FROM 1847 TO 1852
SECTION I
Sir William Thomas Denison, Knight, Captain of the Royal Engineers, presented his commission, January 26th, 1847. He had been employed in the dock-yards, and in the survey of important public works. His eminent abilities in a department connected with the employment of prisoners, not less than his respectable connexions, led to his nomination. His professional habits had not qualified him equally for civil affairs; but the chief object proposed by the minister, Mr. Gladstone, was the better disposal of prison labor, and the more effectual control of the convicts. Sir William entered on his office with less acclamation than usual. The changes had been too rapid and unfortunate to encourage much enthusiasm.
Before his embarkation the secretary of state instructed Sir W. Denison to arrange the dispute with the late councillors, and the claims of the gentlemen who occupied their places after their resignation. He was informed that the conduct of both sets of legislators had received the royal approbation. It was left to his discretion to select six out of the whole number to complete the council. They were summoned to the government-house to hear the minister's decision, and were requested to decide among themselves who should be honored with a seat. This experiment failed. An altercation ensued, and some quitted the conference. The "six" adhered to each other, and Sir W. Denison ultimately declared the appointments of Wilmot were disallowed, and re-appointed the "patriotic six." The gentlemen rejected were advised that they held their office until superseded by commands under the sign-manual. In this opinion the chief justice concurred; but, pursuing the scrutiny, it was found that some nominations of Wilmot had been informal, the instrument not stating to whom they succeeded. Their claims being quashed by this discovery, the "patriotic six" were again appointed in succession to each other,—a transposition required by the law. At this stage, however, Mr. Orr, who entered the council some time after the rupture, produced his appointment, which, unlike certain others, was expressed in the legal form. Thus again all the previous proceedings were quashed; and the governor, unable to unravel the difficulty, dismissed the council, to await instructions from Downing-street, or a warrant for the nominees under the sign-manual of the Queen (July, 1847). Thus during 1847 there was no legislature sitting, but at length the Gazette announced that the Queen had reinstated the original six (1848).
It has been seen that under the government of Sir E. Wilmot an act was passed to restrict the increase of dogs, and another levying 15 per cent. duties. The owners of dogs were required to take out a license, and the proceeds of the tax were carried to the general revenue. Some of the settlers never complied with this ordinance, and others paid under protest. According to the opinion of several lawyers the council by this enactment had exceeded its powers. The act of parliament by which the council was constituted contained a provision to the effect that a tax should be levied only for local purposes, "to be distinctly and particularly stated in the body of the bill." It was contended that the restriction was violated, since the Dog Act contained no specific appropriation, and the amount was carried to the general revenue. The government, willing to avoid the trial of this point, did not hasten to enforce the penalty. It was understood that Judge Montagu had not obtained a license for dogs on his premises, and Mr. Morgan, then editor of the Britannia, announced to the government that he was an owner of dogs, that he had paid no license fee, and intended to pay none. The chief constable was directed to recover the penalties. Mr. Morgan being fined, appealed to the quarter sessions, and then to the supreme court. The judges, having heard the arguments of counsel, declared that the Dog Act imposed a tax and exceeded the powers of the council. They therefore annulled the decision of the inferior courts (Nov. 22, 1847).
The views which dictated this judgment affected a more important act—the Differential Duties. Several merchants paid these charges under protest, and entered their suit for recovery. A revenue of £20,000 per annum was thus in peril. It was stated by the governor and crown lawyers that the judges themselves had passed the lawful limits of their jurisdiction, unsettled the whole body of colonial law, encouraged opposition to the government, and exposed its agents to vexatious prosecutions. The governor was determined to resist their judgment. The warrants for the members of the council had not arrived. Thus recourse to the legislature was impracticable, and the most obvious remedy was the removal of the judges, and the substitution of others, whose opinions were known to agree with the executive. The judges were charged, therefore, with a neglect of duty in omitting, as authorised by the law, to certify illegality in the Act prior to its enrolment; and by permitting the question of an act of council, they were said to override the legislature.[248]
Pending this dispute, a creditor of Mr. Justice Montagu sued him for £200. The privilege of his office presented a legal obstacle to the suit. This being decided by the chief justice, the creditor applied to the governor for relief. Mr. Montagu alleged an understanding, which in equity released him from immediate liability. The governor charged him with perverting the protection of his office, to defeat his creditors, and amoved him. Mr. Horne, the attorney-general, who framed the acts repudiated by the judges, was appointed to succeed Judge Montagu, and it became a question whether his opinion would send the merchants out of court. The registrar of the supreme court was called before the executive council, and questioned on the point. He stated that in the event of a division of opinion on the bench a verdict for the plaintiff would stand. To the suspension of the chief justice the executive council were opposed, and Sir Wm. Denison therefore requested the judge to relieve the government by asking leave of absence. To this he replied in terms suited to the respectability of his character. "Were I," said his honor, "to accept your excellency's proposal, I should, it appears to me, be for ever after degraded, and, ipso facto, render myself unworthy of holding the lowest office or employment which it is in her Majesty's power to bestow on a subject."[249] At this stage of the proceedings the warrant constituting the legislative councillors reached the governor, and the opinion of the chief justice was of less moment to the executive.
It now remained for the governor to annul either the laws opposed to the provisions of the parliamentary act, which declared the taxing clauses illegal, or to subvert those restrictions by declaring them inoperative. He chose this last course. The Doubts Bill declared that an ordinance once enrolled, whatever its provisions, or however repugnant to common law or parliamentary acts, should be held binding on the court; and although its rejection was proposed by the chief justice and five other members, it passed the legislative council.