Fennings Taylor, Are Legislatures Parliaments? A Study and Review (1879)

Document Information

Date: 1879
By: Fennings Taylor
Citation: Fennings Taylor, Are Legislatures Parliament? A Study and Review (Montreal: John Lovell, 1879).
Other formats: Click here to view the original document (PDF).

The HTML Text Below Has Not Yet Been Edited

This document has not yet been edited for mistakes. Help us out by correcting the text and mailing it as a text file to pd@theccf.ca. Your help will make PrimaryDocuments.ca the most complete word-searchable electronic repository of documents relating to the Canadian constitution. For more information consult our Be a Contributor page.

Read the unedited text






Author of “Sketches of British-Americans,” with Photographs by Notman;
“The Life and Death of the Honourable T. D’Arcy McGee;”
“The Last Three Bishops appointed by the Crown
for the Anglican Church of Canada,” &c.



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




&C., &C., &C.,
















ALL WITHOUT ANNIHILATING ANY.—Burke’s speech on American
Taxation, Vol. I, page 156, of his “Select Works,” edited by
E.F. Payne, M.A., Fellow of University College, Oxford.


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




EXPERTS in the business of drafting acts of Parliament
are generally careful to use the same word whenever,
in the course of their work, they have occasion to refer
to a given subject or to describe a special thing. To
this end an experienced draftsman will avoid synonyms
or equivalents, because synonyms and equivalents can-
not be alike in form, and may not be equal in value, to
the words whose places they are employed to take. If,
for example, such an expert means “Legislature” he
would not, when drafting a law, write ” Parliament,” as
these words, though germane to one another and collo-
quially interchangeable, are separated one from the other
by several well-drawn lines of meaning. Were such an
one, for example, acquainted With the acts passed for
the government of the old provinces, and of the present
dominion, of Canada, he would know that the Parlia-
ment of England had been careful to use the words We
have named as terms of contrast, rather than as terms of
resemblance, and, consequently, that they could not be
used indifferently, or interchanged without loss. It is
very important to keep in mind the distinction which
has thus been drawn for us by the supreme authority,
as it is by no means certain that grave mistakes have
not arisen, and may yet arise, from a disregard of exact-
ness in determining the “meets and bounds ” of the
words ” Legislature” and ” Parliament.” Thus, when
we find these words used in an Imperial Act to describe
separate powers and separate authorities, we may be
sure they are so employed for distinct uses, and are
intended to describe, not one, but two political organi-
zations, whose duties, powers and privileges, unless
otherwise bestowed, must be sought for in the Act in
which they were granted. Being words of grave weight
and import, we may expect to find them carefully
guarded wherever they are used, and only repeated in
the same sense in which they were at first employed.
The advantage of such a practice is obvious, for the
occasions for doubting about the relevancy of language
are lessened, and the work of interpretation is rendered
comparatively easy. The commentator is relieved of
the duty of assaying the weight, or of adjusting the
value, of terms that may be similar but that are not alike ;
that may spring from kindred germs, and yet display
marks more or less pronounced of divergence, if not of
contrast, in their development. Such marks as are
commonly observed between the looseness of conven-
tional and the precision of legal phrases.

For the convenience of illustration, and by way of
preface to the subject of this work, reference will be
made to three acts of the Imperial Parliament and to
the words employed when describing those political
institutions, which colonists, from early association, and
probably from a foregone interpretation, have regarded
as “Parliaments,” but which the mother country in-
tended to be “Assemblies,” or “Legislatures” and
nothing more. The first example will be found in the
Act 31st George 3rd, which authorized the separation of
the province of Quebec into Upper and Lower Canada,
wherein provision was made for the establishment
“within each of the said provinces respectively of a
Legislative Council and an Assembly.” It is to be
noted that the word “Legislature” is nowhere used
in that act as an alternative expression, much less as
an equivalent one for the word “Parliament,” nor is the
word “Parliament” used, even remotely, as a term
applicable to the experiment then initiated of a new
model of colonial government.

In like manner, in the Act of 3rd and 4th Victoria, 1840,
which re-united the then separated provinces of Upper
and Lower Canada, the like exactness in the use of
words is strictly observed. “There shall be within the
province of Canada one Legislative Council and one
Assembly,” ” which shall be called the Legislative Coun-
cil and Assembly of Canada,” is the language of the
act, for the Word “Parliament” is nowhere applied to
the legislature created by that act. Indeed, as we
shall have occasion to observe presently, the word
“Parliament,” as applied to the legislature of Canada,
with all “the powers, privileges and immunities” which
that majestic and historic term seems to have been formed
to express, was employed for no common use; but, like
a cherished dignity of the highest order, was reserved for
a later occasion and for a larger, a more imposing and
expressive purpose.” It will be observed that the powers
conferred by the two acts to which we have referred
were enabling and co-operative powers. They were ” to
aid His (or Her) Majesty, by and with the advice and
consent of the Legislative Council and Assembly, to
make laws for the peace, welfare and good government
of the inhabitants of the respective Provinces.”

The machinery by which such work was to be done
was generally, rather than specially, described in what we
are accustomed to call the constitutional acts. The aim
was clearly stated, but the means seem to have been
left to their intelligence who should be chosen to put
the machine in motion. The right to make laws for the
good government of the province included the authority
to make rules for the good government of the legisla-
tures. But such rules were to be subordinate to law,
for the colonial Assemblies had neither inherited, or
had conferred on them any freedoms, exemptions or
advantages that were inconsistent with or superior to
the law. No “powers,” no “privileges,” no “immuni-
ties” beyond the law-making power were given to
the law makers. On the contrary, while those acts
contained several disqualifying and disabling clauses
they did not include one on which a special privilege
could be fastened, or under which a personal immunity
could be claimed. The Acts of 1791 and 1840, which
thus authorized the establishment of Councils and
Assemblies within the provinces of Canada, apparently
were passed to enable certain persons chosen, or elected,
for the purpose, to aid their Sovereign in making laws,
that, under express limitations, were to be operative
within, and not beyond, the boundaries of the respective
provinces. The functions of such legislatures, as origin-
ally bestowed, if for convenience we may be allowed a
diminutive form of expression, were municipal in their
range, and the laws of such legislatures, like those of
less imposing corporations, were bnly operative within,
and not beyond the municipality, no matter whether such
municipality was termed a district or a province. The
duties originally discharged by such legislatures, though
certainly more imposing and extensive, were scarcely
more final and complete than are those which are now
perforufed by county and city corporations. In either
case the power exercised was of a statutory character.
Every act passed was declared to be passed in virtue
of the authority conferred by a higher legislature, i.e., the
Parliament of England. Everything done by the Legis-
lative Council and Assembly was done in virtue of the
law which created such council and assembly, and of
that only. It follows that as authority, like water, can rise
no higher than its source, we may look only to the law to
which those assemblies owed their existence as their
warrant and justification for such things as they did, and
for such immunities as they claimed: “Custom and
usage” were exotics, and hence the common law could
not properly be appealed to where the case to be
dealt with was to be found only within the limits of a
modern statute. Analogy afforded no help, for law and
not ” use” controlled the law makers.

The Canadian Assemblies, moreover, were experi-
ments. One province was a thinly settled country with a
newly organized government, and both provinces were to
be made the scenes of new modes of administration. The
hoar of age, the sanctity of tradition, and the hereditary
in?uence being absent from, or not yet naturalized in, the
new country, could have no place in the new Legislatures,
and consequently “usage and custom,” which derive
from use and age, must have been absent also. Until the
passing of the British North America Act of 1867 it
may fairly be questioned whethera comparison could
reasonably have been made between the statutory Coun-
cils and Assemblies of the British colonies in America
and the Parliament of England. The phrase “image
and transcript of the British Constitution” was a phrase
of singular but exaggerated felicity, which nevertheless
reflected most truly the feeling and desire of the enthu-
siastic and chivalrous Governor Simcoe. Unfortunately
the charm of the phrase must be sought for in the re-
gions of feeling and desire, of imagination and fancy, as
it will be looked for in vain in the sober limits of a law
which included no individual privileges, conferred no
personal immunities and preserved no ancient customs,
but which had come as fresh from the brain of the
British Parliament as the coin that on the same day may
have issued from the English mint. No doubt Gover-
nor Simcoe’s picturesque words fell smoothly on the
sympathetic ears of the loyalists to whom they were ad-
dressed, for they were laden with soothing euphony.
They touched alike the hearts, the imaginations and the
histories of all the Upper Canadians of that day. As an
epigram daintily compounded of feeling and ?attery, it
quickened their spirit, and sank into their mind, while
in later times it was caressed and fondled, remembered
and quoted with satisfaction and excusable pride. Nor
was such a result surprising. For however far removed
the newly created legislature that first met at Newark,
now Niagara, in 1792, was from the ” ancient inquest of
the English nation,” it was highly agreeable, no doubt, for
” Honourable Gentlemen and Gentlemen” who were
members of that legislature to be informed by an authority
so distinguished as the representative of Majesty, that the
estates of the province of Upper Canada, there gathered
Within the four walls of the Legislative Council chamber,
was a “Parliament,” the image and transcript of that
glorious constitution for which those loyal legislators
had been willing to light, and were ready to die ; for that
constitution whose origin they knew, or had been told,
was to be sought for in the remotest times ; the image
and transcript of those grand estates Whose early history
they believed was to be found,not in the written law, but
in ” the deep trod footprints of ancient custom.”

The Acts of 1791 and 1840 were conventionally and
properly called ” Constitutional Acts.” And whatever
legislative authority was exercised within the provinces
was so exercised in virtue of the authority which those
acts conferred. The laws passed by the councils and
assemblies established by those acts, when assented to
and left to their operation by the Parliament of England,
were valid within the province in which they were pass-
ed , just as the laws of the local legislatures, when as-
sented to and left to their operation by the Parliament
of Canada, are now valid within the province in which
they are passed. But the ” privileges, immunities and
powers” which from time immemorial had been held,
exercised and enjoyed by the Parliament of England,
and which by the terms of the ” British North Amer-
ica Act” are “now held, exercised and enjoyed” by the
Parliament of Canada, are not named in the acts of 1791
and 1840, nor are they alluded to in the debates and
explanations that arose during the passing of those acts.
It would therefore seem that the Imperial Parliament
most carefully and with great exactness weighed the lan-
guage of its laws ; for the qualifications and conditions
which in the acts of 1791 and 1840 seem to hedge the
legislatures established by these acts, are repeated in
1867 and applied to the legislatures that were, or might
thereafter be, established under the British North Amer-
ica Act. It would therefore seem that the British North
America Act of 1867 may be regarded as the interpreter
of the two previous acts, for it not only uses the words
” Parliament” and ” Legislature,” but for the first time
it defines alike their meaning and their powers. In-
deed the discrimination is so broad that none can fail to
understand the scope and relevancy of the two words.
Both the “Parliament of Canada” and the ” Provincial
Legislatures ” are the creations of the same Act, but the
former, with the name and the title deeds, has been in-
vested with the. customs and privileges of ages, while the
latter has succeeded only to such rights, duties and powers
as the act itself specifies and confers. The British North
America Act of 1867, in thus discriminating between
words which in Canada have practically been treated as
synonymous, pointedly suggests for our consideration a
by no means unimportant fact, viz. : that as a ” Legisla-
ture ” is A body distinguished from and not identical
with a ” Parliament,” so must it be ruled by the condi~
tions of its creation, and not by the conditions under
which the body from which it is distinguished was crea-
ted. A “Parliament” possesses hereditary as Well as in-
herent rights. A Legislature possesses only charter
rights ; for it has no other or higher powers than those
contained in the act under which it is established, and
therefore its authority, like the authority of a municipal-
ity, is absolutely limited by the law. If then this infer-
ence be just, it would seem to follow as an absolute con-
clusion that the ” privileges, immunities and powers ”
claimed and exercised by the members of the old legis-
latures of British North America, and by the members of
the different legislatures of Canada at the present time,
were, and are, so claimed and so exercised without war-
rant or authority of the Parliament of England.

This mortifying discovery very naturally gives rise to
an interesting question. If the Imperial authorities did
not intend the legislatures which they created to exer-
cise the functions of Parliaments, then, after what other
pattern were they formed, and with what inquests lower
than Parliaments may they be compared? Is it possible
that, when providing the means of local selfgovernment
for the different provinces of North America the Impe-
rial Parliament was more guided by the system of rule
which obtained in Saxon England than by the grander
and more imposing one that arose after the Norman
conquest? For, although the former system was over»
ridden and trampled down, so far as it affected the
country at large, it nevertheless survived in certain forms,
and still lives in a more or less modified condition, in
every municipality in England. May not the ancient
corporation of the city of London, for example, with its two
orders of alderrnen and Councilmen, its limited area and
charter rights, have suggested the form of local self-gov-
ernment, which was subsequently adopted, with respect
to the two Canadas. The councillors and assemblymen
of the legislatures, whether appointed or elected, like the
aldermen and councilmen of a municipality, are taken
from the democracy, and the limit of authority in either
case is determined by exact boundaries, no matter whether
they be civic or provincial. But, without dwelling
unduly on this inference, there can, we think, be only
one conclusion arrived at from the evidence which the
three constitutional acts furnish of the aim and intention
of the Imperial Parliament in passing those acts. We
are no longer left to guess the meaning of the acts of
1791 and 1840, neither have we the right any longer to
assume that they conferred powers that were not ex-
pressed. The British North America Act of 1867 not
only interprets itself but furnishes the key by which we
are to interpret its predecessors. The last named for
the first time gives authority to create outside of the
United Kingdom a Parliament whose members shall
have such privileges, immunities and powers “as are
held, enjoyed and exercised by the Commons House of
Parliament of the United Kingdom of Great Britain and
Ireland and by the members thereof.” As no such
privileges, immunities and powers” were conferred on
any of the legislatures established by the three acts we
have mentioned, and as they are by contrast actually with-
held from the legislatures that are established by the
last mentioned Act, it follows conclusively that the
assumption in the past, or at the present time, by Provin-
cial legislatures of the “privileges, immunities and
powers ” that belong only to Parliaments is an assump-
tion for which no authority can be found in the acts
under which those legislatures were established, and
from whence all their authority is derived.

If however, the intention of the Parliament of England
was absolutely plain, the action of the legislatures of the
two Provinces of Canada was still more expressive.
While only swaddled in swathing bands those sturdy
infants did not hesitate to cover themselves with the
clothing of Britannia, or to claim, like their counterpart,
the Parliament of England, that they also were ” the heirs
of the ages,” the inheritors of the usages of a thousand
years. Hence they lost no time in appropriating ” pri-
vileges ” that had not been conferred, in claiming “im-
munities ” that had not been bestowed, and in exercising
” powers ” that had not been granted. The transaction
was a charming compound of innocence and audacity.
Nevertheless the “privileges, immunities and powers,”
though boldly asked for and adroitly appropriated, as if
they had been the uriqpestioiiable accessories and attri-
butes of legislative government, were not enjoyed without
a challenge. There were some who doubted, and there
were others who denied, that an Assembly was a Parlia-
ment. They questioned the right to claim, under cover
of privilege, powers and exemptions that had no place in
the law. But their scepticism was scouted by the legis-
lature, and was not then carried into court, and so it came
to pass that customs which had been appropriated with-
out warrant were continued without law. And here a
question of a qualifying character very naturally arises.
As the “privileges, immunities and powers” so ostenta-
tiously bestowed by the first Governor of Upper
Canada, and more cautiously by the first Governor
of Lower Canada, and their successors, were not so
bestowed in virtue of any power authorized by law,
it follows that if authority can be produced for the
exercise of such powers it must be sought for elsewhere
than in acts of Parliament. Is it to be discovered in the
Colonial office? or can it be found in the form of Royal
instructions ? Were the law officers of the Crown con-
sulted, and, if so, where are we to look for their opinions ?
The point could hardly have been settled off-hand, for it
included the two attributes of privilege and prerogative.
Now a privilege, or an immunity, is commonly under-
stood to be an exception to a law, while a prerogative,
though a legal function, is a function above the law.
This exception to law was claimed by Speakers of
successive Assemblies, and was allowed by successive
Governors. Thus a function above the law was exercised
by successive Governors, and presumably by the author-
ity that was delegated to them, but of which we fail to
discover any evidence. It follows that successive
Governors, in virtue of this actual or supposed authority,
arrested the course of law, by stepping between debtors
and creditors, to the serious loss and injury of the latter.
In like manner, successive Governors set themselves
above the law, and incidentally at all events, in virtue of
the privileges conferred, gave authority to the legislatures
to attach and imprison whom they would, without
reference to the courts ; and yet Governors and Speakers
alike escaped open rebuke or pecuniary loss. No
indemnity was sought for the exercise of what we think
must now be considered to have been acts of questionable
legality. Privilege and prerogative embraced one another,
and results of a very irritating kind were the issue of the
compact. ” Privileges, immunities and powers,” which
we now know are the exclusive property of Parliaments,
were seized and enjoyed by Assemblies that were not
intended to be Parliaments. The appropriation, it mustbe
allowed, was open and above board, and whether right or
Wrong, whether legal or illegal, the privileges, so far as
words could convey them, were as fully given as they
were frankly asked for. Governor Simcoe did not wait
to balance phrases. He probably thought that as a
Parliament was a Legislature it followed that a Legisla-
ture was also a Parliament, and consequently he looked
upon the infant Legislature of Upper Canada as an infant
Parliament. Again, he had enjoyed the advantage of
sitting in the Parliament of Great Britain as a member for
a Cornish borough, and consequently he was in all pro-
bability familiar with the forms and usages of the House
of Commons. He had possibly been present at the elec-
tion of a Speaker, and was therefore aware of the customs
observed at such imposing ceremonials. In the new
departure, when inaugurating a typical representative
govermnent for colonial use in Upper Canada and
elsewhere, he would no doubt have been especially
anxious to make a good beginning. He would remember
the ancient rights and undoubted privileges that were
asked for and grantedin England; and reasoning from
the analogies he had constructed, and fitted in his own
mind, he would naturally conclude that the like privileges
ought to be extended to, even if they were not inherent in,
the members of the Legislature of Upper Canada. He
did not pause to ask whether he could exercise a prero-
gative which he did not possess, or whether, without
authority, he could bestow privileges which were to
supersede the operation of law. It must of course be
presumed that the members of the new Assemblies had
reason to believe that their petition for privileges would
be favourably received, and it must also be assumed
that the Governors had, or thought they had, authority
to grant what was asked for.

Nevertheless, from the circumstances that attended
the election of the first Speaker of the Assembly of Upper
Canada, and to which more particular allusion will
hereafter be made, it is probable that this doubt was
not wholly absent from the mind of Governor Sim-
coe, as an unusual delay occurred between the election
of the Speaker and the customary prayer for privileges.
But Whatever may have been his doubts, Governor Sim-
coe apparently had arrived at the conclusion that no
difference within their respective limits existed between
the Imperial Parliament and the Local Legislature, and
consequently it was His Excellency’s pleasure to look on
the latter as the “image and transcript” of the former.
But it must be borne in mind that no license to observe
a system of constitutional analogy was either directed or
required by the constitutional act of 1791. And hence,
in order to justify the bestowal on the newest Assembly
in America of the ” privileges, immunities and powers ”
of the oldest Parliament in Europe, it was necessary, in
His Excellency’s opinion, by an act of personal authority,
to assent to a certain mode of procedure which should
have the effect of grafting ancient custom on modern
law, and of clothing with the privileges of ages the legis-
lative experiment that was born on that day.

We have no knowledge that Governor Simcoe had
any authority whatever for thus placing himself above the
law, and it is very doubtful whether such authority could
have been conferred by Royal instructions even had the
attempt been made. Consequently we must assume
that no such instructions were issued, for no evidence of
their existence can be found. The act was a personal
one, and took its rise in the error which was corrected
seventy-five years afterwards by no less an authority than
the Imperial Parliament, viz. : that two legislatures that
were dissimilar in name, and unequal in their attributes,
were likewise the reverse of identical in the inherent
rights they severally possessed, and in the privi-
leges and immunities they respectively enjoyed. It
is probable that His Excellency’s mind was undisturbed
by doubt, and consequently that he made no effort to
discover a difference between two disproportionate
bodies that exercised unequal functions and were called
by different names. Having, as he believed, in virtue
of his prerogative, declared the lesser to be the image
and transcript of the larger body, he established between
the two a claim to identity, and was content to leave his
opinions, and his epigram, to work like leaven in the
Canadian mind, until at length few persons were found
to question the soundness of the former while none
denied the felicity of the latter. Nevertheless, if our in-
ferences and conclusions are correct, we now learn. that
Governor Simcoe’s opinion was unsound, and the language
in which it was clothed inexact and misleading, for the
Imperial Parliament has corrected both by publishing its
own interpretation of its own words. After seventy-five
years in one case and twenty-six in the other of erroneous
practice, the meaning of the constitutional Acts of 1791
and 1840 is explained by no lower authority than the law
maker, who informs all whom it may concern that a
” Legislature” is not a ” Parliament,” and consequently
that the ” powers, privileges and immunities ” which have
been and still are exercised by Legislative Councils and
Assemblies are nothing else than fond conceits, com
menced without authority and continued without warrant.
The error is easily explained. Apparently it took its
rise in inexactness and a loose interpretation of words.
But the mistake has run its course, and it is now cor-
rected. We learn on the supreme authority of the Parlia-
ment of the United Kingdom that theiwords ” Legislature”
and “Parliament,” which were commonly regarded in
Canada as synonyms, are scarcely more equivalent in
their meanings than they are alike in their forms. The
illusion is dispelled. But it was not cherished, as there
is reason for believing, without criticism, at the Colonial
office, or without challenge in Canada. There were
some in the Upper Province who denied that a ” Legisla-
ture “was a ” Parliament,” and being consistent, for they
were so to their cost, they asserted that the Assemblies
arrogated powers that had not been granted to them, that
they instituted comparisons that could not be drawn, and
so arrived at conclusions that ought not to be reached.
We shall defer our further criticism and the narrative
that has given rise to it, till a later chapter. In the mean-
while it may be observed that, as history generally
sparkles with contradictions, so it need occasion no
surprise if the events of past days in Canada now and
then find expression in paradox. The political conduct
of one generation will not always be found consistent
with the received opinions of the next. They were the re-
formers, for example, who grafted Parliamentary govern-
ment on the Provincial legislatures, but they were the
tories who, firmly believing that the written constitution
of Upper Canada was the “image and transcript” of
the unwritten one of England, firmly set their teeth at all
gainsayers, and especially at those who sought to dwarf
the dignity of their legislature by questioning whether
it had, or ought to have, the powers, privileges and im-
munities of Parliament. The late Mr. Robert Baldwin,
the late Mr. James Small and others succeeded even be-
fore the time had properly arrived, and notwithstanding
the opposition of the tories, in clothing the legislatures
with the attributes of Parliament, While the fathers of
those gentlemen, viz. : the Honourable William Warren
Baldwin, better known as Dr. Baldwin and Mr John
Small failed, notwithstanding the veiled sympathy of re-
formers, in their efforts to minimize local authority and
individual importance, by asserting, and by acting on
their belief, that the Legislature was not a Parliament,
and, consequently, that the members thereof had no legal
right or title to the immunities they claimed or the pri-
vileges they appropriated.

The story is curious, and at the time occasioned a
good deal of commotion in ” the town of York.” Dr.
Baldwin and Mr. Small were salaried officers of the
government. Standing on what they believed to be
their rights, they denied that ” Assemblies ” were ” Parlia-
ments,” and, consequently, that members of the former
could legally avail themselves of the shelter of pri-
vilege, as privilege was the especial and peculiar pro-
petty of members of the latter. They went further, for,
having the courage of their convictions, they provoked
a test case by causing a member of the Assembly to be
arrested for debt. A lively scene arose. The Legislative
Council and Assembly, for a wonder, were thorough-
ly in accord, so they joined hands and entered into an
offensive and defensive alliance. Of course the members
of the Assembly lashed themselves into a vehement rage,
which naturally articulated itself in the rhetoric of the
gutter, for weak politicians generally use strong words,
and Assemblies with limited powers usually indulge in
unlimited talk. The reason was not far to seek. The
members of those deeply agitated Houses were by no
means satisfied with their own securities, for they had
thought themselves to be the undisputed owners of more
valuables than they actually possessed. It was surmised
that they had mistaken piuchbeck for gold, and had pos-
sibly circulated counterfeit for real coin. Being threat-
ened with forfeiture and loss, they displayed great
tenacity in clinging to what they had appropriated.
Wherefore they determined to stamp out heresy on the
spot, and to this end used their heaviest words and their
hardest measures. They not only passed violent reso-
lutions, butfollowed them by acts of high-handed oppres-
sion. Dr. Baldwin, being the greater offender, was dis-
missed, without a hearing, from his place, While Mr.
Small saved himself from deprivation by making an
humble but skilful apology.

A Study and Review. 27


EXACTITUDE in the use of terms, as We have already
insisted on, is an important aid to every branch of study,
but it is especially so in matters of science. Controver-
sies would often be avoided were we to agree before-
hand on the meaning and the measure of the words to be
employed, and fix with precision their relative as well as
their actual Value. In fact, a problem is said to be half
solved when the terms in which it is to be stated are
previously settled. The science of government, for
example, depends very much on the systematic arrange-
ment of formulas, and the course of law is also hedged
in with set phrases, Whose meanings have been estab
lished by usage and precedent. The truth is that in all
matters of serious concern great attention should be
paid to terms, and great caution observed in the use of
supposed equivalents 5 for a correct understanding of an
instruction, and more especially of a law, may depend on
the condition whether the same things have uniformly
been described in the same Words.

These observations bear very directly on the case
under review. Canadians of the last century substituted
a gloss for the text of an Imperial Act, and their suc~

28 Are Legislatures Parliamemts ?

cessors, for two or three generations, moved by consider»
ations of example and convenience, continued the prac-
tice, until at length time and use have done much to
crystalize error and give it the semblance of truth.
But in tracing a Wrong practice to its source we must
leave the responsibility where it should rest, viz. : with
the authors. They were the founders of our constitu~
tion, and notably Governor Simcoe and the early
legislators of Upper Canada who made the first slip,
and thus glided, innocently no doubt, and honestly we
are quite sure, into the mistakes of practice which Dr.
Baldwin challenged, and which the Imperial Parliament,
fifty-five years later, endeavoured by law to amend and
correct. Let us hear constantly in mind that the
Word Parliament as an equivalent for Legislature is
neither to be found in the text nor in the marginal notes
of the Act of 179:, nor is it to be found in the text, but
as if by an oversight, it has crept into two of the
marginal notes of the Act of I840. Dr. Baldwin’s con-
tention Was that a Legislature was not a Parliament, and,
had he lived a quarter of a century longer than he did
live, he would have had his opinion sustained by the
concurrent testimony of the Houses of Lords and Com~
mons, for “The British North America Act 1867″
expressly declares there shall be one Parliament for
Canada, and one Legislature for each of the several

The “Parliament for Canada” shall consist “of the

A Study and Review. 29

Queen, an Upper House, styled the Senate, and the
House of Commons.”

There were also to be legislatures for the different pro-
vinces, consisting in each case of the Lieutenant Gov~
ernor and of one House, or of two Houses, as might be
deemed advisable.

The constitution of the supreme Parliament for Can-
ada is in marked contrast with the constitution of the
subordinate legislatures. Indeed the framework differs
as much as the phraseology. “The image and tran~
script of the British constitution,” which is repeated and
preserved in the Parliament of Canada, becomes a fiction
and disappears altogether when we seek to apply it to
the legislatures of the provinces. The legislatures not
only differ in their constitution from the Parliament, but
they differ from one another. The Sovereign is not
expressly included in their component parts, nor is it
necessary that those parts should be three in number.
In fact, Ontario started with only two estates, and other
Provinces have followed, while others seem inclined to
follow the example of Ontario. Thus as strong an em-
phasis as language can articulate is placed on the fact

that the two bodies so created were distinct and distin-

guishable one from the other, for, while there can be no
doubt that a Parliament is a Legislature, we have the
authority of law for saying that a Legislature is not a Par-
liament. Furthermore, after explaining in what Way the
Parliament of Canada shall be constituted, the Act, as if to

30 Are Legislatures Parliaments?

clear away all ambiguity, adds in the next clause that
the ” powers, immunities and privileges to be held,
enjoyed, and exercised by the members thereof re-
spectively shall be equal to, but shall not exceed, those at
the passing of this Act held, enjoyed and exercised by
the Commons House of Parliament of the United King-
dom of Great Britain and Ireland and by the members
thereof.” The Imperial Parliament in I867, as it pre-
viously had done in 1840 and in 1791, defines also,
and be it observed in contradistinction to the previous
definition of a Parliament, in what way the Provincial
Legislatures are to be constituted and carried on. The
two definitions are fairly rounded and seem thoroughly
complete. Positively we are taught -by the Words of the
statute what legislatures are,’ and negatively we learn
by the eloquence of silence what legislatures are not.
The conclusion appears to be irresistible. They are not,
and consequently never could have been, intended to be
Parliaments , for they are not in the latest, nor were they
in the acts under which they were at first incorporated
penetrated with those quickening, animating and dis-
tinguishing “privileges, immunities and powers” which
are emphatically declared to be the exclusive and especial
possession of the Parliament of the United Kingdom,
and of the Parliament of Canada and of the members
thereof respectively.

It may, however, be advisable to refer to ” The British
North America Act 1867 “ and quote what it says. Un-

A Study and Review. 31

der the head ” Legislative Power “ the Act declares
in the seventeenth clause, ” there shall be one Parlia-
ment for Canada, consisting of the Queen, an Upper
House styled the Senate, and the House of Commons.”
The clause following enacts that “the privileges, immu-
nities and powers to be held, enjoyed and exercised by
the Senate and by the House of Commons, and by the
members thereof respectively, shall be such as are from
time to time defined by any Act of the Parliament of
Canada, but so that the same shall never exceed those at
the passing of this Act held, enjoyed and exercised by
the Commons House of Parliament of the United King-
dom of Great Britain and Ireland and by the members

” The Parliament of Canada Act of 1875 “ enlarged
the last mentioned clause and made it more comprehen-
sive. The amendment runs thus. After ” Canada,”
where it is last mentioned in the above quotation, the re-
maining words are left out and the following substituted :
” but so that any Act of the Parliament of Canada de-
fining such privileges, immunities and powers shall not
confer any privileges, immunities or powers exceeding
those at the passing of such Act are held, enjoyed, and
exercised by the Commons House of Parliament of the
United Kingdom of Great Britain and Ireland and by
the members thereof.”

Whatever the privileges that are “held, exercised
and enjoyed” by the members of the English House of

32 Are Legislatures Parliaments

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

Until the passing of “The British North America
Act, 1867,” no legislature Within the colonial domi~
nions of Great Britain had been established to com~
pare with the Imperial Parliament, and hence when

colonial”˜ Assemblies, with excusable complacency,

A Study and Review. 33

sought to clothe themselves with powers which had
not been conferred on them, or when they claimed
the privileges of a body whose name even they did not
bear, the proceeding was probably overlooked, or if
noticed, the authors were possibly regarded as harmless
trespassers on a manor that was not theirs, and perhaps
excused because such assumptions could injure no one
beyond their own borders. It should nevertheless be
borne in mind that the Parliament of the United King-
dom neither directly, or otherwise, concurred with the
legislatures of British North America in the opinions
which the latter had formed on their ” privileges,
immunities and powers,” for bad it done so there would
have been no need to pass a new law, no need, by a
special act, to confer immunities that were already as-
sumed, to bestow privileges that were already possessed,
or to grant powers that were already enjoyed. The
seventeenth and eighteenth clauses of the British North
America Act were new features in colonial charters which
expressed real meanings and not idle words. They gave
authority for doing what, so far as we can discover, had
previously been done without authority. They made
that legal and right which before was illegal and wrong.
They removed doubts, for doubts had existed; they
quieted controversy, for controversy had arisen; and
While they neither condoned not reviewed the past, they
made the course of future conduct clear. Indeed, had the

eighteenth section been left out of the Act few would now

34 Are Legislatures Potrlolctmerttsf

question the propriety of continuing a practice which was

begun in inadvertence, but which had been locally sanc-

tioned by use. Originally Governor Simcoe’s epigrarn

though felicitous was misleading, and must we think be

regarded as an exaggerated, and to a grave extent a

misapplied expression of opinion, which led to an
exaggerated and unlawful exercise of authority. But the
like exercise of authority was repeated by successive Gov-
ernors and by successive Speakers. Indeed, no successful
resistance appears to have been made to the practice,
and consequently no abatement of the authority assumed
took place for many years. The forms and procedure
were honestly continued after the fashion which Governor
Simcoe had set, nor were they modified, as we shall
have occasion to show, without causing what appears
to have been a somewhat violent wrench. In the mean-
while a precedent of eighteen years duration was estab-
lished in Lower Canada, and of a longer period in Upper
Canada ,- and precedents, we all know, usually bear fruit.
In the words of Junius, “what was yesterday a fact to-
day is a doctrine ,- what was yesterday a precedent to
be challenged,’to-day is a law to be obeyed.” If the Act
of I86 7 had not said a new thing, and said it emphatically,
if it had been as silent on the points on which it has
spoken as were the two preceding acts, we should have
assumed that the prerogative which had theretofore been
exercised was still exercisable, and that the “privileges,
immunities and powers” which had theretofore been

A Study and Review. 35

enjoyed were still enjoyable, and consequently that the
sixty-fifth clause which ratifies all that was lawfully done
before I867 would have ratified, for example, what was
done by successive Governors when they placed their
authority above the law and shielded debtors from arrest ;
and what was done by successive Assemblies, when in the
absence of prescriptive right they peremptorily hailed
offenders to attend at their bar, and exposed them to the
penalties of a tribunal which, Without law or delegated
authority, peremptorily assumed the right to arrest, to
try, to fine, and to imprison. Thus does “the British
North America Act of 1867 “ teach us that Governor
Simcoe, and many besides, who lived in ” the good old
times,” and since then, seriously exaggerated the “bene-
ficence “ of the mother country, and drew only a carica~
ture when they meant to make a portrait of the “image
and transcript of the British constitution,” for it was
evidently no part of the Imperial plan to do more than to
plant the English colonies with Assemblies Whose duties
and powers should be limited by law. Their Constitu-
tions were to be, and were written ones, and the acts in
which they were embodied, from beginning to end, in the
text and in the intention excluded the very name of
Parliament, and consequently excluded the conditions
that grow out of that name, viz. : Parliamentary privileges
and Parliamentary government, albeit the former were
retained in obedience to a passionate act of assumption,
While the latter were acquired by the courageous exercise

36 Are Legislatures Parliaments?

of endeavour. In the former case the law was possibly
warped for personal ends, while in the latter it was
undoubtedly enlarged for the public good.

It has frequently been said that England was never
Without national assemblies of some kind or other. Mr.
E. A. Freeman writes that “the germs alike of the
monarchic, the aristocratic and the democratic branches
of our constitution will be found as far back as history
or tradition throws any light on the institutions of our
race.” Thus it may have been that the early settlers of
North America, in imitation of the constitution of the
British Parliament, and notably in the colony of Virginia,
were apt, of their own mere motion, to distribute the
governing power, when they were not interrupted in
doing so, in three parts. The first was lodged in the
Governor, the second in a Council of State and the third
in an Assembly composed of representatives freely chosen
by the people. In referring to the colony of Virginia
and to the first representative body, if we mistake not,
that ever assembled in America, we may add that it was
just such a body of select men as the English race on
sudden emergencies is apt to call into action. For, though
it was organized under the direction of a private company,
it was for all practical purposes nothing less than a self-
constituted domestic legislature, chosen for the purpose
of regulating the general affairs of the country. The ex-
periment proved so acceptable to the people generally
that, in I621, the ruling council of the Company in

A Study and Review. 37

England went a step further. Without the shadow of
authority, they issued an ordinance which gave the new

form of government a permanent sanction and with

more extended powers. This action on the part of the
company, being an act of independent and unauthor-
ized legislation, ofiended King James ; for it was
contrary to his opinions, and formed no part of his prac-
tice, to put the royal authority into commission. Where-
fore that monarch took a peremptory way of stopping
colonial imitations of English originals. The company
quailed under the King’s displeasure, and retreated
hastily within their former lines, while matters of admin-
istration at once reverted to the condition in which they
were before the issue of the objectionable ordinance.
But, had the Kings prerogative been also seized and
exercised Without his consent, such at liberty, being
Viewed as a personal affront, would no doubt have been
visited with a punishment more severe than a frown.
Those adventurous colonists and others who followed
their example in establishing legislatures by and with
the advice and consent of trading companies, or of their
Own mere motion, were thereafter careful to guard
themselves on this point. They did not claim to possess,
nor did they attempt to use, the privileges of members of
the House of Commons. The time for doing so had not
arrived. Nevertheless after the revolution, and proba-
bly ill imitation of the Parliament of Great Britain
Such privleges and exemptions, to a qualified extent,

38 Are Legislatures Parliaments?

were extended to the Congress of the United States, and
were enjoyed alike by senators and by members of the
House of Representatives. The evidence of this fact will
be found in the 6th subsection of the first article of the
Constitution of the United States wherein it is declared
that “Senators and Representatives shall in all cases,
except treason, felony and breach of the peace, be pri-
vileged from arrest during their attendance at the session
of their respective Houses, and in going to and returning
from the same,” and ” for any speech or debate in either
house they shall not be questioned in any other place.”

It may now be interesting to tum to the early chapters of
our Canadian histories and see by the entries in the
earliest journals of Upper and of Lower Canada, how such
privileges came to be acquired and the circumstances
that attended their bestowal. By the Act of I79! it was
declared that the Legislature of Upper Canada should
consist of a Legislative Council of seven members and
of a House of Assembly of sixteen members. The first
journal of the Legislative Cotuicil opens thus:

” Newark, Monday, 17th September, 1792.
Prayers were read by the REV. MR. STEWART.

The Honourable

A Study and Review. 39

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

The Journals of the House of Assembly of the same
day inform us that all the members having met, and
being sworn in by William Iarvis, Esq., unanimously
elected John MacDonell, Esq., one of the members of
the county of Glengarry to be their Speaker. The name
is suggestive, for doubtless it belonged to one of that

race whom fortune has favoured, for subsequent history _

informs us that it has won a foremost place among the
governing families of Upper Canada. The election of the
Speaker having been made, the House of Assembly, in
obedience to the command of His Excellency Governor
Simcoe, attended at the bar of the Legislative Council.
Thus, according to Governor Simcoe’s view of the oc-
casion, were the three estates of the Upper Canada
Legislature, consisting of twenty-four persons, assembled
to make laws “for the peace, welfare and good govern-
ment” of the province. They met at the small town of
Newark, now Niagara, being the temporary capital;
Where some military works had been erected. Whether
the building wherein the infant legislature first assem-
bled is now standing we know not, but, as the town has
since then been made familiar with adventure and vicis-
Sitllde, it is probable that this interesting historical me~

40 AM Legislatures Powlriaments?

morial is lost alike to sight and to memory. The Coun-
cil chamber in all probability was a small room, but
the ceremony must have been somewhat imposing, while
the speech, which crowned all, is grand enough for the
most elaborate building and the largest audience. After
this manner His Excellency the Lieutenant-Governor,
john Graves Simcoe, addressed both Houses :

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

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

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

“The great and momentous trusts and duties which
have been committed to the representatives of this
Province in a degree infinitely beyond Whatever till this
period have distinguished any other colony, have origi~
nated from the British nation upon a just consideration
of the energy and hazard with which the inhabitants

A Study and Review. 41

of this Province have so conspicuously supported and
defended the British Constitution.

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

The seven gentlemen who composed the Legislative
Council and the sixteen gentlemen who composed the
House of Assembly must have felt a good deal elated by
the speech to which they had listened, for it certainly
encouraged them to magnify their office and to think a
good deal of the positions to which they had been pre-
ferred, and of the distinctions that had overtaken them.
Nor were they without reasons for self-complacency and
legitimate pride. In their collective capacity, whether

42 Are Legislatures Parliaments ?

Municipal, Legislative or Parliamentary, they were the
founders and forerunners of those representative gov-
ernments which thereafter should be called into existence
in the colonies of England, andestablished also after the
pattern furnished by the Canadian Legislatures. More
than this, the modest gathering at Newark represented
the germ of an imposing future, Those seven Legisla-
tive Councillors and sixteen Assernb1y men very aptly
prefigured what came to pass seventy~five years later,
when the germ opened and blossomed into the Parlia-
ment of Canada, and the shanty hall at Newark into the
grandest pile of Gothic architecture on the continent of
North America.

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

The first entry on the journals of Tuesday, 18th Sep-
tember, I792, seems to have been intended to repair an
irregularity, for it_ sheds some light on the summary termi-
nation of the previous day’s sitting. Some one, probably

A Study and Review. 43

the Governor, who, for reasons already stated, was no
doubt conversant with the forms of the Imperial Parlia-
ment, discovered on the very threshold of the proceedings
what he regarded as an important omission, as well as
a marked difference in the ceremonies observed between
choosing a Speaker at Westminster and at Newark; a
difference which His Excellency no doubt thought on
this important initial occasion should at once be removed,
as it represented a serious blot on the ” image and tran-
script of the British constitution “ which His Excellency
so dearly cherished and caressed. An error in substance
as well as in form evidently was supposed to have
occurred, as the Speaker whom the Assembly had
elected had not been presented for His Excellency’s
official approval. This, no doubt, was not only regarded
as a lack of respect, for the early settlers rarely failed
When Compliments were due to the Crown, but as an
oversight of serious constitutional importance. It was
considered to mean a good deal more than a mere
question of the approval of the person chosen as the
Speaker, for it included such matters as the liberty of
speech, the right to offer counsel, and above all freedom
from arrest. As soon, therefore, as the house met the
next day the following entry occurs :

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

44 Are Legislatures Parliaments?

Later in the day those gentlemen “reported that His
Excellency will receive the House immediately.”

“The House waited upon His Excellency accord-

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

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

On Monday, the 15th October, 1792, after “prayers
and a sermon” His Excellency went to the Council
chamber and required the attendance of the House of
Assembly ,’ after assentmg to several bills His Excellency
closed his interesting speech with the following sug-
gestive sentence : “Honourable Gentlemen and Gentle-
men, I cannot dismiss you Without earnestly desiring you

A Study and Review. 45

to promote, by precept and example, among your respec-
tive counties the regular habits of piety and morality, the
surest foundations of all public and private felicity, and
at this juncture I particularly recommend to you to ex-
plain that this Province is singularly blessed not with a
mutilated Constitution but with a Constitution which has
stood the test of experience, and is the very image and
transcript of that of Great Britain, by which she has long

established and secured to her subjects as much freedom
and happiness as it is possible to be enjoyed under the
subordination necessary to civilized society.”

Upper Canadians, with good reason, have always re-
vered the character and cherished the memory of their
first Lieutenant Governor. It is easy to see in reading his
two speeches what manner of man he was, for the spirit
of enthusiasm that glistens in his Words is of that en-
nobling quality that quickens slower minds and raises
inferior natures to higher and purer levels. Had it been
his lot to open the first Parliament, instead of the first
Legislature, of Canada, he would have approached the
duty in the spirit of lofty exultation, and, from the warmth
of his heart and the exuberance of his fancy would have
spoken words of congratulation, encouragement and
hope. There would have been no allusion to another
confederation or to a fancied utopia ,’ there would have
been no hint of a rent in the British commonwealth, no
Suggestion of a new departure for the English-speaking
race. Governor Simcoe’s longings were Imperial, and, no

46 Are Legislatures Parliaments?

doubt, were tempered with the opinions that governed
the statesmen of his age. It would have been impossible
for him to have harboured a thought, much less to have
breathed a word, on the subject of a ” new nationality,”
for such a thought would have represented a baffled mis-
sion and such a word would have meant a broken Em~
pire. The grace to inspire enthusiasm is not bestowed
alike on all, and they can but ill convey the gift whose
nerveless breasts are haunted with quailing fancies and
shivering fears. Governor Simcoe did not gauge the
popular sentiment by a process of arithmetic, or deter-
mine the worth of national will by a discipline of figures.
Such labours were foreign alike to his habits and his
tastes. Duty and courage were his vvatchwords, and to
fulfil the former and display the latter were the natural
expressions of his true and loyal heart. Consequently his
name and memory have always been, and still are, re-
garded as precious possessions by the descendants of
the first settlers of Upper Canada.

At the close of His Excellency’s speech ” The
Speaker of the Honourable Executive Council” (sic) de-
clared by His Excellency’s command both Houses to be
prorogued to Monday, the thirty-first of December next.

The form adopted no doubt savours of the usage of
Parliament, as, by an exercise of the prerogative, for
which no provision had been made, the life of the two
Houses was apparently continued, and, it may be added,
for a period nearly twice as long as was then customary

A Study and Review. 47

in England or as is now the practice in Canada. With
respect to “the Parliament of Canada” the formula.
observed at Westminster may properly be used, for
it has the authority of law, but whether it can with equal
propriety be employed by subordinate Legislatures, may
reasonably be doubted, as there is no evidence that
such a technical continuity was ever intended to be
given to any of those Provincial Assemblies that were
established before 1867 or to those that are now estab-
lished under the British North America Act of 1867.
Again, the occasion of the prorogatioli of the first
session of the Upper Canada Legislature supplies What
seems like a new example of inexactness, for the words
Legislative Council and Executive Council are frequent-
ly used as interchangeable terms. In those early days,
however, the duties of the two bodies were practically
united, and Legislative Councillors were probably ex
officio members of the Executive Council. Nevertheless,
as the Governrnent for many years was a personal
one, it is also probable that very little resort was had to
Executive advisers, for the Governors of that period
affected to seek counsel only when they required it, and
that was very seldom. The excuse for such indeterminate
language is probably to be found in the fact that a select
Council to correspond with the Privy Council was neces-
sary, in the opinion of Governor Simcoe, to perfectin
Upper Canada the image of the British Constitution
which had become impressed on his mind. Hence the

48 Are Legislatures Parliaments?

Legislative Council was called upon to support a dual
character, as it has since donein other North American
colonies, and to bear a double name. It was an advis-
atory body to the Governor and a Council of assistance
and restraint to the House of Assembly, and there is
little doubt the nominal arrangement was acceptable to
His Excellency, chiefly because the three-fold expression
of colonial rule presented a not wholly inexact corres-
pondence in his opinion with the three parts of the
British Constitution.

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

A Study and Review. 49

clubs, or guilds, or friendly societies could no doubt
make rules and orders for their own discipline and
guidance, but such rules and orders would have been,
and would be, inoperative were they opposed to, or
subversive of, the supreme law.

It follows, then, that, should the Legislatures thus
established have found their work hindered or their use-
fulness impaired by reason of their lacking certain
incidents or attributes of authority which the law did
not bestow; should they have needed “privileges,
irnmunities and powers” beyond those which the law had
conferred, it would have been their clear duty to seek
what was lacking at the source of supply and ask the
law makers to amend their own work. That they did
not do so must be attributed to the fact that the neces_
sity for doing so had not arisen, or having arisen had
pereinptorily been adjudged as inapplicable and dismiss-
ed as inoperative, for, whether by right or by usurpation,
they exercised to the full the privileges, the immunities
and the powers of Parliament. Being in possession, so to
speak, whether disputed or otherwise, it was more adroit
to avoid explanations than to make them, to assume a
good deal and to say nothing. Consequently it was
highly impolitic to ask ugly questions, or inquire too
closely by what authority such advantages were claimed
and such things were done. But policy, as an extin~
guisher, generally wears itself out. The light it is

intended to suppress commonly destroys it, and sooner or

50 Are Legislatures Parliaments ?

later the truth is revealed. Thus it was on the occasion
under review. Dormant issues were revived, and a
question that might have been looked upon as settled
and foreclosed Was, by the British North America Act
of 1867, so thoroughly reopened that it has again to be
faced, again to be inquired into, and again to be deter-

Judging from the course that Governor Simcoe took,
the inference follows that His Excellency was of opinion
that the representative of the Sovereign, like the Sove-
reign, derived his authority in all unprovided cases
from ancient custom and from the common law, so
that whatever the King could do in the British Islands,
his representative could do in a British Province. He
seemed to think that the attributes of the Sovereign
belonged also to the representative of the Sovereign, and
that the rights of the Crown attached to, and could ex-
ojficio be exercised by, the representative of the Crown.
Moreover, successive Governors and successive Assem-
blies appear very generally to have been of the same
way of thinking. It may therefore be of advantage to
look closely into the matter, and see to what extent and
in What form the Crown devolved its authority, and then
inquire whether authority can legally be taken that is not
to be found in such form. We cannot logically admit
two sets of propositions that contradict one another.
We are forced to recognize facts that are self-evident,
even though by doing so we should be obliged to resist

A Study and Review. 51

conclusions that imply the negative of such facts. What
then are the facts? The representative of the Sovereign
exercises his delegated powers either because such
powers are functions inherent in his office, or because he
has been invested with them by the mandate of the
Sovereign. That they are not functions inherent in the
ofiice of representative of the Sovereign is made clear by
the fact that a Governor is an Imperial minister, and
his functions consequently are limited and guarded
by the articles of his service. No doubt he is the
representative of his Sovereign, but like other represent-
atives of their Sovereign, such as judges, sheriffs, and
the minor officers of the courts, his representation is
limited by law, by the terms of an Imperial act, by the
restrictions of his commission, and by Royal instructions
explanatory of both. Apart from duties of police and
defence, which usually attach to the oilice of all Gover-
nors, and for the exercise of which a wide discretion is
allowed, there remain very few questions that are not
wholly controlled by what are conventionally called con-
stitutional acts, but which might also be described as
local charters. The powers themselves and the mode of
exercising them will generally be found in the instru-
ments to which reference has been made. There is small
space either for vain conceit or for rash assumption, for
the orders and directions are stated generally with clear-
ness. The limits of authority are well laid down, and the
inference to be drawn is that the representative of the

52 . Are Legislatures Parliaments?

Sovereign is to act within his instructions and according
to law, and not beyond them. In an important particular
there is a special delegation of a royal attribute, in the
absence of which the Sovereign would be exposed to the
danger of grave misrepresentation. As the fountain of
mercy, for example, means had to be found for exercis-
ing the prerogative of mercy. The Crown, under certain
conditions and within certain restrictions, has conferred
on its representative this function of grace. He may
pardon criminals, mitigate penalties and remit fines.
Thus were offences against the Crown brought within the
clemency of the Crown, and being matters of criminal
law they stand within the range of royal cognizance. But
no such powers were, or could be, delegated in matters
of civil process. The King could not by the exercise of
a personal act command his representative to interpose
between debtors and creditors, and save the former from
arrest by the latter. He could not authorize his repre-
sentative to raise Houses of Assembly into courts of
justice, because the actunder which they were established
had placed exact limits to their powers, such limits
indeed as excluded the notion of indefinite expansion.
Silence on these subjects in the law, in the commission and
in the Royal instructions must be accepted as exclusive,
for we learn as plainly in such passages of silence what
was withheld, as by the documentary evidence we read
what was granted.

Indeed the powers conferred on Governors were gen- .

A Study and Review. 53

erally tentative and rarely absolute. The words of the

Royal instructions may easily have been made to apply

to other matters than acts of the legislature, for

they seem especially, though not expressly, to point to
functions of the Governor. They run thus: ” And we do
further enjoin you not to propose any act whereby our
prerogative might be diminished or in any respect infringed
without our special permission previously obtained.”

That the acts of the Governor were not also included in
the instruction respecting acts of the Legislature is pro-
bably to be ascribed to the fact that the Crown could
not have anticipated that a Royal function would have
been appropriated and used by its representatives with-
out asking and obtaining the Royal permission to do so.
But not only were certain laws not to be proposed but
some were not to be assented to, and others were to be
reserved for the signification of the Royal pleasure, while

those which received the Governor’s sanction were liable
to be disallowed by the Imperial Parlianient at any time
after they had been proclaimed in Canada. Even in the
matter of patronage and oificial appointments, the Gov-
ernors walked in letters. No Legislative Councillor, no
Judge, nd important functionary could be appointed
without reference to the Colonial office. Neither were
such references mere matters of form, for it sometimes
happened that the Governor’s recommendations were
overruled by the Minister. Again, should the represen-
tative of the Crown be called on to exercise vice-regal

54 Are Legislatures Parliaments ?

functions, such as conferring titles of honour, a special
dispensation from the Sovereign was deemed necessary
to the discharge of the special duty.”˜ In fact all extraor-
dinary exercises of authority were absolutely forbidden.
To confer ” powers, immunities and privileges” not au-
thorized by law was an extraordinary exercise of author-
ity, and should have been regarded as absolutely for-
bidden. If small encroachments on the rights of the
Crown were to be resisted, larger ones were to be con-
demned. The conclusion appears inevitable.

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


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

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

The occurrences of the 17th December, 1792, and
those of the two following days were very interesting.
Since the conquest of England, when Saxons, Danes and
Normans united in blending as in treble strands the tradi-
tions of their races, and thus gradually developing what
eventually became the Parliament of the English people,
no such Legislative partnership of international members
had been attempted as that which was formed at Quebec
on the 17th December, 1792. Wolfe and Montcalm,
victor and vanquished, each in a shroud of glory, but in
distant graves, lay peacefully at rest, but the recollection
of the decisive battle which transferred half acontinent
to Great Britain was Well remembered, not only in Eng-
land and France, but by the elders of that period resident
in Canada. Time, we may conjecture, had scarcely
sufficed to cool the blood, much less to heal the scars
that war had wrought. Reconciliation to the new rule
could only be looked for as a later condition, and as the
result of justice and kindness on their parts who should
be called on to represent the new sovereignty. Timehand
space were alike needed to effect their perfect work.
Nevertheless, what seemed so unpromising actually
occurred. The enmities of opposing races were not only
appeased but they were exchanged for friendliness and
peace. The experiment which Saxons, Danes and Nor-
mans had successfully made centuries earlier was again
to be attempted. Under other names the descendants of
the same peoples cooperated for the like ends and with
the like results. The natural enemies of one another, as
the English and the French had been popularly
regarded, became friends, each according to his light,
and both under a solemn oath, swearing by God’s help
to work together for their common country and for the
common good. The scene must have been an impres-
sive one, for the poetry of it still lingers in the fancy, and
it would be well were the historical parallel studied and
worked to completion, for it is generally an act of wisdom
to imitate what experience has pronounced very good.
And what is that parallel? Though remembering with
pride the races from which they sprung, the Saxon, the
Dane and the Norman were content to lay aside their
cherished names, and mutually to submit to a new
baptism in the presence of such sponsors as patriotism
and Peace. And by the new name they thereafter be-
came known through all ages as Englishmen. So also
might the English and French races in British North
America, even while cherishing the memory of their
ancestors, and prizing, as each has the right to do, their
heritage of fame, be well content to interlace their
historic rivalries with their historic laurels, and thereafter
to appropriate to themselves the name of the country in
which they were born or in which they dwell, and, with-
out hesitancy or resort to qualifying adjectives, call
themselves “Canadians “. Nor does the parallel end here.
As the “councils” or “inquests” of the Normans, the
Danes and the Saxons eventually merged into and be-
came the Parliament of England, so also did the Legisla-
tures of British North America, composed, though not
equally, of English and French members, eventually
become the Parliament of Canada. In both countries
the “grand inquest” enjoys the advantage of having
sturdy relations. In England, beside the High Court
of Parliament, there will be found a group of time-
honoured municipalities and ancient guilds which have
gathered wisdom, accumulated wealth, preserved customs,
practised hospitality, bestowed honours and dispensed
charity ; which have guarded property, protected life and
suppressed crime; which have also promoted health,
built highways and lighted streets; which have housed
the houseless, fed the hungry, sheltered the sick, and
educated the ignorant; which in times of peace have
pursued their way in quietness and confidence, but in times
of war have proved towers of strength to and imposing
outvvorks of the Great Parliament of England. No doubt
many of these municipalities and guilds have their party
colourings, as well as their political bias, but such con-
siderations have been and are generally subordinated to
the ends for which the institutions were created, viz.:
the amelioration and improvement of localities and the
happiness and benefit of individuals.

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

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

The Honourables

WILLIAM SMITH, Chief Justice of the Province, and also
Speaker of the House.


For some reason, notapparent on the face of the writs,
they seem to have been thus recorded by the Clerk of
the Crown in Chancery: ” Writ of Summons to the
Upper House of Assenihly or Legislative Council.

(Signed), ” FINLAY, C. C. in ch.”

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

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

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

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

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

Thursday, 20th December, 1792.

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

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

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

” The translation to be read by a Member of the

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

” If the election of the Speaker is approved of he may

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

“That the proceedings of the Representatives may
receive the most favourable construction, and that what-
ever the Speaker shall say may be imputed to his ignor-
ance and not to the Commons, that he may resort again
to their House fordeclaration of their true intent, and
that his error may be pardoned.”

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

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

” An important amendment was made to the above
resolution by which the words ‘ servants and estates ‘ were
left out, but on the question being put Whether the resolu-
tion as amended should pass, it was resolved in the nega-
tive by a majority of twelve votes.”

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

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

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

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

To this His Excellency answered, and it must be con-
fessed with discreet vagueness:

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

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

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

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

In 1809 the forms observed in the ceremonial of elect-
ing a Speaker underwent important modifications. The
vigour and fulness of the language between 1792 and
the last mentioned year disappear, and as the
change apparently took place in both provinces at
the same time, and resulted in the adoption by
both legislatures of a uniform style, it is fair to assume
that it was done in obedience to indentical orders, and
that those orders were made by competent authority.

But whatever may “have been the opinion enter-
tained in the mother country, there were men in the
colonies who not only had their doubts, but who found
an occasion to express them. Foremost among those
who did so was one who, having the courage of his con-
victions, boldly and in a very emphatic way took occasion
to declare his incredulity and to provoke a test. That
one was the Honourable. William Warren Baldwin, bet-
ter known in Upper Canada as Dr. Baldwin and as the
father of the late Honourable Robert Baldwin, both of
Toronto. The contrast is curious, for the former sought
to minimize the powers of the provincial legislature by
denying that it was a Parliament, while the latter in later
times succeeded in magnifying the provincial legislature
by grafting on it powers that were preeminently parlia-
mentary. The interval that separated the two transactions
was one of thirty years, and may easily have I passed out
of the recollection of all who had no particular reason for
retaining it in their memories. Nevertheless the doubt
of the father, though it eluded the mind of the son, may
have become blended with the traditions of the Colonial
ofiice, and have found a handy place among the things
to be remembered. Perhaps that doubt, and the circum-
stances which attended its expression, were not without
influence on the transactions that occurred thirty years
later. If a check had successfully been given to the
appropriation by the Legislatures of Imperial privileges
in 1809, why shouldnot a check have been as effec-
tually given in 1842 to the appropriation of Royal prerog-
atives P This inquiry will be dealt with at greater length
in another chapter, when some allusion will be made to
Sir Francis Hincks’ observations on those events on the
occasion of his address to the Irish National Society at
Montreal in October last.

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


Tuesday, 11th February, 1812.

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

YORK, 8th Sept, 1811.

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

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


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

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

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

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

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

” Which resolution was carried in the atfirmative.

“Wednesday, 12th February, 1812.

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

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

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

” Then Mr. Gough moved, seconded by Mr. Will-
cocks, that John Small, Esq.,. Clerk of the Crown, be
ordered to attend at the Bar of this House at ten o’clock
to-morrow morning. The same was ordered accord-

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

“Thursday, 13th February, 1812.

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

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

Mr.’Small’s conditional “if” was somewhat roughly
treated, for

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

” The House accordingly resolved the same, and

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

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

” Which was ordered accordingly.”

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

“Journals of the Legislative Council

Thursday, 13th February, 1812.


The Honourable MR. SCOTT, Speaker.

Honourable JAS. BABY.

Honorable JOHN MCGILL.

A deputation from the House of Assembly was

It was admitted, and delivered at the Bar the following

‘Mr. SPEAKER,—We are deputed by the House of
Assembly to carry up to this Honourable House several
resolutions which have passed the House respecting an
officer of this House.’

Commons House of Assembly.

February 13, 1812.


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

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

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

” The message and resolutions of the House of Assem
bly on the conduct of William Warren Baldwin, Esq.,
were considered in a Committee of the Whole House,” of
which the Honourable Mr. Cartwright was the Chair-

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

” Legislative Council,
” February 14, 1812.

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

” The Legislative Council, in consideration of the same,
” Resolve, that the said William Warren Baldwin, Esq.,
be dismissed from the attendance on this House, and be
no longer considered as an oflicer thereof, and that the
Speaker do forthwith communicate this resolution to the
Speaker of the Commons House of Assembly.

(Signed), JOHN POWELL, Clk. L. C.”

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

Dr. Baldwin had not the privilege of a trial, for
apparently he was not summoned by either house.
There may have been reasons in policy for not question-
ing him directly, as he was known to hold inconvenient
views on some matters of administration, and one, byway
of specimen, he had communicated to Mr. Hamilton.
The latter was evidently regarded as too destructive for
discussion, and as it struck at the root of privilege it was
dismissed by both houses. Nevertheless the question
was destined to re-assert itself thirty years afterwards,
and at the end of twenty-four more years to become
crystallized and preserved in an Imperial Statute whose
short title is “The British North America Act,” 867.
There is a sequel to the proceedings above narrated
which, though foreign to our subject, is interesting in re-
lation to Dr. Baldwin, as it directly informs us for which
0f.the two offences he was so summarily dismissed. In
the absence of the light thrown by this message on the
transaction we might have doubted whether he was pun-
ished for acting courageously, or for speaking unad-
visedly, as he was the object of a double attack. At
best it was a sorry proceeding in regard to which both
Houses must have felt and ought to’ have looked dread-
fully ashamed.

” Legislative Council Journals,
Saturday, February 15, 1812.
Members Present:—

The Honourable THOS. SCOTT, Speaker.
Honourable Messieurs


Prayers were read.

A deputation from the House of Assembly was re-
ceived with the following message :

” Mr. SPEAKER,—We are directed by the House of
Assembly to inform the Honourable the Legislative

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

” Commons House of Assembly,
15th February, 1812.


Whereupon the following resolution was adopted and
sent by message to the House of Assembly: “Resolved,
that William Warren Baldwin, Esq., be restored accord-
ingly to his former situation as an oflicer of this House.”

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

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


ALTHOUGH the Legislative Assemblies of the two Pro-
vinces of Upper and Lower Canada subsequently adopted
the like formulas when they presented their Speakers to
the Governors for approval, they did not use the same
prayer when they claimed the customary privileges, nor
were their claims allowed in the same words 5 for the
language used at the Western capital was more pointed
and emphatic than the language employed at the East-
ern one.

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

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

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

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

A settling day would come, but the time of its arrival was
then far off, and there was no inclination to forestall the
future. In the meanwhile the following took the place
of the older form.

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

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

In Lower Canada the answer ran thus : “The Gover-
nor in Chief will always respect the just rights and con-
stitutional privileges of the Assembly,” or the Governor
in Chief “ recognizes the accustomed and constitutional
rights and privileges of the Assembly.”

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

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

At the proceedings consequent on the election of a
Speaker in 1808 the early use was observed. The jour-
nals of both Houses for 1813, when a new Speaker
would have been elected, are missing ; but the journals
of 1817, show that the change from the earlier to the
later form had previously been made, as the procedure
observed by the legislature of Upper Canada on that
occasion is in exact harmony with the procedure adopted
by the legislature of Lower Canada in I809. Never-
theless, the House of Assembly of Upper Canada
evidently had not taken kindly to an abbreviation of their
privileges, and it is quite conceivable that they had a
particular dislike to the substitution of the new for the
old form, as the latter had a substantial value which the
former lacked. The Whirligig of time, moreover, brought
to light unpleasant recollections, and disturbed a question
that many supposed had quietly been laid at rest. The
shield had been completely reversed, and Dr. Baldwin’s
discomfiture in 1812 was followed by the Assembl.y’s
humiliation in 1817. As a matter of curiosity, it would
be satisfactory to know how the result was brought
about ; and at whose instance and through whose inter
vention the Assemblyman were taught to know their
place. Was Dr. Baldwin himself the audacious leveller,
and did he fire the shot that damaged their pride, and
destroyed their privileges? Perhaps so ; for he was a
man of education and ability, and by no means disin-
clined to humble the exalted, or to give them, especially
if they were tories, severe lessons in humility. More
over he was a liberal, and belonged to the reform party,
a party which at that time, and afterwards, was a good
deal discredited by the conduct of its allies, and tho-
roughly distrusted by its church and state opponents.
Authority, in such a crisis as dawned upon Canada in
the early part of 1812, would naturally, and perhaps
necessarily, become imperious, and, if such should have
been the case, all the estates of the legislature would
have caught the tone of the chief ruler. The reform
party, as then constituted, had reason to fear that the
Council and Assembly would exaggerate their powers
to the utmost, and glide with facility into practices that
might prove intolerant and would be oppressive. They
knew with what glibness such words as “sedition” and
“reform” were interchanged, and passed about ; nor
were they unaware of the fact that under the cover of
“loyalty” many wrongs had been wrought and many
inoffensive people threatened.

Taking counsel of their experience as well as of their
fears, liberals were to be excused in their efforts to re-
strain an influence which they had felt was arbitrary,
and believed was unjust. Hence they did what they
could to limit the privileges, and abase the powers, of a
body of representatives who were apt to show but scant
consideration to opinions not in accord with their own.
The episode. moreover, to which we are about to refer,
was fairly co-incident in time with. the change of proce-
dure. In 1809 the new use was first observed at Que-
bec, and it is quite probable that the reason of the change
was also known at Toronto before 1811, when Dr. Bald-
win issued his writ against Mr. McDonell ; an act which
in the following year, 18×2, resulted in the proceedings
already related. All speculation, however, is idle ,’ though
why it should be so is a question that might possibly be
answered by another—why not recover what seems to
be, but is not, lost P The despatches, the directions, the
official and semi-official correspondence of that period, as
well as of earlier and later times, are much to be desired,
for they would supply a key to many of the doubtful,
and some of the obscure passages of our history.

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

“ 4th February, 1817.

“On motion of Mr. NICHOL, seconded by Mr. ROBIN-

“ Allan McLean, Esq., knight, representing the County of Fron-
tenac, was unanimously chosen Speaker.

“ Then Mr. NICHOL, seconded by Mr. BURWELL,
moved :

“ That the Speaker do demand from the Lieutenant Governor the
rights and privileges of this House as amply as they are enjoyed by
the House of Commons of Great Britain”—which was carried

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

By command of His Excellency, the Speaker of the
Legislative Council politely assured the Assembly “ that
their privileges should be respected.” What those privi-
leges were was a piece of information that all, no doubt,
wished to get, but which none obtained. His Excellency
probably took refuge in mystery, for his answer is a fair
illustration of a strong meaning ambushed in soft words.
Had the privileges been as “ ample as those enjoyed by
the House of Commons of Great Britain” His EXcel-
lency’s answer would have been explicit instead of being,
as it was, inconclusive, if not empty. Such resolutions as
Mr. Nichol’s, and such unanimity as the Assembly showed
in dealing with them, bore no fruit ; for thereafter and
until 1841, the form introduced at Quebec in 1809 was
also used at Toronto, and the older and more stimulating
one was laid aside. But, though the words were modified,
the advantages they were intended to determine and
bring to a close, were neither forgotten not given up, for
the privilege from arrest, together with the immunities
and powers of Parliament, as originally claimed, were
enjoyed and exercised as fully and effectually as if the
right to do so were inherent, and had neither been
denied nor questioned. Time moved on ; Dr. Baldwin’s
challenge was forgotten, and the curious incident that
attended and followed it had passed clean out of mind,
but the cause of challenge remained, and waited only the
occasion for a revival of the old contention. Well nigh
thirty years had elapsed from 1812 to the passing of the
Act for re-uniting Upper and Lower Canada. Among
the particulars wherein the last-mentioned Act differed
from the Act of the gist Geo. 3rd, 179I, may be noted the
fact that provision was made for the election of a Speaker,
and also for the manner in which vacancies in the office
of Speaker were to be filled. The duty was to be
discharged not as theretofore by direction of the
Governor, but in virtue of the authority given by the
Imperial Act of 1840, 3rd and 4th Vict., cap. 35, and
which is described in these words: “Be it enacted
that the members of the Legislative Assembly of
the Province of Canada shall, upon the first assembling
after every general election, proceed forthwith to elect
one of their number to be their Speaker.” The
authority thus given was to be exercised in accord-
ance with a modern law, and not in deference to ancient
custom. It was to be the first legislative act under the
new constitutional charter, and it was to be done by
the Assembly alone, Without either vice-regal direction or
vice-regal approval. Lord Sydenham was appointed
Governor General for the express purpose of bringing
about the reunion of the two Canadas, and of initiating
an act that would not only include the terms and condi-
tions of such union but would indicate the mode in
which the two houses of the legislature should be con-
stituted and continued. This was done with singular
care and ability, and, as Lord Sydenham is supposed to
have been the real author of that act, though his views
were put into Words by another hand, he must also be
supposed to have known what he meant to do and on
What lines he intended to carry on his work. Those
who came into official contact with Lord Sydenham,
albeit they are now few in number, will recall Without
difliculty the imperious character of his will and the
strong vein of self-assertion that ran through his nature.
When he had determined on a particular course, and
when the time arrived for making such determination
known, he would in the most direct way, in a few well
chosen words, express his views and make some effort to
enforce their meaning. Hence We may be sure that he
knew what he intended when he drew up his breviate of
the Union Act, and also in what way he meant to carry
out such intentions.

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

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

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

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

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

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

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

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

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

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

The House of Assembly met on the 14th June, 184I,
when the proceedings which theretofore had been ob-
served in UpPbr and Lower Canada were seriously
changed, and changed, be it noted, in obedience to the
terms of the act from which the last mentioned clause
is taken. The Journals read thus: “After the mem-
bers were sworn by the commissioners appointed for
that purpose, the proclamation summoning the legisla-
ture for the despatch of business was read by the Clerk

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

“ It was then moved by Mr. A. N. MORIN, seconded

” That Mr. Austin Cuvillier be their speaker, which was unani-
mously agreed to.

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

“ It was then moved by Mr. SIMPSON, seconded by

“ That the House adjourn till to-morrow at two o’clock P.M.

“Upon which the House divided.

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

“ For the nays, Mr. Manahan (Teller), 27.”

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

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

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

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

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

Mr. Boswell said “we have made a Speaker conform-
ably to the Act, but, though the Speaker be chosen,
Parliament has not met. I see no Way unless His
Excellency be advised to come down to us.”

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

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

Three years later, in 1812, Dr. Baldwin sought to bring
the privilege question to an issue. He had the hardihood
to promote the arrest of a member of the Assembly for
debt, asserting as his reason for doing so that such
persons were not privileged, as “an Assembly was not a
Parliament.” Fifteen years later, in 1827, the House of
Assembly of Lower Canada, on the resolution of Mr.
Cuvillier, declared that the initiatory proceedings on
choosing’ a Speaker were obligations of law, and not
matters of compliment. In other words, that they were
done under the authority of a special statute and not
in virtue of ancient custom and usage,‘ and, lastly,
Lord Sydenham’s having gathered together the broken
threads of past controversies, and probably being also
aware, from reference to sources of information within
his, but out of our, reach, what were -the intentions of
the Parliament of Great Britain in I’]9I, and as well as
what were the intentions of the Parliament of the United
Kingdom in 1840, and also how one Act had been, and
how the other would be, interpreted by the authorities
in England, put a construction on the law that was
not only agreeable to his own Views, but to theirs also
who had promoted and who had passed that law. His
Excellency, probably without being aware of it, acted
in accordance with the opinion expressed by Dr.
Baldwin, thirty years earlier, “that an Assembly was
not a Parliament,” and with the opinion expressed by
Mr. Cuvillier, fourteen years earlier, that proceedings
“that were not obligations of law ” could not be enforced
as matters of custom. Such views apparently harmon-
ized with, and seemed to control, Lord Sydenham’s con-
duct. “If,” (we may imagine His Excellency to have
said), “the Legislature of Upper Canada was only the
‘ creation of a statute, and if the Legislature of Lower
“Canada was only the creation of a statute, then the
“ Legislature of reunited Canada could claim no higher
“ rank and rest on no other basis than the Act which
“ authorized, and called it into existence. Consequently
“the members of such Legislature collectively and indi-
“ Vidually may not claim, nor may I bestow, any privi-
“leges, any immunities, or any powers, that are not
“plainly found in the written constitution as it is dis-
“ tinctly set forth in the law entitled ‘An Act to Reunite
” the Provinces of Upper and Lower Canada and for
” the Government of Canada,’ because they have no
” prescriptive, but only statutory rights.”

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

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

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

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

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

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


THE story of his failure to restrain the House of Assem-
bly of Upper Canada from using privileges and exemp-
tions that solely belonged to the Parliament of the United
Kingdom no doubt remained indelibly impressed on
Dr. Baldwin’s memory. It was too personal and too
spiteful to be forgotten by one who had suffered in his
effort to give effect to what he believed was lawful and
right. But what Dr. Baldwin had good reason to remem-
ber, other people were easily excused for forgetting, for
they lacked, at the early period of our history, those daily
criticisms that now fidget their readers about times past,
present and future. The inhabitants of the “Town of
York ” were much to be envied, for they escaped some
of the miseries to which their successors at Toronto are
exposed. In their simplicity they thought, as some think
now, there were greater blessings in this world than a
multiplicity of newspapers. One, in those days sufficecl
to furnish them with information, and they seem not to
have required a second to suggest incredulity, or a third
to supply invective. At that sylvan period there were
no publishers, and apparently there was neither occasion
nor desire for any. The public records were not printed
then, nor till years later, and consequently such irritating
and debatable documents as public accounts, and de-
partmental papers, were snugly lodged with the spiders in
peaceful pigeon holes, and, being well entrenched in dust,
were not likely to be interfered with by man. Such pri-
vacy, however, was of the less consequence since they
were rarely examined and never explained. The finance
ministers of that period were ill skilled in figures, and
there were no deputies to supply What was lacking in the
chiefs. Moreover, the common folk of the earlier epoch
possessed great faith, and were little given to pry. In-
credulity is the development of later days, when men
persist in making their neighbours uncomfortable by not
taking everything for granted, and insisting that sight is
a condition of faith. Such sceptics obstinately persevere
in not regarding the public accounts, for example, as
veiled mysteries, but rather as exhibits to be critically
analyzed by experts, to be threshed, winnowed and
scattered broadcast, like seed from a full hand, into the
moral soil of the country, and there left to instruct and
worry the electorate. In the good old times inquisitive-
ness was not pointed with scepticism, for men were prone
to believe whatever they saw in print. Doubt is a pro
duct of later days, and belongs to the progressive period
of railways, photographs and telephones. Print had not
become a local power sixtyeeven years ago, and, conse-
quently, Dr. Baldwin’s grievance was not leaded in
repeating type, or preserved in manifold papers .

Between the angry episode on Parliamentary privileges
in 1811 and the famous resolutions on Parliamentary
responsibility in 1841, there was time enough for many
events to happen, to be discussed, and to pass into
oblivion. Opinion, moreover, had wrought several
changes which found expression in an equal number of
surprises. The tories of the early period had disap-
peared, like the Dodo, or, if specimens were here and
there preserved, they resembled those species hat are
only found in petrifactions and fossils. The reformers,
on the other hand, exhibited, as is their habit, an
uncomfortable vitality. They were so thoroughly im-
pregnated with the principle of growth and animation as
to “wax fat and kick.” Thus they not only spread
themselves out with a view to win, but eventually, to
the amazement of the tories, acquired control of the
situation. The heirs of the latter, like their English
namesakes, were obliged to hold their titles in suspense,
and ambush themselves behind the colourless designation
of conservative. Dr. Baldwin had been a reformer during
the dark era, when it was alike unfashionable and com-
promising to be so. He was a reformer when such a con-
fession of political faith meant social exclusion and poli-
tical outlawry. Taking into account the disabilities to
which his opinions exposed him, it was natural, and per-
haps wise, on his part to do what in him lay, to pay the
grudge he owed to his political enemies, and to do it with
coin of any denomination. To this end he sought to
abridge the powers, and abate the pretentious of those
in authority, to arraign all analogies or conceits, whether
real or fictitious, before the proper tribunal, and, if found
to be shams, to strip the wearers in the open courts, and
admonish them in the set forms of law not to offend
again. Dr. Baldwin failed to effect his ambitious pur-
pose in the way he intended to do so. The interests he
assailed were too strong for him, and so he was answered
with rough words. His indictment was quashed, and a
question that ought calmly to have been settled by the
judges was rudely hustled out of court. The assumption
of privileges having been as passionately affirmed as it
had been violently denied was comfortably enjoyed.
It would really seem that the Chief Justice was in league
with the Legislature in stifling inquiry and in asserting
his, and their, supremacy over the law. Against such
odds there was little hope of renewing the combat with
success. No one again adventured to do so. Reform
virtue subsided into inditference, and the ‘creditors of
impecunious members of the Legislature into dissatisfied
students of privilege. The arbitrary rule that individuals
having seats in the Assemblies were above the law had
been substituted for the law, and objectors found it was
only lost labour to dwell on the incompetence of the
authority by which such substitution had been made.
A new and pleasant way had been discovered for paying,
or for postponing old debts, and the discoyerers, in
spite of Dr. Baldwin’s animated protest, were by no
means inclined to part with the patent that supplied
them with such peculiar advantages.

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

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

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

On opening the Legislature at the ” Town of York”
on the I2th October, 1818, Sir Peregrine Maitland said,
“Should it appear that a convention of delegates cannot
exist without danger to the constitution, in framing a
law of prevention, your dispassionate wisdom will be
careful that it shall not unwarily trespass on the sacred
right of the subject to seek a redress of his grievances
by petition.” The House of Assembly in their answer
assured His Excellency that ” we remember that this
favoured land was assigned to our fathers as a retreat for
suffering loyalty, and not as a sanctuary for sedition.”
Such a neatly turned sentence could scarcely fail of
bearing fruit. Indeed it bore much fruit, for two days
afterwards “the dispassionate wisdom” to which His
Excellency had appealed, unburdened itself in the
following words. The Iournals preserve the picturesque
resolve which shall be given entire.

“On the motion of MR. JONES, seconded by Mr.

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

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

Nothing claunted, however, and in spite of this empha-
tic expression of “dispassionate wisdom,” “Hickory
Yankees,” “English Luddites,” “Scotch Radicals,” and
“Irish Exiles” continued to flow into “the retreat”
disturbing alike the serenity of its atmosphere and the
sanctity of its traditions. Unhappily for the ” suffering”
loyalists the new opinions spread with provoking rapi-
dity, and converts were gained in increasing numbers.
The tories were worried and became belligerent. They
resented in all directions the utterance of glib speeches
and petulant squibs about personal wrongs and popular
rights. Besides the classes that felt and complained of
political grievances there were the usual number of
” Adullamites,” generally to be found in all communities,
Who from one ‘cause or another commonly gravitate
towards the party in opposition. Such people are
generally unhappy, dislike their neighbours and oppose
the government. Thus it may have been that in the
same “cave ” were mustered, in addition to the political
forces proper, all who had wrongs to avenge or slights
to remember ; all Whose personal aims had been baulked,
or Whose social ones had been blighted ,’ all who had
missed their rewards, or whose recompense had been
unequal to their services ; and all who had laboured
towards fixed ends, but whose labours had never borne
fruit. These and the like forces being brought into con-
tact very soon lost their individuality. They not only be-
came fused and welded, but naturally took the colour of
the largest body. In thus obeying the law of gravitation
the party of resistance eventually became the party of
reform. Moreover it was this party, made moderate by
the many parts of which it was composed, that controlled
the constituencies when Lord Sydenharn met the Legis-
lature of reunited Canada in the month of June, 1841.
These observations very naturally lead to a second
point in the legislation of Canada which is usually
regarded as the commencement of our constitutional
history. There are passages in the early pages of (that)
history on which Sir Francis Hincks, in his lecture to the
St. Patrick’s National Association of Montreal, has made
some interesting observations, coupled with certain sug-
gestions which deserve examination. It may seem pre-
sumptuous to criticize the judgment of one who has sat
within the inner circle, and has probably enjoyed the
opportunity of looking behind the scenes. Our place, on
the contrary, as a spectator has generally been in front
of the stage, and not within the ” corner” of any of the
combatants. But as abystander we venture to think that
the history of the period to which Sir Francis Hincks
has referred admits of a different reading from that which
he has given it, and the difficulties by which it was
marked admit of a fairer solution than the one which
Sir Francis Hincks has seen fit to apply.

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

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

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

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

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

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

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

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

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

Then, again, it is not easy to arrive at a clear idea
of the value that Lord Sydenham attached to ” respon-
sible government” as applied to a colony, for his views
on that subject as expressed in 1839 are scarcely in ace
cord with the views expressed for him by his biographer
in 1843. But whatever those views were, we think it
quite certain that His Excellency’s standard differed
widely from the standard that Mr. Baldwin had set up.
Both of those eminent men, so to speak, put in a
plea for responsible ministers, but the divergence of
interpretation began as soon as the plea was fyled. Both
were willing to employ the same means, but they were
altogether at variance when they compared the ends
for which those means were to be used ; Lord Sydenham
wanted ministers who would represent and express his
personal opinions, while Mr. Baldwin wanted ministers
who would represent and express the opinions of the
people. The former seemed to look at the question
as a handy instrument of executive convenience, while
the latter regarded it as the source of representative
government. Lord Sydenham, perhaps from the force
of circumstances, or from the chronic illiberality that
so frequently lodges in the breasts of liberals, seemed
to think, that government in a colony should of course
be popular, but that its popularity should centre in
the Governor; while Mr. Baldwin, on the other hand,
thought that government should in like manner be
popular, but that its popularity should depend on,
and find its expression in the voice and will of the
people. Now Lord Sydenham in his native land was
a liberal of the liberals, but in Canada, like his prede-
cessor Lord Durham, he is remembered for the impe-
rious qualities of his character, for the despotic fibre
of his will, and for the adroit phases of his rule. He
had unbounded faith in himself and in his plans of
government. Indeed his waverings were not due to
hesitancy or weakness, for he was controlled by neither
one nor the other. When he paused in his plans, it
arose rather from his inability to find suitable instru-
ments to carry them out, than from any doubt of
the soundness of the principles on which they rested.
Actuated by a splendid egotism, he was of too absolute
a nature to consent to aught that would weaken either
his own or the Queen’s prerogative. Lord Syden-
ham was a whig and something more. Like Lord John
Russell, he thoroughly understood how unsatisfactory it
was to attempt to confine principles of government to
exact terms, as well as the extreme hazard of making any
such attempt. Critics no doubt are more adventurous
than statesmen, for the latter generally avoid verbal
definitions when they are required to deal with general
principles. They do not care to place inelastic shackles
either on the functions of the Crown, or on the powers of
the two Houses of Parliament, or indeed on themselves.
They prefer to look at the question of ministerial respon-
sibility as in many respects an open one. We may,
for example, think we know nearly what contingencies
should oblige a ministry to resign, but the authorities are
by no means agreed as to the time when such resig-
nation should take place. The verdict of the constitu-
encies may sulfice for popular conclusions, but as Parlia-
ment is the only recognized court of appeal, their con-
tention is not Without force who say that a ministry
should await the judgment of that court before they act
upon the verdict of the constituencies. It has seemed
to some authorities as scarcely respectful to such a tri-
bunal as the high court of Parliament, to assume that
it is incapable of being impartial ; that it is wholly con-
trolled by foregone conclusions ; that it would decline to
hear fresh arguments, and be obstinately unwilling to
take a new view of an old case. It fairly may be ques-
tioned whether, in the absence ofa proper hearing in the
proper place, the issue is ripe for judgment. No trial
can authoritatively be had, no verdict can officially be
rendered, until the whole electorate, in the persons of its
representatives, has collectively been appealed to. Parlia-
ment should hesitate to abdicate its functions, and pause
before it substitutes the individual voice of isolated poll-
ing booths for the congregated wisdom of the “grand
inquest.” The early theory was to listen to the advice
of the people as expressed by their representatives in
Parliament, and not by a direct appeal, in the nature of
a plebiscitum to each voter registered in the electorate.
A minister of the Crown is the custodian of his own
responsibilities and the fittest judge of his own duties ;
and, when not misled by his temper, may safely be
trusted to act wisely and in accordance with usage.
Usage now points in two directions. Nevertheless a
Word maybe said and a plea put in for the earlier one ;
as Parliament does not consist of tlie House of Commons
only. For though it is true that an administration does
not now resign in consequence of an adverse vote in the
House of Lords, it is also true that such an incident gives
a ministry a fearful shaking. Parliament ought not to
dissipate its powers, neither should it put its prerogative
into commission. That high court was formerly re-
garded as the place of trial, where a ministry was judged
by its peers. To relegate this important duty to the poll
booths alone is a decline in usage, and may prove a loss
in fact. The late examples in the United Kingdom, and
the more recent one in Canada, of ministries resigning
on what was accepted as an adverse vote of the constitu-
encies, are so many tributes to the high-mindedness of Mr.
Disraeli, of Mr. Gladstone and of Mr. Mackenzie, for
they exactly express the course which they, and men
like them, might be expected to take in such circum-
stances. Those gentlemen thought fit, and doubtless
with good reason, to assume that they had lost the pub-
lic confidence, and therefore, in deference to the general
convenience, rather than to constitutional usage, they
also thought fit to act on the assumption, by declining
to be any longer responsible for governing the country.

The question under review, like most questions relating
to government, is one that is encompassed with formali-
ties ; and formalities, be it remembered, that are not only
crisp with the hoar of experience, but are also valuable
securities against the weight of numbers or the oppres-
sion of one. Nevertheless the age, whether wisely or
not, probably pays as much homage to modern conveni-
ence as it does to ancient forms ; but there is danger in
such shiftiness, for in our eagerness to lay hold of what
is convenient we run grave risk of missing what is best.
If a ministry receives nominally from the Sovereign, but
actually from Parliament, a charge to do certain things,
should it not, irrespective of the question of success or
failure, give an account of its doings to the authority
from which the charge is received? The question no
doubt has two sides. We have presented in part the
View that was not adopted, The course that was pursued
need not be discussed. The matter is chiefly referred
to as illustrative of the wisdom of those statesmen who
decline to give exact definitions when dealing with
elastic principles. Indeed the most ardent admirers of
the British constitution may not like, but cannot help,
admitting that it rests on illogical foundations. This
fact not infrequently provokes foreigners, because it
blocks some favourite theory or destroys some well-con-
structed argument. Englishmen, on the contrary, have
no sympathy with the theoretical disappointments of
the most accomplished critits. They are satisfied with
their possessions, being well aware that those possessions,
however wanting in symmetry, rest on the broad basis of
severe experience and established use.

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

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

“Lord of himself and all beside.”

He was not only the Governor General and the chief
of the local administration, but practically he was the
leader and whipper-in of the government in the legis-
lature. He soothed the refractory with fair speeches
and allowed honours to dangle before the eyes of the
ambitious. Trade and commerce, finance and banking
he took naturally to as a matter of course, for they were
parts of his political heritage ; but foreign affairs and
matters of local selfgoverninent were subjects on which
he was by no means inclined to be silent or to affect
indifference. All he wanted appeared to be suitable
instruments, men who would obey his orders and who
possessed the skill to develope his plans. Ministers in
his day, like silver in the time of Solomon, ” were no-
thing accounted ofi” His judgment was the crucible
to which all subjects were to be brought, and his mind
the channel” through which all opinions were to find
expression. But, alas! the clear head and the firm
hand, though they achieved much, could not resist the
inevitable. They surrenderedin company, and now rest
within the walls of the old parish church at Kingston.

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

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

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

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

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

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

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

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

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

Mr. Ogden had reason to think that he had fallen a
victim to conflicting views. His Excellency the Gover-
nor General on one hand, and the Legislative Assembly
on the other, had looked at his claims from opposite
points, and had arrived at opposite conclusions. The
postponement of the consideration of a question so sim-
ple in itself, and at the same time so serious to His Ex-
cellency and to the subject of it, admitted only of one
interpretation. Wherefore Mr. Ogden took his course,
turned his back on the Legislature of his native country,
and determined to see whether he could obtain in Eng-
land the justice that had eluded him in, Canada. The
state of parties in the mother country favoured his
application, for Lord Lyndhurst, his near connection, if
not a relative, was the Lord Chancellor at that time.
Mr. Ogden knew well that his case would be considered
by his kinsman, and he knew further that that kinsman
was credited with the keenest intellect in England. The
case was prepared with the greatest care, for law and
rhetoric contributed to make it perfect. It was then
severely reviewed by friends in Canada, and when strip-
ped of all redundancy, and every point sharpened by
the action of wisdom and temper, it was finally copied
and sent home. Lord Lyndhurst gave his friendly and
sympathetic thought to the narrative, and by appointing
the subject of it to the office of Attorney General for
the Isle of Man plainly shewed that, in being displaced
from his situation in Canada without compensation or
equivalent, Mr. Ogden had not forfeited his claim to the
consideration of the crown.

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

It must be borne in mind that the rights of the Crown
had been touched without leave, for while the colon-
ial ofice had hazy views on the subject of “responsible
government,” it held clear ones on the subject of pa-
tronage. The latter had been assailed, and the assault
reverberated as a note of alarm in every corridor of the
colonial service. It was easy to see that compassion
would block preferment, and the recognition of old
claims would stand in the way of new candidates.
Thus a noxious vision of “returned empties” floated
before the minds of an army of eligibles who were
eagerly waiting for vacant robes or earnestly looking for
knightly ribbands. ” Responsible government” had pre-
viously been approached on all sides, but it had also
been uniformly declined by colonial secretaries and
persistently discredited by colonial governors. Now,
however, it was examined by a new class of investigators,
and condemned, Without doubt, as a horrible invention,
opposed alike to the prerogative of the crown as well
as to the reversionary interests of those who were candi-
dates for royal favours. For different reasons the Colon-
ial Secretary found himself surrounded by large numbers
of interested critics who had motives in common for
preventing the spread of the new heresy, while he, on
his part, was immediately concerned in limiting the num-
ber of crown beneficiaries and of getting rid altogether
of visitors from the colonies burdened with grievances.
The conclusion suggested by these speculative consi-
derations is not far to seek. Had no personal issue, con-
sequent on a disturbing act of injustice, been raised ; had
Mr. Ogden been disburdened of his grievance when he
was deprived of his office, it is probable that parliamen-
tary government, like parliamentary privilege, though
irregularly acquired, and doubtfully exercised, would
have become without noise or violence one of the smooth ,
fittings of the Canadian constitution. Had not Mr.
Ogden been armed with a grievance, sharpened by a loss
which Lord Lyndhurst regarded as a wrong, it is most pro-
bable that the course of our history would have flowed
onwards undisturbed by Lord Stanley’s constitutional
heat, or Lord Metcalfe’s paternal philosophy. The theo-
retical disquiet of that period would not have arisen.
The alarm of authority would not have been experienced.
The talks between Lords Stanley and Metcalfe would
have occasioned no anxiety. The meaning of “respon-
sible government,” as we now understand it, would never
have been challenged, and the literary torture to which
the words were exposed under the rule of Lord Metcalfe
would not have occurred. The Lafontaine-Baldwin
administration of 1842 would not have been. relieved
of office in 1843, nor, we venture to think, would the
new principle of parliamentary government have been
subjected to a baptism of fire in 1849. Mischief and
misery are the common fruits of individual wrong and
personal injustice ; for if there is sweeetness, there is also
danger in revenge. Torture not unfrequently gives
strength to weakness, and men are surprised at the blow
which an injured person can inflict. Had Mr. Hincks
and Mr. Harrison succeeded in preventing a case being
made for counsel, and such a counsel as Lord Lynd-
hurst in 1842, no occasion, we believe, would have arisen
either for the criticism of Sir Francis Hincks on what
must be regarded as an obscure and unsatisfactory pas-
sage of our history, or for our adventure in suggesting a
new reading of an old story.

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

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

Though separated by an interval of fifty years, Gover-
nor Simcoe and Sir Charles Bagot seem to have been
alike desirous of raising the local legislatures to the
highest rank, and to this end to clothe them with the
attributes of parliament. Those eminent men, with the
intuition of statesmen, apparently saw, though afar off,
to what authority those limited inquests would eventually
grow, and hence they did not hesitate by word and deed
to promote as far as in them lay whatever was best suited
to advance and strengthen such growth. We are wit-
nesses of what has taken place, and if we are wise
we shall contentedly appreciate the greater freedom our
political institutions have acquired, and the fuller con-
sideration we have consequently won. In passing, it
may ,be noted that Governor Simcoe and Sir Charles
Bagot were of the same political school, and held syrn-
pathetic opinions of the value to the empire of ” ships,
colonies and commerce.” They were both tories. Both
were large-hearted and open-handed rulers. They with-
held nothing it was in their power to grant, and even
when, under the guidance of an attractive illusion, they
professed to bestow what they had not the right to give,
the intention betrayed a generous and far-seeing pur-
pose, for its aim was to promote the happeness of the
Canadian people and not to advance the private or
selfish ends of their rulers. Superfine cynics say of
such persons, and of others like minded, that they belong
to the ” stupid party.” It would be easy to exchange
sneer for sneer, and answer such imputations in Words
conveniently chosen from the vocabulary of scorn. But
it is not necessary, for, were the reproach true, it wguld
not change the fact that Canada is as much and many
think more indebted to the party thus defamed than
to the party of its defamers for the most valuable, and
the most enduring parts in her system of constitutional


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

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

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

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

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

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

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

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

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

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

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

It was, however, about the year 1839, and partly in
consequence of the break down of the system of colo-
nial rule in the two Canadas, that the teachings of the
new school of colonial reformers began to influence
public opinion. Men were constrained to bestow more
attention on such subjects than they had done thereto-
fore. Earl Grey was among the early converts to the
theory of constitutional government, and Lord Elgin was
perhaps the earliest Governor who fairly and frankly put
the theory into practice. In 1845, Earl Grey, appar-
ently regardless of the unanimous resolves of the Impe-
rial Parliament, and of the instructions of his immediate
predecessors in office, conceded, under another name,
all that Mr. Baldwin had asked for, or had hoped to
obtain. The instrumentin which the conveyance is to be
looked for is sufiiciently imperfect, and appears to have
no legal value, for it rests, so far as Canada is concerned,
on the resolutions of one estate of the Legislature, and, so
far as the mother country is concerned, on a conversa-
tion between Lord Grey and Lord Elgin. Still the reso-
lutions and the conversation became vivified and har-
dened by the use to which they were put, and perhaps
in these results have been found as real, and in many
respects more operative, than some other measures that
have received all the force that law can give them.
Whatever the advantages may have been, and few will
deny their importance, they seem to have reached us
more by chance than by law, for they have been appro-
priated by the Canadian, rather than granted by the Im-
perial, legislature. Until the passing of the British North
America Act, 1867, a ready answer could scarcely have
been given to the question: “by what authority do ye
these things, and who gave you this authority ? ” So far
as the British Government is concerned, the authority
rests on the fluctuating opinions, nominally, of successive
administratioiis, but practically of successive Colonial
Secretaries, Who, as we have seen, in the short space of
seven years, promulgated three sets of conflicting, and in
two instances of contradictory, instructions. So, also, it
was within the competency of a fourth or a fifth Colonial
Secretary to make further changes in the mode of admi-
nistration, though it was beyond their power to make any
alteration in the law. Of the latter, the Parliament of the
United Kingdom, as we venture to think, was alike the
custodian and the interpreter.

No doubt the first governors of Upper and Lower
Canada acted under instructions, but there is reason to
think that such instructions were general, rather than
exact, in their terms. The constitutional act was to be
administered, but the Way in which it was to be done, as
well as the ceremonials that were to accompany it, were
matters on which, so far as we have been able to dis-
cover, no orders were issued, and on which we may
therefore conclude that a liberal exercise of judgment was
permissible. Having to use a large discretion, Gover-
nor Simcoe, no doubt, desired to use it consistently. To
perfect the constitutional model he had set up in his
mind it was necessary to assume, and it was not diflicult
to do so, that legislatures were parliaments, and, having
gone thus far in constructive analogy, it was quite natu~
ml to go a step farther, and in like manner to assume
that, being parliaments, they were also courts, and, being
courts, they ought to receive the consideration that is due
to the highest tribunals, especially when such courts are
periodically used as palaces wherein the representative
of majesty officially presides. Thus it came about
that the provincial legislatures, before and since the
confederation of the provinces, apparently assumed that
their Upper House of Assembly or their only House of
Assembly was and is a court, to be furnished with a
throne, and to be manned with apparators of different
ranks, including dignitaries of such stateliness as
ushers, and sergeants with emblems suggestive of royal
grace, such as black rods and gilt maces, swords,
lace, buckles, embroidery and collars of gold. Imita-
tion is probably the sincerest form of flattery; and
it was due to the intensity of their desire to preserve and
perpetuate in the new provinces the customs of the
mother country that the founders of our usages took what
pains they could to preserve in miniature as fair a copy
as possible of those official cereindnials which some of
them had seen, and which all of them wished to cherish.

That provincial legislatures werelnot intended to be
parliaments, but only common councils of an earlier
pattern, was a view that seems not to have been taken
by any one. On the contrary, it was generally believed
in the past, and it is by no means wholly discredited at
the present time, notwithstanding the light which
Imperial laws have shed on the subject, that the terms
are convertible, and that the powers, privileges and
immunities that are distinctly conferred on parliaments
may be seized and appropriated, if they cannot other-
wise be obtained, by legislatures. The old, and so far as
Canada is concerned, the hereditary, habit of thought,
survives Imperial corrections, for there are many per-
sons who, with ludicrous fidelity, and almost fanatic
faith, still cling to what must be regarded as an erro-
neous, as well as an exploded rendering of words. No
doubt the crown, if it imposed no restraint on its repre-
sentatives in matters ceremonial, did much towards en-
couraging them to assume the functions and imitate the
style of their sovereign. To this cause it may probably
be attributed that the furnishings of the upper house
of their Assembly included a throne ; and although the
governors were powerless to bestow orders or confer
distinctions, yet they thought themselves qualified to
appoint officers whose titles in the mother country were
and are inseparably associated with the blue ribband of
English knighthood and the highest court of the United
Kingdom, viz., the Order of the Garter and the High
Court of Parliament. The conceit was, no doubt, very
popular, and few suspected that it was also misleading.
Indeed had not the delusion been disturbed and shat-
tered by the Parliament of the United Kingdom, the
simple faith of generations that have passed away would
have remained unchallenged and unbroken. Neverthe-
less, had patience in the form of doubt stood on the
threshold of our political existence, had a cold-blooded
metaphysician and a severe economist, instead of a
warm-hearted enthusiast and a natural poet, been ap-
pointed the first governor of Upper Canada, then the
question which has given rise to this review would have
been examined, and no doubt with disappointing
results. A pause certainly would have followed,
and, perhaps, an answer might have been given that,
among other direct and indirect consequences, would
have shut out from our View the military pageant, the
vice-regal presence, and the imposing ceremony of open-
ing our provincial legislatures, together with the pictur-
esque accessories that wait on that event. Had the
question been patiently thought out when the Legislature
of Upper Canada began its modest career at Newark,
then we fear that three generations of Canadians would
never have heard the dialogue between the two speakers
at the beginning of a Parliament, and would never have
seen the ceremonial at the opening of each session,
where successive Black Rods have indulged in pictur-
esque pantomimes in the upper house, and taken a
bold attitude of command in the lower one ; the double
duty having been gaily assumed on the strength of their
remote connection with a grand chapter of knighthood,
and their direct Contact with a High Court of Parliament.
The day of humiliation and disappointment, happily for
them, was far off, and they passed away without being
aware of what We must regard as the fact that, as there
was neither a grand chapter of knighthood nor a high
Court of Parliament in Canada, they represented neither
the one nor the other, and therefore their office only
commenced in its true dignity when the Parliament of
Canada was created under the authority of the British
North America Act, 1867.

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

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

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

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

In giving judgment the Chief Justice took exception to
the exemplification of the case and administered a reproof
to those who had drawn it up because they had used the
word “Parliament” instead of “Legislature,” as it was
” technically wrong for any local legislature to assume
other “designations than those assigned to it by the
British statutes.” It would have been more proper, the
Chief Justice added, ” to have preserved the precise
names assigned to our legislature and its several branches
in our written constitution.” Having pointed out the
“inaccuracy which had better have been avoided,” his
lordship delivered an elaborate judgment, which, how-
ever, was entirely adverse to the pretentious of the plain-
tiff. But it is worthy of note that, while the Chief justice
deprecated the interchange of terms as ” an inaccuracy
which had better have been avoided,” his judgment, never-
theless, seemed to rest on the idea that the names were
interchangeable, for it pointed directly to the assumed
analogy between the powers and privileges of the local
legislature and those of the Imperial Parliament, adding,
by way of zest, to his argument ” that the absence of such
powers would reduce the legislature to an utterly helpless
and contemptible condition.” Judge Sherwood, following
and concurring with the Chief Justice, added “that the
authority to make laws included the duty of making in-
quiry, and this duty implies a right to compel the per-
sons examined to answer all lawful questions.” The
Judge did not pause to inquire whether a House of
Assembly was a court, and, if not, whence came the
power to compel. The difficulty, though in another as-
pect, did not escape the Chief Justice, who observed,
” that the authority of the House of Commons to com-
mit has, when questioned, been sustained by the courts
upon the grounds of precedent and usage only.” This
view seems to have represented a difficulty, and, at the
same time, to have suggested a way of escaping from it,
for the Chief Justice continued: “it is material to con-
sider that this usage must have had a beginning, and that,
in the first instance, we must suppose the power to have
been assumed and acquiesced in from a conviction that,
upon principle, it might and ought to be exercised.” Of
course usage, or the necessity for it, precedes law, “as
nothing can come into an Act of Parliament but it must
be first affirmed or propounded by somebody.” But the
difficulty thus admitted is. suggestive. Whether the
mode of escape thus indicated is the only one, is a ques-
tion to which a very thoughtful answer should be given.

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

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

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

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

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

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

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

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

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

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

In a report of a Committee of the Honourable the
Privy Council, approved by His Excellency the Gover-
nor General in Council on the Ist of April, 1875, the
committee advised that an act passed by the Legisla-
ture of Ontario, intituled ” An Act respecting Escheats
and Forfeitures,” should be disallowed. The reasons
for the advice include an elaborate argument of the then
Minister of justice, Mr. Fournier, from which a few sug-
gestive extracts may be made. It is true that the argu-
ment did not turn out to be conclusive, for it was, as
we understand it, subsequently set aside on the ground
that it failed to embrace considerations that existed be-
fore, and that were not invalidated by, the passage of the
British North America Act, 1867. Apart, however, from
the issues of fact and of law thus raised, on which it
would be highly presumptuous for us to offer any remark,
we may take advantage of Mr. Fourniefis observations
on the question that is more immediately under con»
sideration. Mr. Fournier, in speaking of the relative
authority of the parliament and of the legislatures, took
occasion to observe that under the British North
America Act, 1867, the Parliament of Canada is defined
to consist of the Queen, the Senate and the House of
Commons, and the mode of legislation by parliament is
defined to be that of the Queen, by and with the advice
of the Senate and House of Commons.

On the other hand, the legislature of each province
has a different definition. Take that of Ontario, for
example. It is found to consist of the Lieutenant Gover-
nor, and of one house styled ” the Legislative Assembly
of Ontario.” In continuation, Mr. Fournier says : ” It
is true that the legislatures of the different provinces, in
enacting laws, have used the terms : ‘ Her Majesty, by
and with the advice of and consent of the Legislative
Council and Assembly of the Province’ (or, in respect of
Ontario, of the Legislative Assembly of Ontario alone),
and it may have been thought expedient to adopt that
formula ; yet little doubt can be entertained that the
same is incorrect, and that the enacting party should be,
under section 92, ‘ The Legislature’ of the Province.”
” A Lieutenant Governor” (not having been appointed
by the Queen) “has no power,” Mr. Fournier says, ” to
assent to any laws of a legislature in the Queen’s name,
inasmuch as the Queen herself has not that power, and
cannot therefore depute it.”

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

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

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

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

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

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

This episode in the history of provincial legislatures
is alike suggestive and instructing. The discrimination
made by the British America Act 1867 between
“legislatures” and “parliaments” was not an idle one,
having only a. verbal value. On the contrary it drew
broad distinctions and carried real meanings, whose im-
portance can scarcely be exaggerated. The Parliament
of Canada had been made the recipient of honours and
trusts that had not only been withheld from the legis-
latures of the Provinces, but which had not, till then,
been conferred on any of the colonies. The legislatures,
no doubt, desired to become possessed of the privileges
and advantages which had been conferred on the
Parliament of Canada. And the question arose as
to how they might be acquired. They could not,
as in the earlier days, be appropriated as a matter
of course, as if they were integral parts of Gover-
nor Simcoe’s image and transcript of the British
constitution. The British North America Act of 1867
had placed such a proceeding beyond reach. What was
to be done? As authority could not be taken either
under the sanction of custom, usage or Imperial law
might it not be acquired under the sanction and protec-
tion of colonial statutes. The effort was made in four
provinces. The acts of two legislatures of the larger of
those provinces were submitted to the law officers of
the Crown, with what result we have already seen. Their
rendering reads like a verdict, and it seems to echo
Dr. Baldwin’s contention, expressed more than sixty
years earlier.

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


Read less

Leave a Reply