Battle Royal

by David Johnson

  Still, prior to 1848 governors were like local gods. They possessed the ultimate legal power to make any and all executive decisions in their colonies. They set economic and social policies and issued related policy directives and decrees. They established programs to achieve these policy objectives, and they created and utilized colonial bureaucracies to administer their initiatives. Governors also had the authority to draft legislation establishing new laws for the colony and the power to write annual budgets and propose new tax measures for the raising of revenues to be used by the colonial government.

  No proposed legislation or budget bill could become law, however, without the prior approval of the colonial legislative assembly, the elected body representing the interests of common people within the colony. Once approved, however, all legal powers created by legislation and all revenues raised by any tax measure, new or old, were under the ultimate command of the governor. Simply put, governors held and exercised real political power. In fact, they possessed the powers now held by prime ministers and premiers today.

  Despite their vast powers, governors did not act alone. In each colony they were assisted in their work through advisory bodies, executive and legislative councils. Membership in these bodies was based solely on appointment by the governor, with the governor selecting for these councils men (and it was always men) in whom he had trust and confidence. The executive councils over time came to function as the governor’s cabinet with members coming to act as ministers of the Crown, fulfilling the roles of attorney general, surveyor general, and commissioner of public works. These members of the executive council, however, were not elected representatives of the people. What’s more, none of them held seats in the legislative assembly.

  In all of the colonies in the decades prior to the 1840s, the memberships of these councils mirrored the social and economic elite in each colony. Councillors tended to be the leading men of business in the colony, usually living and working within the provincial capital. Active in large-scale trade and commerce, banking, insurance, and investment industries, they dominated the local economy and were themselves extremely wealthy. They were often major landowners throughout the colony, and they usually had vested interests in banking and construction firms capable of benefiting from major public infrastructure projects. These local economic elites were also social elites, usually English and Anglican. Representing the colonial upper class, the families of this ruling class socialized with one another, belonged to the same clubs, usually attended the same churches, sent their children to the same private schools, and intermarried.

  So deeply entrenched were these elites in the political life of the colonies that by the 1820s they had been given names — the “Chateau Clique” in Lower Canada (now Quebec) and the “Family Compact” in Upper Canada (now Ontario). In all these colonies, the members of the elite came to refer to themselves as “Tories” and to align themselves almost religiously with Tory values: a belief in the nobility of the British Crown, a desire to maintain the status quo in all things, and a distrust of any democratic sentiments that could be attributed to American, republican ways of thinking. These ruling elites were authoritarian, hierarchical, self-serving, and utterly devoted to the traditional form of British colonial governance through which they had done so well for themselves. They were also adamantly opposed to any ideas of social, economic, or political reform that would challenge and reduce their existing power and privilege.

  Their very presence and behaviour, however, had created, as early as the 1820s, the conditions for the emergence of social and political forces that sought to break the power of these ruling factions and to demand that governments and public services in the colonies be subject to the democratic control of the elected leaders of the common people. Thus began the great struggle between governors and their councils, and legis­lative assemblies and their allies.

  The Reform Challenge

  The first legislative assembly in what is now Canada appeared in Nova Scotia in 1758, followed by one in Prince Edward Island in 1773, a third in New Brunswick in 1784, and one each in Upper and Lower Canada in 1791. Newfoundland received its assembly in 1832. Even though all these assemblies stood at the bottom of the power pyramid in each colony, they did have a purpose and some authority. They were designed to represent “the commons” living in the colony — the ordinary people toiling away as farmers, fishers, labourers, small-scale merchants, and townsfolk — who accounted for the bulk of the population. These assemblies were elected, but not every “commoner” had the right to vote. The franchise was restricted to men who owned modest amounts of property, land, or had private wealth. In the early years of each colony’s history, such voting rules resulted in a significant number of elected assembly members tending to be Tories. As time passed, however, and as the colonies grew in population and economic wealth, all these assemblies came to reflect a growing diversity of political opinion. Tories soon had to share the political stage with a growing number of representatives promoting the interests of ordinary workers and townspeople, merchants and skilled labourers. One word increasingly came to define the political objective of these “men of the people”: reform.

  In all of the British North American colonies, more and more assemblymen came to voice strong opposition to the ruling elites in each colony. Calling themselves “reformers,” these men came to criticize what they saw as corrupt regimes in their home colonies. Prominent were the voices of Joseph Howe in Nova Scotia, Charles Simonds in New Brunswick, William Carson in Newfoundland, Louis-Joseph Papineau and Louis-Hippolyte LaFontaine in Lower Canada, and William Lyon Mackenzie and Robert Baldwin in Upper Canada. These men railed against the greedy and self-invested “oligarchies” that ran the colonies. The ruling elites were attacked for disregarding the needs of common workers, while using their control of government to promote their own economic self-interests. And given that most reformers and their constituents in what is now English Canada were non-Anglican Protestants, they also denounced their local rulers for imposing stifling Anglicanism on their colonies.

  In all these colonies the voices of reform added one other grievance to the list, an objection that squeezed the very heart of the colonial governance system. As early as the 1820s, reformers were criticizing the fact that the governor and his executive council were in no way accountable, or responsible, to the legislative assembly. The reformers had some leverage here because these assemblies possessed one fundamental authority that governors and their councillors had to respect: finances. Annual budgets allocating funding to the colonial government and its various departments had to be passed by the assembly; any new taxation measure also had to be approved by the assembly. In keeping with British parliamentary tradition, the Crown could gain no revenue without the consent of the Commons. But, once such “money bills” were approved, all decision-making power regarding how government departments and agencies would be administered, how such revenues would be spent, what specific projects and programs would be approved, and who might be hired or awarded state contracts in furtherance of colonial policies was solely in the hands of the governor and his councils. Governors and their councils rebuffed any efforts of assemblymen who sought to direct public monies toward specific programs and initiatives. They likewise rejected any of the assemblymen’s attempts to make the hiring of public officials subject to assembly approval. Reformers would be scolded for seeking to subvert the constitution by having the legislative branch of government usurp the role and power of the executive.

  Beaten down and muzzled as they were, assemblies soon learned that the only power they possessed to control the actions of the governor was to refuse to approve annual budgets and tax measures. Even these actions, however, were viewed by moderate reformers as disastrous to the life of the colony and politically self-defeating. When such impasses arose, it became common for governors to prorogue and even dissolve assemblies and call new elections, expecting, as was often the case, that the voters w
ould elect more moderate representatives who, along with Tory assemblymen, would support the budget desired by the governor.

  The Quest for Responsible Government: The New Order in the United Kingdom

  By the early 1830s, reformers were asserting that their colonies needed and deserved “responsible government.” This term, in vogue in the United Kingdom, signified the modern form of British parliamentary “cabinet” governance that had been developing over the past century. Responsible government in Britain had four key features. First, the country was required to have a government that could advise the monarch on the exercise of his or her duties. The monarch was henceforth never to be placed in a position where he or she would be called upon to independently make political and governmental decisions. Second, this government had to be responsible to the House of Commons, always possessing the support of that body. Third, the king’s Privy Council — his key executive advisers, who were now increasingly referred to as “ministers of the Crown” or “the cabinet” — had to be appointed by the king from among the parliamentary leaders in the House of Commons. The chief leader of this group of parliamentarians would become the king’s adviser of first rank, making him the “prime minister” to the king. It now was expected that men appointed as a prime minister or a cabinet minister would be leaders of the party or parties that “commanded the confidence” of Parliament or, in other words, held a majority of seats in the House of Commons. By commanding such confidence, these men would know that they could win parliamentary approval for all policies and programs, legislation and budget bills that they presented to the House of Commons in the king’s name. This ability to win approval would demonstrate to both king and country that their government had the support of the popularly elected House of Commons, that it could sustain itself in this chamber through all votes of confidence, and that it could function as a viable government, effectively turning policy ideas into program realities. Fourth, responsible government required that the king, while constitutionally possessing the totality of executive powers and privileges in and over the United Kingdom — what is still known as the Crown prerogative — would exercise these powers only on the “advice” of the prime minister, and that all Crown officials serving in an executive capacity, namely all those working within the public service, would have to obey the advice of the prime minister and his other cabinet colleagues.

  The term advice here requires some clarification and an awareness of monarchical etiquette. As the practice of responsible government took root in Britain in the latter part of the eighteenth century, it came to be understood by George III that real power in his kingdom rested in Parliament and especially in the hands of those parliamentary leaders commanding the confidence of the House of Commons. In other words, the prime minister was the de facto head of government, not the king, meaning that the prime minister could and would command the king to exercise his powers in accordance with the wishes of the prime minister and his cabinet. In a monarchy, though, it is considered rude for a king or queen to be ordered to do something, even if they are obligated to obey. So the term advice came into vogue. A prime minister would “advise” the king on the propriety of a certain course of action, with the monarch knowing full well that the word advice really meant “order.”

  By 1832 the principles and practices of responsible government were well established in Britain, and well understood by British monarchs. In that year the Great Reform Act was passed into law by a Whig (Liberal)–dominated House of Commons and was given royal assent by William IV after he had been “advised” by his prime minister, Charles Grey, to create fifty new peers in the House of Lords to overcome Tory obstruction in that parliamentary chamber. With the passage of this act under these circumstances, responsible government had clearly become the governing principle upon which political power in Britain was exercised, with the full support of the monarch. This reality was a lesson not lost upon reformers in British North America.

  The Quest for Responsible Government in British North America

  Facing their own constitutional problems and deeply convinced that their colonies were labouring under unaccountable and unresponsive governments, reformers from across the British North American colonies raised the demand for responsible government in these colonies. But they had to tread softly. They all insisted that this reform, while vitally important, was in no way radical or revolutionary. They were simply asking, they stressed, that British subjects in these colonies be accorded the same rights and privileges to responsible government as enjoyed by British subjects in the “mother country.” Theirs was an argument for equal entitlement to principles and practices of governance under the Crown that were now well established in Britain. It was also noted, as the assemblyman and reformer Joseph Howe repeatedly asserted, that this transformation could be achieved without any need to rewrite the constitutions of these colonies. The British government needed only to provide two general instructions to all future governors of the colonies: first, require that they appoint to their executive councils the leaders who commanded the confidence of their legislative assemblies; and second, insist that they follow the advice of their first ministers with respect to all matters of colonial governance.[2]

  Invariably, however, every single call for liberal constitutional reform was opposed by all colonial governors and their Tory supporters. Governors stressed that the application of responsible government would be unconstitutional in that the governor could only be responsible to his superiors in the Colonial Office, who were in turn responsible to the Imperial British Parliament. The practice of responsible government in Britain thus covered all the actions of colonial governors, placing them and those they governed in a relationship of responsibility and obedience to superior imperial authority that could not be challenged by mere colonials. To claim otherwise was to threaten the viability of the British Empire in that the claim challenged the uniform application of Crown powers throughout the realm. The Crown could be responsible to only one authority, and that authority was the imperial government in London; this position became known as the principle of the “indivisibility of the Crown.”

  Faced with recalcitrant governors and ruling elites intent on maintaining the colonial status quo, some advocates for reform became increasingly radicalized by the mid-1830s, with Louis-Joseph Papineau in Lower Canada and William Lyon Mackenzie in Upper Canada leading armed rebellions against Crown rule in 1837–38. These uprisings were easily quashed by British military forces but with the loss of some 250 lives in Lower Canada. The fact that armed insurgency had occurred at all sent shock waves throughout British North America and the corridors of power in London.

  The British Whig (Liberal) government of Prime Minister William Lamb, Second Viscount Melbourne, appointed John George Lambton, Earl of Durham and an ardent Liberal ally, as governor for all the British North American colonies. Durham was also ordered to investigate the root causes of the recent rebellions and to propose constitutional changes that would be “conducive to the permanent establishment of an improved system of government for her majesty’s North American possessions.”[3]

  In his famous report,[4] published in 1839, Durham made the key recommendation that the British North American colonies should be granted responsible government. In each colony, the governor was to be instructed to appoint to his executive council the men who commanded majority support from colonial legislative assemblies. The leader — or “premier” — of these men was to advise the governor on the appointment of other members to the executive council and on all governmental decision-making falling within the jurisdiction of the colonial legislative assembly. The governor was to assist the premier and his cabinet in fulfilling their duties; he was also to help oversee the development of policy and the passage of legislation, but with lead direction coming from the premier. If a colony passed legislation infringing on British imperial interests (for example, relating to intercolonial relationships within the Empire), the governor w
ould possess the authority to “reserve” that bill and forward it to London for assessment by the British government, which had the power to have it vetoed. The recommendation was grounded in Durham’s understanding that the authority of the Crown was divisible. As such, the governor of a colony could take advice from a colonial premier in the name of the Crown. With respect to constitutional authority vested in the imperial government, the Queen would continue to hold and exercise all de jure Crown powers, subject to the advice of her British prime minister. To Durham, such divisibility of Crown powers ensured, rather than threatened, the viability of the Empire.

  The Durham Report was received with mixed reviews in London. The Melbourne government was unsure about the divisibility of the Crown. They were unwilling to go as far as to allow British governors in the North American colonies to be subject to the advice of their colonial first ministers in place of directives from the imperial Colonial Office. Durham’s recommendation for responsible government effectively meant that the British government would be relinquishing a substantial amount of power over the administration of their British North American colonies to colonial legislatures and governments. This they were unwilling to do. What they did do in 1841, however, was to merge Upper and Lower Canada into one colony, to be known as Canada, with a legislative assembly that would be representative of both French and English Canadians. The governor of Canada, though, was instructed to maintain effective imperial control over this colony and to reject any claims for responsible government.