The plan of sending out a new Governor free from any previous association with either of the parties, or any of the recent transactions in the colony, was, probably, the wisest that could have been adopted. Unfortunately, it was in some degree marred by the choice of the statesman sent out, Lord Durham, a man of unquestioned ability, but of an extraordinarily self-willed and overbearing temper. He drew up a most able report of the state of the provinces, combined with recommendations of the course to be pursued toward them in future, so judicious that subsequent ministers, though widely differing from his views of general politics, saw no better plan than that which he had suggested; but, unhappily, the measures which he himself adopted, especially with respect to the treatment of those who had been leaders in the late rebellion, were such manifest violations of law, that the government at home had no alternative but that of disallowing some of them, and carrying a bill of indemnity for others. He took such offence at their treatment of him, though it was quite inevitable, that he at once resigned his appointment and returned home. But the next year the Queen sent down a message to the Houses recommending a union of the two provinces (a measure which had been the most important, and the very foundation, of his suggestions), and Lord John Russell introduced a bill which, as he described its object, he hoped would "lay the foundation of a permanent settlement of the affairs of the entire colony." The main feature of the government policy was the formation of "a legislative union of the two provinces on the principles of a free and representative government," and the establishment of such a system of local government as amounted to a practical recognition of the principle so earnestly repudiated, as we have seen, by Lord John Russell a year or two before. It was not, perhaps, fully carried out at first. Lord Sydenham, who had succeeded Lord Durham, reported to the home government, as the result of a tour which he had taken through a great part of the country, that in the whole of the Upper Province, and among the British settlers of the Lower Province, "an excellent spirit prevailed, and that he had found everywhere a determination to forget past differences, and to unite in an endeavor to obtain under the union those practical measures for the improvement of the country which had been too long neglected in the struggle for party and personal objects." But of the French Canadians he could not give so favorable a report. Efforts were still made by some of the old Papineau party to mislead the people; but he was satisfied they would not again be able to induce the peasantry to support any attempt at disturbance. It was natural that that party should still feel some soreness at the utter failure of their recent attempts and the disappointment of their hopes; and affairs took the longer time in being brought into perfect order and harmony through a strange mortality which took place among the first Governors-general. Lord Sydenham died the next year of lockjaw, brought on by a fall from his horse; Sir Charles Bagot was forced to retire in a state of hopeless bad health after an administration equally brief; two years later, Sir Charles Metcalfe, who succeeded him, returned home only to die; and it was not till a fourth Governor, Lord Elgin, succeeded to the government that it could be said that the new system, though established five years before, had a fair trial.
Fortunately, he was a man admirably qualified by largeness of statesman-like views and a most conciliatory disposition for such a post at such a time; and he strictly carried out the scheme which was implied by the bill of Lord John Russell, and to a certain extent inaugurated by Lord Sydenham, selecting his advisers from the party which had the confidence of the Legislative Assembly, and generally directing his policy in harmony with their counsels; so that under his government the working of the colonial constitution was a nearly faithful reproduction of the parliamentary constitution at home. Such a policy was in reality only a development of the principle laid down by Pitt half a century before, and warmly approved by his great rival, that "the only method of retaining distant colonies with advantage is to enable them to govern themselves."[[255]] And since that day similar constitutions have been established in our other distant dependencies as they have become ripe for them—in New Zealand, the Cape, and the Australian colonies—almost the only powers reserved to the home government in those colonies in which such constitutions have been established being that of appointing the governors; that of ratifying or, if necessary, disallowing measures adopted by the colonial government; and, in cases of necessity, that of prescribing measures for the adoption of the local Legislatures, and even of compelling such adoption, in the event of any persevering opposition. The act of 1850, which established a constitution in Victoria, went even farther in the privileges it conferred on the colonists, inasmuch as it gave power to the Legislative Council to alter some of its provisions, and even to remodel the Legislative Council and Assembly. It may be doubted whether this last concession did not go too far, since in more than one important instance the government of that great colony has availed itself of it so liberally as to render it necessary to pass a fresh act of Parliament to enable her Majesty to give her royal assent to some of the changes which the Assembly had enacted.[[256]] Indeed, it cannot be said that the system has worked in every part or on every occasion quite as well as might have been hoped; nor can it be denied that the colonies have occasionally claimed a power of independent action in opposition to the home Parliament in a way to try severely the patience of the home government. After the British Parliament had adopted the policy and system of free-trade, the Canadian Assembly adhered to the doctrine of protection so obstinately that it actually established a tariff of import duties injurious to the commerce of the mother country, and apparently intended as a condemnation of its principles. But its contumacy showed how wholly different was the spirit of the British government from that which had prevailed in the last century; for though the home government had unquestionably the right of disallowing the offensive tariff, it forbore to exercise it; and, probably, by this striking proof that it considered a complete recognition of the principle of local self-government more important than any trifling financial or commercial advantage, contributed greatly to implant in Canada and all the colonies that confidence in the affectionate moderation of the home government which must be the strongest, if not the only indissoluble, bond of union.
On the whole, it is hardly too much to say that no more statesman-like, and (if sentiment may be allowed a share in influencing the conduct of governments) no more amiable spirit animates any act of our modern legislation than is displayed in these arrangements for the management of our colonies. They are a practical exemplification of the idea embodied in the expression, "the mother country." A hundred years ago, Burke sought to impress on the existing ministers and Parliament the conviction that, "so long as our Colonies kept the idea of their civil rights associated with our government, they would cling and grapple to us, and no force under heaven would be of power to tear them from their allegiance." In the case of which he was speaking his warning, as we have seen, fell on deaf ears; but the policy of the present reign is a willing and full adoption of them, on a far larger scale than even his farseeing vision could then contemplate. Within the century which has elapsed since his time the enterprise of Britain has sent forth her sons to people another hemisphere; and they, her children still, cling to the parent state with filial affection, because they feel that, though parted from her by thousands of miles and more than one ocean, they are still indissolubly united to her by their participation in all the blessings of her constitution, her generous toleration, her equal laws, her universal freedom.
On one transaction of these years the leaders of the Opposition were found acting in close agreement with the ministers. We have seen how, in the early part of the reign of George III., the House of Commons threw the sheriffs of London into prison, on account of their performance of what they conceived to be their duty as magistrates; and in 1840 it subjected the same officials to the same treatment on a question of the same character—the extent of the privilege of the House of Commons to overrule the authority of the courts of law. The question was in appearance complicated by the institution of several suits at law, and by the fact that the House was not consistent in its conduct, but allowed its servants to plead to the first action, and refused the same permission in the second, when the result of the first trial had proved adverse to them. The case was this: some inspectors of prisons has presented a report to Parliament, in which they alleged that they had found in Newgate a book of disgusting and obscene character, published by a London publisher named Stockdale. The House of Commons had ordered the report to be printed and sold by Messrs. Hansard, the Parliamentary publishers, and Stockdale brought an action against Messrs. Hansard for libel. Chief-justice Denman charged the jury that "the fact of the House of Commons having directed Messrs. Hansard to publish their reports was no justification to them for publishing a Parliamentary report containing a libel;" and Stockdale obtained damages, which were duly paid. Stockdale, encouraged by this success, when, in spite of the result of the late trial, Hansard continued to sell the report, brought a fresh action; but now the House forbade the publishers to plead to it; and, as they obeyed the prohibition, and forbore to plead, the case eventually came before the Sheriff's Court; fresh damages were given, and, in obedience to the writ of the Queen's Bench, the sheriffs seized Hansard's goods, and sold them to satisfy the judgment. Lord John Russell, as leader of the House, moved to bring to the Bar of the House all the parties concerned in the action—the plaintiff, his attorney, the sheriffs, and the under-sheriffs. He was opposed by nearly all the legal members of the House except the crown lawyers, Sir Edward Sugden especially warning the House that "a resolution of the House was of no avail in a court of justice;" while others taunted the House with want of courage in not proceeding against the judges themselves, rather than against their officers, which in this case the sheriffs were.
There could be no doubt of the importance of the question, since it was no less, as the Attorney-general, Sir J. Campbell, put it, than a question whether Parliament or the courts of law had the superiority; and now Sir Robert Peel, as leader of the Opposition, came to the support of Lord John Russell, declaring his opinion to be, first, that "the House possessed every privilege necessary for the proper and effectual discharge of its functions;" secondly, that "the publication of evidence which had led the House to adopt any course was frequently essential to justify that course to the nation;" and thirdly, that "to judge of the extent of their privileges, and to vindicate them by their own laws, belonged to the House alone." And he pressed strongly on the House that it was "the duty of the House to fight the battle to the last," though he confessed that "it was with pain that he had come to the determination of entering into a contest with the courts of law." On one point the judges agreed with the House of Commons. The House committed the sheriffs; but, when they sued out their habeas corpus, the judges decided that the return of the Sergeant-at-arms that they were committed by the House for breach of privilege was a sufficient return. Stockdale brought fresh actions. But meantime the case was arousing a strong excitement in the country.[[257]] The singular hardship of the position of the sheriffs excited general sympathy: if they obeyed the House of Commons, which prohibited them from paying over to Stockdale the damages which they had received for him, the Court of Queen's Bench would be bound to attach them for disobedience to its order. If they obeyed the Queen's Bench, the House would imprison them for breach of privilege. And the national feeling is always in favor of the strictly defined authority of the courts of law, rather than of the somewhat indefinite claims of Parliament to interpret, and even to make, privilege. Another consideration, probably, weighed a little with the champions of the House—that their power of imprisonment ended with the session. As matters went on, it was found that even the Attorney and Solicitor-general differed as to the course to be pursued; and eventually Lord John Russell consented to adopt the advice which had been given by a former Attorney-general, Sir F. Pollock, and to bring in a bill to legalize all similar proceedings of Parliament in future, by enacting that a certificate that the publication of any document had been ordered by either House should be a sufficient defence against any action. The introduction of such a bill was in some degree an acknowledgment of defeat; but it can hardly be denied to have been not only a judicious step, but the only one practicable, if the contest between Parliament and the courts of law were not to be everlasting; and it met with general approval. If it was a compromise, it was one that satisfied both parties and both ends. It upheld the authority of the courts of law, and at the same time it practically asserted the reasonableness of the claim advanced by the House of Commons, by giving it for the future the power which it had claimed. Nor were people in this day inclined to be jealous of the privileges of Parliament, so long as they were accurately defined. They felt that it was for the advantage and dignity of the nation that its powers and privileges should be large; what they regarded with distrust was, a claim of power of which no one knew the precise bounds, and which might, therefore, be expanded as the occasion served.
Notes:
[ [!-- Note Anchor 245 --][Footnote 245: Fifty-two mills and 30,000 persons were thrown out of employment for ten weeks at Ashton in 1830 by the turning out of 3000 "coarse spinners," who could clear at the time from 28s. to 31s. per week. The following passage is extracted from an oath said to have been administered by the combined spinners in Scotland in 1823: "I, A B, do voluntarily swear, in the awful presence of God Almighty, and before these witnesses, that I will execute with zeal and alacrity, as far as in me lies, every task or injunction which the majority of my brethren shall impose upon me in furtherance of our common welfare, as the chastisement of knobs, the assassination of oppressive and tyrannical masters, or the demolition of shops that shall be deemed incorrigible."—Annual Register, 1838, pp. 204-207.]
[ [!-- Note Anchor 246 --][Footnote 246: See [page 221].]
[ [!-- Note Anchor 247 --][Footnote 247: The question was examined with great minuteness by Lord Brougham a fortnight after the ministerial explanation. See "Parliamentary Debates," 3d series, xlvii., 1164.]
[ [!-- Note Anchor 248 --][Footnote 248: It is stated on good authority that Lord Melbourne, in private conversation, justified or explained the line he had taken by his consideration for his friends, scores of whom would have had their hopes blighted by his retirement.]