The order

of charges on the

Consoli

dated

Fund to be:

of

Collection;

2nd, Interest

And be it enacted that the expenses of the collection, management, and receipt of the said consolidated revenue fund shall form the first charge thereon; and that the annual interest of the Public Debt of the Provinces of Upper and Lower Canada, or of either of them, at the time of the reunion of the 1st, Expense said Provinces shall form the second charge thereon; and that the payments to be made to the clergy of the United Church of England and Ireland, and to clergy of the Church of Scotland, and to ministers of other Christian denominations, pursuant to any law or usage whereby such payments before or at the passing of this Act were or are legally or usually paid out of the public or Crown revenue of either of the Provinces of Upper and Lower Canada, shall form the third charge upon the said consolidated revenue fund; and that the said sum of forty-five thousand pounds shall form the fourth charge thereon; and that the said sum of thirty thousand pounds, as long as the same shall continue to be payable, shall form the fifth charge thereon; and that the other charges upon the rates and duties levied within the said Province of Canada herein before reserved shall form the sixth charge thereon, so long as such charges shall continue to be payable.

of the debt;
3rd, pay-
ments to
the Clergy;

4th and 5th,
Civil List;

6th, Other charges already

made on

the Public Revenue.

Subject to the above

charges,

the Con

solidated Revenue

Fund to be

appropriated
by the
Provincial

Legislature,
by bills,
etc.

And be it enacted that, subject to the several payments hereby charged on the said Consolidated revenue Fund, the same shall be appropriated by the Legislature of the Province of Canada for the public service in such manner as they shall think proper: Provided always that all bills for appropriating any part of the surplus of the said consolidated revenue fund, or for imposing any new tax or import, shall originate in the Legislative Assembly of the said Province of Canada: Provided also that it shall not be lawful for the said Legislative Assembly to originate or pass any vote, resolution, or bill for the appropriation of any part of the surplus of the said consolidated revenue fund, or of any other tax or impost, to any purpose which shall not have been first recommended by a message of the Governor to the said Legislative Assembly during the session in which such vote, resolution, or bill shall be passed.

RESPONSIBLE GOVERNMENT(19)

In reviewing that period which extends from the beginning of the nineteenth century to the end of the Union of the two Canadas one cannot but recall the idea of responsible government. During that period, and more particularly in the middle forties, the concept of responsible government explains the main events which took place. It is the end towards which Canadian parliamentarians were striving and it is in attaining this objective that they have taken the most important step in the slow but sure progress towards autonomy.

(19) From Problems of Canadian Sovereignty by Maurice Ollivier, pages 24 to 34. (With permission of the Canada Law Book Company, Toronto.)

In the first years of the last century, Pierre Bédard had campaigned very strenuously in Lower Canada in favour of a government of men having the people's confidence. Every student of Canadian history knows of the struggles of Papineau, Neilson and Lafontaine for the triumph of this principle in Lower Canada. In Upper Canada, William Lyon Mackenzie and Baldwin, and Howe in Nova Scotia, experienced the same difficulties. The struggles of the legislatures are well known and need only be recalled to memory. It is, however, important to consider responsible government in itself and its consequences.

Responsible government exists when the Executive is responsible to a legislature and is kept in power by the vote of the majority of that assembly, elected by the people. Therefore, there is responsible government when the Ministry is made up of chiefs of administrative departments who remain at the head of their respective departments only as long as they are supported by the majority of the assembly.

It has also been called government by parliament or by the cabinet. Theoretically, the executive power is vested in the governor, or, if one prefers, in the governor in council. In reality, it is the ministers who govern, and, although the latter are appointed by the Crown, the governor who represents the Crown chooses his ministers from the members elected belonging to the majority group.

Writing to Lord Castlereagh, then Colonial Secretary, about the Canadian Party, Governor Craig of Lower Canada expressed the following opinion: "They either believe, or affect to believe that there exists a Ministry here, and that in imitation of the constitution of Britain that Ministry is responsible to them for the conduct of the Government. It is not necessary that I should point out to your Lordship the steps to which such an idea may lead."

In 1835, quite a variation might be noticed in the opinion of the Colonial Secretary, so much so that Lord Glenelg wrote to Governor Head: "To His Majesty and to Parliament the Governor of Upper Canada is at all times most fully responsible for his official acts. This responsibility . . . is one which it is in the power of the House of Assembly at any time, by address or petition, to bring into active operation. . . . The principle of effective responsibility should pervade every department of your Government."

The following year, however, Craig declared that he would never allow an Executive Council officially to assume that heavy responsibility which he owes to his Sovereign as well as to the people of the province.

In 1837, Lord John Russell succeeded in having adopted by the House of Commons the famous resolutions which brought about the troubles previously mentioned. Everything that had been asked for was refused. Russell refused, among other things, to recognize that the Executive Council in Canada was modelled on that of England. Pursuant to the traditions of the Colonial

Office, this proposition was wholly inconsistent with the relations to be had between the Mother Country and a colony. According to his way of thinking, it would result from the admitting of such a principle that Canada would then cease to be a colony, that such power could not be granted to a colonial legislature, for it would affect the prerogative of the British Crown. His opinion was still the same in June, 1839, when he introduced his bill for the union of the two Canadas. He made it known that Lord Durham's report had not changed his opinion that an Executive council in Canada could not enjoy the same responsibility as the Executive Council in England, and, he added further, that the governor received his instructions from the Crown under the responsibility of the Secretary of State. After having read Lord Durham's report and knowing thereby his thoughts on the subject, it is easy to imagine what answer he made in the House of Lords to the speech made in the House by Lord Russell. Again Lord Russell expressed the same sentiments in his dispatches of the 7th of September and the 14th of October, 1839, to Governor Thompson.

For his part, Thompson was a very apt pupil and had forgotten nothing that Russell had taught him, and he wrote on the 12th of September, 1839: "I am not a bit afraid of the responsible government cry. I have already done much to put it down in its inadmissible 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." He wrote further to Russell on the 27th of May, 1840: "Acting upon the principle which I have on a former occasion laid down, I can only look on the Council as persons whose advice the Governor may seek, and which he may adopt or not as he pleases, the responsibility of any decision to which he may come, resting upon him alone. . . ."

Many other quotations may be made from Thompson's letters. They are all in the same vein, for he believed, as he further stated to Russell on the 27th of June, 1841 (after having been made Lord Sydenham in August, 1840), that what was required for Canada as governor was one who had the firm will to govern as he had himself.

Enough has been said as to the attitude of the governors which were sent to Canada to indicate that they certainly did not favour the idea of responsible government in Canada and to show that a great deal of credit is due to Lord Durham who advocated the idea.

Two other conclusions might be drawn: First, that responsible government was not created by the Union Act, and the second one, which follows the first, that it is useless to establish our status between 1840 and 1867 by the terms of the Union Act, and between 1867 and 1931 from the terms of the British North America Act. The establishment of responsible government is not predicated upon any law. Its existence is due to the

instructions given to a governor that he should choose his ministers from a group having, according to its majority, the confidence of the Assembly. The relations between the Legislature and the Executive are not defined by the constitution of 1840, nor were they twenty-seven years later by the British North America Act. Section 45 of the Union Act mentions the Executive Council to be appointed by Her Majesty but does not refer to the responsibility of the council. It can be stated that responsible government has existed in Canada as in the other Dominions, not by virtue of the constitution, but that it has developed in the natural course of events, by constitutional practice and precedent. It was later recognized in the instructions which the Colonial Secretary of State transmitted to the governors. No trace of responsible government can be found in the instructions given to Sydenham, Metcalfe or Bagot.

Lord John Russell summarized the principles of the constitution of 1840 as follows: "A legislative union of the two provinces, the maintenance of the three estates of the provincial legislature, the settlement of a permanent civil list for securing the independence of the judges, and to the executive government that freedom of action which is necessary for the public good, and the establishment of a system of local government by representative bodies, freely elected in the various cities and rural districts."

In his instructions to the Governor General in 1841, Lord Russell advised calling to the council these persons who by their position and character have deserved the confidence and esteem of the inhabitants of the province. We have seen the interpretation Sydenham was to give to this purposely vague advice.

The Baldwin-Lafontaine Ministry which was unwilling to accept Lord Sydenham's idea of ministerial responsibility, and had for that reason previously been forced to resign, came back to power in 1848, thus ensuring the triumph of those ideas for which the party had fought between 1843 and 1847.

It might here be pointed out that in Nova Scotia responsible government existed as far back as 1846 by virtue of a dispatch from Lord Grey to Sir John Harvey, then lieutenant-governor of that province, in which the Colonial Secretary declared that the Executive Council could be retained as long as it had the confidence of the legislature. It is correct to state that responsible government appeared in Canada in 1847 and that on the 11th of March, 1848, the reorganization of the BaldwinLafontaine Ministry inaugurated the era of free government in our country. This date marks the birth of our nation.

We have mentioned 1847 as the date of the appearance of responsible government, the year when Lord Elgin was appointed Governor General. For the first time, the instructions from the Secretary of State of the colonies, Lord Grey, recognize the idea of ministerial responsibility. It is therein stated clearly that the Governor must act generally upon the advice of his Executive

Council and that he must choose as its members those persons who are indicated to him as having the right to be called thereto from the fact that they enjoy the confidence of the Assembly.

It may be stated that responsible government was established in 1848 just as it may be said that Canada became a sovereign country in 1931. It might be fair perhaps to say that these dates show the exact time when those facts were officially recognized, for, in British countries legal definitions generally recognize and sanction existing conditions.

To be convinced one has but to read the confidential dispatch from Governor Metcalfe to Lord Stanley, dated the 24th of April, 1843, in which the former states, speaking about his Executive Council, that "they consider themselves already as a responsible ministry and expect that the politic and the conduct of the Governor shall follow their point of view and recognize their opinion as a political party." The Governor insisted on choosing his advisers without distinction of party. His opinion was that the country should be governed by himself and not by a political party.

Notwithstanding its importance, the acquisition of responsible government by the country was not the only event which changed our status between 1840 and 1848. Since 1842, the British government had abstained from making customs tariffs for the colony and in the year 1846 an Imperial statute was passed, chapter 94, 9-10 Victoria, which authorized the colonies to enact their own customs laws. From that date, we could therefore regulate our own commerce to suit our own taste without outside intervention. About the same time, Canada obtained the command of the civil list while the Imperial Parliament refrained from disposing in any way of the revenues of the province. Another barrier to our autonomy disappeared when Canada obtained the control of its postal administration. However, all the advantages then obtained in the political domain, with the hope conveyed of what was to follow gradually, were insufficient to bring about the union of the population or its economic welfare. To bring about unity, that clause of the constitution restricting the use of the French language in the Legislature was abrogated in 1848. As to the economic difficulties, they were due to two causes: (1) the adoption by Great Britain in 1846 of the theory of free trade; (2o) the nefarious navigation laws. The farmers and millers found themselves in great difficulties not having in England any more the protected markets to which they had been accustomed. Industry, commerce and agriculture were in a slump, so much so that a very pronounced annexationist movement developed all over the country, more particularly in Montreal, where a resounding manifesto in favour of union with the neighbouring republic was issued. A dual remedy to the crisis was devised: the repeal of the navigation clauses, the effect of which was to make the navigation on the St. Lawrence free, and the signing of a treaty of reciprocity on natural products with the United States.