Wilmot and Tilley

by James Hannay

The legislative council has now ceased to exist, and it may be said of it that it was never a very satisfactory body for legislative purposes. Perhaps the original composition of it created such a prejudice against legislative councils as to hamper its activities; and, from having been at first merely the echo of the wishes of the governor, it became latterly, to a large extent, the echo of the wishes of the government. Gradually it became relieved of its official members, and in its last years no head of a department ever occupied a seat in the legislative council; for it was thought, and rightly, that the power ought to be in the House, where the responsibility to the people was most felt, and that it was not wise to place an official whose department expended large sums of money in a body which properly had no control over the public expenditure. The legislative council had undoubtedly from time to time many able and useful members, and, at certain periods in the history of the province, particularly during the confederation discussions, it took a firm stand in favour of measures which seemed essential to the prosperity of the British North American provinces. No one can deny that at that time it exercised an authority fully equal to that of the Lower House, but it cannot be doubted that some of this work was done at the expense of the proper balance of the constitution. Such an exercise of unusual authority on the part of a body not elected by the people may serve a purpose at a particular crisis, but cannot be commended as an example, and if frequently repeated would end in the destruction of the constitution.

THE COUNCIL'S RECORD

The legislative council lost a considerable proportion of its able men at the time of confederation by the removal of eleven of its members to the senate of Canada, although one or two remained with it who were not inferior to any of those who then took their departure. The new members who came in as their successors were naturally inferior to the old in practical experience and ability, and this had, no doubt, an influence on the future of the House. The example of Ontario, which was able to conduct its affairs with one House, showed that two independent branches of the legislature were by no means necessary, and that the council might be abolished with safety. No doubt it was difficult to bring this about among a people who had been trained to believe that there was something essential to legislation in the balance of king, lords, and commons, making up one legislative body. But in the course of time the electors began to think that the council was not exactly the proper equivalent of the House of Lords, and the lieutenant-governor very far from standing in the position of a king. Old prejudices in favour of a constitution framed after a particular model are difficult to remove, but, in the case of New Brunswick, these prejudices were at length overcome, and it is safe to say that in the course of time all the provincial legislatures of Canada will consist of but a single chamber. It is equally safe to assert that under the new system the work of legislation will be as well done as it was under the old.

The session of the legislature in 1843 came to an end on April 11th, and on the seventeenth of the same month Wilmot became a member of the government. His appointment had been preceded by the resignation of five members of the government—Messrs. Black, Shore, Robinson, Odell and Crane—and by the appointment of Messrs. E. B. Chandler, Hugh Johnston, John Montgomery and Robert L. Hazen, to fill the vacancies thus created. Of the retiring members two—Messrs. Black and Shore—were members of the legislative council; one of them, Mr. Crane, was a member of the House of Assembly, while the other two were officials who did not belong to either branch of the legislature. Of the new members of the executive council, Messrs. Chandler and Johnston were members of the legislative council, Messrs. Hazen and Wilmot were members of the House of Assembly, while Mr. Montgomery had no seat in either House. The executive council as made up at that time included four members of the legislative council, three members of the House of Assembly and Mr. Montgomery, who did not become a member of the House of Assembly until three years later. There is no doubt that the composition of the new executive council was more in accordance with correct principles than its predecessor; yet little could be expected from it in the way of Reform, for Wilmot was the only member who was in favour of responsible government.

ENTERS THE GOVERNMENT

Mr. Wilmot has been censured for entering a government composed of men who were opposed to the liberal views he held on public questions. It was thought by many that his conduct in this respect looked too much like a surrender of his principles for the sake of office or official position, and it certainly would have been better if he had continued in Opposition. Yet we can easily conceive that he may have thought at the time he could do more for the cause of Reform inside the government than out of it, and, although this proved to be an error, it was a natural one for which it is not difficult to find an excuse. Fortunately for the cause of Reform, Wilmot's connection with the government did not last long at that time. A storm was gathering in an unexpected quarter which was destined to wreck the government, and to cause some of its Conservative members to reconsider their opinions with reference to some questions which until then they had regarded as fixed and unchangeable.

It has been already stated that the governor of the province made such appointments to office as he pleased, usually without the advice of his council. He was supposed to have the power to do this as the representative of the sovereign and in the exercise of what was termed "the royal prerogative." In this way persons were frequently appointed to offices who were not residents of the province, and in all other cases appointments were given to the members of certain favoured families. In 1834, a vacancy was created on the supreme court bench by the death of Chief-Justice Saunders. Ward Chipman was appointed chief-justice in place of Mr. Saunders, and the vacant puisne judgeship was given to James Carter, who afterwards became chief-justice of the province. Carter was a young Englishman then living in London, and was certainly no better qualified to fill the position of judge than many natives of the province, so that it was regarded as a gross insult to the members of the New Brunswick bar, to give such an appointment to a stranger. Yet so slow was public opinion to make itself felt in regard to the evil of the appointing power being given to the governor without qualification, that ten years later the House of Assembly presented an address to Sir Charles Metcalfe, governor-general of Canada, expressing the high sense entertained by them, as representatives of the people of New Brunswick, of the "constitutional stand" taken by him in maintaining the prerogative of the Crown in the then recent memorable "conflict."[5] The city of St. John also, to show its loyalty, presented a similar address; and one signed by one thousand persons was sent from the county of York.

SIR CHARLES METCALFE

Yet nothing can be more clear than that the stand taken by Sir Charles Metcalfe in 1844 was wholly wrong, for it consisted in refusing to consult with his council in regard to appointments, and in making appointments contrary to their advice. What would the people of Canada say to-day to a governor-general who insisted on appointing men to office against the advice of his cabinet? Yet it was for doing this that the New Brunswick House of Assembly, the city and county of St. John and the county of York actually grovelled in the dust before this despotic governor, thus approving of all his acts. Such abasement and subserviency to an unconstitutional governor was certain to bring its own punishment, and it came much sooner than any one could have anticipated. On Christmas Day of the same year the Hon. William Franklin Odell, who had been provincial secretary for thirty-two years, died at Fredericton. Mr. Odell's father had been secretary before him from the foundation of the province, so that the Odell family had held that important and highly lucrative office for sixty years.

The governor at this time was Sir William Colebrooke, and on January 1st, 1845, just one week after the death of Mr. Odell, he appointed his son-in-law, Alfred Reade, who was a native of England and a stranger to the province, to the vacant office. The gentlemen who had been most prominent in shouting their approval of the "constitutional stand" taken by Sir Charles Metcalfe, now suddenly discovered that Sir William Colebrooke's conduct in making this appointment without consulting his council, was a fearful outrage, and their distress was pitiable to behold. Several members of the government, including such zealous upholders of the prerogative as the Hon. Robert L. Hazen, of St. John, at once resigned their positions. A communication from three of them—Hugh Johnston, E. B. Chandler and R. L. Hazen—addressed to His Excellency gave as their reasons for resigning that they could not justify the exercise of the prerogative of the Crown in respect to Mr. Reade's appointment, because they felt that "the elevation to the highest offices of trust and emolument of individuals whose character, services, and claims to preferment, however appreciated elsewhere, are entirely unknown to the country generally, is prejudicial to the best interests of the province." They did not, however, make it a ground of objection that the appointment of Mr. Reade was forwarded for the royal approbation without the advice or concurrence of the council. These gentlemen evidently thought it was too early for them to eat the words in regard to the prerogative of the Crown, of which they had been so free a few months before, but they showed their true characters by deserting the governor because he had been foolish enough to believe that their profuse expressions in favour of the royal prerogative were sincere.