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Lord Sydenham
Chapter XI  - Responsible Government

LORD John Russell on receiving a despatch from Lieutenant-Governor Arthur, after the departure of Poulett Thomson from Britain, detailing the rising excitement over the subject of responsible government, and recounting his own public utterances in opposition to it, evidently felt that some further directions on the subject should be sent to the governor-general. At the same time he considered it necessary to provide some more practical means than that which existed for enabling the governor to keep his executive in harmony with the legitimate aspirations of the legislature.

As a letter of counsel to the new governor and an expression of the latest views of the colonial office, we have the following important despatch addressed to Poulett Thomson.

"Downing Street, October 1839.

"Sir,—It appears from Sir George Arthur's despatches that 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 upon this subject. I cannot better commence this despatch than by a reference to the resolutions of both Houses of Parliament, of the 28th April and , 9th May, in the year 1837.

"The assembly of Lower Canada having repeatedly pressed this point, Her Majesty's confidential advisers at that period thought it necessary not only to explain their views ;n the communications of the secretary of state, but expressly called for the opinion of parliament on the subject. The Crown and the two Houses of Lords and Commons having thus decisively pronounced a judgment upon the question, you will consider yourself precluded from entertaining any proposition on the subject.

"It does not appear, indeed, that any very definite meaning is generally agreed upon by those who call themselves the advocates of this principle; but its very vagueness is a source of delusion, and, if at all encouraged, would prove the cause of embarrassment and danger.

"The constitution of England, after long struggles and alternate success, has settled into a form of government in which the prerogative of the Crown is undisputed, but is never exercised without advice. Hence the exercise only is questioned, and however the use of the authority may be condemned, the authority itself remains untouched.

"This is the practical solution of a great problem, the result of a contest which from 1610 to 1690 shook the monarchy and disturbed the peace of the country.

"But if we seek to apply such a practice to a colony, we shall at once find ourselves at fault. The power for which a minister is responsible in England is not his own power, but the power of the Crown, of which lie is for the time the organ. It is obvious that the executive councillor of a colony is in a situation totally different. The governor, under whom he serves, receives his orders from the Crown of England; but can the colonial council be the advisers of the Crown of England? Evidently not, for the Crown has other advisers, for the same functions, and with superior authority.

"It may happen, therefore, that the governor receives at one and the same time instructions from the queen and advice from his executive council, totally at variance with each other. If he is to obey his instructions from England, the parallel of constitutional responsibility entirely fails; if, on the other hand, he is to follow the advice of his council, he is no longer a subordinate officer, but an independent sovereign.

"There are some eases in which the force of these objections is so manifest, that those who at first made no distinction between the constitution of the United Kingdom and that of the colonies, admit their strength: I allude to the questions of foreign war and international relations, whether of trade or diplomacy. It is now said that internal government is alone intended.

"But there are some cases of internal government in which the honour of the Crown or the faith of the parliament, or the safety of the State, are so seriously involved, that it would not be possible for Her Majesty to delegate her authority to a ministry in a colony.

"I will put for illustration some of the cases which have occurred in that very province where the petition for a responsible executive first arose —I mean Lower Canada.

"During the time when a large majority of the assembly of Lower Canada followed M. Papineau as their leader, it was obviously the aim of that gentleman to discourage all who did their duty to the Crown within the province, and to deter all who should resort to Canada with British habits and feelings from without. I need not say that it would have been impossible for any minister to support, in the parliament of the United Kingdom, the measures which a ministry, headed by M. Papineau, would have imposed upon the governor of Lower Canada;—British officers punished for doing their duty, British emigrants defrauded of their property, British merchants discouraged in their lawful pursuits,—would have loudly appealed to parliament against the Canadian ministry and would have demanded protection. . . .

"While I thus see insuperable objections to the adoption of the principle as it has been stated, I see little or none to the practical views of colonial government recommended by Lord Durham, as I understand them. The queen's government have no desire to thwart the representative assemblies of British North America in their measures of reform and improvement. They have no wish to make those provinces the resource for patronage at home. They are earnestly intent on giving to the talent and character of leading persons in the colonies advantages similar to those which talent and character, employed m the public service, obtain in the United Kingdom. Her Majesty has no desire to maintain any system of policy among her North American subjects which opinion condemns. In receiving the queen's commands, therefore, to protest against any declaration at variance with the honour of the Crown and the unity of the empire, I am at the same time instructed to announce Her Majesty's gracious intention to look to the affectionate attachment of her people in North America as the best security for permanent dominion.

"It is necessary, for this purpose, that no official misconduct should be screened by Her Majesty's representative in the provinces; and that no private interests should be allowed to compete with the general good. Your Excellency is fully in possession of the principles which have guided Her Majesty's advisers on this subject; and you must be aware that there is no surer way of earning the approbation of the queen than by maintaining the harmony of the executive with the legislative authorities.

"While I have thus cautioned you against any declaration from which dangerous consequences might hereafter flow, and instructed you as to the general line of your conduct, t may be said that I have not drawn any spec, fie line beyond which the power of the governor on the one hand, and the privileges of the assembly on the other, ought not to extend. But this must be the case in any mixed government. Every political constitution in which different bodies share the supreme power is only able to exist by the forbearance of those among whom this power is distributed. In this respect the example of England may well be imitated. The sovereign using the prerogative of the Crown to the utmost extent, and the House of Commons exerting its power of the purse to carry all its resolutions into immediate effect, would produce confusion in the country in a twelvemonth. So in a colony; the governor thwarting every legitimate proposition of the assembly, and the assembly continually recurring to its power of refusing supplies, can but disturb all political relations, embarrass trade and retard the prosperity of the people. Each must exercise a wise moderation. The governor must only oppose the wishes of the assembly where the honour of the Crown or the interests of the empire are deeply concerned; and the assembly must be ready to modify some of its measures for the sake of harmony, and from a reverent attachment to the authority of Great Britain."

With the exception of a slight logical inconsistency which will be referred to later, we have in this despatch an almost complete expression of the theory of responsible government within the British empire as it is exercised to-day. The relationship has been stated a thousand times since this was written, but we have here a statement of all the essential principles which govern the whole subject. For the sake of clearness and further reference, the principles involved may be distinguished and stated thus:—

(a) The prerogative of the British Crown is as absolute to-day as it ever was, being simply the expression of British sovereignty.

(b) The prerogative of the British Crown is not exercised by the monarch alone, but under advice controlled by the two Houses of Parliament.

(c) The degree or proportion in which the prerogative of the Crown is exercised by the three estates—the King, the Lords, and the Commons— is not, and cannot be, prescribed. This is a matter which has been adjusted from time to time by trial, experiment, and usage, in such a way that in certain matters the will of the monarch is practically final, in others the will of the Lords, and in others the will of the Commons, but in all cases with the tacit consent of the others. In the course of time, however, the larger and more distinctly national issues have gradually come chiefly under the will of the Commons, as expressed through the ministry of the day, accepted by the Lords, and assented to by the kmg.

(d) There is no power over and above the British ministry as exercising the royal prerogative.

(e) In the colonies there is such a power, the power, namely, of the royal prerogative as exercised by the British ministry.

(f) When a colonial governor receives advice from the home government which conflicts with that received from his advisers in the colony, he must obey the advice from the home government, otherwise his colony is a sovereign or independent power.

(g) It is not possible to make a distinction between colonial sovereignty and British sovereignty, depending upon the subjects dealt with; such as, in the first case, matters of internal economy, and, in the second, matters of inter-imperial or foreign relations. This is simply a question of degree, the principle being the same in both cases.

(h) As to what does or does not lie within the power of a colonial government, as distinguished from the British government, no hard and fast distinction can be made. Everything is a matter of wisdom and adjustment. The British government should have 110 desire to embarrass the legitimate development of the colony, and the colony should not insist upon demanding that which violates the honour of the Crown and the unity of the empire.

(i) The adjustment of powers between the governor, the council, and the assembly in the colony can no more be defined and prescribed than the adjustment of powers between the monarch, the Lords, and the Commons in England. Everything must be adjusted under a wise moderation and respect for the necessities of the constitution and the needs of the country.

In carefully considering these propositions, we observe that the one defect in the system appears in the want of harmony between the principle laid down in (c) and (f), and the principle declared in (h). Yet (h) is evidently the more logical and perfect statement. Propositions (e) and (f) contain the very defects which all the other principles in the series are intended to eliminate, alike for Britain and Canada. In (h) it is correctly stated that there can be no precise definition as to where the authority of the British government and that of the colonial government limit each other. That must be determined by trial, experience and usage. An unreasonable and unbending claim to exclusive jurisdiction by either party is as liable to produce a rupture of the empire as a similar attitude on the part of one of the estates in the government of Britain itself, or of a self-governing colony. The giving way, therefore, in the case of a disagreement is not to be entirely and of necessity on the side of the colonial government as claimed in (e) and (j'), but is in every case a matter for reasonable discussion and adjustment, and must be decided in the light of what is best for all parties, as recognized in (h), which is simply an expression of Lord John Russell's statement that "Her Majesty has no desire to maintain any system of policy among her North American subjects which opinion condemns." Hence, when the governor is required to protest against a disregard of the honour of the Crown or of the unity of the empire, he is " at the same time instructed to announce Her Majesty's gracious intention to look to the affectionate attachment of her people in North America as the best security for permanent dominion." It will be seen then that this despatch really covers the whole ground, carrying with it as it does the logical correction of its own defects.

There was, of course, nothing in this despatch to hamper Governor Poulett Thomson from admitting, as applicable to the colonies, the most complete theory of responsible government. But, m actually bringing that theory into practice, many and serious difficulties still stood in the way. In the first place neither the conservative element nor the professed advocates of responsible government understood what was involved in bringing such a principle into actual practice. The Conservatives were doubtless the more completely in the dark, entirely misconceiving and misrepresenting it; but the Reformers, professed advocates of the principle, both claimed and allowed far too much. They were willing to admit that the British government had an unquestionable authority in Great Britain itself and the empire at large, without any interference from the colonies. For the time being, also, they were willing to admit that Canadian external relations, including trade relations with foreign countries, all relations between the colonies themselves, and between the colonies and the Mother Country, belonged to the sphere controlled by Britain alone. But they claimed an equally absolute authority over all domestic affairs of the provinces, without considering, however, whether domestic and foreign affairs did not involve a separation of bone and marrow. Their general principle left no common ground on which mutual powers were to be exercised, and logically involved an ultimate separation between the Mother Country and the colonies, after a series of conflicts over those very colonial relationships which for the time were admitted to be entirely within the jurisdiction of the Mother Country. But experience has proved that the claim for responsible government which was put forth at this time, from the most opposite motives, by the French-Canadians on the one hand, and the advanced Reformers in Upper Canada on the other, has not only never yet been realized, but is now all but abandoned. It is now but the phantom enemy of ultra-imperialists who seem to believe that responsible government still means what it did to Lafontaine and Baldwin at this period, but which they themselves put aside on attaining to power. These mistaken ideas as to what responsible government involved, Poulett Thomson had to deal with, and endeavoured to dispel, introducing in their place that constitutional practice of responsible government by trial and experiment through mutual concession, the results of which were to be crystallized into the practice and custom of a constitution moulded upon British lines.

In attempting to introduce into Canada the practice of the British constitution, what the new governor was met with was the fact that the Canadian system as then administered on Family Compact lines, was an American and not a British system. In the American system the legislative and the executive departments are distinct from each other. The president and his cabinet are not members of either house of Congress, and have no direct control over the voting of supplies or the passing of Acts, except through the tendering of advice by a message from without, and the power of veto after measures have been passed through Congress. So in Canada at this time the governor and his executive council were not members of the representative portion of the legislature, and had no direct control over the voting of supplies or the passing of Acts, except the power of veto exercised by the governor in reserving bills, and by a nominated council in rejecting them. Again, in the American system the president selects the various secretaries, who, as chiefs of the executive departments, compose his cabinet, but they are otherwise quite independent of each other, and do not require to agree in tljeir views on all the leading issues of public policy. Similarly, the chief executive officers in Canada were, nominally at least, selected by the governor, but were otherwise independent of each other, and did not require to agree in their views on general public policy. Nominally the Canadian executive chiefs held their offices as the American secretaries, at the pleasure of the governor representing the Crown. But, as part of the system by which in Canada the servants came to control the master, they had managed to establish virtually a life tenure in their offices. It was on this vital point of tenure of office that the chief practical difference between the Canadian and the American systems lay. In the United States the president was elected by the people, in Canada the governor was appointed from Britain. In the United States the senate was indirectly elected by the people, in Canada the legislative council was nominally appointed by the Crown, but really nominated by a group chiefly composed of the executive and legislative councils themselves. A similar distinction held with reference to the presidents cabinet and the governor's executive council. Thus,, in the United States, though there was not responsible government in the English sense, yet ultimately all the officers of the government were indirectly amenable to the popular suffrage. In Canada, where there was no responsible government of the British type, neither was the government even indirectly amenable to popular suffrage.

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