Читать книгу The Life of John Graves Simcoe - William Renwick Riddell - Страница 22

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[1] The Speeches from the Throne will be found in 6 Rep. Ont. Arch., (1909), pp. 2, 3, 11; 7 Rep. Ont. Arch., (1910), pp. 1-3, 18. These Speeches were sometimes quoted later in the Legislature Assembly, and the Assembly caused them to be spread on the Proceedings of the House. In a letter to the Duke of Portland from Kingston, U.C., December 21, 1794, Simcoe, justifying his appointment of Lieutenants of Counties, said:—“A principle on which I have considered this Government as most wisely established and which I have never lost sight of in its administration, has been to render the Province as nearly as may be a perfect image and transcript of the British Government and Constitution”. Can. Arch., Q. 281, I, 164.

[2] The proper constitutional course for the Sovereign who disapproves of a Bill, is to dissuade the Ministry from pressing it, and in case of failure so to do, to dismiss the Ministry and call another to take the responsibility. If both courses fail, the Sovereign must constitutionally give his Assent.

[3] I shall for the sake of Brevity use the word “Governor” for “Governor, Lieutenant-Governor or Person appointed by the Sovereign to administer the Government of the Province”. In Upper Canada, this was, in Simcoe’s time, always the Lieutenant-Governor, but afterwards occasionally an Administrator of the Government acted, there being no Lieutenant-Governor or he being out of the Province.

[4] Of course, the Bills assented to or reserved were when sent to England considered not by the King personally but by the Lords of Trade who reported to the Privy Council. Every one will remember the extraordinary and atrocious charges against George III in the Declaration of Independence: “He has refused to assent to laws the most wholesome and necessary for the public good. He has forbidden his governors to pass laws of immediate and pressing importance unless suspended in their operation till his assent should be obtained. He has refused to pass other laws for the accommodation of large districts of people ....” &c., &c.

But it is too often forgotten that the Declaration of Independence was a political document intended to stir up the people to independence of the King; and that nearly till the 4th of July, 1776, the Continental Congress were almost fulsome in their assertions of loyalty and blamed all their wrongs on a wicked Ministry.

Professor Oliver Morton Dickerson in his admirable American Colonial Government, 1696-1765, Cleveland, 1915, gives many instances of the interference of the Board with Colonial legislation and, pp. 208, 209, shows that the King was wrongly blamed in the Declaration of Independence.

The provisions as to Royal Assent are to be found in secs. 30, 31 and 32 of the Act, S. & D., pp. 1041, 4.

[5] All such cases had arisen in the Thirteen Colonies and had caused trouble. Dickerson, op. cit., passim. These provisions are to be found in secs. 15, 16, and 19 of the Act.

[6] It is an interesting study to trace the gradual evolution of Responsible Government as shown in the Instructions to Governors from time to time. Some of the prohibitions lasted till after Confederation in 1867. For example, the direction to reserve for the Royal Pleasure, Bills for Divorce continued until Edward Blake’s well-known protest in 1876 resulted in a change. The last Bills of Divorce reserved will be found noted in the Statutes of Canada for 1879, pp. iii to vi. They were passed in 1878.

[7] Secs. 12, 15.

[8] Sec. 15. Such Bills were by sec. 42 of the Canada Act not to receive the Royal Assent until thirty days after they were laid before both Houses of Parliament at Westminster and then only if neither House addressed the Sovereign to withhold assent.

[9] If the Royal Assent was given by the Colonial Governor, the law was valid even if the Governor disobeyed his Instructions.

[10] Secs. 3, 4, 5, 8, 10. Attaint of Treason means being sentenced for Treason not simply being found Guilty.

[11] The members of the Legislative Council were chosen by the Home Administration—not infrequently, indeed, at the instance of the Colonial Governor, but his recommendation was not always effective. The person chosen received from the Home Administration, an Instrument under the Royal Sign Manual called a Mandamus or Warrant and presented that to the Colonial Governor: thereupon the Governor summoned him to the Legislative Council by an instrument under the Great Seal of the Province.

[12] Can. Arch., Q. 282, I, pp. 6, 10. Letter, Simcoe to the Duke of Portland (No. 30) from Navy Hall, October 30, 1795. Simcoe continues:—“I should be very happy was there sufficient property and other qualifications in any Members of the Legislative Council to see the provisions of the Canada Act in this respect immediately completed by an hereditary seat derived from a Title of Honour being vested in their families”. The Letter to Sir Joseph Banks mentioned in the Text just above will be found in a brochure of Dr. Henry Scadding’s: Letter to Sir Joseph Banks .... (For Private Circulation), Toronto, 1890, (In the Riddell Canadian Library, Scadding Brochures, Vol. 2), 1 Correspondence, pp. 17-19. Dr. Scadding, p. 5, says: “Pitt in the debate on the Constitution Act of 1791, has suggested such an arrangement”; but the debate was long after Simcoe’s letter to Banks.

[13] Can. Arch., Q. 279, I, pp. 181, 186, Letter from Simcoe to Dundas (No. 12) from Navy Hall, November 23, 1792. Surely an extraordinary misconception of the situation.

[14] Discussion of Petitions and Counter-Petitions, Rê Change of Government in Canada, submitted by Grenville to Lord Dorchester enclosed in a Despatch from Whitehall, October 20, 1789, S. & D., 969-987, esp. p. 978. Can. Arch., Q. 42, p. 92; Can. Arch., C.O. 42, Vol. 21, p. 55.

[15] See Despatch from Grenville to Dorchester from Whitehall, October 20, 1789, S. & D.., p. 987: Can. Arch., Q. 42, p. 96; First Draught of Constitutional Bill, S. & D., pp. 992, sqq.; Can. Arch., Q. 42, p. 105.

[16] Despatch Dorchester to Grenville from Quebec, February 8, 1790, S. & D., pp. 1002, sqq. Can. Arch., Q. 44, I, pp. 20 sqq.

[17] This Draught, generally called the Second Draught of Constitutional Bill is to be found in S. & D., pp. 1006, sqq. Can. Arch., Q. 44, I, p. 30; it was enclosed in Dorchester’s Despatch to Grenville from Quebec, February 8, 1790, ut suprâ.

A report to Dorchester from Chief Justice Smith was also enclosed, dated at Quebec, February 5, 1790: in this, that able magistrate wisely said:—“Native as I am of one of the old Provinces (he was a native of the Province of New York and a member of the Council of that Province) 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.” But the most remarkable of his suggestions was “to put what remains to Great Britain of her ancient dominions in North America under one general direction for the united interest and safety of every Branch of the Empire”—what we have not yet succeeded in doing though a splendid beginning was made in 1867 when the Dominion of Canada was formed. The Chief Justice drew up a Bill for this purpose, but it was too early for such a comprehensive scheme. S. & D., pp. 1018 sqq., Can. Arch., Q. 44 I, pp. 61, 68. Grenville thought “the information of a general Legislative Government for all the King’s Provinces in America .... liable to considerable objection”; but it was “a point which has been under consideration”, Despatch, Grenville to Dorchester from Whitehall, June 5, 1790. S. & D., pp. 1024-1027: Can. Arch., Q. 44, I, pp. 152, sqq.

[18] I Correspondence, p. 5: Letter from Lord Thurlow to Grenville, September 1-10, 1789.

[19] I Correspondence, p. 6: Letter from Grenville to Thurlow, Wimbledon, September 12, 1789, Grenville says: “I thought that by granting some kind of rank and distinction, descendible in lineal succession to the eldest sons of those who were once called to the Council, a body would gradually be formed and kept up, out of whom the Crown would probably select the Councillors with only a few occasional additions as other families grew to consideration and respect in the Province. The consequence would then be that no person could have a seat in the Upper Branch of the Legislature without feeling that sort of interest in the established government which arises from the possession of hereditary distinction; while at the same time the power reserved to the Crown of calling to seats in that House such only of those persons as might individually be judged proper for it, would retain to the British Government a great degree of weight and influence among this description of persons.”

[20] 28 Parl. Hist., Coll. 1377, 1378.

[21] do. do. do., Col. 107.

[22] do. do. do., Cols. 399, 411, 429, 659.

[23] For Simcoe’s reasons for not acting upon it see Note 12, ante.

[24] Formerly the Speaker might be Lord Keeper instead of Lord Chancellor; but the last Lord Keeper appointed was Lord Henley who became Lord Chancellor in 1761.

The rule that the Government appoints the Speaker of the Upper House has continued in Canada until the present day; the Senate at Ottawa receives as its Speaker, the nominee of the Government.

[25] The convenient and now universally used word “Constituency” for an Electoral District is not used in the Act: it does not seem to have been invented till forty years later. In 1831, Macauley, speaking of “constituencies if the word be permissible”, was told by Lady Holland that the word was odious.

Multa renascentur quae jam cecidêre: cadentque

Quae nunc sunt in honore vocabula, si volet usus

Quem penes arbitrium est et jus et norma loquendi

Horace, Ars Poet., vv. 70-72.

[26] He did divide the House on the question of the number of Members in the Assembly of Lower Canada which he thought should be one hundred: Pitt had been willing to make it fifty, but Fox insisted: his motion failed by 40 to 91 votes.

For the Debate on the Assembly, see 28 Parl. Hist., Coll. 106, 107, 359, 427, 429, 430.

[27] A curious result of this provision will be mentioned in the Text, infra, pp. 174, 185.