colonial government, any means for making so complete an abrogation of political influence palatable to the representative body."

Durham's description of the executive council is no less graphic. ".The real advisers," he says, "of the governor have, in fact, been the executive council, and an institution more singularly calculated for preventing the responsibility of the acts of government resting on anybody can hardly be imagined. It is a body of which the constitution somewhat resembles that of the Privy Council; it is bound by a similar oath of secrecy; it discharges in the same manner anomalous judicial functions; and its 'consent and advice' are required in some cases in which the observance of that form has been thought a requisite check on the exercise of particular prerogatives of the Crown. But in other respects it bears a greater resemblance to a cabinet, the governor being in the habit of taking its advice on most of the important questions of his policy. But, as there is no division into departments in the council, there is no individual responsibility, and no individual superintendence. Each member of the council takes an equal part in all the business brought before it. The power of removing members being very rarely exercised, the council is, in fact, for the most part, composed of persons placed in it long ago ; and the governor is obliged either to take the advice of persons in whom he has no confidence, or to consult only a portion of the council. The secrecy of the proceedings adds to the irresponsibility of the body; and when the governor takes an important step, it is not known, or not authentically known, whether he has taken the advice of this council or not, what members he has consulted, or by the advice of which of the body he has been finally guided. The responsibility of the executive council has 64 been constantly demanded by the Reformers of Upper Canada, and occasionally by those of the Lower Province. But it is really difficult to conceive how desirable responsibility could be attained, except by altering the working of this cumbrous machine, and placing the business of the various departments of government in the hands of competent public officers."

In another part of his Report, Lord Durham deals with " the effect which the irresponsibility of the real advisers of the governor had in lodging permanent authority in the hands of a powerful party, linked together, not only by common party interests, but by personal ties." And this leads naturally to a description of the Family Compact. " But in none of the North American provinces," he says, "has this exhibited itself for so long a period, or to such an extent, as in Upper Canada, which has long been entirely governed by a party commonly designated through the province as the 4 Family Compact,' a name not much more appropriate than party designations usually are, inasmuch as there is, in truth, very little of family connection among the persons thus united. For a long time this body of men, receiving at times accessions to its numbers, possessed almost all the highest public offices, by means of which and of its influence in the executive council it wielded all the powers of government; it maintained influence in the legislature by means of its predominance in the legislative council; and it disposed of the large number of petty posts which are in the patronage of the government all over the province. Successive governors, as they came in their turn, are said to have either submitted quietly to its influence, or, after a short and unavailing struggle, to have yielded to this well-organized party the real conduct of affairs. The bench, the magistracy, the high offices of the Episcopal Church, and a great part of the legal profession, are filled by the adherents of this party; by grant or purchase, they have acquired nearly the whole of the waste lands of the province; they are all powerful in the chartered banks, and, till lately, shared among themselves almost exclusively all offices of trust and profit. The bulk of this party consists, for the most part, of native-born inhabitants of the colony, or of emigrants who settled in it before the last war with the United States; the principal members of it belong to the Church of England, and the maintenance of the claims of that Church has always been one of its most distinguishing characteristics. A monopoly of power so extensive and so lasting could not fail, in process of time, to excite envy, create dissatisfaction and ultimately provoke attack; and an opposition consequently grew up, in the assembly, which assailed the ruling party by appealing to popular principles of government, by denouncing the alleged 66 jobbing and profusion of the official body, and by instituting inquiries into abuses for the purpose of promoting reform and especially economy."

The crux of the existing political situation, the radical remedy aimed at, and, as experience has proved, the only effective one, the contrast in this respect with the agitation in Lower Canada, and the manner in which the official party, although in a minority in parliament, despoiled the Reformers of their popular victories in the constituencies, are also clearly indicated. "The struggle, though extending itself over a variety of questions of more or less importance, avowedly and distinctly rested on the demand for responsibility in the executive government." . . . "It was upon this question of the responsibility of the executive council that the great struggle has, for a long time, been carried on between the official party and the Reformers; for the official party, like all parties long in power, was naturally unwilling to submit itself to any such responsibility as would abridge its tenure, or cramp its exercise, of authority. Reluctant to acknowledge any responsibility to the people of the colony, this party appears to have paid a somewhat refractory and nominal submission to the imperial government—relying, in fact, on securing a virtual independence by this nominal submission to the distant authority of the colonial department, or to the powers of a governor over whose policy they were certain, by their facilities of access, to obtain a paramount influence."

"The Reformers, however, at last discovered that success in the elections insured them very little practical benefit; for the official party, not being removed when it failed to command a majority in the assembly, still continued to wield all the powers of the executive government, to strengthen itself by its patronage, and to influence the policy of the colonial governor and of the colonial department at home. By its secure majority in the legislative council, it could effectually control the legislative powers of the assembly. It could choose its own moment for dissolving hostile assemblies; and could always insure, for those that were favourable to itself, the tenure of their seats for the full term of four years allowed by the law. Thus the Reformers found that their triumphs at elections could not, in any way, facilitate the progress of their views, while the executive government remained constantly in the hands of their opponents. They rightly judged that, if the higher offices and executive council were always held by those who could command a majority in the assembly, the constitution of the legislative council was a matter of very little moment; inasmuch as the advisers of the governor could always take care that its composition should be modified so as to suit their own purposes. They concentrated their powers, therefore, for the purpose of obtaining the responsibility of the executive council; and I cannot help contrasting the practical good sense of the English Reformers of Upper Canada with the less prudent course of the French majority in the assembly of Lower Canada, as exhibited in the different demands of constitutional change most earnestly pressed by each. Both, in fact, desired the same object; namely, an extension of popular influence in the government. The assembly of Lower Canada attacked the legislative council—a body of which the constitution was certainly most open to obvious theoretical objections on the part of all the advocates of popular institutions, but, for the same reason, most sure of finding powerful defendants at home. The Reformers of Upper Canada paid little attention to the composition of the legislative council, and directed their exertions to obtaining such an alteration of the executive council as might have been obtained without any derangement of the constitutional balance of power •, but they well knew that, if once they obtained possession of the executive council and the higher offices of the province, the legislative council would soon be unable to offer any effectual resistance to their meditated reforms."

One other salient feature of the constitution of 1791, which, being fully discussed in a subsequent chapter, calls only for a passing notice, is the series of provisions creating the Clergy Reserves and establishing a State Church in Canada.1 The lieutenant-governor was empowered to make allotments of land, in the proportion of one lot in seven in the province, for the " support and maintenance of the Protestant clergy," the rents arising therefrom to be applicable to that purpose only. The expression "Protestant Clergy" was at first construed to mean the Anglican clergy solely, but the Church^ of Scotland having been expressly recognized as a "Protestant" church by the Act of Union of England and Scotland, in 1706, the ministers of that Church, in 1819, were held by the English law-officers of the Crown to be considered as "Protestant clergy," and so entitled to share in the funds. The provisions concerning the Reserves might be varied or repealed by the provincial parliament, but any enactments for that purpose had to be approved by the English parliament before being assented to by the king. Considering the political influences of the time, and the manner in which they were exercised, this reservation constituted a strong protection and safeguard for the church establishment.

The effect of these Church endowments upon the religious denominations themselves, upon the legislature, and throughout the whole country, was most pernicious. In the opinion of many persons, as remarked by Lord Durham in his Report, they were one of the chief causes of the rebellion. Durham speaks of them as "an abiding and un-abating cause of discontent;" and concludes that " the result of any determination on the part of the English government or legislature to give one sect a predominance and superiority would be, it might be feared, not to secure the favoured sect, but to endanger the loss of the colony, and, in vindicating the exclusive pretensions of the English Church, to hazard one of the fairest possessions of the British Crown."

It is unnecessary to consider any other provisions of the Constitutional Act, because they were overshadowed in importance by those to which reference has already been made. The constitutional question, as it may well be called, was the vital question during the period covered by the Act, and the gravity of the constitutional question, in so far as it affected popular parliamentary rule in the province, may at once be seen by the insignificant place occupied by the legislative assembly in the order and authority of government. Briefly summarized, the order was this: (1) A colonial secretary in England who supervised the provincial government; (2) a lieutenant-governor in the province who acted under an imperial commission and instructions; (3) an executive council appointed by the lieutenant-governor and responsible to him alone; (4) a legislative council composed of members appointed for life by the lieutenant-governor; and (5) a legislative assembly elected by the people on a limited franchise, and exercising little control over the finances and government of the province.

This was the constitution under which the people of Upper Canada were living when Mackenzie cast in his lot with them in the year 1820. Its history affords a fair illustration of the dictum of the old Greek philosopher, that "a good constitution in itself is not more necessary than men with proper sympathies and understandings to administer it." Admirable as it appeared in the broad pages of the statute-book, no man of Mackenzie's intelligence and discernment could fail to perceive what an ill-constructed and mischievous machine it was in its practical operation. He declared war against it, and against the men who were upholding and defending it for their own selfish ends—at first with moderation, which developed into intense hostility, until at last, with his life in his hands and at the sacrifice of everything which life holds dear, he was constrained to strike the blow which compassed its destruction.

It was a conflict of less than fourteen years, because Mackenzie's attitude was not publicly defined until the appearance of the first number of the Colonial Advocate in the early summer of 1824. At that time the evils of the system of government which had grown up under the new constitution were fully developed. Their name was legion. Frequent collisions between the executive and the legislative assembly, and between the assembly and the legislative council;1 abuses of the provincial grants for local public works; a weak and unpopular administration of the royal prerogative ; interference of the colonial department in the purely local affairs of the province; the irresponsibility of the executive council, and the absence of any division of the public service into regular ministerial departments; the Clergy Reserves and the establishment of rectories, and the fierce bitterness and strife to which these gave rise; the want, in a large part of the province, of roads, post-offices, mills, schools and churches; the corrupt and wasteful appropriation of the Crown lands the lack of proper arrangements for the reception and disposition of immigrants; the Family Compact—another name for the concentration of political power and patronage in the hands of a few persons, and the tyranny, maladministration and manifold evils which it produced; the appointment of military men as lieutenant-governors; the exorbitant salaries, for perfunctory services, of certain public officials; the union of judicial and legislative functions in the same persons ; the appointment of judges and other public officials during the pleasure of the executive and not during good behaviour;—these and an incalculable number of minor grievances, of which they were the direct and inevitable cause, constantly provoked the just resentment and challenged the attacks of the Reformers under Mackenzie and the other Reform leaders of the time. It was of these that Lord Durham wrote in his Report, in which both the bane and the antidote of the existing system are clearly indicated: "Such are the lamentable results of the political and social evils which have so long agitated the Canadas; and such is their condition that, at the present moment, we are called on to take immediate precautions against dangers so alarming as those of rebellion, foreign invasion and utter exhaustion and depopulation. When I look on the various and deep-seated causes of mischief which the past inquiry has pointed out as existing in every institution, in the constitutions, and in the very composition of society throughout a great part of these provinces, I almost shrink from the apparent presumption of grappling with these gigantic difficulties. Nor shall I attempt to do so in detail. I rely on the efficacy of reform in the constitutional system by which these colonies are governed, for the removal of every abuse in their administration, which defective institutions have engendered. If a system can be devised which shall lay, in these countries, the foundation of an efficient and popular government, ensure harmony in place of collision between the various powers of the State, and bring the influence of a vigorous public opinion to bear on every detail of public affairs, we may rely on sufficient remedies being found for the present vices of the administrative system.....

"We are not now to consider the policy of establishing representative government in the North American colonies. That has been irrevocably done; and the experiment of depriving the people of their present constitutional power is not to be thought of. To conduct their government harmoniously, in accordance with its established principles, is now the business of its rulers, and I know not how it is possible to secure that harmony in any other way than by administering the government on those principles which have been found perfectly efficacious in Great Britain. I would not impair a single prerogative of the Crown; on the contrary, I believe that the interests of the people of these colonies require the protection of prerogatives which have not hitherto been exercised. But the Crown must, on the other 76 hand, submit to the necessary consequences of representative institutions, and if it has to carry on the government in union with a representative body, it must consent to carry it on by means of those in whom that representative body has confidence."

After all, the strongest justification of Mackenzie and the Reformers of his time, apart from the facts and transactions themselves, is this exhaustive statement on the affairs of British North America presented to the home government by Lord Durham at the close of his brief administration in Canada. The Report is beyond praise. It is one of the classics of British political literature, and a splendid addition to the many famous State papers in the archives of the nation. The masterly analysis of the whole situation, the grasp of conditions, the exposition of principles and the practical wisdom embodied in the Report, and its far-reaching influence on British colonial government, are great and enviable monuments to its illustrious author. Reading between the lines one can easily see the painful impression produced on his mind by his investigation of affairs in Canada at that time, yet there is, in the language and tone of the whole document, a restraint of feeling and reserve of censure, and a fairness and moderation of statement and conclusion, which are admirable in the extreme. A more finished, instructive and thoroughly judicial deliverance, on the many and difficult questions of a great controversy, has never been made by any British statesman. " The Report," writes one who has done justice to the character and work of Durham and the memorable part which he played in the annals of the Empire, "was a noble and far-sighted plea for autonomy and equality. Durham, to borrow his own words, sought to turn Canada from a 'barren and injurious sovereignty' into 'one of the brightest ornaments in the young Queen's Crown.' The Durham Report brought about, not merely the union of two distracted provinces, but gave the people of Canada self-government, without imperilling a single prerogative of the throne. It marked a new era in the relation of England to her colonies; for the broad and philosophic principles upon which it was based were capable, as after years have shown, of application to similar problems of government in almost every quarter of the globe. Its outcome was not only the redress of political grievances, or even the creation of new and splendid opportunities for adventurous but loyal sons of England under other skies; it was all this, but it was more. It was the recognition, based on the knowledge, inspired by sympathy, and made luminous by moral vision, that the authority of the mother country rested on other than material ascendency. Lord Durham appealed to the sentiments and ideals of men, and laid, four-square to all the winds that blow, the foundations, not only of that great Dominion, which he did not live to see, but also of that passionate loyalty—a veritable union of hearts— which served England well in recent years of warfare and of peril."1 "Canada will one day do justice to my memory," were the dying words of this famous constitutional reformer. The day has long since come, and the radiance of its gratitude will never be dimmed.

For the conclusions and findings of Lord Durham in this celebrated Report, Mackenzie is fairly entitled to a large share of credit. Long before Durham's State paper was laid before the British parliament, Mackenzie had prepared the "Seventh Report on Grievances" for the information of the imperial authorities. It no doubt contained considerable matter which was irrelevant from an imperial standpoint, although not so considered by the author, who, in his narrative based on the knowledge and experience of thousands of persons on the spot, was naturally anxious to recite every material fact and circumstance, however insignificant. Durham, as we know, made independent inquiries for the information on which his Report was formulated, but he certainly profited largely from Mackenzie's labours. A perusal and comparison of the two documents shows that, with some few exceptions, the statements of fact as to political and economic conditions in the province, and the remedies and recommendations proposed for their amelioration and improvement, are substantially the same. The control of the Crown lands, which had been one of the most fruitful sources of official favouritism and corruption, was perhaps the most important question upon which the two men differed, Mackenzie as a home ruler favouring local, and Durham imperial, control; but, so far as the constitutional changes were concerned, they were both of one mind as to the true and imperative remedy. The fact that the two reports support and corroborate each other gives weight and value to both of them as historical and constitutional documents, and fully justifies, if any justification were necessary, the position of Mackenzie and the Reform party with respect to the whole bill of indictment against the existing system.

One of the arguments which the Reformers had to meet in their controversies with the official party, during this period, was derived from the Constitutional Act itself. The Act, it was said, was silent on the question of executive responsibility. The argument would have been just as cogent with respect to the Union Act, 1840, which was based on Lord Durham's Report, or to the British North America Act, 1867, because there is no provision on the subject in either of those statutes. Nor was any such provision necessary, so far as the Constitutional Act was concerned. The question was one in regard to which, as Lord John Russell said, the Act was "necessarily silent." This point did not escape the attention of Lord Durham, who shows very clearly that a change of policy in the provincial government might be effected by a single despatch to the governor-general containing instructions, coupled with an assurance on His Excellency's part, that the government of the province "should henceforth be carried on in conformity with the views of the majority in the assembly." Durham's argument on the question was followed up by a distinct recommendation that "the responsibility to the united legislature of all officers of the government, except the governor and his secretary, should be secured by every means known to the British constitution. The governor, as the representative of the Crown, should be instructed that he must carry on his government by heads of departments, in whom the united legislature shall repose confidence; and that he must look for no support from home in any contest with the legislature, except on points involving strictly imperial interests." The "assurance" and "instructions," referred to by Lord Durham, were subsequently conveyed by Lord John Russell in despatches dated September 7th and October 14th, 1839, to Lord Sydenham, the first governor-general of the united province.

The authorship of Lord Durham's Report, which has given rise to some controversy, appears to be satisfactorily settled by his biographer. "It would be idle," Mr. Stuart J. Reid says, "to ignore the oft-repeated statement that Durham did not write the Report which bears his name. It rests on mere hearsay evidence at best, and is untrue, and therefore unjust." He proceeds to show that the story originated with Lord Brougham, Durham's most vindictive enemy, whose testimony is worthless. Brougham attributed the work to Gibbon Wakefield and Charles Buller, both of whom accompanied Durham to Canada, Buller as Durham's secretary. "Buller, in process of time, obtained the credit of the whole production. The late Henry Reeves was reponsible for this, perhaps more than any one else, by a foot-note which he inserted in the Greville Memoirs. He gives no authority whatever for the statement, and it may, therefore, be dismissed as gossip, which, after floating about the world for a generation or more uncontradicted, was accepted as historical fact. Gibbon Wakefield, so far as is known, never claimed the authorship of the Report. Charles Buller, so far from doing so, actually denounced as a 'groundless assertion' the view that Lord Durham did not write it. This declaration was made in the pages of the Edinburgh Review, in an article on Canadian affairs, which was unsigned. It is now possible to state with authority, that that article was actually written by Charles Buller, and, therefore, though even in the Dictionary of National Biography he is credited with the authorship of the Report, the statement, on his own showing, falls to the ground. It may be further added that, in the unprinted Sketch of Lord Durham's 3Iission to Canada, Buller speaks at some length of the Report, expresses admiration of its contents, and, by no single phrase or even word, hints that he was responsible for it. Unless the present writer is greatly mistaken, such a claim was never made in Buller's lifetime; if it had been, he would instantly have repudiated it. The truth is, the Report, so far as the facts which it embodied were concerned, was necessarily to a large extent the work of Durham's assistants. Buller, Wakefield, Turton and lesser men, all had a hand in gathering the materials for it. Durham himself admitted as much in one of his last speeches in the House of Lords, where he paid a generous tribute to the men who, under his directions, had accumulated the evidence which he turned to such memorable account in this great State paper."


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