CXXXV REPORT OF THE COMMITTEE OF THE LEGISLATIVE COUNCIL The Select Committee to whom was referred the Report' of the Right Honourable the Earl of Durham, Her Majesty's late Governor-in-Chief of British North America, Respectfully Submit the Following Report: In discussing the report of Her Majesty's late High Commissioner on the affairs of Upper Canada, your Committee are fully aware, that their observations cannot be understood by your Honourable House, as conveying any censure on Her Majesty's Commissioner, who commences by informing Her Majesty, that his information, respecting the state of Upper Canada, had not been acquired in the course of his actual administration of the government of that Province, a fact to which the report itself bears ample testimony. His Lordship observes that, "it is very difficult to make out from the avowals of parties, the real objects of their struggles, and still less easy is it to discover any cause of such importance, as would account for its uniting any large mass of the people in an attempt to overthrow, by forcible means, the existing form of government." From the first part of this paragraph it appears, that the political parties into which the Province is said to be divided, have no very strong ground for complaint, otherwise some definite description thereof would doubtless have been given to his Lordship; who, in the latter part of the same paragraph, insinuates that a large mass of the people of Upper Canada were desirous of overthrowing the government, a fact totally unknown in this Province, and already sufficiently refuted by the conduct of the people. His Lordship then informs Her Majesty, that Upper Canada "has long been entirely governed by a party commonly designated through the Province as the 'family compact,' that, "there is in truth, very little of family connection among the persons thus united." Why then should his Lordship give his assistance in the dissemination of any such erroneous idea, as that title has been used to propagate? His Lordship does not appear to have understood, that the object of the Press in adopting the term of "family compact," as a name by which to designate "the Bench, the Magistracy, the holders of the high offices of the Episcopal Church, and a great part of the legal profession, the possessors of nearly the whole of the waste lands of the Province, the people all powerful in the charterd Banks, and sharing among themselves almost exclusively all offices of trust and profit," intended to impress their readers with the idea, that a close family connection did exist among all the persons in authority throughout the Province, and that if it were not so understood the force of the epithet would be altogether lost; for throughout his Lordship's Report "the family compact" is blazoned forth with studious pertinacity, although the inaptness of the title had been previously admitted. The High Commissioner next endeavours to show, that all persons of education, and more especially members of the learned professions, ought rather to settle in the United States than in Canada; a Surgeon, for instance, because he must show that he is duly qualified before he can be permitted to practise within this Province; an Attorney, because he is not permitted to practise therein as a Barrister; and a Barrister, because he is not allowed to act as an Attorney. Your Committee are of opinion, that in all these regulations the legislature has shown a proper and praiseworthy desire to prevent ignorant 1 The Report was officially communicated to Parliament on 11 February, 1838. 2 See Report, Vol. II (Lucas's Edition), pp. 145-193, where the report on Upper Canada is historically examined in the notes. pretenders to medical and legal knowledge, disturbing the animal economy or social condition of Her Majesty's subjects. Then comes his Lordship's list of British grievances, which is altogether remarkable; he complains of the Banking system, in which he says the Canadian party are supreme (a large portion of the stock in the most ancient of the chartered Banks is, however, owned by persons residing in England), and further asserts, that the influence of the Banks "is said to be employed directly as an instrument for upholding the political supremacy of the party" (Canadian)-Your Committee happen to have the means of personally knowing, that the chartered Banks have most studiously avoided political connection with all parties.1 Your Committee find introduced as one of the grievances, "that under the system of selling land pursued by the government, an individual does not receive a patent for his land, until he has paid the whole of his purchase money." Why should a contrary course be pursued? That is not shown! The High Commissioner then wanders into Illinois, and gives a vivid description of the peculiar advantages to be derived by English folk, who may become domiciled in the republic. If indeed his Lordship had not qualified his opinions with the assertion that, "but few cases in which the departure of an Englishman from Upper Canada to the States, can be traced directly to any of these circumstances in particular," alluding to the British grievances before mentioned, your Committee would have supposed that the peculiar functions of Her Majesty's High Commissioner were not those detailed in his commission, the more especially, as these hitherto unheard of grievances are quoted as the cause of the decreased immigration from the Parent State; and throughout the Report, comparisons are constantly drawn unfavourable to Her Majesty's possessions in North America. Your Committee having exposed a few of the inconsistencies in the first pages of his Lordship's Report, deem it unnecessary to enter more fully into its details, the conflicting character of which, as compared with his Lordship's other productions, is sufficiently set forth in the report of the Committee on the state of the Province, appointed by the House of Assembly observing, however, that his Lordship sums up the Upper Canadian grievances in the great practical question of the Clergy Reserves. Your Honourable House, has, so recently, had this question under discussion, that your Committee refrain from any commentary on his Lordship's statements regarding it, but your Committee cannot avoid observing, that however unintentional, his Lordship's remarks are evidently calculated to cast odium on the Established Church of England, which, like every other respectable body throughout the colony, has been constantly assailed by the party mis-named Reformers. Adverting, now, to his Lordship's great panacea for all political disorders, "Responsible Government," your Committee beg to observe, that a liberal minded Englishman, sincerely admiring the great principles of the British Constitution, would naturally be desirous of extending them, theoretically and practically, to all people living under the dominion of the Crown; and at the first view, would be apt to ascribe any evils which were found to exist in any portion of the Empire, to the absence of those political institutions, which he is bound to uphold in the administration of public affairs, in the metropolitan and supreme government. It is in this manner we must account for the adoption, at first sight, by many statesmen, of the principle, that the officers administering the government should be under the same popular control in colonies, as the like persons necessarily are in those societies, where powers of supreme legislation, by means of popular administration, are found to exist; but it is to the practical impossibility of preserving colonial relations on such a plan, that we must attribute the fact, that notwithstanding all the changes produced by the struggles of party, or the alternations of conservative or liberal politics in England, no statesman, armed with the authority, has, as 1 See Shortt, Early History of Canadian Banking. yet, attempted to introduce the principle of responsibility of government to the people, into the colonial system. After an attentive and disinterested consideration of this subject, your Committee are led to the conclusion, that the adoption of the plan proposed by the Earl of Durham, in which this is the prominent feature, must lead to the overthrow of the great colonial empire of England. The control exercised by the popular will, over the administration of affairs in Great Britain, and over the choice of persons by whom the government shall be conducted, is founded, not upon theory, but upon the practical necessity of carrying on a government according to the will of that power in the constitution, which, right or wrong, can most effectually control it. Simple responsibility of the executive functionaries, and their liability to answer for misdemeanors or mistakes, existed in England long before the popular branch of the legislature assumed its present powers; and in fact, the trial and punishment of ministers, or in other words, their actual responsibility was much more frequently exhibited when the Sovereign was independent of the people, than since the British constitution has been, by the necessities of the Crown, moulded into its present form. This latter responsibility the colonists have: it is now proposed to bestow on them the former. No one can be blind to the fact, that it is amongst those who advocate the doctrine, that colonies are useless and burdensome, that responsibility of the government to the people finds its warmest supporters. Lord Durham holds a contrary opinion, and yet he advocates popular government! That the colonial possessions of England are of immense importance, and essential to the continuance of her greatness and prosperity, few, we believe, are prepared to deny. In support of that opinion, your Committee will, however, quote a favourite expression of the Earl of Durham, after his lordship had seen the Canadian possessions of the Crown, and become sensible of their value "England, if she lose her North American colonies, must sink into a second-rate power." According to the present system, the governor of a colony exercises most of the royal functions, under the general direction of the ministers of the crown; he is strictly accountable for his conduct, and for the use he makes of the royal authority-he recommends for office persons in the colony, or appoints those selected by the minister: and he endeavours to conduct his government according to the policy of the imperial cabinet, with a view to the present prosperity and future greatness of a country in which England has a deep interest; and above all things, with the intention of preserving, against all opposition, the unity of the empire. To enable him to fulfil these great duties, it is obviously his interest, and that of his advisers, to keep on his side the popular voice of the colony, and to avoid giving occasion to discontent-redressing real, and dissipating, by temperate discussion, all imaginary grievances. According to the system proposed by the Earl of Durham, the advisers of the Lieutenant Governor would not be officers who, in accordance with the policy of the home government, endeavour to aid the Lieutenant Governor in conciliating the affections of the people; but they must be the creatures of the prevailing faction or party in the Assembly-advising the Governor altogether with the view to the wishes of the House for the moment, regardless of the opinions of the supreme Parliament, or those of the Imperial Cabinet-and having (though nominally subordinate) the power of forcing all their measures upon the Governor. The colonial Governor must, in this case, be left without discretion or responsibility, and follow whatever changes may occur; in his colony he could take no directions from the minister of the crown, nor, indeed, communicate with the supreme government, unless in the terms dictated by his responsible advisers, to whose directions he must submit, far more completely than the Sovereign to the advice of the cabinet. The real Sovereign, and the supreme cabinet, are lost sight of and forgotten, in the administration of public affairs in the colony: and thus the responsibility to Parliament, which in England is produced by, and consistent with the powers of supreme legislation, being introduced into a colony where the supremacy in the legislative body does not exist, the weaker body, in fact, is, by a political fiction, made the stronger. The dependency of the colony is at an end; and while the Sovereign no longer possesses a confidential servant in the colony, the ministers of the crown, who are responsible for the preservation of colonial connection, lose all authority to fulfil the duties of their office. Either this must be the course pursued by a Governor, with responsible advisers, or he must think for himself, independently of those advisers: and, as a matter of course, throw himself for information and advice, upon irregular and unknown sources. In such an event, the responsible advisers resign-they have, perhaps, a majority in the Provincial Parliament; but they may, notwithstanding, be very wrong. Then comes a dissolution of the Provincial Parliament, and, perhaps, an expression of public opinion, by a bare majority, against the government-and probably, inimical to the interests of the empire. Who, then, is to yield? The government must, in fact, retire from the contest, whether right or wrong, or carry on public affairs without any advisers or public officers. This cannot be done: so that, after all, the governor of the colony must be responsible to the prevailing party in the colony; and, so far as the empire is concerned, he becomes the sovereign of an independent realm-having no discretion, and therefore no responsibility. Under such a system, colonial dependence would practically be at an end. If it be resolved, then, to force upon us an independence not yet courted, why subject the colonies to the few miserable years of transition from monarchy to democracy, which must inevitably follow? Why subject the colony to the dissensions of party? Is it to foster a spirit of undying enmity among a people disposed to dwell together in harmony and peace? Far better would it be to unite them at once to an empire which, though rival, and perhaps inimical to England, would, in such case,interfere sufficiently between contending parties, to save them from each other. If England withdraw her influence, and leave her governors to be the shuttle between colonial parties, no loyalty now existing among any of these parties will prevent their seeking another influence in the neighbouring republic, to replace the one needlessly withdrawn; and as the French of Lower Canada sought the alliance of their ancient enemies, the Anglo-American population of the neighbouring States, to give them the means of overwhelming the British_population-for the time left without the countenance or support of the British government-so will the losing party, in either colony, seek some external influence to aid their cause. England refuses the umpirage, and there can be no doubt but that it will be readily offered, before many years, to the United States. Ireland and Scotland had once independent legislatures; but never, when under the British crown, had they anything approaching to governments responsible to their respective people-yet the government of them became impracticable, the moment it approached to a participation of equal political rights, and they were united with England. because government in the different parts of an empire, must be conducted with a view to some supreme ruling power, which is not practicable with several separate and independent legislatures. The plan of the Earl of Durham is to confine the functions of the local legislatures to affairs strictly colonial, but this limitation of powers is not practicable under his Lordship's system. It is perfectly true that it is not for the interest of England to maintain a continual struggle with the local legislature, for the purpose of upholding any class of persons in the colonies, as the servants of the Crown; but it is no less true, that the honour and interests of the Empire are intimately involved with local administration, and that if Governors of colonies are to be left unsupported by the Imperial Government, and to have their advisers chosen for them by the prevailing party, the usefulness of the Governors must be at an end, there must either by continual collision between them and the other public servants in the colonies, or the Governors must yield up their judgments and consciences to the keeping of the factions which agitate the countries they are appointed to govern. In small communities, the future is continually sacrificed to present convenience, but the very temporary nature of the interests which influence the politics of a country like this, with a changing population, with no barriers between the inception of public will and its expression-the comparatively little personal influence held by any, from considerations of property, or personal attachment-the ephemeral character of the topics which sway elections and elevate men for the moment into public favour, with almost a certainty of sinking with the reflux of the wave which lifted them into view, operate against the growing up of that steady influence capable of giving stability to politics, or of defining the views of party. The people are individually essentially free--free from landlords--free from employers-free from the influence of great wealth, as well as from that of high station in the few; every man does as it seems best in his own eyes. The consequence is, that it is scarcely possible to know, for any continuance, what the views of the prominent parliamentary men are, except on a few questions: no considerable number of them think alike, and all, by turns, find themselves in a minority many times during a parliamentary session. This state of things does not arise from any modification of political institutions, but from the individual independence of the population caused by the ease with which landed property is acquired. In England, political leaders think for the people: in America, the people think for the members of Parliament; and as the people is not bound to consistency, like individuals of note, its appetite for change, and for the proposal and attempt to carry absurd and extravagant measures, is, and must be gratified from time to time, “none obstante" the consistency of politicians. The same course of politics is found in the United States, where the President, the Senate, and the House of Representatives constantly find their measures negatived by each other, and where members are constantly instructed by their constituents, according to the popular whim of the hour. We therefore do not find what is strictly called Executive responsibility, or necessity of continual accordance of government with the popular voice; and measures have, even between the short intervals of the Presidential elections, time to be popular and unpopular, two or three times over. The French Canadian party form, perhaps, the only political combination in America with consistency of principle, and this is because they have leaders who direct the general opinion. They are consequently the only party whose representatives could by any possibility lay down any tangible principles upon which they would conduct a government. In this Province, as in the United States, popular will must influence the conduct of government in all things not essentially wrong or chimerical, and in these the government must be strong enough to resist, and be known to have the power of resistance for a sufficient time, to permit more cool and quiet consideration on the part of the constituency. A curious example of this species of legislation is found in a discussion, which has occupied a great part of the present session, on the absorbing topic of the Clergy Reserves. It has been taken up and discussed upon principles of liberality and concession, on all sides; the parties, unable to agree upon any mode of appropriation, have, as a final measure, referred the issue to the Imperial Parliament. It would be almost impossible to enumerate the various modes of distribution proposed, with and without the approbation of government, on this question, which would undoubtedly, in English politics, be considered one upon which the existence of a ministry must depend. Suffice it to say that, almost every member had a plan of his own; some had two or three plans fresh from their constituents-yet, strange to say, the house could not agree, that is to say, there was a number sufficient to negative every plan proposed, and to prevent the reference of the matter to England, up to the last day of the session. In this paradoxical state of affairs, which of the contending parties should form the colonial cabinet? |