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Lord Sydenham
Chapter VII - Lord Durham's Report

AT length the British government recognized that the problem of Lower Canada had really to be faced. Lord Durham, with an able staff, was despatched to Canada, clothed with extraordinary powers. He was given a very free hand to adopt such measures as were necessary to restore tranquillity, and to report upon the most effective means of governing the colony for the future. But though his powers were wider than those of any governor since Dorchester, he managed to travel beyond them, involving himself and the home government in a very awkward dilemma. The Opposition taking full advantage of this, Lord Durham's recall was rendered inevitable, after a meteoric course of some five months.

I his is not the place to discuss the authorship of Lord Durham's Report, but a study of it, in the light of the documents from the conquest down to the time of its appearance, shows that those who prepared the materials for it, as the result of those "various and extensive inquiries into the institutions and administration of these provinces" which Lord Durham had set on foot, had carefully gone over the history of their subject. They were evidently familiar not only with the leading public documents, whether printed or in manuscript, but had apparently gone over much private and confidential correspondence which has only qui te recently been opened to general research. In addition they had taken much pains to obtain from the most representative persons the various views and policies entertained by different sections of Canadian opinion.

As was to be expected, each party in Canada accepted as just and enlightened those portions of the Report which dealt favourably with their views and aspirations, but were inclined to regard the more unfavourable criticisms as largely due to false information or as the fruits of groundless prejudice. Although originality and novelty seemed to many to be striking features of Lord Durham's Report, yet in reality there is very little m it which is not found in previous reports or elsewhere. It is in fact one of its strongest features that it adhered closely to the facts as they had been carefully ascertained in the past, or as they were to be discovered at the time by any open-eyed and fair-minded investigator, seeking only to make a survey of the actual crisis and of the. historic conditions which led up to it. It is this unprejudiced attitude towards the whole Canadian problem as an absorbingly interesting historic experiment in practical politics, which gives to the Durham Report its freshness and vitality.

The first portion of it is devoted to the problem of Lower Canada, in which is brought out the folly of the earlier British governors who, on plausible but shortsighted grounds, turned aside the first normal movement towards a unified British colony. In its present English sections, it is true, this would have been much more thoroughly penetrated with the French-Canadian institutions than it is to-day, but still in a blended harmony with the British system of public law and government, as in the original Dutch colony of New York, or the more modern state of Louisiana. But, the mistake once made by the introduction of the Quebec Act, the Report demonstrates, with ample detail and from every line of approach, that, without attempting to change the foundation lines of the old policy, a new one was attempted to be engrafted upon it. This policy was doomed to utter failure and to ensure an ultimate conflict of races. Now that the conflict had issued in physical violence, the English element demanded that the struggle of rival races be ended, and that, as the obvious future of the continent was an Anglo-Saxon one, this must be recognized in policy as well as in fact. " tower Canada must be English, at the expense, if necessary, of not being British."

The next important question taken up by the Report was the defective constitutional system, as revealed in both provinces by the friction and periodic deadlock developed between the different sections of the legislature and with the executive government. It demonstrated the impossibility of working an assembly which could not directly affect the executive, and the futility of attempting to secure harmonious and acceptable government where the executive was completely removed from popular control and from all opportunity for explaining or justifying its actions before the representatives of the people. It was also shown that the members of the executive government held a vested interest m their offices, to the extent of expecting full compensation for removal or readjustment, and that class privilege was so highly developed as to be regarded as an indispensable bulwark of British supremacy and Canadian loyalty. The natural consequences of this condition of affairs were revealed in the experience of the Canadas, where a lack of responsibility and efficiency was shown in every department of government, the legislature as well as the executive, the assembly as well as the council. The outcome of this part of the investigation was the advocacy of a form of mutual responsibility as between the different factors of the government, so that they should be required to act in harmony, rendering it impossible for one to fall permanently out of touch with the other.

Among the other important features of Canadian government touched upon with more or less detail, was the lack of municipal institutions to take charge of the details of local administration and to familiarize the people with the essentials of responsible government. The provincial finances of necessity received special attention; in Upper Canada in particular they had fallen into hopeless confusion, alike as to the sources of revenue and its administration and expenditure. There was a chronic interprovincial dispute also, relative to the proportion of revenue due to each province from the proceeds of the customs duties levied in Lower Canada, and also as to the relative obligations of the two provinces towards improving the system of water communication by way of the St. Lawrence route, the great commercial highway of both provinces.

The vexed question of the Clergy Reserves was also dealt with, though the conclusion reached was not very favourable to the idea of an endowed national church as a bulwark of monarchy. The Report advocated that the revenues from these lands should be placed at the disposal of the legislature of each province. It was implied also that the revenue had better be devoted to the advancement of intellectual culture, rather than to the fostering of unchristian church rivalry.

The backward progress of the Canadas and of the Maritime Provinces was dealt with at considerable length, and a striking contrast was drawn between the Canadian and American sides of the boundary line as regards commercial enterprise, the development of natural resources, and the attraction of capital and population, especially from the British Islands. In Canada, however, this was a subject as painful as it was obvious, and those who were represented as chiefly responsible for the condition of the Canadas resented the comparison as utterly unpatriotic, and as evincing republican and anti-British sympathies. Other matters dealt with at considerable length, in connection with the economic difficulties of the Canadas, were immigration, land-granting and land-jobbing generally.

Finally, as a means of putting an end to a system which had resulted in the present crisis, and as the beginning of improved racial conditions, though unfortunately at a very late date and requiring many years to remedy the evils already rooted in the colony, the reunion of the provinces was strongly advocated, but on such a basis that the French-Canadians should be prevented from commanding the majority of the votes in the united legislature. For the French-Canadians were to be given to understand, once and for all, that their dream of an independent nationality was impossible, and that in a thorough union with the Anglo-Saxon element their whole future was bound up. In this united country they must look for a larger field in which their talents might have freer scope than would ever have been possible m the narrower and more uncertain range of an independent French dominion.

When Lord Durham's Report was published, though naturally unpalatable to the French-Canadians, for a time at least, it was scarcely other than was to be anticipated after the late crisis which had resulted in the suspension of representative government in Lower Canada. There was therefore but little discussion of it on the part of the French. The English element in Lower Canada were so satisfied with its general conclusions, and especially with the recommendation of the reunion of the provinces, which was expected to redeem them from bondage, political and economic, that they passed over in silence, and many of them doubtless with a consciousness of their essential truth, the criticisms passed upon the objectionable constitutional methods employed by the legislative and executive councils in Lower Canada. As a matter of fact, many of the most abnormal uses made of both assembly and council in Lower Canada were but the natural and inevitable expression of the radical racial struggle there.

In Upper Canada, however, the party of loyalty, who were in their own eyes and in those of their friends the representatives of British authority and the defenders of the country against republicanism and rebellion, found their methods and system severely criticized, and their principles of government declared impossible of continuance. It is true that the methods of their opponents were as unsparingly criticized, and were shown to be equally impossible; but the central principles which they advocated, though with some confusion of ideas, were regarded as looking in the right direction, and pointing the way towards a more stable and workable form of government. To the champions of prerogative the Report brought dismay, followed by anger and denunciation and the now familiar representation of the home government as itself tainted with disloyalty when its policy may not happen to harmonize with this or that colonial party which has made its particular interests the touchstone of imperial principles, and has assumed loyalty as one of its party cries. The favourite amusement of the baser sort of Loyalists in Upper Canada was to burn in efligy those members of the imperial cabinet who were suspected of being disloyal to the Family Compact's conception of imperialism.

The party of reform, struggling to dissociate themselves from the few misguided enthusiasts who had endeavoured to excite the people to rebellion in the name of reform, hailed Lord Durham's Report with unqualified delight. The criticisms of the Report on the crude methods of Reformers in conducting practical politics, and in their lack of appreciation of what organized government of the British type involved, were lost in their joy at finding both the methods and principles of the Family Compact condemned, and the central principles for which they had contended, however blindly, recognized as in essence correct. Their spirits revived; Lord Durham's Report became their Bible, with its golden texts from which they preached, often with no very refined exegesis, the gospel of responsible government. Those who accepted the policy of the Durham Report were known by their opponents as Durhamites, with various aliases such as rebels, republicans, Yankees, traitors, with a long and frequently picturesque line of qualifying epithets not at all of a flattering nature. The Reformers replied in kind, and the Family Compact and their supporters had quite as many aliases with suitable qualifying terms, suggestive of corruption, tyranny, and oppression. Increasing torrents of mingled argument, declamation, and abuse being brought forth and finding a ready demand, the newspapers multiplied under the stimulus of the controversy.

The Compact party found it highly necessary to make a formal reply to Durham's Report, as the very citadel of their enemies. This was accomplished through the medium of two reports, one from a select committee of the House of Assembly of Upper Canada on the state of the provinces, the other a report of the select committee of the legislative council on Lord Durham's Report. These are very interesting documents, and show that, whatever the defects of the Family Compact, its representative members were certainly not lacking in ability. In the report from the assembly much space is devoted to a detailed recital of the depredations committed by escaped rebels from Canada, and by the various groups of sympathizers on the American side of the border. These are adroitly used to give colour to the attitude of the whole American people and their government. Altogether they painted a most unflattering picture of the people of the United States and their republican institutions, which are represented as exciting feelings of disgust in all right-minded Englishmen. This recital is employed to exalt the devotion of those who have saved Canada from the clutches of such an enemy, and who are made to suffer outrage and aggression solely because of their loyalty to their country. They served also to offset that contrast, unfavourable to Canada as compared with the United States, which was presented in Lord Durham's Report, and which they endeavoured to represent as an unwarrantable slur upon the mass of the Canadian people. Incidentally, too, the respectable people of the province, who are the vast majority of course, are represented as supporters of the views and feelings of the critics of Lord Durham and his Report.

Having painted such a dark picture of republican institutions and of their debasing effect upon human nature, what must be the character of any misguided Canadian who should look with a favourable eye upon that particular form of republicanism known as responsible government ? When they have occasion to refer to Mr. Buller, Lord Durham's chief secretary, whom they evidently regard as the chief author of the Report, he is represented as a believer in republican institutions, an American sympathizer, and an advocate of anti-British and anti-monarchical principles. It requires no further argument, therefore, to prove his baseness and the lost character of any who should favour his views.

In their specific criticism of the Report, they represent the disappointment with which the loyal portion of the Canadian population learned of the selection of Lord Durham for the critical mission entrusted to him. He was known to be too favourable to those political views which alone had brought upon Canada all its misfortunes, but, as we have said, their chief compliments are paid to Mr. Buller, the open advocate of the views of Papineau and Mackenzie. They excuse themselves from go in 4 into details on many of the most essential features in the Report; they will merely bike up typical features. They do not object to being represented as the party of wealth, power, land grants, government offices, and all other good things, but express surprise that these possessions should not be taken as prima facie evidence that they are the very people who ought to be in power. Assuming that the faction designated the Family Compact was supported by the great majority of the people of Upper Canada, they claimed that it was highly improper to represent " the great body of the people of the country as a 4 Compact, " and solemnly proceed to show that the chief office-holders in the executive government were not specially connected through hereditary descent. They even endeavoured to make common cause with the Reformers against the Durham Report, indicating that the latter were not treated with proper courtesy, inasmuch as they, too, came under certain criticisms, their ranks being represented as containing some who have a leaning towards the institutions of the United States rather than of the Mother Country.

Altogether the reply was a very adroit performance, and though it does not appear to have checked the cause of reform very much, yet it brought corn-fort to many of the faithful to whom Lord Durham's Report came as a most disconcerting blow in their hour of triumph. As regarded the specific recommendations of the Report with reference to the future government of the Canadas, they touched upon two points only, the legislative union of the provinces, and the responsibility of the officers of government to the legislature. The first they were prepared to accept under certain special conditions which will be referred to later. But the second was regarded as "inconsistent with the dependence of these provinces as colonies upon the Mother Country."

The report from the legislative council was much briefer than that from the assembly, but expressed practically the same sentiments. The criticism is of the same character, deals with much the same points, and is delivered in the same strain. The accuracy of the Report is first assailed as to certain details of fact and inference, and then, with a wide sweep of the arm, these defects are communicated to the whole body of the Report. Passing over, as in the case of the assembly's report, the question of the Clergy Reserves, they devote special attention to the subject of responsible government, as most nearly affecting those in control of the provincial government. They admit it to be a very natural inference that the system of government in the Mother Country might be extended to all the British dominions, but they regard it as practically impossible to preserve the colonial relations on such a basis. They arc convinced that Lord Durham's plan " must lead to the overthrow of the great colonial empire of England." Their contrast between the principles of the existing system and that which Lord Durham would introduce is thus expressed :

"According to the present system, the governor of a colony exercises most of the royal functions, under the general direction of the ministers of the Crown ; he is strictly accountable for his conduct, and for the use he makes of the royal authority; he recommends for office persons in the colony, or appoints those selected by the minister; and he endeavours to conduct his government according to the policy of the imperial cabinet, with a view to the present prosperity and future greatness of a country in which England has a deep interest; and above all things, with the intention of preserving, against all opposition, the unity of the empire. . . .

"According to the system proposed by the Earl of Durham, the advisers of the lieutenant governor would not be officers who, in accordance with the policy of the home government, endeavour to aid the lieutenant-governor in conciliating the affections of the people; but they must be the creatures of the prevailing faction or party in the assembly, advising the governor altogether with a view to the wishes of the House for the moment, regardless of the opinions of the supreme parliament or those of the imperial cabinet, and having (though nominally subordinate) the power of forcing all their measures upon the governor.

"The colonial governor must, in this case, be left without discretion or responsibility, and follow whatever changes may occur; in his colony he could take no directions from the minister of the Crown, nor, indeed, communicate with the supreme government, unless in the terms dictated by his responsible advisers, to whose directions he must submit far more completely than the sovereign to the advice of the cabinet. . . .

"Either this must be the course pursued by a governor, with responsible advisers, or he must think for himself, independently of those advisers; and, as a matter of course, throw himself for information and advice upon irregular and unknown sources. In such an event, the responsible advisers resign; they have, perhaps, a majority in the provincial parliament, but they may, notwithstanding, be very wrong. Then comes a dissolution of the provincial parliament, and, perhaps, an expression of public opinion, by a bare majority, against the government, and probably inimical to the interests of the empire. Who, then, is to yield? The government must, in fact, retire from the contest, whether right or wrong, or carry on public affairs without any advisers or public officers.

"This cannot be done; so that, after all, the governor of the colony must be responsible to the prevailing party in the colony; and, so far as empire is concerned, he becomes the sovereign of an independent realm, having no discretion, and therefore no responsibility.

"Under such a system, colonial dependence would practically be at end."

This is undoubtedly a very clever presentation of the central difficulties to be met with in introducing a system of responsible government. In the light of what has actually happened it may be said to be technically correct, and yet n practice untrue. I n-doubtedly, f formally specified and consciously introduced at one stroke, as was no doubt contemplated by the more ambitious advocates of responsible government, it would have been impossible to preserve the colonial relationship. But we have never even yet had responsible government on those terms. There has never yet been a specification as to where the line is to be drawn between the authority of the home government and the independence of the colonial government. It was, as we shall see, one of Lord Sydenham's chief triumphs that at the one period in our history when there was a temptation to draw such a line under persistent questioning, he managed to introduce the essence of responsible government without being forced to draw the line. Time was required and the exercise of much tact in so arranging the transition that while responsible government was being developed, and the necessary changes in the Canadian administrative system were being effected, a new and informal bond expressive of the spirit rather than the letter of the imperial relation should have tune and opportunity for development. This gradual growth of a new body of tradition and unwritten custom of the constitution had to proceed some distance before the existing harmony between the monarchical institution of the sovereign and the democratic institution of the Canadian cabinet could be brought into working harmony. This form of government is demonstrably impossible, according to every a priori principle of law and politics, before it actually takes shape. In Canada, therefore, the Family Compact had little difficulty in theoretically demonstrating, as above, the impossibility of the co-existence of responsible government and the preservation of the ties of empire with the Mother Country. Naturally, the advocates of responsible government had as little, few of them indeed as much, insight into what was involved m their policy as regards British connection as the members of the Family Compact, for the latter had much more carefully studied that aspect of the matter.

The more ardent advocates of responsible government looked to it chiefly for the accomplishment of a practical policy of executive government, under which only those could be retained in office who could command the confidence of a majority of the assembly. At the time of Lord Durham's Report they were much more anxious to be able to drive certain individuals out of office than to determine the niceties of the principles upon which their successors should hold office, or what relation they should bear to the governor-general and the home government.

Lord Durham's Report had declared that not a single prerogative of the Crown was to be impaired. On the contrary, several prerogatives not hitherto exercised were to be brought into effect, as was indeed accomplished by Lord Sydenham. On the other hand, the Crown must consent to carry on the government by means of those in whom the representative body in the legislature has confidence. If this were simply a matter of persons, there would of course be little difficulty. The Crown, we may suppose, has determined on a certain policy involving the exercise of certain prerogatives. If the only question were, is tins line of policy to be carried out, and are these prerogatives to be exercised through the medium of persons in whom the representative body has confidence, or through those in whom it has not confidence, then the answer furnished by Lord Durham's Report is clear and distinct. The policy must be carried out, and the prerogatives exercised by those in whom the representative body has confidence, whether persona gratice to the Crown or not. Now it must be admitted that this was the chief problem for the t/me being. But if the question should arise, as undoubtedly it must and actually did arise, what is to happen if there is a difference of opinion between the home government and the colonial legislature as to concrete measures or a line of policy? Then we have a question of measures and not of persons. The real difficulty to be faced is that the representative body in the colony will have confidence only in those ministers who refuse, when necessary, to accept the policy of the Crown, or to permit the exercise of objectionable prerogatives. For this situation it must be confessed that Lord Durham's Report does not offer a specific solution; it simply vaguely appeals to the practice in England, and claims that it may be exercised in the colonies as well. But the British king and government are not constitutionally required to act im harmony with the policy and prerogatives of any ulterior power, whereas the government of Canada was assumed by Lord Durham's Report to be under this restriction. It was plain, therefore, that on these terms the general reference to the English principles did not fully meet the Canadian conditions. Technically the Report was certainly open to this criticism, and there was as yet no adequate reply forthcoming to the dilemma skilfully presented by the legislative council. The speeches and articles of the advocates of responsible government who took Lord Durham's Report as their gospel, got no further than the Report itself in their efforts to clear up this difficulty. One and all fall back upon the parallel between the governments of Canada and Britain, and the necessity for a universal application of the British constitution to all parts of the British empire.

The Montreal Gazette, the able exponent of the views of the English element which had held the ascendency in the executive and legislative councils in Lower Canada, and which was strongly in favour of the reunion of the provinces but opposed to responsible government, was particularly clear on the subject of the many difficulties involved in the formal acceptance of the principle of responsible government. It defied any of the persons or papers in favour of this principle, from Lord Durham to the Toronto Examiner (Mr. Hincks's paper), to say what it was that they meant by responsible government, and declared that they either did not know or dared not say. Indeed, in the vast majority of cases it was quite obvious that they did not know. But it might be reasonably supposed in the case of a few men, such as Francis Hincks and Joseph Howe, whose papers, the Examiner of Toronto and the Nova Scotian of Halifax, gave much the ablest presentations of the principle of responsible .government, that they did not quite care to declare all that was latent ui the principle.

Obviously, here was a# issue which required a practical, rather than a theoretic, solution. It has not to this day received a theoretic solution, as witness the long list of failures which have been and are still being produced in the attempt. So peculiar was the problem that, as in the case of the British constitution itself, those who were chiefly instrumental in furnishing a working solution were the least ready to furnish a theoretic statement of it. As we shall sec, it was left to Lord John Russell and Lord Sydenham to present a practical solution for Canada by a more adequate expression of what was involved in practice in the British system as advocated by Lord Durham's Report.

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