•^ ^(^%k ^^^V^, ^.^.^a IMAGE EVALUATION TEST TARGET (MT-3) 1.0 if 1^ i^ ■ 2.2 m ■ 10 1.1 lit m 1.25 1^ IE Photographic Sciences Corporation 23 WEST MAIN STREET WESSTER,N.Y. MSM (7!6) •72-4503 W"^ ^ V 4 :\ \ ^^^ ^^'1?^ > c\ •Co CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductlonu historiques T«<^hnical and Bibliographic Notaa/Nota* tachniquaa at bibliographiquaa Tha Inatituta has attamptad to obtain tha baat original copy availabia for filming. Faaturaa of this copy which may ba bibliographicaily uniqua. which may altar any of tha imagaa in tha raproduction, or which may significantly changa tha usual mathod of filming, ara chackad balow. 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Les diagrammes suivants illustrant la mAthode. »rrata to palura, nA □ 32X 1 2 3 1 2 3 4 5 6 / BRIEF SUGGESTIONS IN nEOARD TO THE rOHMATION OF LOCAL GOVERNMENTS FOll UPPER AND LOWER CANADA, IN CONNECTION WITH A FEDEKAL UNION OF THE BEITLSII NORTH AMEIUCAN PROVINCES. By ALPIIEUS TODD, LIBUARIAN OF THE LEGISLATIVE ASSEMBLY OF CANADA. PRINTED aV ORDER. OTTAWA: PRINTED BY G. E. DESBARATS, 1800. 1 .'44. m I BRIEF SUGGESTIONS, &c. va In the framing of new Constitutions, whether for the Government of the proposed British American Confederation, or for that of the separate Provinces which it is intended shall form part of the same, it is desirable that the principles which for so long a period have been in successful operation in the Mother Country, should be steadily kept in view, and, so far as they may be applicable to our own political con- dition, applied to the formation of our Colonial Institutions. When the scheme for the Federation of the British North American Provinces was under consideration last year, it occurred to the writer to put together the following suggestions, as a slight contribution towards the settlement of the important questions involved in the composition of Legislative bodies for the several Confederate Provinces, and the due subordination of such leuIslaturoB to the Executi\ o Autlioritv therein. lie had intended to preface his rei.iarkH on this head with a ])rief essay upon the origin and development of the present politieal institutions of England, especially in regard to the peculiar characteristics of Parliamentary Government, as it is now administered. The postponement for a season of the Confederation question, conse- c[uent upon the differences of opinion thereupon in the Maritime provinces, led him to defer the puhlieation of his reflections until the public mind should be again directed to the subject. Since then, he has forwarded, to an eminent publisher in England, the manuscript of his Essay on the origin and characteristics of Parlia- mentary Government, as it is meant to form an introductory chapter to a practical treatise on the English political system, which will be issued from the press, in London, in the course of the ensuing winter. A scheme for the construction of Local Govern- ment for the Two Canadas being about (some- what unexpectedly) to be submitted for the consideration of the Canadian Legislature, during the present Session, the writer feels it to be his duty to offer the following suggestions to the notice of members of the Legislative Council and Assembly, in hopes that they may be deemed of some use In the settlement of a '4! ■Lit; 1 I matter so deeply aflectlni^- the welfare of tins (•ouiitrv. Ill presentiiifi- his remarks u]Hm the composition of the local legislatures, unaccom- panied by the preliminary observations upcm the theory of Parliamentary Government with which he had intended to preface them, the wi'\ter is conscious that they must unavoidably appear to be meagre and imperfect ; but as time will not admit of his entering into the general subject at the present moment, he prefers to run this risk rather than to withhold altogether the observations that have occurred to him as suit- Mble and appropriate at the present juncture. It may be remarked, in the first phice, that inasmuch as the separate Legislative bodies for Upper and Lower Canada are intended to deal exclusively with local affairs, and are to be su- bordinate in jurisdiction and authority to the Federal Parliament, it would seem to be desirable that they should each consist of a Single Cham- l)er, as being more efficient and econciinical for the purposes designed, than a Legislature which should comprise Two distinct Houses. The exist- ing legislative institutions of the Colony of New Zealand are framed upon this plan, and consist of nine " Provincial Councils" for separate loca- lities, which are subordinated to a General Assembly, consisting of a Legislative Council and a House of Representatives. And as a 6 general rule in all local Municipal inntitutions, wlietlicr in Jlngland or America, there is but One Chamber. If it be intended that " Renponsible Govern- ment" shall prevail in connection with these local parliaments, it is absolutely indispensable that provision should be made to secure for the Ministers of the Crown an adetjuate degree of authority in the Legislative Chamber, in order to eiiable them to supervise and regulate the conduct of public business therein. It is accordingly suggested that these cham- bers should be framed after the model of the Municipal Corporations of England, and should include a certain proportion of members chosen by the House itself, at its first meeting, either from amongst the elected members, or from amongst those who are eligible for election ; and that such members should hold their seats for a period equal to two terms of ordinary membership. It may be here explained that Municipal Corporations in England are now regulated by the Act of 1835, under which old abuses in the existing corporations were corrected, and effi- cient local institutions were provided for the whole kingdom. By this Act it is declared that the members of the Councils for cities or boroughs in England and Wales shall be elected by the I rate-payoi'H, for a term of tliree yc I's; one third of the " CouncuHorH" goiii«^ out of office annually. That the Council itself shall be empowered to elect ** from the Councillors, or personi^qKalifietl to be Councillors/' a proportionate number of persons to be " Aldermen," who shall be asso- ciated with them in the control and direction of local affairs. These Aldermen are chosen for six years, one half going out of office every third year, 1 f Councilloi's are elected Aldermen . they retain their seats in the Council until the term of six years is expired; notwithstanding that, as Councillors, they were elected for three years only. This regulation — which combines the advantage of an annual infusion of members, recently approved of by the local constituency and thus truly indicating its sentiments, with that of securing the presence of experienced members, who are conversant with the routine of business, — has, in every instance where it has been fnirly tried, proved most salutary in its operation (a). In addition to its nioro obvious advantages, this plan has the further merit of tending to secure '; to whatever party may be the strongest for the moment in one of these Councils, a sufficient majority for the tran- saction of business" {h). It may therefore be (a) Knight's Politinil Cyclop, v. 3. p. 390. (A) Grey, Pari Govt, p 229. 8 ivasonably ivcoiiiukmkUmI as a siiitahli'inodcl Ini" imitation in tlic ronnatioii of local iiiHtitutions for the •••overinnent of the provhiees of Upper ami Lower Canada. And here it may be ai)propriate to advert to the provision which has been made in the draft (\>nstitnti /'roiii ofleiinir any npiiiii n ns to wIu'IIut nr not i; \voii!il lie uxpe.iii'Ml to npjily tlio sv-teiii i>t AtiiitMvrial i{«-(»|Miii.«ilH.iiy ii> till.' loiul Ciiii. Ilium (rovfiiiiiieiit. I he (|iif>tj(>n s one <»l tiiiicli ililli'ithy, iiiicl must Iv (lotermineil upon fjL-neial srrtiiiiidi (ifi'iiliiic pol'<-y. A>Mmiii.^ It to Ik,' iki-iile.l aifirutalive'y, it lias Ix-en Ins olijerl to point out the manner ill wliicii, a.* he uoneeives, it wijiiJd lie (lesifHljle lu eurr) it out, f-o ai to St engtiien the liniids ol the Exeeulive Government. 10 vinces of the Confederation, the Lieutenant Gov- ernor in each Province should have tho right to chose a certain number of Ministers to conduct the business of the country in the Legishitive Chamber. That these Ministers should be se- lected, by preference, from amongst the actual Members of the Chamber, or at any rate from persons eligible to be members of the same. That their tenure of office should depend upon their being able to retain the general confidence of the Assemblv. That for so lonj' as thev con- tinue to be Ministers, they shall retain their seats, and exercise all the privileges of mem- bership. That if actual Mehibers of the As- sembly are appointed to be Ministers of the Crown, their seats shall not be vacated by their acceptance of office; ministerial responsibility being constitutionally enforced by the necessity for their being able to command the confidence and support of the local parliament. That upon the retirement from office of non-elected Minis- ters they shall cease to be Members of the As- sembly. But if they represent a constHuency. or have been elected bv the Chamber itself, thev will of course retain their seats until their term of service may expire. The proposal that members of the local legis- latures should be relieved from the necessity of being re-elected upon their appointment to seats 11 in the provincial Executive Council, may require some explanation ; the more so as the expe- diency of applying the sume usage to the case of Executi ve Councillors in the Federal Govern- ment may be urged upon grounds of equal force and propriety. Wherever the British Consti- tution prevails, the ancient rule, — first imposed by the statute of Queen Anne — continues to be enforced, and Members of Parliament who accept of any office from the Crown are required to vacate their seats ; being eligible for re-election, however, if the office be one that is specially exempted from the penalty of disqualification. But this rule was originally established when the relations between the Crown and Parlia- ment Avere widelv different to those which now exist. The continuance of the practice, when it is attended by such a large amount of practical inconvenience, without any corresponding ad- vantages, is a curious and unaccountable ano- maly. The responsi])ility of Ministers, it is well understood, is to Parliament itself, and not to a mere local constituencv, that mav have chanced to returii a particular member. For his own constituency, morever, the member chosen is not a delegate but a representative, a distinction of vital importance, and involving widely different results. Practically it is a serious evil that the ])lans of a Ministry, that may possess the entire 12 ('onfuleiK'o of Parliament, ^^lioiild Ic liable U) (leranjremeiit because one constituency, it may ha for mere local or temporary considerations, should refuse to re-elect their member, upon his acceptance of office under the Cro*vn. Besides, as the law now stands, it '* is singularly incon- sistent and capricious in its operation. While the junior Lords of the Treasury and Admiraltv vacate their seats by accepting these offices, the rule does not apply to the more important and better paid offices of the Secretaries to these Boards, and of the Under-Secretaries of State, merely Ijecause the latter arc not technically appointed by the Crown " {((). The limitation of the choice of the Crown, in the first instance — of men who are eligible to be Ca])inet Minis- ters, and heads of the principal public depart- ments — to those who have or can obtain seats in parliament, and who (if they sit iu the House of Commons) are sure of re-election, subjects the public service to much inconvenience, and is one of the drawbacks incident to Parliamentary Government : but the evil is seriously aggra- vated by the existence of the law which com- pels the iumiediate vacation of his seat by a mem- ber who may accept a ministerial ofhce. Ever since the first introduction of the Reform Bill, iu lb 81, leading statesmen, for example, Earl (,i) Giry, P.iii.Govt p. 239. 13 . ■€ Grey (the then Prime Mininter,) the Duke of Wellington, Lord John Russell, and Mr. Dis- raeli, hiive strenously advocated the repeal <:)f this law— and have submitted IJills to Parliament to carry out their views upon the su])ject — but hitherto the Legishiture has persisted in retain- ing the ancient restriction, although the neces- sity for its continuance has long since passed away (a). Among the valuable suggestions lor the improvement of the English political system, in connexion wdth any further instal- ment of parliamentary reform, which have been urged by Lord Grey, in the new edition of his Essay on Parliamentary Government, is one for the abolition of this antiquated practice The ideas embodied in the foregoing remarks are commended to the consideration of the statesmen to vv^h< m the task of framing Constitu- tions for the future government of the British North American provinces may be entrusted. It will be seen that the point to which the writer has mainly directed his attention is that of strengthening the Executive Authority, and affording due facility to the Government for the exercise of a legitimate control over the Legislative Chambers. An Executive that docs not possess sufficient independence to shape its 00 Stt; ll.iil, pp> 120-125. M:iv Const. Hist. v. 1, p. 308. Uan*. Deb V. !47, p. 90j. 14 policy in accordance with its own lights, or suf- ficient influence over Parliament to direct the course of public legislation, is a fertile source of political corruption, and a hindrance to the true development of national life. How far the suggestions herewith submitted are calcu- lated to prevent the occurrence of this l vil, and to check the encroachments of an uncontrollable democracy, others must determine. One thing should be remembered, however, that while at first sight some of the recommendations included in this scheme may appear to be novel and peculiar, they are nevertheless in strict accord- ance with the general principles of the British Constitution, and have been framed with the view of adapting those principles to our own political condition. They have the further advantage of being in direct conformity with the recommendations of the highest constitur tional authorities in Great Britain, in their endeavours to redress the balance between the several co-ordinate powers of which the Im- perial Legislature is composed, and secure to the Ministers of the Crown, and to the posses- sors of property in the United Kingdom, their rightful share of influence in the House of Commons. We are therefore w^arranted in the hope that in a political system, based upon this foundation, it would be possible to preserve the Vj elements of autliorityj of stability, and of pro- gress, in clue proportion, in the popular Cham- bars, without any encroachment upon the funda- mental principles of Responsible Government. These remarks cannot be more appropriately concluded than by quoting the timely words of Earl Russell, wherein he warns is that *' by deliberately adopting, or unconsciously gliding into a more democratic form of government, we should take care not to be misled by the notion that we should thereby be placing our- elves under the sway of pure reason." " It is because man is a creature of passion and of imagination, as well as of reason, that in the constitution of a government by which he is to be ruled and directed, it is the concern of wisdom and of foresight to avail ourselves of all the influences which may give moderation, force and sanctity, to the supreme authority." * * * * " Let no one imagine that without such influences, or some of them at least, a political constitution can reach its highest per- fection." («) (a) Earl Russell, Eng. Cons'. New Edition, pp. xvci— xvciii.