The original draft of the Bill contained no provision for the appointment of an Executive Council distinct from the two houses of the Legislature. A clause to that effect was inserted by Lord Dorchester in the amended draft which he sent back, but it did not appear in the Act in its final form; though there is a reference in the Act to ‘such Executive Council as shall be appointed by His Majesty for the affairs’ of either province; and one section appointed the governor and Executive Council in each province a court of civil appeal. In his covering dispatch Grenville asked Lord Dorchester to state the number and names of the persons whom he might think proper to recommend to the King for seats on the Executive Council, and added that it was not intended to exclude members of the Legislative Council from the Executive Council, nor on the other hand to select the Executive Councillors exclusively from the Legislative Council. Grenville went on to suggest that it might be well that some persons should be members of the Executive Council in both of the two districts or provinces. The net result was that the Executive was still to remain wholly independent of the Legislature, or at any rate of the popular house in the Legislature, and therefore the main element of self-government was to be withheld. It was left for Lord Durham, after long years of friction between the Executive and the Legislature, to emphasize the necessity of giving to the popular representatives the control of the Executive, making them thereby responsible for the good government of the people whom they represented.
Crown Lands’ funds.
In his secret letter to Dorchester, Grenville referred to ‘the possibility of making such reservations of land adjacent to all future grants as may secure to the Crown a certain and improving revenue—a measure which, if it had been adopted when the old colonies were first settled, would have retained them to this hour in obedience and loyalty’. Crown land funds are not yet wholly extinct in the British colonies. For instance, in the Bahamas, side by side with the revenue voted by the local Legislature, there is a small fund independent of the Legislature and at the disposal of the Crown alone; but the revenue derived from the fund is not sufficient to pay the salaries of the Executive officers, even if it were thought desirable to apply the money to such a purpose. Barbados, with its time-honoured constitution, to which Barbadians are passionately attached, is a good instance of a colony possessing representative institutions but not responsible government. Here there are no Crown funds, and the salaries of the public officers, from the governor downwards, are voted by the elected representatives, though the higher Executive appointments, with some exceptions, are in the gift and under the control not of the Legislature but of the Crown. In this and in other instances, where local conditions, including the fact of an overwhelming preponderance of coloured men over white, have made for a compromise, a system, illogical in theory and unsound in practice, has, by mutual forbearance, continued to work, though not always without friction. But on any large scale, and especially where the majority of the residents in a colony are of European birth, the position is impossible and can only be defended as a temporary expedient. Yet, in spite of the War of American Independence and the lessons which it taught, the world was not in the days of Pitt old enough for the British ministry to contemplate colonial self-government in its full expression. Nor, in truth, were the conditions of Canada sufficiently advanced to have made the introduction of responsible government either practicable or desirable. Hence Grenville cast about for an expedient which might reduce the probability of a conflict between the Executive and the Legislature, and sought for it in the establishment of a fund which would belong to the Crown alone and be expended by the Crown in paying its officers. If his policy had been consistently carried out, and an adequate revenue, not derived from taxation, been secured to the Crown, the result would have been greatly to strengthen the independence of the Executive by making the salaries of the officers independent of the vote of the Assembly. In the end the bitterness of the struggle for popular control might have been thereby increased, but in the meantime the petty squabble year by year over voting supplies, and the mean withholding of pay from this or that officer, because he happened to be unpopular at the moment, might have disappeared. The constitutional troubles which subsequently became so acute in Lower Canada, connected more especially with the attempt to obtain a Civil List, were due to the fact that the revenues of the Crown were not sufficient to cover the expenses of the public service without the aid of votes from the popular Assembly. It was this constant friction which had preluded the War of Independence, and this it was which Grenville hoped to avoid by establishing an adequate fund in the colony at the disposal of the Crown alone.
But a wider and more statesmanlike safeguard against the evils of colonial democracy in the eighteenth century was proposed in connexion with this Canada Act, though not by the Imperial Government. The post of Chief Chief Justice Smith. Justice of Canada, which Livius had held, was now after a long interregnum filled by the appointment of William Smith, who had been born in the state of New York, had been Chief Justice of that state, and, coming to England with Dorchester after the Peace of 1783, had been appointed to succeed Livius and had accompanied the Governor-General out to Canada. Invited by Dorchester His proposals for a general Legislature for the British North American Provinces. to give his views upon the draft of the Bill which Grenville had sent out, he embodied them in a remarkable letter which was forwarded to the Home Government. The Bill, he thought, greatly improved ‘the old mould of our colonial governments, for even those called the Royal provinces, to distinguish them from the proprietary and chartered republics of the Stuart kings, had essential faults and the same general tendency’; but he missed in it ‘the expected establishment to put what remains to Great Britain of her ancient dominions in North America under one general direction, for the united interests and safety of every branch of the Empire’. It was when the old North American colonies became prosperous that the evils inherent in their system produced their full effect, and he dreaded lest the prosperity which he predicted for the two provinces of Canada might again in time work ruin, unless what he considered to be the one main safeguard were provided from the beginning of constitutional government. ‘Native as I am of one of the old provinces,’ he wrote, ‘and early in the public service and councils, I trace the late revolt and rent to a remoter cause than those to which it is ordinarily ascribed. The truth is that the country had outgrown its government, and wanted the true remedy for more than half a century before the rupture commenced.... To expect wisdom and moderation from near a score of petty parliaments, consisting in effect of only one of the three necessary branches of a parliament, must, after the light brought by experience, appear to have been a very extravagant expectation.... An American Assembly, quiet in the weakness of their infancy, could not but discover in their elevation to prosperity, that themselves were the substance, and the governor and Board of Council were shadows in their political frame. All America was thus, at the very outset of the plantations, abandoned to democracy. And it belonged to the administrations of the days of our fathers to have found the cure, in the erection of a power upon the continent itself, to control all its own little republics, and create a partner in the legislation of the Empire, capable of consulting their own safety and the common welfare.’
Such a power the Chief Justice outlined in ‘Proposed Additions to the New Canada Bill for a General Government’, which he enclosed in this noteworthy letter, prefacing them as clauses ‘to provide still more effectually for the government, safety, and prosperity of all His Majesty’s dominions in North America, and firmly to unite the several branches of the Empire’. Provision was made in them for a Legislative Council and General Assembly, which, with the Governor-General, were to legislate for all or any of ‘His Majesty’s dominions and the provinces whereof the same do now or may hereafter consist in the parts of America to the southward of Hudson’s Bay and in those seas to the Northward of the Bermuda or Somers Islands’. So many Legislative Councillors were to be appointed for each province by the Crown for life, subject to the conditions attached to membership of the Legislative Council in either of the two Canadas by the proposed Act; while the members of the General Assembly were to be elected by the provincial Assemblies. The Crown might appoint an Executive Council, and was to be confirmed in full Executive authority over all and any of the provinces, while the acts of the General Legislature were to be subject to disallowance by the Crown, ‘and the said dominions and all the provinces into which they may be hereafter divided shall continue and remain to be governed by the Crown and Parliament of Great Britain as the supreme Legislature of the whole British Empire’.
Chief Justice Smith’s views supported by Lord Dorchester.
Lord Dorchester forwarded these proposals with a few words indicating that he was in general sympathy with the views of the Chief Justice. He wrote of the scheme of a general government for British North America as one ‘whereby the united exertions of His Majesty’s North American provinces may more effectually be directed to the general interest and to the preservation of the unity of the Empire’. They were the proposals of a trained lawyer, of an American colonist of standing and position who had thrown in his lot with the mother country as against the revolting colonies, and who stated in the letter from which passages have been quoted above, that for more than twenty years, that is to say through all or nearly all the years of strife with the colonies, he had held the same view as to the radical defect in the relations between Great Britain and her colonies and the remedy which might have been applied at an earlier date. How far, we may ask, did Chief Justice Smith truly diagnose the disease, if disease it was, that had proved fatal to the old British Empire in North America? How far did he indicate what, if the disease had been taken in time, would or might have been an adequate remedy? and how far did he outline the Canadian Dominion of later days and anticipate views which are widely held at the present time as to the future of the British Empire?
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