Battle Royal

by David Johnson

  Consequently, for most of the 1840s, politics in the British North American colonies were ritualistic. Reformers demanded responsible government, while governors and their Tory supporters rejected these claims. Tensions were greatest in the new colony of Canada. There, a succession of governors found it increasingly difficult to secure passage of legislation and budgets through the legislative assembly because it was often dominated by reformers from both Canada East (now Quebec) led by Louis-Hippolyte LaFontaine and Canada West (now Ontario) led by Robert Baldwin. Tory governments rose and fell, the legislature was increasingly gridlocked, and the tone of political discourse was becoming ugly. A climax was fast approaching, but it had its genesis in London, not Canada.

  In 1846, another Whig (Liberal) government came to power in Britain led by John Russell. The new prime minister favoured free trade as the basis for Britain’s economic policy both at home and abroad, meaning that the “mother country” would have less economic use for her colonies. Where those colonies could safely be relied upon to govern themselves while remaining a part of the Empire and loyal to British institutions and interests, they were to be encouraged to do so. The Russell government thus accepted Durham’s idea of the divisibility of the Crown with respect to colonial governments. It likewise embraced the progressive idea that the Crown was to support rather than thwart the development of Canadian democracy. In circumstances where a matter of public policy was solely of concern to the colony and in no way affected broader British imperial interests, the colonial governor was to exercise his executive powers subject to the advice of his colonial first minister. In cases where the policy matter was clearly of British imperial concern, however, the governor was to be subject to the advice and control of the British government.

  This new perspective was tantamount to conceding that a governor could have two masters: one local and colonial for matters of purely domestic interest; the other British and imperial for matters affecting the Empire. This acceptance, in 1846, of the principle of the divisibility of the Crown, while seemingly esoteric at the time and since, was to have enormous consequences for the role of the Crown both in Canada and across the British Empire in the twentieth century. Henry Grey, the new colonial secretary, began to put these ideas in writing to various governors in British North America. In November 1846, Grey wrote to the lieutenant governor of Nova Scotia, John Harvey, instructing him in how to deal with the repeated demands of Nova Scotian reformers — under the leadership of Joseph Howe — for responsible government. “It cannot be too distinctly acknowledged,” Grey stressed, “that it is neither possible nor desirable to carry on the government of any of the provinces of British North America in opposition to the opinion of the inhabitants.”[5] If and when the Reform Party won a majority of seats in the Nova Scotian legislature, Harvey was advised to appoint his executive council exclusively from among that party’s legislative leaders, and to exercise his executive powers in accordance with that “system of parliamentary government which has long prevailed in the mother country.”[6] The Crown was to become progressive, recognizing and supporting the development of democracy in the British North American colonies.

  In 1847, Grey sent similar instructions to the new governor of Canada, James Bruce, Earl of Elgin and a son-in-law to Lord Durham. Elgin’s style of governance was as different as night and day from that of his Tory predecessors. Where previous governors had been reactionaries, Elgin was the progressive. For one, the new governor informed the executive council and the members of the legislative assembly that he would be governed by the principles of responsible government. Moreover, the colony would be governed like Great Britain. The leaders of the executive council would be drawn exclusively from the party commanding the confidence of the legislative assembly. As long as that council, or cabinet, possessed legislative control, the governor would exercise his authorities subject to the obligatory advice of his first minister. If and when the governing party lost control of the assembly, however, either through electoral defeat or the loss of a vote of non-confidence, the governor would call upon the new leaders commanding the confidence of the assembly to form a government, with the governor then becoming subject to their advice and direction.

  Nova Scotia was the first, in 1848, to taste the fruits of responsible government in British North America. In the fall of 1847, the election for the Nova Scotian legislative assembly resulted in the Reform Party, led by James B. Uniacke, winning a majority of seats. The existing Tory government delayed calling the new assembly into being until late January 1848, but once the assembly finally met it promptly passed a motion of non-confidence in the Tory executive council. This council then tendered their resignations, and, in early February, Harvey called upon Uniacke to form a government, with his cabinet including Joseph Howe. Nova Scotia thus became the first colony in the history of the British Empire to be granted responsible government. In writing about his swearing in as a minister of the Crown, Howe noted: “The scene was a novel one, and to us colonial Anglo-Saxons, very interesting. We were conscious of having achieved a Revolution, without bloodshed.”[7] Things would not go quite so smoothly in the colony of Canada.

  A general election for the Canadian legislative assembly was held in early 1848, resulting in the defeat of the Tory administration and majority support in the assembly falling to the combined forces of LaFontaine’s French-Canadian nationalists and Baldwin’s Liberal reformers.

  The true test of responsible government in Canada, however, came the following year. As noted at the outset of this chapter, in early 1849 the Reform government introduced the Rebellion Losses Bill. As the legislation moved its way through the parliamentary process, its passage was never in doubt thanks to the Reform majority in the assembly. Knowledge of this inevitable outcome drove Tory opponents to greater frenzy as they sensed their own helplessness in the assembly. But they had one hope: the governor could veto it by refusing to give it royal assent.

  Just as LaFontaine and Baldwin wanted, the bill passed third and final reading in the assembly by a vote of forty-seven to eighteen. All that was now required was royal assent to turn the bill into law. Although Elgin had some personal qualms with the bill, he recognized that it represented his government’s desired policy and, further, that this government had majority support in the assembly. It was a bill, moreover, that was of wholly local concern, in no way affecting British imperial interests, colonial defence, or international trade relations. It was also a bill that would go far in reducing French-Canadian grievances to British rule and in furthering the ability of French Canadians and English Canadians to work together in the governance of their shared colony.[8] Armed with these convictions, Elgin entered the Canadian Parliament on April 25, 1849, signed the bill into law, and witnessed history unfold.

  British North America attained self-government in 1848, and Elgin’s act of royal assent in the spring of 1849 affirmed for all to see that these colonies were now free to govern themselves in relation to all matters of domestic policy. The practice of responsible government came to New Brunswick in 1848, Prince Edward Island in 1851, and Newfoundland in 1855. Governments would derive from the party or parties winning a majority of seats in legislative assembly elections, and governors would exercise their authority on the advice of elected first ministers. If citizens did not like the policies and programs followed by any given government, they were free to vote that government out of office at the next election. When a government was outvoted, the governor would appoint the leader of the new majority in the assembly as first minister, and the system of responsible government would carry on.

  Canadian democracy is still a work in progress, yet the achievement of responsible government in 1848 should be seen for what it was: a vital link in a long chain of democratic development. As suggested by Lord Durham, this reform was accomplished without any long and complicated constitutional amendment. Governors simply needed to be instructed by the British government to und
ertake their role as a representative of the Crown in accordance with the principles and practices of responsible government as found in the United Kingdom. To this day, we live with the benefits of this system of parliamentary government and the legacy of such men as Howe, LaFontaine and Baldwin, and Governor Elgin.

  Confederation and the Monarchy

  When looking at the great constitutional developments in Canada’s history, Confederation in 1867 is without question the next significant milestone after the events of 1848–49. By the early 1860s, colonial leaders across British North America could smell constitutional reform in the air. They knew that some form of federated union of these disparate British colonies into a greater whole was essential. To men like John A. Macdonald, George-Étienne Cartier, Samuel Leonard Tilley, Charles Tupper, and George Brown, British North America needed to become one country, a federation of regions and peoples spanning the northern half of the continent, linked together by railway ribbons of iron. This new country called for a federal government that could forge a national economy and create a Canadian identity that would stand against American republicanism and for British values and principles of government.

  The story of the making of Confederation has been well told elsewhere. The focus of attention here is how the “Fathers of Confederation” understood what the status of the monarchy and the role of the Crown would be in the Canada they were creating. At their initial meetings, they quickly and unanimously resolved that the new country was to be a monarchy, with Queen Victoria and her heirs and successors recognized as the rightful sovereign in and over Canada. The country would also have a constitution based on the British model, and Canada would remain a part of the British Empire. The historic role of British governors would be maintained, with the British government appointing a governor general to represent the Queen throughout Canada. As with past governors, the new governor general would interact with the federal government and Parliament to ensure the new nation adhered to the principles and practices of responsible government. Each province would also have its own distinct representative of the Crown, to be styled a lieutenant governor; this official would be appointed by the governor general in council. The lieutenant governor would generally perform the same role as the governor general, only at the provincial level of governance.

  The decision to maintain the monarchy and to affirm the continued British connection to Canada was never in doubt. The Fathers of Confederation, including the French Canadians, were very different from the founding fathers of the American constitution nearly a century earlier. These British North Americans, soon to be Canadians, were not revolutionaries. Neither were they Americans: they did not seek a fundamental break with the United Kingdom — the “mother country” to most of them — and they in no way desired to replace their existing form of government with a wholly new, republican form.

  The drafters of the British North America Act, 1867, were essentially conservative colonial officials loyal to Great Britain and its constitutional form, including the institution of the monarchy, and committed to the preservation of the system of British parliamentary government in the new country. While it may come as a surprise that the French Fathers of Confederation embraced this idea, many French Canadians at the time saw the advantages of maintaining the British Crown in Canada, particularly with the threat of American republicanism. George-Étienne Cartier, leader of the French-Canadian Fathers of Confederation, defended his support for the maintenance of the British Crown in the new country, including in Quebec, as follows:

  French Canadians understood their position too well. If they had their institutions, their language, and their religion intact today, it was precisely because of their adherence to the British Crown.… Our attempt was for the purpose of forming a federation with a view of perpetuating the monarchical element.… In our federation the monarchical principle would form the leading feature.… Under the British system, ministers might be abused and assailed; but that abuse never reaches the sovereign.[9]

  It was less surprising that English Canadians advocated for the same. John A. Macdonald defended the Confederation proposals before the colonial legislature of Canada on February 6, 1865. Of the role of the monarchy in the new country, he stated:

  I think it is well that, in framing our constitution … our first act should have been to recognize the sovereignty of Her Majesty.… [At the Quebec conference] the desire to remain connected with Great Britain and to retain our allegiance to Her Majesty was unanimous.… [By] a resolution which meets with the universal approval of the people of this country, we have provided that for all time to come, so far as we can legislate into the future, we shall have as the head of the executive power the sovereign of Great Britain.… No one can look into futurity and say what will be the destiny of this country. Changes come over nations and people in the course of ages. But, as far as we can legislate, we provide that, for all time to come, the sovereign of Great Britain will be the sovereign of British North America.… By adhering to the monarchical principle, we avoid one defect inherent in the constitution of the United States. By election of the president by a majority and for a short period, he never is the sovereign and chief of the nation. He is never looked up to by the whole people as the head and front of the nation. He is at best but the successful leader of a party.[10]

  The Constitution Act, 1867, and the Crown

  The British North America Act, 1867 (now the Constitution Act, 1867), was conceived in Charlottetown in 1863, largely written in Quebec City in 1864, modestly revised in London in 1866, and passed into law by the British Parliament on March 29, 1867. It became effective on July 1, 1867. The act deals with the monarchy, Crown powers, and responsible government in just a few short passages. The preamble to the document affirms that the former colonies of Canada, Nova Scotia, and New Brunswick will be “united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom.”

  The last twelve words (bold added) were vitally important to the Fathers of Confederation, and remain significant to this day. The Constitution Act, 1867, gives Canada a British form of constitution. While the document of 1867 provided the basic structure for the Canadian political system, many of the details as to how the country would be governed, the power relations between people, parties, and governments, and the working of elections and parliamentary democracy were left deliberately uncodified. Just as Britain has a largely unwritten constitution, so too does Canada. It is remarkable to note just how much about Canadian politics and government is missing from the Constitution Act, 1867. The act never once addresses the power relations required for the operation of the system of responsible government. It never once makes reference to the position, role, and powers of the prime minister or provincial premiers, the function of cabinets and their ministers, how elections will work, the rules for determining how an election winner will be decided, or how transitions in power are to be regulated. The act seldom speaks to the power relationships between first ministers, the Queen, governors general, and lieutenant governors. All of these matters, integral to the working of democracy in this country and central to the functioning of responsible government, were left in the realm of constitutional conventions — the unwritten, non-legal, political and moral principles and practices of responsible government long established in both Britain and her British North American colonies. To the Fathers of Confederation, there was no need to codify these principles and practices because they were already well known and deeply entrenched into the living reality of political life in the country.

  Having affirmed that Canada would have a constitution “similar in principle to that of the United Kingdom,” the Constitution Act, 1867, proceeded to establish Canada as a monarchy. Section 9 stipulates: “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.” Subsequent clauses discuss other governance issues. Se
ction 10 outlines the role of the governor general and specifies that this official will be responsible for “carrying on the Government of Canada on behalf and in the name of the Queen.” Section 11 provides for the creation of an advisory council to the government, “to be styled the Queen’s Privy Council for Canada.” Appointees to this council will be “chosen and summoned by the Governor General.” Sections 12 and 13 specify that the governor general will possess the same powers, authorities, and functions as those possessed by all previous governors, and that this official will act “by and with the advice of the Queen’s Privy Council for Canada.” Section 15 declares that the Queen will remain commander-in-chief of all naval and military forces in Canada. The Queen is also formally recognized as being an integral part of the parliamentary system of government.

  With respect to legislative power, section 17 of the act reads: “There shall be One Parliament for Canada, consisting of the Queen, and Upper House styled the Senate, and the House of Commons.” While section 24 specifies that the governor general holds the legal power to “summon qualified Persons to the Senate,” section 26 adds that the Queen will also have the special power, “on the Recommendation of the Governor General,” to summon either four or eight additional senators to that body.

  The Constitution Act, 1867, also has explicit provisions respecting proper procedure once a piece of legislation has been passed in both the House of Commons and the Senate. Section 55 stipulates that, in these circumstances, the governor general has the power either to give royal assent to the bill or “that he withholds the Queen’s Assent, or that he reserves the Bill for the Signification of the Queen’s Pleasure.” Section 56, in turn, gives the “Queen in Council” the power to “disallow the Act.”