LIBRARY OF THE UNIVERSITY OF CALIFORNIA. Class IMPERIUM ET LIBERTAS IMPERIUM ET LIBERTAS A STUDY IN HISTORY AND POLITICS BY BERNARD HOLLAND LONDON EDWARD ARNOLD Publisher to tfje Entita ffice 37 BEDFORD STREET, STRAND 1901 DEDICATED TO THE HON. ALFRED LYTTELTON, K.C., M.P. IN MEMORY OF THE DAYS WHEN WE READ HISTORY TOGETHER AT ETON AND AT CAMBRIDGE AND IN GRATITUDE FOR AN UNBROKEN FRIENDSHIP "... salva Libertate potens." LUCAN. "Beneficio quam metu obligare homines malit, exterasque gentes fide ac societate junctas habere, quam tristi subjectas servitio. " Li v Y . " Hsec est in gremium victos qme sola recepit Humanumque genus communi nomine fovet, Matris, non dominse, ritu ; civesque vocavit Quos domuit, nexuque pio longinqua revinxit." CLAUDIAN. ."As long as you have the wisdom to keep the sovereign authority of this country as the sanctuary of liberty, the sacred temple consecrated to our common faith, wherever the chosen race and the sons of England worship freedom they will turn their faces towards you. . . . Deny them this participation of freedom and you break that sole bond, which originally made and must still preserve the unity of the Empire. ... It is the spirit of the English Constitution, which, infused through the mighty mass, pervades, feeds, unites, invigorates, vivifies every part of the Empire, even down to its minutest member." BURKE. CONTENTS PACK GENERAL OBSERVATIONS . i PART I. THE AMERICAN REVOLUTION 23 PART II. CANADA Chap. I. Period 1763-1841 of Canadian History . . 95 II. Lord Durham's Report 108 III. The Legislative Union of 1841 . . . .126 IV. Lord Elgin's Government, 1847-1^4 . .138 V. Creation of the Canadian Dominion, 1867 . . 159 PART III. THE UNITED KINGDOM Chap. I. The Union of 1801 . . . ' . . .193 II. The Home Rule Movement .... 220 PART IV. THE EMPIRE Chap. I. The Question at Issue 265 II. Conclusion 281 APPENDICES. I. The Canadian Federation Act of 1867 . . . . 323 II. The Australian Federation Act of 1900 . . . .347 INDEX 377 ^>: V OF -= UNIVERSITY OF IMPERIUM ET LIBERTAS GENERAL OBSERVATIONS WHEN men speak of the British, or the German, or the Russian Empire they usually have in mind a picture, as it were, of great spaces of country, cities, and popula- tions, having common allegiance to a single political centre. But the expression Imperium, as used by the Romans, meant neither geographic space nor popula- tions, but in the earlier times a military and subse- quently a political power, whether exercised by an individual or a State. It most nearly corresponds to our words " command," " rule," or " control," and we speak in the Roman sense if we talk of " exercis- ing empire." The poet Claudian, speaking of Rome, says : " Armorum legumque potens, quse fundit in omnes Imperium, primique dedit cunabula juris." And, in the same sense, Horace writes : "Super et Garymantes et Indos proferet imperium." Both in the older English and French the word was more commonly used in the Latin sense than it is now, and Pascal, for instance, when he wrote, " Les femmes ont un empire absolu sur Tesprit des hommes," how- ever erroneous this view may be, very correctly used a political image in a different sphere. A 2 IMPERIUM ET LIBERTAS If Imperium is power over others, Libertas may be defined as power over oneself, whether the " one " in question is a person, or corporation, or a nation. This is the definition given by Grotius, and it agrees with that of the Roman lawyers, who word it thus : "Liberty is the natural faculty of each to do as he pleases, unless he is restrained by force or law." A writer of the eighteenth century says : " So far as anything is passive, so far it is subject to necessity ; so far as it is an agent, so far it is free, for action and freedom are, I think, identical terms. The spring of action is the self-motive power, which is in animals spontaneity, and in rational ones what we call liberty." 2 In so far as a person is obliged, at the command of others, to do or not to do certain things, he is not free ; the province of his freedom consists in those things which he may do, or not do, according to his own will. Thus he may be free to think certain thoughts, and to express them in private, but not free to publish them in a book. Libertas and Imperium then are equally power regarded from two points of view, whether as exercised over oneself or over others. If men are to live together in any form of community in order to obtain the benefits of co-operation, each individual must sur- render, or rather be content not to have, some portion of the full liberty which he might possess as a hermit or bandit. In each organic State or Nation the consti- tuted authorities possess imperium in wider or narrower, more or less defined degrees, with regard to the indi- viduals composing the community. The demarcation 1 "Digest," Lib. i., Tit. v. "Libertas est naturalis facultas ejus quod cuique facere libet, nisi quod vi aut jure prohibetur." 2 Clarke's " Letters on Liberty." GENERAL OBSERVATIONS 3 of the province of power of each individual and of the State, in accordance with ever-varying circumstances, has been in every civilised nation the business of political art, whether exercised through judicial or legislative institutions. The whole law of contract turns upon the interpretation by the State of treaties made in the plenitude of their libertas by individuals, by which they confer imperium upon others over some of their own actions. The State enforces its interpreta- tions by virtue of the imperium which it has over all individuals within the sphere of its influence. 1 Every organised body of men, every body that is a true association and not a mere mob, whether it is a joint- stock company or a nation, resembles an indi- vidual in that it has a will or power of deciding and acting. This is true (so far as regards the relations of the body to the outer world) even if the whole will and power of decision is concentrated in a monarch or in a close aristocracy. Even under these forms of government the policy of the State is often dictated and almost always mightily influenced by the public opinion of all persons composing it. But the analogy between the State and the individual is more perfect when each person in the nation has not only his in- direct but his positive, though minute, share in con- tributing to the collective will. This has been recognised by the best thinkers. Hooker says : " The lawful power of making laws to command whole political societies of men belongeth properly to the same entire societies. " : And Locke says: "'Tis in their legisla- ture that the members of a commonwealth are united 1 Dr. Holland defines a " right " as " a capacity residing in one man of controlling with the assent and assistance of the State the actions of another." 2 " Ecclesiastical Polity," Book i. 10. 4 IMPERIUM ET LIBERTAS and combined together into one coherent living body. This is the soul that gives form, life, and unity to the commonwealth." 1 This soul is the collective reason and will. So, too, Grotius speaks of the " Consociatio plena et perfecta mtse civilis cujus prima productio est summum imperium." A nation (or any other natural body of men, such as a church or a trade) which has no organs through which its will may work and act is like a man who is paralysed and cannot move. Livy, in describing the annihilating policy adopted by Rome towards Capua in revenge for its support of Hannibal, admirably pictures this condition : " It seemed good that the city of Capua should be only, as it we^e, a place of habitation and resort, that there should be no body of the State, neither senate nor assembly of the people, nor magistrates, no public council or government, that the multitude, associated for no purpose, should be incapable of consent." 2 The citizens of Capua ceased to be a body having power to decide and act as a living Being among other cities and having, through the imperium of the whole body over each indi- vidual composing it, the power of regulating its own interior life. Raynal, a French writer of the eighteenth century, after defining liberty as " la propriete de soi" analyses it into three kinds : " la liberte naturelle, la liberte civile, la liberti politique ; c'est a dire, la liberte de I'homme, celle du citoyen, et celle d'un peuple" These kinds of liberty are sometimes confused in popular controversy. For instance, at the beginning of the 1 Book ii. 212. 2 Book xxvi. s. 1 6. " Ceterum habitari tantum, tanquam, urbern Capuam, frequentarique placuit ; corpus nullum civitatis, nee senatus, nee plebis concilium, nee magistrates esse; sineconcilio publico, sine imperio, multitu- dinem nullius rei inter se sociam ad consensum inhabilem fore." GENERAL OBSERVATIONS 5 South African War of 1899-1901, both sides claimed in general terms that they were defenders of liberty. But the British were thinking of the liberty (or power) of the citizen the right to vote ; the Dutch of the liberty (or power) of the South African Re- public to manage its affairs without external dictation or interference. La liberte de I'homme was not in direct question at all. In the internal history of most European nations the political issue has been to vindicate the liberty or power of the body of the nation to manage its own affairs against royal dynasties, usually foreign, and basing their title in the first instance upon con- quest. In a long struggle, from the days of the Plantagenets to those of the Brunswicks, the body of the English nation won the power of managing its own affairs through its own servants. This is the essence of national liberty. Montesquieu, in his De V esprit des lois, defining a free or popular government, says that the ministers of a people are not its own unless it names them : " C'est done une maxime fondamentale de ce gouvernement que le peuple nomme ses ministres, c'est a dire ses magistrats." Under this definition falls not only the American system under which the President is practically elected by the whole nation, but also the English under which the electorate, through the medium of Parliament, appoints its Prime Minister, or, at least, virtually restricts the choice by the Crown to one out of two or three persons. How this power was won from the Crown is written in the constitutional history of England. The other political problem in the internal history of each nation has been to ascertain the extent of 6 IMPERIUM ET LIBERTAS liberty, or power, which can be retained by, or given to, the individual consistently with the unity and welfare of the whole community. The extent of the province of free action allowed to the individual de- pends partly upon the different circumstances of different societies, and is affected sometimes by density of population, modes of occupation, geographical posi- tion, and so forth. In the United Kingdom, for instance, and in the United States, a man is free to serve or not to serve in the army. In the nations of continental Europe, each exposed to the danger of sudden invasion, no man is free not to serve. But in every country the frontier of individual liberty is constantly varying. In England the individual has in some ways less liberty than a hundred years ago, though more perhaps than at some epochs in other ways. He is no longer free to educate or not to educate his children ; to conduct his business, if he is a manufacturer or shipowner, according to his free will in all respects ; to deal with his tenants as he pleases. On the whole, in this, as in other countries, the liberty of the individual has during the last hundred years been largely invaded by the imperium of the State. Just as the power of action of each individual or corporation within a State is limited by that of the rest, so the power of action, or libertas, of each nation is limited by that of each other nation. Among quite independent States, not subject to any common or im- perial government, this limit is informal. It takes the shape of war, or more usually, fear of war. English and Eussians may equally desire to extend empire over regions of Asia still inviting conquest, but the freedom of each nation to do this is limited by dread of GENERAL OBSERVATIONS 7 war with the other. The "balance of power" is a very real thing, and is a rough substitute, in the way of de- marcating spheres of action, for the controlling power exercised, where dependent or sub-imperial States are concerned, by the force of the organic Empire to which they belong. Indeed, the more or less civilised nations form a kind of dimly organised commonwealth, not unlike, on the large scale, to the condition of earliest feudal France or Germany, when the central power was hardly perceptible as yet in the chaos of almost inde- pendent principalities. The idea of decision of ques- tions by law, or reason, is there, and is applied in minor cases, but war, or dread of war, is still the main immediate sanction, and is not, as within organised States or Empires, relegated to the far background. When nations or States are not independent but confederate, like those belonging to the British Empire, or the more centralised German Empire, the problem of limits of action stands, as it were, half way between that relating to independent States and that relating to individuals or bodies composing only one State. In an Empire of this kind the nations are the units, but be- cause they are nations the relation between them and the Empire partakes of, though it is not fully of, an international character. Demarcation of powers is the essence of the science and art of politics. Guizot, who holds so high a place among the writers of the illustrious French historical school, makes, in his " History of Civilisation in Europe," some observations which may be fitly quoted here. He remarks that " of all systems of government and of political guarantees the federative system is certainly that which it is most difficult to establish ; the system which consists in leaving in each locality, 8 IMPERIUM ET LIBERT AS in each special society, all that portion of government which can remain there, taking away that portion only which is indispensable to the maintenance of the whole society in order to carry it to the centre of that society, and there constitute it under the form of central government. The federative system, logically the simplest, is in fact the most complex ; in order to reconcile the degree of independence and local liberty which it allows to exist with the degree of general order and submission which it demands and supposes in certain cases, it is necessary that the will of man, individual liberty, should concur towards the establish- ment and maintenance of the system far more than in any other, for the means of coercion are less than else- where. The federative system then is that which evidently demands the greatest development of reason, morality, and civilisation in the society to which it is applied." Guizot then points out that the mediaeval or feudal social order was an attempt in practice to maintain a system of this kind, leaving the maximum of sovereign power in the hands of each feudal chief or free city, and the minimum in those of the suzerain or of the baronial assemblies, and that this early federation failed and gave place to centralising monarchies be- cause the civilisation of those times was not sufficient to enable it to achieve success. A rude or inchoate federalism was, for the time, destroyed by the simpler and less complex " Unitarian " forms of political life. In France, especially, the whole substance of provincial liberties, and of the liberties of seigneurs in their do- minions was gradually sucked into itself by the highest sovereign power, and the Revolution and Napoleonic regime in this respect did but put the last touches to GENERAL OBSERVATIONS 9 the work of Louis XL, Richelieu, and Louis XIV. But in countries inhabited by races of the Teutonic breed Germans, English, Swiss, Dutch centralisation has never been so complete, and liberties of all kinds, individual, municipal, and provincial, have been better maintained throughout history against the central power. In these countries the principle of division of powers, which was at the bottom of the mediaeval social order, now asserts itself with better chance of success, because we are enlightened by the teaching of history, or experience. Men know better than they did the art of -giving and taking. But, as conditions vary, so also the old question returns in varying forms. For ourselves, during the last hundred and fifty years, the most important political question has been no longer the demarca- tion of the frontiers between royal power and that of the body of the nation, or even that between the State and individual liberty, but of that be- tween imperial power and national liberty. In order to reconcile these two things there must be some sacrifice of the advantages of imperial unity on the one side, and some sacrifice of the advantages of national independence on the other. Yet the benefits of the result should be greater than those either of unity alone or of independence alone. The sacrifice and the benefit is the same, in a wider sphere, as in the case of that compromise between the power of the State and the liberty of the citizen which has been so successfully worked out in the course of our domestic English history. The first advantage of a great Empire is that it secures to weaker communities belonging to it the safety against outer foes which each would possess io IMPERIUM ET LIBERTAS were itself a mighty power. Each portion partakes of the strength of the whole. And, it must be re- membered, it is not by overt war alone that the pros- perity and existence of a nation may be threatened. If a country has a population too large to be sup- ported by its own agriculture, or unfitted for agricul- ture by long aggregation in manufacturing centres ; if it depends in large measure for its existence upon the manufacture and sale of raw material, such a country may be ruined by rival nations who exclude its manufacture in order to build up their own. But if many countries, with different industries, climates, and circumstances, are held together under a common Empire, and if free trade between such countries is made a condition of their union, each member of this group has a larger security against the war of tariffs than if it stood alone. Just, also, as such a group of nations under one Empire is strong not only in defensive but in offensive war, so, in the war of tariffs, a great Empire, with a single customs union, has, if it chooses to wield it, an immense bargaining power as against outside States. It can beat down hostile tariffs by the use, or threat, of reciprocating tariffs, and this weapon would be far more powerful than any of the kind which a single independent State could use. The second advantage of a great Empire is that, within its jurisdiction, questions which wholly inde- pendent States are apt to determine by the ordeal of war, can be resolved by peaceful, just, and humane methods. Not long ago, for instance, the Judicial Committee of the Privy Council decided questions arising in Canada and involving large interests as between different States within the Dominion as to GENERAL OBSERVATIONS n rights in the great lakes and other waters. Had Canada been divided, like the same area in Europe, into several quite independent States, this is precisely the kind of question which might have led to war the worst and most barbarous of remedies, with all its cost in life and wealth and happiness, with all its legacy of bitter memories, and ending, perhaps, in a decision in favour of the strongest, but contrary to true justice, since might is not always identical with right. But because the Canadian provinces all formed part of one Empire, the questions at issue could be settled by four or five wise elderly gentlemen seated round a table at Whitehall, after hearing the tranquil arguments of Mr. Blake, Q.C., and Mr. Haldane, Q.C. This is civilisation on a higher level arbitration in lieu of war. Indepen- dent nations may refer disputes to arbitration, but to do so is their free choice ; they are in no way bound to this course rather than to make their claim and defence by way of arms. But within an Empire, although ultimate resort to force is not beyond the frontier of possibility, it is, like use of the gold re- serve in the Bank of England, an extremely remote expedient ; and the constitutional lawyer takes, prac- tically invariably, the place of that more primitive advocate, the soldier. Questions between nations held together in a federal or imperial connection can be decided according to justice and reason in lieu of the rude, unconvincing, and unsatisfying arbitra- ment of comparative wealth and population, military organisation, generalship, and fighting capacity. If the independence of nations less conduces to the security of the weak, the maintenance of justice, and the peace of the world, yet, on the other hand, active 12 IMPERIUM ET LIBERT AS life, thought, art, energy in making the most of a land's resources in short, every outcome of vivid citizenship and patriotism flourish better in small States than in wide centralised Empires. So, at least, experience seems so far to show. It is to the burning vitality of compact independent nations, the strong heart in the small body, to Judea and to Athens, to Rome the Republic, to the Free Cities of Italy, Germany, and Flanders, to France, to Holland, and to England the island, that we owe the highest achievements in the things which make life most worth having. The very peace and security which a great Empire estab- lishes may prove a deadening influence. What be- came of Greece under the Macedonian Empire and the Roman ? In India peace reigns to-day and order, but there is certainly less scope for the Eastern patriot- ism of race and class, less romance and food for poetry, less motive for heroic self-sacrifice, less to stir the heart and imagination of Rajput and Sikh, of Mah- ratta and Pathan, than there was in those years of glorious turbulence in the breaking up of the Mogul Empire. British rule tends to destroy native origin- ality, vigour, and initiative. How to replace that which our rule takes away is the great Indian problem. Montesquieu well observes 1 that in the utter decentralisation which followed the break up of the Roman Empire of the west, when every town and district became a virtually autonomous State and centre of power, every one did his best to make his little country flourish, as in the days of ancient Greece, and this so successfully that, in spite of irregular government, innumerable civil broils, continual wars, and absence of general commerce and 1 De V esprit des lois, xxiii. c. 24. GENERAL OBSERVATIONS 13 industrial science, the population in most European countries was larger than when he wrote. The ci- devant capitals of Italy, so full of noble palaces and churches, and public buildings, bear witness to this. It may be that, as in agriculture, so also in human society, disintegration, or breaking up of the soil, at not too distant intervals is necessary for continued fertility. It would not, perhaps, be good for the life of the race that any very wide dominion or integration should endure for many centuries. St. Augustine believed that it would be happier for mankind if all kingdoms were small, provided that (alas ! how difficult the con- dition) they could live peaceably alongside one another. 1 He himself saw, from his See in Africa, the Eternal City taken by the Barbarians, and he thought that the fall of Rome was due to the over-greatness of her Empire. "Then already," he wrote, looking back five centuries, " Rome had subdued Africa, had sub- dued Greece, ruled far and wide over other parts, and, as it were, not being strong enough to carry herself, may be said to have broken herself by her own great- ness." ; Aristotle would have agreed with Augustine, for he said that " there is a certain degree of greatness fit for States as for all other things, living creatures, plants, instruments, for each of these has its proper virtue and faculty, when neither very little nor yet excessively great." 3 But modern historians have thought that the Roman Empire perished not from over-great- ness but from over-centralisation, and the destruction 1 " Felicioribus sic rebus humanis omnia regna parva essent, concord! vicinitate leetantia" (De Civ. Dei, iv. 15). 2 " Tune jam Koma subjugaverat Africam, subjugaverat Grseciam, lateque aliis partibus imperans, tanquam se-ipsum ferre non valens, se sua quod- dammodo magnitudine fregerat" (id. xviii. 45). Compare Horace's "Suis et ipsa Roma viribus ruit." 3 Pol. vii. 4. i 4 IMPERIUM ET LIBERT AS of the provinces in favour of the metropolis. The most real and living nation encountered by the Romans was that of the Jews, and they as a nation were irreconcilable. Otherwise the Empire was built either out of dominions previously subject to central- ising despotisms, or out of previously free cities with small territories attached to them. The Carthaginians were a mercantile oligarchy. Rome hardly had the material for trying the experiment of reconciling im- perial rule with the existence of nations, and her centralisation arose out of the nature of the case. 1 The failure of the Roman experiment does not prove that an empire which avoided this peril might not beneficially endure for a much longer period. In the British Empire, apart from India, we have learned, taught by a most costly experience, to concede to the Colonies the fullest liberty consistent with the main- tenance of a common tie. This has been so fully accom- plished that the desire of the nations willingly subject to the British throne now, it is believed, is rather for closer and more formal union than for more independ- ence, whereas in earlier times the reverse was true. 1 Guizot observes (Histoire de la Civilisation en Europe) : " Une munici- palite comme Home avait pu conquerir le monde ; il lui etait beaucoup plus malaise de le gouverner, de le constituer. Aussi quand 1'ceuvre parait consommee, quand tout 1'Occident et une grande partie de 1'Orient sont tombes sous la domination romaine, vous voyez cette prodigieuse quantite de cites, de petits Etats faits pour 1'isolement et 1'independance, se desunir, se detacher, s'echapper pour ainsi dire en tout sens. Ce fut la une des causes qui amenerent la necessity de 1'Empire, d'une forme de gouverne- ment plus concentree, plus capable de tenir unis des elements si peu coherents. L'Empire essaye de porter de 1' unite et un lien dans cette societe eparse. Ce fut entre Augusta et Diocletien qu'en meme temps que se developpait la legislation civile, s'etablit ce vaste systeme de des- potisme administrative qui etendit sur le monde remain un reseau de fonctionnaires hierarchiquement distributes, bien lies, soit entre eux, soit a la cour imperiale, et uniquement appliques a faire passer dans la societe" la volonte du pouvoir ; dans le pouvoir, les tributs et les forces de la societe." GENERAL OBSERVATIONS 15 The practical question for us who find ourselves born citizens of a great Empire, and also citizens of the United Kingdom, or of Canada, or Australia, or some other sub-imperial State, is in what manner the benefits of imperial union and national self-government can best be combined ? How can we best reap the advantages of union while avoiding over-centralisation, the disease which killed Rome ? "I am," wrote Edmund Burke in the year 1777, " and ever have been deeply sensible of the difficulty of reconciling the strong presiding power that is so useful towards the conservation of a vast, disconnected, infinitely diversified empire, with that liberty and safety of the provinces which they must enjoy (in opinion and practice at least) or they will not be provinces at all." The difficulty has been partly solved, chiefly by reason of the experience gained in the calamitous civil war against which Burke was then protesting, but in other forms it is with us still. It is useful to study our colonial history in order that knowledge of the road by which we have travelled may indicate the line of further advance. This is the use of the study of history. If one has observed that a trunk road has run for many miles from east to west, it is a safe deduction that it will continue to do so. The ancient Greek city, when its population be- came too large for its rocky island or edge of mainland shore, sent out a colony as a beehive sends out a swarm. The colonists took possession of new terri- tory and there built a city, maintaining a pious regard, except when interests clashed, for the Mother City, but not a true political connection. The Romans, on the contrary, with their instinct of empire, planted a colony like a garrison in subject territory. The colonists 1 6 IMPERIUM ET LIBERT AS remained strictly subject to the Eoman imperium; they enjoyed the civil rights of Eoman citizens, and they had for their municipal affairs institutions moulded as nearly as possible on the home model senate, popu- lar assembly, and magistrates. The position of these colonies was deemed, by the Romans at least, to be superior " propter amplitudinem majestatemque Populi Romani cujus istse Colonise quasi effigies parvse simulacraque esse qusedam videntur" to that of the more numerous Municipia of once independent but conquered states which retained for domestic purposes their organisation of free days, while the sovereign powers of peace and war, and highest control in justice and administration, the summum imperium, were trans- ferred to Roman authorities. 1 The British Empire is due partly to conquest, as in India and Egypt, partly to colonisation, as in Aus- tralia and New Zealand, In Canada and South Africa the Empire is the result of blended conquest and colonisation, and, for this reason, more difficulties have arisen in Canada and South Africa than in either India or Australasia. Our colonial policy at first approxi- mated to the Roman idea. English subjects in America were deemed to be in the full sense of the word English subjects. If distance prevented them from exercising their full privileges as citizens, such as voting for re- presentatives in the national Parliament, yet they were held to be subject to all laws, and even taxation, which that Parliament might see fit to impose upon them. 1 Home Eule questions arose. Cicero says, in the Oratio pro Balbo : " Ipsa denique Julia (lex lata est) qua lege civitas est sociis et Latinis data. Qui fundi populi facti non essent civitatem non haberent. In quo magna contentio Heracliensiuin et Neapolitanorum fuit, cum magna pars in iis civitatibus foederis sui liber tatem civitati ante ferret." Just as Grattan's party in 1800 preferred existing institutions to incorporating union. " Eundi " means consolidated with Roman citizenship. GENERAL OBSERVATIONS 17 After this way of looking at the matter had led to the American Revolution, our colonial theory tended to move towards the Greek idea. But our steps were arrested half way. A colony is now virtually, though not in strict theory, an independent State in all matters that concern its home affairs. In foreign affairs, what- ever influence a colony may exercise upon their conduct, it is guided and controlled by the statesmen respon- sible solely to the central Parliament of the United Kingdom. This system, however, seems to be giving way before a new conception. It is proposed in this book to examine in some detail the history of the modern colonial idea. For this purpose it is best, in the first place, to consider the conflict of views which led to the loss of the older American Colonies, and, in the next place, to trace the constitutional history of Canada. Canadian history is the bridge between the older and newer conception of the relation of a colony to the Mother Country. Within Canada also has been worked out a solution of that other problem so im- portant to us at home, how to combine central and federal administration of public affairs with adequate provincial self-government. In the United Kingdom itself three nations, in many respects distinct, have been combined into a single political incorporation for all purposes. I may, perhaps, be allowed to say that the result of a long and close study of the whole history of the United Kingdom has been to modify to some extent views which I, like other Englishmen of conservative con- nection, education, and temperament, had previously held. The country was, I am convinced, well advised in rejecting Mr. Gladstone's proposals of 1886 and 1893, but it seems to me that a measure of * 1 8 IMPERIUM ET LIBERT AS stitutional evolution, on different lines, is becoming desirable. Nothing, of course, is more possible than that I may err in this surmise, and it may, at any rate, be true that the particular line of action with which I agree is not the best suited to the case. It is, however, in accordance with steps which have been successfully taken in our Colonies and else- where, in its broad lines, and it has been approved by men whose opinion carries weight. It seems to me to be in accordance with reason, to be justified by history, and to correspond with the real existing facts of nature in these islands. We suffer, it seems to me, at present from a discordance between forms and facts. I propose, finally, to consider, without much detail, the present and possible future relations of the various nations or states now rather loosely held together by common allegiance to the British throne. The subject of Imperium et Libertas might no doubt be discussed in a wider, more abstract, and philosophic manner, and might be illustrated by reference to the history of several great aggregations of men, but I have thought it more practically useful to enclose the present study within the ample limits of the history of the British Empire. Every polity has its own primary motive or prin- ciple. That of the Eussian Empire, for instance, has always been the will of the monarch ; that of the French Republic is democratic centralisation and equality. Administration of provinces through central officers is of the essence of each system. The principle of the British polity is neither autocratic nor democratic. Throughout English history local bodies, towns, and counties, however oligarchic or corrupt their own con- stitutions may from time to time have become, have GENERAL OBSERVATIONS 19 largely managed their peculiar affairs, and at the same time have sent representatives to share in the general councils of the nation. The primary motive of our constitution has always been local liberty with share in national council. On the larger scale this principle is working itself out in the modern imperial system, so far as concerns the white part of the Empire, although the process is as yet far from complete. But to know the principle is to have a signpost of the general direction of the road. If any nation, of European blood, within the British Empire, has no collective constitutional personality and no power of managing, subject to the summum imperium, its peculiar affairs, the case is an exception, and is contrary to the governing principle, and can only exist for a time and for temporary reasons. If, again, nations within the Empire, while freely managing their own affairs have no formal means of taking part in the general councils and sharing in the burdens of the Empire, this also is con- trary to the governing principle of the British polity, and can only be a temporary phenomenon, comparable to the non-representation of large towns before the first Reform Act. In connection with the subject of this book it is necessary to make some attempt to define the word " nation." This it is not very easy to do in a satis- factory way, although every one feels conscious of the meaning of the word. Its use is sometimes restricted to those communities which possess a collective legal personality, form of government, and large degree of independence, if not complete autonomy. I prefer, however, to use the word in the sense of a natural community of men, on a sufficiently large scale, whether or not they possess legal personality and governmental 20 IMPERIUM ET LIBERTAS forms. A nation is an aggregation of men, usually based in the beginning upon some degree of affinity of race, and distinguished from other aggregations by certain sentiments of greater union among themselves. These sentiments are due to original kinship, main- tained by constant intermarriage, to geographical position, language, religion (some or all of these elements), but above all to a community of history. And it must not be forgotten that a nation can be made by a process of bitter suffering, defeat, subjec- tion, regret, disappointment, as well as by a successful, prosperous, and glorious career. Nor can a nation once so fashioned be unmade, nor can existence cease with misfortune. PART I THE AMERICAN REVOLUTION PART I THE AMERICAN REVOLUTION BOTH in England and in America the popular idea of the events which led to the War of Independence and to the greatest result of the eighteenth century, the birth of the United States as a new and distinct nation, is something as follows. A weak and corrupt British Parliament, influenced by unprincipled Ministers, who were themselves the tools of a short-sighted and obstinate king, claimed the right to levy taxation upon the American Colonists without their consent. The Colonists resisted the claim, the resistance led to riotous proceedings in America, and these to coercive measures, and so the countries drifted into war. On this side of the Atlantic this view has become traditional. The fact is, that long before the War of Independence came to an end, the Eng- lish were tired of it and disgusted with it. The nation, like a discontented Sultan, threw the blame for its actions on the Vizier. After the disastrous close they were inclined to say, " it was all due to the stupid blunders of this and that politician, George Grenville, Charles Townshend, Lord North/' and to put the whole subject away from their minds as quickly as possible. This act of oblivion they achieved with very remarkable rapidity, assisted by the fact that within the next ten years came on the flood of 24 IMPERIUM ET LIBERTAS French Revolution with all its chances and changes. Thus the view of the American War taken at its close became fixed and traditional. It was, moreover, strengthened and perpetuated by the school of Whig historians in the ascendant during the first half of the present century. Writers like Macaulay chiefly perceived in the American War an opportunity for assailing Toryism in general under cover of an assault upon the policy of George III. and Lord North, and upon the intellect of the squires and clergy who so doggedly supported them between 1770 and 1782. Sir George Trevelyan has recently, in his vivid and delight- ful book on the American Revolution, followed perhaps in somewhat the same track of political philosophy. Yet George Grenville and Charles Townshend, to whom the two taxing Acts were due, belonged to the old Whig connection, and at least half the old Whig party supported the Government in the war, because they were honestly convinced that England was in the right in principle, although particular acts which led to the war might have been foolish or inexpedient. Mr. Bancroft, the classic historian of the Revolution on the American side, took the solemn, patriotically pious, line of ascribing the Revolution to the political blindness, wickedness, or corruption of the English, while all virtue and adherence to sound principle was for the time colonial. Mr. Lecky first did adequate justice to the strength of the English case, looked at, as it should be, in due relation to the ideas then ruling with regard to the nature of the connection between a Mother Country and its Colonies. In this, as in other affairs, a distinction may be taken between the immediate and the deeper causes of the great event. Among the immediate causes are to be classed the THE AMERICAN REVOLUTION 25 condition of the English Parliament at the time, the character of the obstinate and short-sighted, though sincere and honest king; the unfortunate incapacity of Lord Chatham, through illness, during some most critical months ; the action of the country gentlemen in voting a reduction of the land-tax ; and the vanity or desire to please of Charles Townshend. But if the matter is studied more deeply, one perceives that hardly any one at that time had a conception of that workable kind of relation between the Mother Country and the Colonies, which now seems to us to be the most natural thing in the world, and that the quarrel was due at bottom to the fact that opposite ideas held the field in the absence of this compromise. If Canada and Australia now stand in an easy and amicable re- lation to Great Britain, it is because the English learnt from the failures of their ancestors the way in which free and kindred nations can live together in a loose but very real union. Nothing is more instructive than the ease with which the Stamp Act of 1765 passed through both Houses of Parliament. It excited there, and in the public at large, no more attention, it was afterwards said, than a turnpike bill. To the astonishment of the English the Act enraged the Americans. A sudden revelation was made of a gulf between the English way of regarding the Colonists and the Colonists' own view of themselves. When, by this new light, the whole matter was carefully debated in the following year in the British Parliament it was seen that two opposing theories confronted each other. Most of those Englishmen who had stayed in the home island regarded the Colonists as being other 26 IMPERIUM ET LIBERTAS Englishmen, who had at various times crossed the seas, but had not thereby founded new States of any kind, or changed their political position. 1 They were, it was assumed, none the less subject to all laws and to all taxes which it might seem fit to the wisdom of the Imperial Parliament to extend to that part of his Majesty's dominions. To most Englishmen this seemed to be clear as day. The American Colonies were portions of the king's dominions, and therefore one in every sense with the Mother Country. In one realm there can be but one sovereign power it seemed an obvious axiom of politics and this power could be no other than King, Lords and Commons, the Imperial Parliament. Certainly, in each of the American Colonies there was an Assembly having some analogy to the British Parliament. These Assemblies were elected by the people, passed laws subject in some cases, not in all, to the ultimate sanction of the Crown, and raised taxes. But what was the origin of these Assemblies ? Their powers and liberties depended upon charters granted either directly by the Crown, or by " proprietors," themselves holding the territory by grant from the Crown. Several of the proprietary governments had been surrendered to the Crown before the end of the colonial period, but in three Colonies these curious institutions sur- vived, and in them the proprietor exercised royal functions. What was the constitution of these Assemblies ? Some had two houses, and some one ; in some the Upper House was nominated from above, in others it was elected. 1 So the Navigation Act of 1663 recites that " His Majesty's plantations beyond the sea are inhabited and peopled by his subjects of this his king- dom of England." THE AMERICAN REVOLUTION 27 The Englishman at home knew very little about these Assemblies, but so far as he could see, they did not in the least correspond with his idea of sovereign legislatures, or even with his idea of a depending or subordinate Parliament like that of Ireland. Dr. Johnson, laying down the law with his usual ex- aggeration to the faithful Boswell, declared that the American Assemblies were "no more than our Ves- tries." They appeared to the average Englishman to be in the nature of municipal corporations with power to pass laws and raise money for local purposes. If they exercised these functions upon a wider scale than the City of London or the City of Bristol, it was because the great distance made it practically useful that they should do so ; but this did not affect their constitutional position or prevent the Imperial Parliament, if it chose to do so, from both legislating for and taxing the Americans in any way that it thought proper. The public writers who took the trouble to look into charters and precedents verified for him the view of the plain man in the street. They quoted, for instance, the words of the Penn- sylvanian Charter, granted by Charles II. to William Penn, by which the king covenanted to impose no tax whatsoever upon the inhabitants of the province " unless the same be with the consent of the Pro- prietors, or Chief Governor, or Assembly, or by Act of Parliament in England." What could this mean but that his Majesty's Government, if they so desired, might raise money from Pennsylvania through the British Parliament, by virtue of the general principle of the supreme power of that Parliament in America ? True it was that, as a rule, the Imperial Parliament had not legislated for American internal affairs or directly 28 IMPERIUM ET LIBERT AS taxed the Americans, but this was merely because it had not been necessary or expedient to do so. Many Acts of Parliament were made for England only, not extending to Scotland, nor was the taxation of England and Scotland uniform. When necessary the British Parliament had legislated for America. Witness the Navigation Laws and, still more directly, such Acts as those for the benefit of English manufacturers, restraining the exportation of hats made in any Colony into any other Colony or elsewhere, and limiting the number of apprentices to be employed by any American hatter, or the Act of 1750, prohibiting the erection or continuance of any iron-mill in the Colonies. The Navigation Laws were themselves a whole code passed by the Imperial Parliament restraining Americans from doing various acts, and forcing them to buy and sell in English markets. Indirectly, the Imperial Parliament had taxed America through these laws, and port duties were levied in American ports by British authority. A long list of precedents was pre- pared by officials for Ministers. In point of origins and precedents, the British case was as strong as case can be. When ably set forth, as, for instance, in a masterly pamphlet of 1 769, called "The Controversy between Great Britain and her Colonies Reviewed," it seemed to be invincible. And so, in fact, it was on paper and in theory. The English argu- ment was sound but for one fatal defect, viz., that distance and separation, and unlike circumstances, work- ing upon that original difference of disposition and way of thinking, which made some Englishmen cross the Atlantic while others stayed at home, had formed the Americans into a distinct, though as yet undeveloped nation. They did not yet possess the central forms, THE AMERICAN REVOLUTION 29 legislative and executive, through which a nation could act ; they were outwardly but a bundle of colonies, yet the nationhood was there. The English argument assumed that the Americans were what they once had been but no longer were. The English who went to America had in fact grown into a real nation, although the English who had stayed at home knew it not, and the Colonists hardly knew it themselves. With the national life the national institutions had grown also, imperfect as they were. Transmarine municipal corporations had become Parliaments. So in English history the House of Commons had small power at first ; was little more than a body for granting money on special occa- sions. But as the estate of the Commons grew in the realm in wealth and power, the House of Commons grew with it. At last that Assembly claimed by its acts the full control of administration, and Charles I., confronting their claim, amply justified though he was by theory and by precedent, found himself face to face with a fact too far accomplished to be resisted, and lost his throne and his life. Unimaginative parents often drive their children into revolt by treating them, when grown up, as chil- dren still. This was precisely the error of the British Government, Parliament, and Nation with regard to the American Colonies. Burke fully admitted that the American Assemblies were not at first intended to be more than municipal corporations of a kind. " But," he said, " nothing in progression can rest on its original plan. We may as well think of rocking a grown man in the cradle of an infant." l To the Englishman of 1766, assured of the in- vincible strength of his constitutional case, the prac- 1 Letter to the Sheriff of Bristol. 30 IMPERIUM ET LIBERTAS tical reasons for imposing some taxation on America appeared to be no less cogent. Since Great Britain had fought a most costly war, in order partly to defend the Colonists from French aggression, it was surely now time to exercise the latent power of direct taxation in America in order to meet the increased burden. The Americans, indeed, alleged that they had in the late war put 25,000 men into the field at great cost, that they were not unable to protect themselves, and that the war had been fought by Great Britain for objects of her own ; but these contentions were disregarded. The base in- gratitude of the Colonists who had been saved by the arms of Great Britain from destruction by the French and Indians, and yet would contribute nothing, was the talk of every London coffee-house and dinner-table. The national debt has been largely incurred, said the Englishman, in protecting the Americans ; the existing annual cost of the navy and army may still be debited in part to the same account. Is it not just that America should at last, now that she has grown wealthy and populous, make some regular contribution ? And may I ask, added the Englishman, if money for the regular supply of imperial needs is not to be raised in America by the Imperial Parliament, how is it to be raised there at all ? The question now is not one of provision by each Colony for its own needs, including border war- fare with Indians in some cases, but of a regular supply for the general defence of all the king's dominions, including America. If Government has to apply for this to the Assembly of each Colony there would be no equality of burden. Virginia might make a large grant, Connecticut a small one, Massachusetts none at all. How could affairs be carried on in England if THE AMERICAN REVOLUTION 31 Government had to apply separately for funds to each town or county ? It was with a view to difficulties of this kind that, in 1754, when there was apprehension of the French war, delegates from the several then endangered provinces met in congress at Albany, summoned by the Crown, and discussed a plan of federal union for certain pur- poses. There was to be a President -General appointed by the Crown, and a Grand Council consisting of mem- bers chosen by the House of Representatives in each Colony. The President and Council were to manage all Indian affairs and those of new settlements, the levying and maintenance of military forces and coast defence, and for these purposes to have power of raising taxes in the Colonies. This proposal may be deemed to be the germ of the future federal union. It was agreed to by the Congress, and sent over to London for approval. Probably the British authori- ties thought the scheme dangerous to imperial control ; they rejected it, and suggested an alternative plan. By this the Governors of all the Colonies were to meet, each attended by one or two members of his Council, take in concert military measures, draw on the Treasury for funds, the Treasury to be reimbursed by a tax laid on the Colonies by Act of Parliament. This cautious scheme was communicated by Governor Shirley, of Virginia, to Benjamin Franklin, was ob- jected to by him on the ground that it involved taxation without representation or consent, and no more was heard of it. If, for want of political institutions in common, it was not possible to obtain from the Americans adequate contributions towards the cost of their own defence, it seemed obvious to Englishmen of the day 32 IMPERIUM ET UBERTAS that recourse should be had to the latent powers of the Imperial Parliament. But, the Americans ob- jected, "we are not represented in that Parliament" " True, not directly," replied the Englishman ; but neither are the large majority of the inhabitants of Great Britain. Many large towns in England are not directly represented at alL "There are," wrote one pamphleteer, " more millions of subjects unrepresented in England, and yet taxed, than there are inhabitants in British America, Out of eight millions of inhabi- tants in this kingdom there are not 500,000 electors, the other 7,500,000 are exactly on the same footing with the three millions in America," But they are "virtually" represented, and so are the Americans. Besides, it was urged, no man really pays any tax by his own consent, but by the consent of the whole community. Hop-growers do not consent to the tax on hops, or cider- makers to the tax on cider ; on the contrary, they usually protest against it ; but they are taxed by the consent of the whole nation. Consent is implied when a man lives under a government, holds property under it, and enjoys its protection. The argument was irresistible if England and America were in truth one community. It was shipwrecked upon the fact that they had become two nations. The Atlantic was an ocean too wide to be bridged by the theory of " virtual representation." At that point of history and experience it was perfectly ] Atuial that the mass of Englishmen should hold these views. They were not merely the opinions of the man in [the street, but of the larger part by far of well-educated society, and of many eminent men who had given their lives to political work or jurisprudence. George Grenville, the author of the THE AMERICAN REVOLUTION 33 Stamp Act, said in the debates on its repeal in 1 766 : " That this kingdom has the sovereign, supreme legislative power over America is granted. This can- not be denied, and taxation is a part of that sovereign power. It is one branch of the legislation. It is exercised over those who have never been represented. It is exercised over the Indian Company, the mer- chants of London, the proprietors of the stock, and over many great manufacturing towns." The logic was undeniable if the major premiss was correct. And again he said, appealing to the practical mind : " Protection and obedience are reciprocal. Great Britain protecting America, America is bound to yield obedience. . . . When they want the protection of this kingdom they are always very ready to ask for it That protection has always been afforded to them in the most full and ample manner. The nation has run itself into an immense debt for their protection, and now they are called upon to contribute a small share towards the public expense, and expense arising from themselves, they renounce your authority ! " In Grenville's mind there was no doubt whatever, and his mind was typically English. He wrote in a letter of i;th July 1768: " I have done my duty by endeavouring to assert the sovereignty of the king and Parliament of Great Britain over all the dominions belonging to the Crown, and to make all the subjects of the kingdom contribute to the public burdens for their own defence, according to their abilities and situation. I thought that we had the clearest right imaginable, and that we were bound c 34 IMPERIUM ET LIBERTAS by every tie of justice and wisdom to do this, and I am convinced it would have been accomplished with- out any considerable difficulty if America had not received such encouragement to oppose it from hence as no other people would have resisted." Grenville said in the same letter that he was quite ready to consider any plan for the representation of America in Parliament, but he could no more see why, in the meantime, America should not be taxed, than he could see why Birmingham or Manchester should escape from taxation until they were directly repre- sented. Grenville's view is summed up in the advice which he gave to George III. on leaving office in July 1765, " not to suffer any one to advise him to draw the line between his British and American dominions." Another speaker who put the full English case very lucidly in the debates of 1766 was Lord Lyttelton. He urged that the supreme power of legislation must be somewhere, and that if taxation were objected to, the same objection would apply to all Acts of Parlia- ment, for instance the Navigation Acts : " The only question before your Lordships is whether the American Colonies are a part of the dominions of the Crown of Great Britain ? If not, the Parliament has no jurisdiction ; if they are, as many statutes have declared them to be, they must be proper objects of our Legislature, and by declaring them exempt from one statute or law, you declare them no longer sub- jects of Great Britain, and make them small inde- pendent communities not entitled to your protection." This Lord Lyttelton is a good example of the clear- headed man, of a logical turn, completely possessed by a consistent theory. Some years later, in the House THE AMERICAN REVOLUTION 35 of Lords, he " contended without reserve for the legis- lative supremacy of Parliament over every part of the British dominions in America, the East and West Indies, in Africa, in Asia, in every part and quarter of the globe, nay, over Ireland itself, if it should become necessary ; the right of taxation and legislation being indivisible and unconditional over every place to which our sovereignty extended." The British claim was also maintained in the de- bates of 1766 by the high legal authority of Lord Mansfield. His careful argument rested upon these grounds : " i. That the British Legislature, as to the power of making laws, represents the whole British Empire, and has authority to bind every part and every subject without the least distinction, whether such subjects have the right to vote or not, or whether the law binds particular places within the realm or not. " 2. That the Colonists, by the conditions on which they migrated, settled, and now exist, are even more emphatically subjects of Great Britain than those within the realm, and that the British Legislature have in every instance previously exercised their right of legislation over them without any dispute or question." " The people of America," he said, some years later, are as much bound to obey the Acts of the British Parliament as the inhabitants of London and Middle- sex." The leading arguments on the English side are ex- cellently summed up in the " Annual Register " for 1766. The following passage may be quoted : " As the constitutions of the several Colonies are made up of different principles, so they must remain dependent (from the necessity of things and their 36 IMPERIUM ET LIBERT AS relations) upon the jurisdiction of the Mother Country, or they must be totally dismembered from it. No one ever thought the contrary till the trum- pet of sedition has been lately blown. Acts of Par- liament have been made, not only with no doubt of their legality, but with universal applause, the great object of which has been ultimately to fix the trade of the Colonies so as to centre in the bosom of that country from whence they took their origin. The Navigation Acts shut up their commerce with foreign countries. Their ports have been made subject to customs and regulations which cramped and dimi- nished their trade, and duties have been levied affecting the very inmost parts of their commerce, and, among others, that of the post ; yet all these have been submitted to peaceably, and no one ever thought till now of this doctrine, that the Colonies are not to be taxed, regulated, or bound by Parlia- ment. A few particular merchants then, as now, were displeased at restrictions which did not admit them to make the greatest possible advantage of their commerce in their own private and particular branches ; but though these few merchants might think themselves losers in branches which they had no right to gain, as being prejudicial to the general national system, yet upon the whole the Colonies were benefited by these restrictive laws, which, founded upon principles of the most solid policy, flung a great weight of naval force into the hands of the Mother Country, which was to protect the Colonies, and without an union with which the Colonies must have been entirely weak and defence- less ; instead of which they became relatively great, subordinately and in proportion as the Mother Country advanced in superiority over the rest of the maritime powers of Europe, to which both mutually contri- buted, and of which both have reaped the benefit, equal to the natural and just relation in which they THE AMERICAN REVOLUTION 37 both stand reciprocally, of dependency on one side and protection on the other." " In short," adds the writer, summarising the opinion with which he did not agree, " protection gives a right of taxation. The obligation between the Colonies and the Mother Country is natural and reciprocal, consisting of defence on one side and protection on the other ; and common sense tells us that they must be dependent in all points upon the Mother Country, or else not belong to it at all." The argument was not easy to meet. Almost every one in England, and indeed in America, admitted the ultimate legislative power of Parliament. How could they deny it when this power had so often been exercised without objection, and even sometimes at the request of the Colonists ? The ground taken by some of the opponents of the Grenville policy was that there is an essential distinction between legislation and taxation, and that although laws affecting the Americans could be made in the Imperial Parliament, yet that they could not be taxed except through their own Assemblies. This was the line taken by a small party in England, and notably by Pitt and Camden. " When," said Pitt, " two countries are connected together like England and her Colonies, without being incorporated, the one must necessarily govern ; the greater must rule the less but so rule it as not to contradict the fundamental prin- ciples that are common to both." But then arose the difficulty that, under the existing system of trade laws, the Americans were indirectly or virtually taxed, and always had been. Port duties were levied in America. If Americans wished to drink French wine they could not obtain it except from England. No European 38 IMPERIUM ET LIBERT AS goods could be imported into the Colonies except in English ships and from England. 1 Thus the advocates of the American cause who had already drawn a dis- tinction between legislation and taxation were forced to draw a further distinction between external and internal taxation ; and subsequently, when this position was found untenable, were driven to one not really stronger, a distinction between taxation for revenue purposes and such burdens upon the Americans as might be incidental to " commercial regulation." " Let this distinction then remain for ever ascertained ; taxation is theirs, commercial regulation is ours," said Lord Chatham. Thus English opinion was divided into three main divisions. The largest consisted of those who thought that the Imperial Parliament had a right to tax Ameri- cans, and that Americans ought to be taxed. This view of the man in the street and coffee-house is well put by Benjamin Franklin in a letter which he wrote from London to America on August 8, 1 767. " The current of talk (he said) was that it is high time to put the right and power of this country to tax the Colonies out of dispute by an Act of taxation, effectually carried into execution, and that the Colonies should be obliged explicitly to acknowledge the right. Every step is being taken to render the taxation of America a popular measure here by continually insist- ing on the topics of our wealth and flourishing circum- stances, while this country is loaded with debt, great part of it incurred on our account, the distress of the poor here by the multitude and weight of taxes, &c., and though the traders and manufacturers may pos- sibly be kept in our interest, the idea of an American tax is very pleasing to the landed men, who therefore 1 Under Navigation Act of 1673. THE AMERICAN REVOLUTION 39 receive and propagate these ideas wherever they have influence." 1 He added that, if such a Bill were brought in those who opposed it would be stigmatised as " Americans," " betrayers of old England," &c. This view easily commended itself to the plain- thinking, tax-paying Englishmen, to whom subtle dis- tinctions between taxation and legislation, or between different kinds of legislation or different kinds of taxation seemed, not without reason, to be sophistical special pleading. The opposite group consisted of those who thought that the Imperial Parliament had a right to pass laws affecting Americans, at any rate in matters touching the general trade and interests of the Empire, but had constitutionally no right to tax the Americans directly. Between these two groups came the central party, those who held that the Imperial Parliament had a supreme power in all things, taxation as well as legislation, but that it was not expedient that this power should be exercised in the Colonies, except in the last resort, and on very rare occasions of emergency, which might never occur This was the line taken by the lucid and trenchant writer who called himself " Junius." He thought that " the general reasonings which were employed against that power (of taxation) went directly to our whole legislative right, and that one part of it could not be yielded without a virtual surrender of all the rest." But he argued that the right of taxing America should be deemed " a speculative right merely, never to be exerted, nor ever to be re- 1 Franklin's Life, &c., vol. vii. p. 350. As to the part taken by the " landed men," whose great desire was to reduce the land-tax, see Burke's " Observations on a late State of the Nation." 40 IMPERIUM ET LIBERTAS nounced." This was also the line always taken by Edmund Burke. If, for instance, said Burke, in a war some Colonies hung back and would not tax themselves for the common end, he would say to them, " Tax yourselves for the common supply, or Parliament will do it for you." But then, he added, "this ought to be no ordi- nary power, nor ever used in the first instance. This is what I meant when I have said at various times that I consider the power of taxing in Parliament as an instrument of Empire, and not as a means of supply." : In 1766 this central group of moderate men did for the moment, though with great difficulty, prevail. The Stamp Act was repealed by the short-lived Rockingham Ministry, and at the same time an Act was passed, drawn on the lines of the Declaratory Act as to Ireland in 1719, and declaring in general terms the supreme power of the Imperial Parliament. The writer in the " Annual Register " says : " No matter of debate was ever more ably and learnedly handled in both Houses. It was argued, too, with moderation and temper. The subject was of the highest importance, and it was not without difficulties, both constitutional and political, in the discussion and in the consequences. " Upon the question being put, the power of the Legislature of Great Britain over her Colonies in all cases whatever, and without any distinction as to taxa- tion, was confirmed and ascertained without a division. And this was, perhaps, the only question that could have been thought of, upon which the Ministry and their antagonists in the opposition would have gone together on a division." 1 Speech of April 19, 1774. THE AMERICAN REVOLUTION 41 The Declaratory Act enacted that "The said Colonies and Plantations are, and of right ought to be, subordinate unto and dependent upon, the Imperial Crown and Parliament of Great Britain, and that the King's Majesty by and with the advice and consent of the Lords Spiritual and Tem- poral and Commons of Great Britain in Parliament assembled, had, hath, and of right ought to have full power and authority to make laws and statutes of sufficient force and validity to bind the Colonies of Great Britain in all cases whatsoever." The Act also annulled and declared " Contrary to law, derogatory to the legislative authority of Parliament, and inconsistent with depen- dency on the Crown, all votes, resolutions, or orders which have been passed by any of the Assemblies in America by which they assumed to themselves the sole and exclusive right of taxing his Majesty's subjects in America." Nine years later, in 1775, the American Congress, after reciting specific grievances, thus expressed their opinion of an Act which had been approved by Burke, Rockingham, Pitt, and by Englishmen of every shade of opinion. The Congress say : " But why should we enumerate our injuries in detail? By one statute it is declared that Parliament can of right make laws to bind us in all cases whatso- ever. What is to defend us against so enormous, so unlimited a power? Not a single man of those who assume it is chosen by us or is subject to our control or influence, but on the contrary, they are all of them exempt from the operation of such laws ; and an American revenue, if not diverted from the ostensible purpose for which it is raised, would actually lighten their own burdens in proportion as they in- crease ours." 42 IMPERIUM ET LIBERTAS Events had developed when this declaration was made, but even at the time a strong protest was raised in America against the principle of the Declara- tory Act of 1766. However, the Americans deemed the accompanying Eepeal of the Stamp Act to be a great practical victory. If nothing new had been done in the way of legislation or taxation by the British Legislature, if the advice of Burke and those who thought like him had been taken, and no further practical deductions had been made from the theoretic principle of sovereignty, the question might have slept for a long time, though sooner or later it would doubt- less have awoke from its slumber on the matter of the commercial code and the Navigation Acts. As Bacon said : " Where there is a great question it cannot fail to be agitated." Ill-considered action on the part of the English Ministers did, in fact, keep the question alive with- out any real interval of quiescence. One measure most mischievous in its consequences was the Act passed in 1765 for compelling the provincial Assemblies to provide at their own cost certain lodging and articles of provision for royal troops quartered in America. The Assembly of New York having refused to comply with this Act, a Bill was in 1767 passed through the Imperial Parliament, suspending all the legislative powers of that Assembly. This measure raised in the most clear-cut form the question of the power of Parlia- ment to interfere by legislation in the internal affairs of an American Colony. One of the few men in the English House of Commons who really understood the American point of view was Mr. Pownall, who had been a Governor in America. He put the issue very clearly in his speech upon the Bill of 1767 : THE AMERICAN REVOLUTION 43 "If we consider each of the Assemblies of the Provinces and Colonies as what it is, a legislative, de- liberative body, as the will of the province or colony, it must have a right to decide ; if it has the free will to say aye, it must have the same power to say no. You may properly order an executive power to execute, but how, and with what propriety, can you order this deliberative body to exert its will only in one pre- scribed direction ? If any supreme and sovereign will shall pre-ordain what this inferior power of delibera- tion shall will, it will make the same confusion in practice which the divines and metaphysicians have made in theory between predestination and free-will absolute. If the Assemblies of the Colonies will not in every mode, article, and particular provision decide in their deliberative capacity as an Act of Parliament directs and pre-ordains, you consider the Colonies as denying the sovereignty of Great Britain, than which nothing can be more unjust." 1 But the measure most directly in the main line of events which led to Lexington and Bunker's Hill was, of course, the Act passed in 1 767 imposing duties on tea and some other articles imported into America. Charles Townshend, the inventor of this piece of un- wisdom, was, as Burke afterwards explained, possessed by the most fatal of passions in a statesman, the desire to please every one. He believed that he had hit upon a device for gratifying the majority in the House of Commons without seriously offending the Colonists. The foundation for the second part of this opinion was that advocates for America had in previous debates admitted the right of Parliament to impose duties 1 Franklin, referring to this Act in a letter to Lord Kames, i ith April 1 767, said that " the very nature of a Parliament seems to be destroyed by supposing it may be bound and compelled by a law of a superior Parlia- ment to make a law contrary to its own judgment." 44 IMPERIUM ET LIBERTAS upon America connected with the regulation of sea- borne commerce. Yet the preamble to this Act de- clared that the revenue to be raised in America was to be applied "for making a more certain and adequate provision for defraying the charges of the administra- tion of justice and support of civil government in such provinces, and towards further defraying the ex- penses of defending, protecting, and securing the said dominions." The measure could, therefore, only appear to the Americans to be a substitute for the abandoned Stamp Act. Civil government was to be carried on and a standing army kept in America by means of money levied from them without their consent. From the English point of view that the Colonies were as in- tegrally part of the realm as Kent or Yorkshire, although they had as yet no direct representatives in the House of Commons, and for convenience' sake more scope was given to local municipal institutions this was as it should be. From the American point of view that the Colonies were subject to the Crown and to the general commercial legislation of the Imperial Parliament, but were otherwise self-governing States the preamble of the Act of 1767 revealed a deliberate assault on their national freedom. The two opposing ideas were brought into sharp contrast. Nor was the situation improved at all by the temporising Act of 1 769, repealing five of the obnoxious duties, but leav- ing one, that on tea, " in order to keep up the right," and leaving also the obnoxious preamble. " A modification," said Burke, " is the constant re- source of weak, undeciding minds." Lord North, who was in 1769 Chancellor of the Exchequer, and in the following year became Prime THE AMERICAN REVOLUTION 45 Minister, being a good-humoured, plain-minded man, who cared little himself for questions of theory and abstract right, would not have been sorry to abandon the tax on tea together with the rest. He said, in the debates of 1769, that he would personally have liked to repeal the whole Act of 1767 " on the conciliating principle," since it had given outrage, created " dangerous combinations beyond the Atlantic, and caused much dissatisfaction among British merchants trading to America." But, said he, the Colonists had gone so far in their resolutions and acts that to make a concession would only encourage them. 11 We repealed the Stamp Act to comply with their desires, and what has been the consequence ? Has the repeal taught them obedience? Has our lenity inspired them with moderation ? No, sir, that very lenity has encouraged them to insult our authority, to dispute our rights, and to aim at independent government. Shall we, while they now deny our legal power to tax them, acquiesce in the argument of ille- gality, and give up that power? Shall we betray ourselves out of compliment to them, and, through a wish of tendering more than justice to America, resign the controlling superiority of England ? God forbid. The properest time for making resistance is when we are attacked. To temporise is to yield, and the authority of the Mother Country, if now unsup- ported, is in reality relinquished for ever." One can hear the " noble lord " delivering this fine peroration, cheered loudly by the patriotic gentlemen behind him. As a matter of fact, his eloquence was official, and he was only prevented by the pride and prejudice and principles of the king, and of a strong party in Parliament and in the country, from following 46 IMPERIUM ET LIBERTAS the dictates of his own good sense. The king, and those who took his view, had persuaded themselves that, without the visible outward sign of some taxa- tion, sovereignty itself, that mysterious essence, would perish. They would not listen to the wise advice offered to them by Mr. Pownall, the man who knew America. In a speech made in the House of Commons in 1769, after making an admirable forecast of the events which would occur, he advised the House not to " stir up, but waive all questions which became mere articles of faith," such as the " sovereignty," and to make no innovations in practice. He observed that the Americans had always accepted external taxation, port duties, and so forth. But when the British Government argued from the right to impose external taxation to that of imposing internal, the Americans began to argue inversely from the wrong of imposing internal to the wrong of imposing external, and, said Pownall, "by your help have reasoned themselves into opposition to all external taxes which they had hitherto submitted to for a century and a half." And, he added, "Let the matter of right rest upon the de- claratory law, and say no more about it. It may be understood (as it is in the same words as that respect- ing Ireland) that it shall stand in the same line of administration. I say it may be so understood, and will be better understood by being never explained. . . . Do nothing which may bring into discussion questions of right which must become mere articles of faith." Five years later, in his speech of igih April 1774, Edmund Burke expressed more eloquently, and carried further, the argument that, by pressing claims hitherto latent, we had taught and were teaching the Americans THE AMERICAN REVOLUTION 47 to question claims which they had once hardly doubted. He said : "If, intemperately, unwisely, fatally, you sophisti- cate and poison the very source of government by urging subtle deductions and consequences odious to those you govern from the unlimited and illimitable nature of sovereignty, you will teach them by those means to call that sovereignty itself in question. When you drive him hard the boar will surely turn upon the hunters. If that sovereignty and their free- dom cannot be reconciled, which will they take ? They will cast your sovereignty in your face. Nobody will be argued into slavery." When it was decided, by the two or three indi- viduals who really decide such matters, to repeal five- sixths of the Townshend's Act, but to retain the remaining sixth and the preamble, in order "to keep up the right," a wrong road was taken, and from it there was no returning. After the discussions of 1769-1770, the matter went to sleep in England for four years. It is not in the nature of man to think for a long and consecutive space of a single political subject. America was comparatively quiet, and was at once and almost entirely forgotten. Benjamin Franklin, who was residing all this time in England, says, in a letter of July 1773, that the great defect in England was lack of attention to American affairs ; but, he adds, " the majority of the nation rather wish us well, and have no desire to infringe our liberties." In another letter of the same date he says that the American cause had in England "many friends and well-wishers. The Dissenters are all for us, and many of the merchants and manufacturers. There seems to be even among the country gentlemen a general sense 48 IMPERIUM ET LIBERTAS of our growing importance, a disapprobation of the harsh measures with which we have been treated, and a wish that some means may be found of perfect recon- ciliation." Evidently if the Government had taken advantage of this halcyon period to drop the tea tax they would have found strong support in England. But America was quiet ; other affairs filled their minds, and the last chance passed away. There is hardly a mention of America, after 1 769, either in the Parliamentary History, or in the " Annual Register," or in the Memoirs and Letters of the period, until the attempt, by a change of method, to collect more effectively the tea-duty made the storm break upon the other side of the Atlantic in the begin- ning of 1 774. The American outburst of smouldering passion, made visible by the Boston tea riots, had an unprovoked and wanton air, and aroused a sudden answering passion among Englishmen, startled from their happy and oblivious repose. The coercive mea- sures rapidly framed and undeliberately adopted in the British Parliament still further blew up the fire in America. After this there was little calm argument on either side of the ocean about the constitutional relation between the Mother Country and the Colonists. Large phrases and wide-sweeping allegations usurped the place of argument. The Americans accused the English of long-formed designs to reduce them to slavery ; the English, with equal error and conviction, believed that the Americans had for years aimed at complete independence, and that questions of right of taxation had been a mere cover of deep and treason- able designs, or had been used by conspirators to stir up the misguided, if honest, people. Nor were these accusations without justification if each side were to THE AMERICAN REVOLUTION 49 be judged by the language of its extreme advocates. Governor Pownall, writing in the critical year 1774, said : " Men, having divided themselves into various con- tending interests on the matter, the lines of their conduct have diverged into various curves of measures. . . . To describe these in their utmost divergings one may say that one side, in the ardour of those exer- tions which they have thought necessary, have wrought themselves up to the maintaining a spirit of external government which goes in its consequences to absolute despotism. The other side, in the alarm and revulsion of their spirit against these supposed principles, have gone into a contrary extreme in actuating a spirit of internal government which must lead towards absolute sovereignty in the Colonies independent of the Govern- ment of Great Britain." So, as ever, violence of assertion called forth vio- lence of reply, and each side said more than they really meant, and believed that the other side meant even more than they said. It is interesting and in- structive to study the movements of opinion by which nations, who at bottom wish each other well, are driven into war by misunderstandings due to the nature of a situation ; and some passages may be quoted to show the temper and ideas ruling in England after the Boston outbreak. In the debates which took place in Parliament in 1774 upon the measures of coercion, the Opposition wished to enter once more into discussion of the ques- tion of taxation and of the general policy which had led up to the present crisis. Ministers, on their side, opposed retrospective discussion. As the matter now stood, they said, the question was simply, Is America D OF THE tir- -, 50 IMPERIUM ET LIBERTAS to be independent ? and if this question be decided in the negative, it merely remains to consider what steps shall be taken to enforce British authority. The chronicler of the " Annual Register" observes that the temper of the House was strongly against all retro- spect, and this enabled Ministers to confine the dis- cussion to the present misbehaviour of the Americans. " This gave them a great advantage, because since the violence of the Americans was unquestioned, it would be easy, when the inquiry was confined to that ground, to carry any proposition against them." The gulf be- tween England and America had still further widened when the Parliamentary debate was renewed at the beginning of the year 1775. It was insisted that 4 'We were reduced to the alternative of adopting the most effectual and coercive measures, or of relinquish- ing for ever all claims of dominion and sovereignty over the Colonies ; that no medium could possibly be devised which would exclude the inevitable conse- quence of either system absolutely prevailing ; for then, on the one hand, the supremacy of the British Legislature must be complete, entire, and uncon- ditional, or, on the other, the Colonies must be free and independent." It was said also that all inquiry about the right or expediency of taxation was now fruitless taxation was no longer the question ; it was only the pretence of American disobedience, and that a repeal of any one of the laws of which they com- plained would be " a renunciation of all sovereignty for ever." l The speakers of the Opposition dwelt on the evils of civil war and the dangers of foreign inter- vention, and attacked " the men and measures that had involved us in such a labyrinth of evils." In l " Annual Kegister," vol. xviii. p. 74, &c, THE AMERICAN REVOLUTION 51 reply these evils and dangers were minimised or denied ; " the evils of rebellion/' it was said, " were incident to dominion and government, and in the present instance sprung entirely from the original traitorous designs, hostile intentions, and rebellious dispositions of the Americans." 1 Many writers and speakers in England also ascribed the present trouble to the encouragement which the Americans had drawn from the speeches of men like Chatham, Burke, Barre, and other Whig leaders, and to the weakness of the Buckingham Ministry in repealing the Stamp Act in face of the violent and rebellious resistance of the Americans. The Colonists, it was said, had been taught to despise British power. A pamphleteer of 1774 attributes the "revolt of America" to the "spleen and intrigue of discarded Ministers, to the ignominious removal of our troops from a revolted Colony, actually in rebellion, but principally to the hasty and improvident repeal of the Stamp Act." Cowardice, it was thought, had in 1 766 vainly donned the mask of magnanimity. As to the American sympathisers in England the language of the king's proclamation in August 1775 did not lack directness. " There is reason to apprehend," it ran, " that such rebellion hath been much promoted and encouraged by the traitorous correspondence, counsels, and comfort of divers wicked and desperate persons within our realm." Abstract expressions like "sovereignty" and "British supremacy in North America " played at this period a great part in all the discussions. They were easily understood, in appearance though not in reality, by the "man in the street," and thus gave a great advantage 1 " Annual Register," xviii. p. 61. 52 IMPERIUM ET LIBERTAS to those who used them. Governor Johnstone said with melancholy irony, in a debate on 2nd February 1775: "The question concerning the right to tax the Colonies, though clear to those who are accustomed to think deeply on the principles of free governments, is difficult to common apprehensions. Montesquieu has observed that, in despotisms, everything ought to be made to depend on two or three ideas. As for instance, is there anything so fit to solve this dispute as the * unity of the British Empire/ * the supremacy of the legislative authority of Great Britain/ 'the omnipotence of Parliament?' Is there any man so ignorant, after having heard these sounding words, as not to compre- hend the whole of the controversy ? " And Burke, in the same debate, said that the " prevalent idea which alone can make one honest man the advocate for Ministerial measures is that the Americans attack the sovereignty of this country," whereas, said he, they were not attacking the sove- reignty, " but a certain use of it." King George III. wrote in February 1775 : "I am a friend to holding out the olive branch, yet I believe that when once vigorous measures appear to be the only means, the Colonies will submit. I shall never look to the right or to the left, but steadily pursue that track which my conscience dictates to be the right one." So spoke the king, and, although there were many, and some illustrious exceptions, there can be no doubt that he expressed the feeling of the nation. The Americans, taking up arms and resisting his Majesty's forces at Lexington and Bunker's Hill, appeared to begin the war, and this fact removed the last sympathy for their cause from the minds of many. Lord Howe, THE AMERICAN REVOLUTION 53 a type of the moderate-minded man, wrote : " The country must now fix the foundation of its stability with America by procuring a lasting obedience." The great majority of men are incapable of examin- ing any question in a judicial spirit, are consequently led to identify justice with their own interest, and are unable to imagine the feelings of those guided by a different set of ideas and interests. That England was right in the matter of taxation was as obvious to the man in the street in London as it was obvious to his fellow Anglo-Saxon in the street at Boston that England was wrong. And not only to the ordinary man in the London street was the cause of England indubitably right, but to men of far superior mind, like Dr. Johnson 1 and Gibbon the historian. In one of his letters to Mr. Holroyd, 3 1 st January 1775, Mr. Gibbon wrote : " For my own part I am more and more convinced that we have both the right and the power on our side, and that, though the effort may be accompanied by some melancholy circumstances, we are now arrived at the decisive moment of preserving or losing for ever both our trade and empire." The English were assured that they were in the right as, indeed, in one sense they were by a united Government, by high constitutional authorities like Lord Mansfield, by almost all the bishops and clergy, and by the majority of the ephemeral writers on public affairs. Almost all the addresses to king and Parlia- ment condemned the Americans ; the country gentle- men, the manufacturers, the smaller middle class, took 1 See Dr. Johnson's pamphlet, " Taxation no Tyranny," passim. 54 IMPERIUM ET LIBERTAS for the most part the same line. The Whig Opposi- tion was cut in two, many of the party supported the Government, and very few of them openly opposed the continuation of the war. In England the American cause won the sympathy of a minority among the political and professional classes. In the earlier stages of the controversy, and even, perhaps, up to the Declaration of Independence, a majority, perhaps, of the merchant class, especially in London and Bristol, were against the American policy of the Government. "You remember," said Burke, in his speech in 1780 to his Bristol constituents, "that in the beginning of this American War you were greatly divided, and a very strong body, if not the strongest, opposed itself to the madness which every art and every power were employed to render popular, in order that, the errors of the rulers might be lost in the general blindness of the nation." But as the war progressed the City of Bristol was led for a time " to distinguish itself by zeal in that fatal cause." Burke, for two or three years before 1780 could not bring himself to visit his constituents or to show them, he said, " a face that could not joy in your joys or sorrow in your sorrows." But, he added, " time at length has made us all of one opinion, and we have all opened our eyes on the true nature of the American War." While the Church of England clergy seem to have solidly supported the Government, the old Dissenting interest as naturally sympathised with the Americans, descendants so largely of men who had gone out into the wilderness for the sake of religious freedom. The new sect of Wesleyans seem, however, to have taken the dominant view. And yet, on the threshold of the war, John Wesley himself, who had travelled in THE AMERICAN REVOLUTION 55 America, drew back. He wrote, in June 1775, a curious letter to Lord North, in which he said : " I am a high churchman, the son of a high church- man, bred up from my childhood in the highest notions of passive obedience and non-resistance, and yet, in spite of all my long-rooted prejudices, I cannot avoid thinking these are oppressed people, asking for no- thing more than their legal rights . . . But, waiving this, I ask, Is it common sense to use force towards the Americans ? Whatever has been affirmed these men will not be frightened, and they will not be con- quered easily. Some of our valiant officers say, ' Two thousand men will clear America easily/ No, nor twenty thousand, be they rebels or not, nor, perhaps, treble that number. 1 They are strong, they are valiant, they are one and all enthusiasts for liberty calm, deliberate enthusiasts . . . But you are informed they are divided amongst themselves. So was poor Rehoboam informed concerning the ten tribes, so was Philip informed concerning the people of the Nether- lands. No, they are terribly united ; they think they are contending for their lives, children, and liberty." In Ireland the dominant Protestant class well understood and largely sympathised with the American cause. The commercial and political grievances of a dependent kingdom were a school of experience. In 1770 Franklin wrote: "Our part is warmly taken by the Irish in general, there being in many points a similarity in our cases." Irish troops were indeed sent to America, but not without keen opposition in the Dublin Parliament. Fitzgibbon said: "The war is 1 There was in England before the war began, and for some time after, a great under-estimate of the force necessary to subdue the Americans. Gage wrote after Bunker's Hill : " The success has cost us dear ; the trials we have had have shown the rebels are not the despicable rabble too many have supposed them to be." 56 IMPERIUM ET LIBERT AS unjust, and Ireland has no reason to be a party therein ; " and Ponsonby declared that " if we give our consent we shall take part in a war contrary to justice, to prudence, and to humanity." When the war had actually begun, it was most natural that it should be felt in England that, what- ever mistakes in policy might have been made in past years, the question was now narrowed down to the clear and great issue whether America should or should not remain part of the British Empire. After the events of 1775, Lexington, on April 19, and Bunker's Hill, on June 17, and the evacuation of Boston, even men who had been inclined to take the American view on previous occasions felt that a strik- ing proof of British power must be given before terms of conciliation could be further considered. " . . . . We were now in a position which did not afford a possibility of receding without shame, ruin, or disgrace. The contest was Empire. We must either support and establish our authority, or give up America for ever. The eyes of all Europe was upon us. The future fate of the British Empire, and of ages yet unborn, would depend upon their firmness or in- decision." l Nothing, it has been said, except a great Church, is so proud as an imperial nation, or so loath to confess itself in error. The vast majority of the English, when military operations had begun, and had during the first few months gone somewhat against the king's forces, could not but assent to the ministerial argument that " the Colonists must feel the weight of our power and the effects of our resentment until they became experi- mentally sensible of the ill consequences that attended 1 "Annual Register," vol. xix. p. 61. THE AMERICAN REVOLUTION 57 their denial of the authority of Parliament, and were brought to a thorough knowledge of their own little- ness and insignificance when under our displeasure," and that this was "the only sure and conclusive method of curing the present and of preventing future evils of the same nature." : Again the same excellent summarist of contemporary history, speaking of the English temper at the begin- ning of the year 1776, says : "The late engagements in America had in a certain degree affected both the national and military pride of the people. Many of those who had not approved of our late conduct with respect to the Colonies, thought it now too late to look back, or to inquire into past causes ; that Government must be supported at any rate ; that we must not hesitate at any expense or danger to preserve our dominions ; and that whoever was right in the beginning, the American insolence deserved chastisement at present." 2 The military operations during most of the year 1776, and until the autumn of 1777, went decidedly in favour of the British, and seemed to promise a speedy termination of the war. It became still more difficult for English minds to admit any arrangement until definite success had been accomplished. Burke said that, after " our great but most unfortunate victory at Long Island, all the mounds and banks of our con- stancy were borne down at once ; and the phrensy of the American War broke in upon us like a deluge. All men who wished for peace or retained any senti- ments of moderation were overborne or silenced." [ At this point, for a time, all criticism was hushed, 1 " Annual Register," vol. xviii. 2 Ibid., xii. 38. 3 Speech at Bristol election, 1780. 58 IMPERIUM ET LIBERT AS all opposition to the war policy broke down. The "Annual Register" observes that in the year 1777 certainly until the surrender of Burgoyne at Sara- toga the war was popular with the majority of the nation. " War is seldom unpopular in this country, and this was attended with some circumstances which seldom have accompanied any other. The high language of authority, dignity, and supremacy which had filled the mouths of many for some years, fed the vanity of those who could not easily define, or who perhaps, had never fully considered the extent of the terms or of the con- sequences which they were capable of producing ; and the flattering idea of lessening the national burdens by an American revenue, whilst it was fitted to the com- prehension of the meanest capacity, was not less effec- tive in its operation upon those of a superior class and order. To the powerful principles of national pride and avarice was added a laudable disposition to sup- port those national rights which were supposed to be invaded, and a. proper indignation and resentment at that ingratitude and insolence which were charged upon the Americans, and to which only the present troubles were attributed by those who were most active in fomenting the principles of hostility far more than they had done at the beginning of this contest." When the war had gone so far, adds the writer, " carelessness and indifference prevailed throughout the nation." One sees why this was so ; it always happens. All the arguments had been used again and again ; every one had arrived at his own conviction, one way or the other, and no one could any longer persuade any one else. "It is some time," wrote Burke, in 1777, " since I 1 "Annual Register," xx. 23 (for year 1777). THE AMERICAN REVOLUTION 59 have been clearly convinced that, in the present state of things, all opposition to any measures proposed by ministers, where the name of America appears, is vain and frivolous. You may be sure that I do not speak of my own opposition, which in all circumstances must be so, but that of men of the greatest wisdom and authority in the nation . . . Several very prudent and very well-intentioned persons were of opinion that, during the prevalence of such dispositions, all struggle rather inflamed than lessened the distemper of the public counsels. Finding such resistance to be con- sidered as factious by most within doors, and by many without, I cannot conscientiously ' support what is against my opinion, nor prudently contend with what I know is irresistible." 1 Lord Shelburne, who was both a statesman and a philosophic observer of mankind, related, in 1776, a conversation which he had had with a Wiltshire farmer, whose way of looking at the matter was, he said, a just picture of that of the majority of people. He had asked the farmer what he thought of the American War. The farmer " wished for peace, but thought the Colonies should be taxed as well as England." " Now," said Lord Shelburne, " if that man were in Parliament he would reason in exactly the same way. He would think that America should pay taxes as well as England, and that, as we had the power, we ought to employ it to enforce so evidently fair and equitable a claim, and when the measures of enforcing obedience to the laws were re- sisted and attended with great difficulty, he would probably wish for peace, but yet be tempted to go on rather than forego the object of alleviating our own burdens." 1 Letter to the Sheriff of Bristol. 60 IMPERIUM ET LIBERT AS In the summer of 1776, it must be remembered, the thirteen Colonies, driven by the necessity of more effec- tive internal administration, and in order to treat with and secure the aid of foreign Powers, declared them- selves free and independent States, abjured all allegi- ance to the British Crown, and renounced all political connection with the Mother Country. "Fatal day!" exclaims the chronicler. " Such are the unhappy con- sequences of civil contention. Such the effects that may proceed from too great a jealousy of power on the one side, or an ill-timed doubt of obedience on the other." 1 The question for Englishmen did indeed then become that of Empire. The ministerial orators in the autumn of 1776 said that the only question now was whether we should not resign the Colonies, and with them our rank in the world. "These, they said, are the great objects under the consideration of Parliament. The declaration of inde- pendency has done away with all other questions on the American subject. Taxation, legal rights, charters, and Acts of Navigation are now no more. That whirl- pool has swallowed them all up within its vortex. It was only through the strength derived from her Colonies that this nation was enabled to hold a first place among the greatest nations of Europe. Take them away and she sinks into nothing. It is only now to be determined whether without an effort we shall submit ingloriously to inevitable ruin, or whether by a vigorous exertion we retain our usual power and splendour." 2 The Declaration of Independence, adds this writer, " was a great bar to accommodation, because it added 1 "Annual Register,'' xix. 165. 2 Ibid., xx. 40. THE AMERICAN REVOLUTION 61 greatly to the alienation of the people to the Ameri- cans, their cause, and their pretensions. Ministers certainly derived thence no small degree of strength throughout the nation." One can well understand this. One can well under- stand the feeling which prompted such words as these, in a letter written by Earl Temple to his sister, Lady Chatham, in October 1777: "I am no party to the war, nor am I to the causes of it, which I think my greatest happiness, but, engaged as we are in, I think, a most just cause, I cannot but wish victory to dear, dear England. Reconciliation, founded upon the inde- pendence of America, makes me rather choose to treat with a beaten enemy ; at the same time I confess I see no promising solution any way." In the same spirit Lord Chatham, who, when the war began, had even withdrawn his son from the army, made the last speeches of his life. In that of 2Oth November 1777, he said : " The Americans contending for their rights against arbitrary exactions, I love and admire it is the struggle of free and virtuous patriots ; but contending for inde- pendency a total separation from England as an Englishman I cannot wish them success, for in a due constitutional dependency, including the ancient supre- macy of this country in regulating their commerce and navigation, consists the material happiness and pros- perity both of England and America." This great Englishman, when he conquered Canada, was in harmony with the course of Destiny. He died fighting in his noble mind against that which was no less inevitable, the loss of the American Colonies. The Declaration of Independence hushed for a time opposition in England, and rallied to the Govern- 62 IMPERIUM ET LIBERTAS ment many men who had been opposed to their American policy. On the other side, this tremendous and irretrievable step did to some extent disunite the Americans. There were among them a large minority who had sympathised in a greater or less degree with the movement for maintenance of colonial rights, but who were not at all disposed to break with the British Empire. A large number of loyalists fought on the British side, risking and losing their lives and pro- perty. Mr. Lecky finely says in his history 1 that the American loyalist minority " comprised some of the best and ablest men America has ever produced, and they were contending for an ideal which was at least as worthy as that for which Washington fought. It was the maintenance of one free, industrial, and pacific empire, comprising the whole English race, holding the richest plains of Asia in subjection, blend- ing all that was most venerable in an ancient civilisa- tion with the redundant energies of a youthful society, and likely in a few generations to outstrip every competitor and acquire an indisputable ascendency on the globe." Mr. Lecky also says that " the American Revolu- tion, like most others, was the work of an energetic minority, who succeeded in committing an undecided and fluctuating majority to courses for which they had little love, and leading them step by step to a position from which it was impossible to recede." But if in America there were men who contemplated and aimed at entire separation and independence before the war began, their number was very small indeed. The common English belief of that day, that there had 1 "History of England," vol. iv. p. 192. THE AMERICAN REVOLUTION 63 existed for years a great conspiracy aiming at inde- pendence, was as foundationless as the American allegation that the king and his Ministers were re- solved to reduce America to a " state of slavery." On this point the English were much misled by some of their worried and puzzled official agents and heated loyalist friends in America. For instance, General Gage wrote from Boston to Lord Dartmouth, the Minister, in August 1775: "The designs of the leaders of the rebellion are plain, and every day confirms the truth of what was asserted years* ago by intelligent people ; that a plan was laid in this province and adjusted with some of the same stamp in others for a total independence, whilst they abused people in England, called friends of America, as well as many in this country, with feigned professions of affection and attachment to the present state, and pretended to be aggrieved and dis- contented only on account of taxation. . . . They would still deceive and lull the Mother Country into a belief that nothing is meant against the nation, and that their quarrel is only with the Ministers ; but it is to be hoped that the nation will see through this falsehood and deceit. It matters not who holds the helm of the State ; the stroke is levelled at the British nation, on whose ruins they hope to build their so much vaunted American Empire." And in a subsequent letter he hoped that all men would now see " through all the disguise ; that this is no sudden insurrection of America, but a precon- certed scheme of rebellion hatched years ago in the Massachusetts Bay, and brought to this perfection by adherents on both sides of the Atlantic." And Gage, with feelings natural to a mortified general, attributed the first military failures to this long premeditation of 64 IMPERIUM ET LIBERTAS the Americans; for, he said, "the rebels have been prepared to execute their plan, while the Government, not apprehensive of so general a revolt, has been un- prepared to oppose it." The fact, of course, was that the Colonists, having had, fifteen years earlier, a long war in which they had taken part against the French and Indians, and being never free from Indian border raids, were not badly armed, and had sufficient train- ing to fight a defensive war against regular troops in their own wide and difficult country. But for a time most Englishmen believed in the long-prepared plot of expelling all British rule from North America, and were ready to say, like Mr. Acland in the House of Commons in October 1775: "That the Americans have been long contending for independence I am firmly persuaded." "I have not a doubt," said Lord Mansfield in December 1775, "that ever since the Peace of Paris the northern Colonies have been medi- tating a state of independence on this country." The evidence shows, however, that there was no ground for the belief in a general and long-standing conspiracy to destroy British supremacy in North America, and that by our own proceedings, due to the non-existence as yet of the true idea of relations between colonies and the metropolis, loyal subjects of the Crown were transformed into open and successful rebels. It is worth while to call some witnesses upon this point ; and first, Benjamin Franklin, in his often quoted examination before a Parliamentary Committee in 1767. Asked, "What was the temper of America towards Great Britain before the year 1763 ?" he replied : " The best in the world. They submitted willingly to the government of the Crown, and paid in all their THE AMERICAN REVOLUTION 65 courts obedience to Acts of Parliament. Numerous as the people are in the several old provinces, they cost you nothing in forts, citadels, garrisons, or armies to keep in subjection. They were governed by this country at the expense only of a little pen, ink, and paper. They were led by a thread. They had not only a respect, but an affection for Great Britain, for its laws, its customs, and its manners, and even a fond- ness for its fashions that greatly increased the com- merce. Natives of Britain were always treated with particular regard ; to be an Old England man was of itself a character of some respect, and gave a kind of rank among us." Eight years later, Franklin, in a letter to his son, dated 23rd March 1775, narrates a conversation which he had had with Lord Chatham in August 1 774 : "I assured him that having more than once tra- velled almost from one end of the Continent to the other, and kept a great variety of company, eating, drinking, and conversing with them freely, I never heard in any conversation, from any person, drunk or sober, the least expression of a wish for a separation, or a hint that such a thing would be advantageous to America." * Another witness of the events of the time, John Jay, said, in a letter written in his old age : " During the course of my life, and until after the second petition of Congress in 1775, I never did hear an American of any class, or of any description, express a wish for the independence of the Colonies. It has always been, and is still my opinion and belief, that our country was prompted and impelled to independ- ence by necessity, not by choice. They who know how we were then circumstanced, know from whence that necessity proceeded." 2 1 "Franklin's Works," vol. i. p. 278. 2 " Life of John Jay," vol. ii. p. 2 1 2. E 68 IMPERIUM ET LIBERT AS November 1775. He had been Governor of Pennsyl- vania, and had left Philadelphia in the preceding July. Q. Are you personally acquainted with many of the members of the Congress ? A. I am acquainted with almost all the members of the Congress. Q. Do you think they levy and carry on this war for the purpose of establishing an independent empire ? A. I think they do not carry on this war for inde- pendency. I never heard them breathe sentiments of that nature. Q. For what purpose do you believe they have taken up arms ? A. In defence of their liberties. 1 The evidence supports that which was said in the address of the first Congress to the people of Great Britain. " You have been told that we are seditious, impatient of government, and desirous of independence. Be assured that these are not facts but calumnies." But those who commented critically in England upon this declaration said, and said with truth : " The Congress have declared in general terms that they did not aim at independence. But if we examine their particular claims, and compare them with this general assertion, we shall find that the dependence which they would acknowledge will virtually amount to little more than a nominal obedience to whoever sits upon the throne, and very nearly a renunciation of the jurisdic- tion of the British Legislature. ... In a word, the question is no longer confined to any particular exer- " Parliamentary History," November 1775. THE AMERICAN REVOLUTION 69 cise of the authority of Great Britain, but extended to the very being of the sovereignty itself." 1 Here, indeed, was the very heart of the question. By denying, one after another, the legitimacy of par- ticular acts done by the British Parliament the Ameri- cans, who certainly started with no such theory, had virtually been driven to adopt very nearly the view of the practical relations of a self-governing colony to the Mother Country which all Englishmen now hold. It was then beyond the imagination of the time, and in conflict with the whole political and commercial colonial theory. In all matters of taxation, customs as well as internal, and in all legislation regarding her internal affairs, the modern colony is really, if not in absolute theory, sovereign, subject to a veto by the Im- perial Government which is very rarely used. The modern colony is a distinct State under the same Crown. But not then, and not till long afterwards, was it perceived that this free and loose relation might be consistent with a permanent connection of the countries. " I doubt," wrote Governor Hutchinson in 1 769, " whether it is possible to project a system of government in which a colony 3000 miles distant from the parent State shall enjoy all the liberty of the parent State." Most Englishmen then, and for long afterwards, were of the same opinion. Even then, however, a few clear-sighted men saw that there was no other solution of the question except either this, or representation of America in the Imperial Parliament. One of these men who saw the logical end of the movement was the leading Virginian, Thomas Jefferson. He says, in his Memoirs, that he drafted 1 Summary of Debates of 1775-76 in "Annual Register," vol. xix. p. 61. 66 IMPERIUM ET LIBERTAS A chief American leader of the movement, John Adams, wrote : "That there existed a general desire of independ- ence of the Crown in any part of America before the Revolution is as far from the truth as the zenith from the medium. For my own part there was not a moment during the Revolution when I would not have given everything I possessed for a restoration to the state of things before the contest began, pro- vided we could have had a sufficient security for its continuance." And Thomas Jefferson said : " What eastward of New York might have been the disposition towards England before the commencement of hostilities I know not, before that I never had heard a whisper of a disposition to separate from Great Britain, and after that its possibility was contemplated with affliction by all/' James Otis, in a pamphlet written in 1766, said of his fellow-colonists : "Their loyalty has been abundantly proved, espe- cially in the late war. Their affection and reverence for their Mother Country is unquestionable." George Washington, a gentleman of unquestioned honour and veracity, in a letter written in 1 7 74 to an English officer, Captain Mackenzie, said : " Although you are taught to believe that the people of Massachusetts are rebellious, setting up for independency and what not, give me leave, my good friend, to tell you that you are abused, grossly abused. This I advance with a degree of confidence and bold- ness which may claim your belief, having better oppor- tunities of knowing the real sentiments of the people you are among, from the leaders of them, in opposition THE AMERICAN REVOLUTION 67 to the present measures of the administration, than you have from those whose business it is not to disclose truths but to misrepresent facts, in order to justify to the world as much as possible their own conduct. Give me leave to add, and I think I can announce it as a fact, that it is not the wish or interest of that government, or any other upon this continent, separ- ately or collectively, to set up for independence ; but this you may at the same time rely on, that none of them will ever submit to the loss of their valuable privileges, which are essential to the happiness of every free state, and without which life, liberty, and property are rendered totally insecure." In May 1775 Washington met a clergyman, the Rev. Jonathan Boucher, in the middle of the Potomac River. As their boats crossed, Mr. Boucher warned Washington that he was pursuing a course which would lead to complete separation from England. Washington said : " If you ever hear of my joining in any such measures you have my leave to set me down for everything wicked." ' Nothing ripens ideas so quickly as war. Thomas Paine said that when he first arrived in America in 1774 he found an "obstinate attachment" to Britain : " it was at that time a kind of treason to speak against it." " Independence was a doctrine scarce and rare even towards the conclusion of the year I775-" 3 To the same effect were the replies made by Richard Penn in his examination before the House of Lords in 1 Sparke's " Life of Washington," vol. i. p. 131. 2 Notes and Queries, Eng. Series, 3 and 5 3 Moncure Conway's " Life of Thomas Paine," vol. i. p. 56, &c. Paine did his best to shake the obstinate attachment by his vigorous pamphlet, " Common Sense," published in the spring of 1776. It had a huge sale, and produced much effect. 70 IMPERIUM ET LIBERTAS instructions to be given to the delegates sent by his colony to the Congress of 1774. They were intended to form the basis of a manifesto by the Congress : " In this I took the ground that from the beginning I had thought the only one orthodox or tenable, which was, that the relation between Great Britain and those Colonies was exactly the same as that of England and Scotland after the accession of James and until after the Union, and the same as her present relation with Hanover, having the same executive chief, but no other necessary political connection. ... In this doctrine, however, I had never been able to get any one to agree with me but Mr. Wythe. He concurred in it from the very first dawn of the question : what was the political relation between us and England ? Our other patriots, Eandolph, the Lees, Nicholas, Pendleton, stopped at the half-way house of John Dickenson, who admitted that England had a right to regulate our commerce, and to lay duties on it for the purposes of revolution, but not of raising revenue/' Jefferson's view was that the original Colonists had founded new and distinct States in America, subject to the British Crown, but not to the British Legislature. Accordingly his draft instructions contained such passages as these : " One free and independent Legislature hereby (by the Act suspending the New York Assembly) takes upon itself to suspend the powers of another, free and independent as itself. . . . Not only the principles of common-sense, but the common feelings of human nature must be surrendered up, before his Majesty's subjects here can be persuaded to believe that they hold their political existence at the will of a British Parliament." And Jefferson proposed that the king should be THE AMERICAN REVOLUTION 71 thus addressed, rather rhetorically, in the peroration to this document : " No longer persevere in sacrificing the right of one part of the Empire to the inordinate desires of another, but deal out to all equal and impartial right. Let no Act be passed by any one Legislature which may infringe on the rights and liberties of another. This is the important post in which fortune has placed you, holding the balance of a great, if a well-poised, Empire." Even at that late date in the quarrel Jefferson could not obtain acceptance for so large a claim from his American colleagues. The actual address adopted by Congress was couched in much more cautious terms. John Adams, in his diary, has left a lively and amusing account of the perplexity of the American leaders in framing their manifesto. One is not often admitted so frankly into the secret of the manufac- ture of a public document. The Congress of 1774 appointed a committee to draw up a declaration of rights. One difficult question upon the threshold of this proceeding was, " Whether we should recur to the Law of Nature as well as to the British Consti- tution and our American charters and grants." Mr. Galloway and Mr. Duane were (like true Englishmen) for excluding the Law of Nature ; " but," says Adams, " I was very strenuous for retaining and insisting on it, as a resource to which we might be driven by Parliament much sooner than we were aware." John Adams evidently perceived the weakness of the case if it depended upon documents and legal principles as hitherto recognised, and wished to hold in reserve as a final argument the right of every nation to govern 72 IMPERIUM ET LIBERTAS itself, according to that mysterious code, the Law of Nature. He goes on to say: "A still more difficult point was, ' What authority we should concede to Parliament ' ? " After long discussions a sub-com- mittee was appointed to draft the document. " After several days' deliberations we agreed upon all the articles excepting one, and that was the authority of Parliament, which was indeed the essence of the whole controversy. Some were for a flat denial of all authority, others for denying the power of taxation only; some for denying internal, and admitting ex- ternal taxation. After a multitude of motions had been made, discussed, negatived, it seemed as if we should never agree upon anything." At this critical point how well one can imagine the scene Mr. John Eoutledge, of Carolina, " addressing himself to me, was pleased to say, 'Adams, we must agree upon something ; you appear to be as familiar with the subject as any of us ; and I like your expressions " The necessity of the case" and "Excluding all ideas of taxation, external and internal " ; I have a great opinion of that same idea of ' necessity of the case/ and I am determined against all taxation for revenue. Come, take the pen, and see if you can't produce some- thing that will unite us.' ' Thereupon Adams took a sheet of paper and drew up an article, which ran thus : " From the necessity of the case, and a regard to the mutual interest of the countries, we cheerfully consent to the operation of such Acts of the British Parliament as are bond fide restrained to the regu- lation of our external commerce, for the purpose of securing the commercial advantages of the whole Empire to the Mother Country and the commercial THE AMERICAN REVOLUTION 73 benefits of its respective members, excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America without their consent." " When this proclamation was read," says John Adams, " I believe not one of the Committee was fully satisfied with it, but they all soon acknowledged that there was no hope of hitting on anything in which we could all agree with more satisfaction." And so the article stood, and was unaltered either in the main Committee or in Congress. The whole proceed- ing, with its shyness of sweeping general principle, is characteristically English. One can understand the feelings of the French gentleman who came to fight for the Americans, and wrote home in disgust that there was more enthusiasm for La Liberte in a single cafe* at Paris than there was in the whole of America. That almost too logical-minded American, Benjamin Franklin, saw early in the dispute that, as ideas then stood, it was impossible to find a via media for the case of his countrymen. He states his view thus, in a letter written to America in the spring of 1770 from London : " That the Colonies originally were constituted distinct States, and intended to be continued thus, is clear to me from a thorough consideration of their original charters and the whole conduct of the Crown and the nation towards them until the Restoration. Since that period the Parliament has usurped an authority of making laws for them which before it had not. We have for some time submitted to their usurpation, partly through ignorance and partly through our weakness and inability to contend. 74 IMPERIUM ET LIBERTAS " In the meantime, I could wish that such expres- sions as the ' supreme authority of Parliament,' * the subordinacy of our Assemblies to Parliament,' and the like, which in reality mean nothing if our Assem- blies, with the king, have a true legislative authority I say I could wish that such expressions were no more seen in our public pieces. They are too strong for compliment, and tend to confirm a claim of subjects in one part of the king's dominions to be sovereigns over their fellow- subjects in another part of his domin- ions, when in truth they have no such right, and their claim is founded only in usurpation, the several States having equal rights and liberties, and being only con- nected, as England and Scotland were before the Union, by having one common sovereign, the king." This kind of doctrine, he adds, "the Lords and Commons over here would deem little less than treason against what they think their share of sovereignty over the Colonies." Again, in a letter to a French friend, Mr. Dubourg, dated 2nd October 1770, Franklin says : " We of the Colonies have never insisted that we ought to be exempt from contributing to the common expenses necessary to support the prosperity of the Empire. We only assert that, having Parliaments of our own, and not having representatives in that of Great Britain, our Parliaments are the only judges of what we can and what we ought to contribute in this case, and that the English Parliament has no right to take our money without our consent. In fact, the British Empire is not a single State ; it comprehends many. And though the Parliament of Great Britain has arrogated to itself power of taxing the Colonies, it has no more right to do so than it has to tax Hanover. We have the same king, but not the same legislature." THE AMERICAN REVOLUTION 75 Here Franklin touched the real issue. The claim of the British Parliament rested on the idea that the British Empire was one State, not an union of many. We have seen that George Grenville's last advice to George III. was to be persuaded by no man to let a distinction be drawn between his British and American dominions. Four years later Franklin published his view in the pamphlet which he wrote defending his conduct in the matter of the Hutchinson letters. He argued that when the first Puritan settlers went to America they did not carry with them the statutes already existing, because if so, they would have been subject to that very ecclesiastical law in order to escape which they emigrated ; but that they took with them, " by compact," their allegiance to the Crown and a natural legislative power for making for themselves, with the king's assent, a new body of laws. " Hence, they became distinct States under the same prince, united as Ireland is to the Grown, but not to the Realm, of England, and governed each by its own laws, though with the same sovereign, and having each the right of granting its own money to that sovereign." "At the same time," he added, "I considered the king's supreme authority over all the Colonies as of the greatest importance to them, affording a dernier ressort for settling all their disputes, a means of pre- serving peace among them with each other, and a centre in which their common force might be united against a common enemy." * Or, as he concisely expressed his view in a letter of a later date : " From a long and thorough consideration of the subject, I am indeed of opinion that the Parlia- 1 " Franklin's Works," vol. iv. p. 407. 76 IMPERIUM ET LIBERT AS merit had no right to make any law whatsoever binding on the Colonies; that the King, and not the King, Lords, and Commons collectively, is their sovereign ; and that the King, with their respective Parliaments, is their only legislator." These views were irreconcilable with the reigning English doctrine that the Colonies were an integral part of the realm, and that in one realm there could be but one sovereign legislature. To Englishmen, immersed in the old colonial theory, there seemed to be no substantial difference between Franklin's con- ception and the complete independence of the Colonies. Lord Mansfield, commenting in the House of Lords (7th February 1775) on Franklin's pamphlet, said : " One of the most able American writers, after the fullest and clearest investigation of the subject, at last confesses that no medium can possibly be devised which will exclude the inevitable consequence of either system absolutely prevailing; for, take it upon which ground you will, the supremacy of the British Legislature must be complete, entire, and uncon- ditional, or, on the other hand, the Colonies must be free and independent." A Captain Hervey, speaking in the House of Com- mons in 1775, puts thus the dilemma which was puzzling honest Englishmen : " Either the legislative power of a kingdom has authority over all its domi- nions, or it has none over any part of them." Or, as King George III. concisely put it : " We must either master them (the Colonists) or totally leave them to themselves and treat them as aliens. 1 Most Americans, fully sharing in the Anglo-Saxon veneration for precedent, felt bound to accept such 1 "Correspondence George III.," vol. i. p. 216 (Nov. 1774). THE AMERICAN REVOLUTION 77 exercises of power in America by the British Legis- lature as had been allowed for many years to pass unresisted. This much embarrassed their logical position, because they could not give a sound reply to such questions as, " What difference is there in principle between port duties and internal taxation, or between Acts regulating American manufactures, and Acts providing for the lodging of troops ? " " How can it be that a supreme Legislature has power to do some things and not others ? " Franklin thought that the only tenable position was to treat such pre- vious actions on the part of the British Legislature as " usurpations " affording no precedent. " In the beginning it was not so." l Franklin's view for a long time was that a solution might be found in the representation of America in the British Parliament. But a necessary step pre- cedent to this legislative union was, he thought, that Great Britain should recognise the existing inde- pendence for all local affairs of the Americans. He wrote as follows to Lord Kames on nth April 1769 : " It becomes a matter of great importance that certain ideas should be formed on solid principles both in Britain and America of the true political relation between them, and the mutual duties be- longing to that relation. ... I am fully persuaded 1 Franklin's contention that previous undoubted acts of authority on the part of the British Parliament with regard to America were " usurpations," may be compared with the assertions made by the English Reformers, that a long series of previous acts of authority in England by the See of Rome were usurpations. In both cases the invention was necessary in order to maintain the new claim of freedom without injuring the respect to precedent. It was (like the alleged abdication of James II. in 1688), a political fiction, used to surmount an otherwise insurmountable difficulty. In many ways the breach of the American Colonies with the British Empire may be profitably compared with the breach between the Pro- vinces of Canterbury and York and the Imperial See of Rome. 78 IMPERIUM ET LIBERTAS with you that a consolidating union by a fair and equal representation of all parts of the Empire in Parliament is the only firm basis on which its political grandeur or prosperity can be founded. Ireland once wished it, but now rejects it. The time has been when the Colonies might have been pleased with it; they are now indifferent about it, and, if it is much longer delayed, they will refuse it. But the pride of this people cannot bear the thought of it, and therefore it will be delayed. Every man in England seems to consider himself as a piece of a sovereign over America ; seems to jostle himself into the throne with the king ; and talks of our subjects in the Colonies. 1 The Parlia- ment cannot well and wisely make laws suited to the Colonies without being properly and truly informed of their circumstances, abilities, temper, &c. This it cannot be without representatives from thence ; and yet it is fond of this power, and averse to the only means of acquiring the necessary knowledge for exercising it; which is desiring to be omnipotent without being omniscient." 2 In the same year, 1767, Governor Pownall, writing to Franklin, mentioned an objection which was made to the plan, a favourite one with himself, of American representation in the Imperial Parliament, viz., that in that case there must be given to the Americans equal trade and manufacturing advantages. In that case the profits of trade and commerce might go to America, and consequently "the balance of the power of Government, although still within the realm, will be locally transferred from Great Britain to the Colonies, 1 In another letter Franklin says : " Nothing is more common here than to talk of the ' sovereignty of Parliament,' and the ' sovereignty of the nation ' over the Colonies." And again : " This country pretends to be collectively our sovereign." 2 " Franklin's Works," vol. vii. p. 328. THE AMERICAN REVOLUTION 79 which consequence, however it may suit a citizen of the world, must be folly and madness to a Briton." Franklin replied, on the new principle as yet un- derstood by few but Adam Smith, whose great work had not yet appeared, that, if the Colonies were naturally fitter for a particular trade than Great Britain, they ought to have it, and Britain should apply itself to that for which it is more fit. "The whole Empire is a gainer." He went on to say : "The government cannot long be retained without an union. Which is best (supposing your case) to have a total separation or a change of the seat of government ? " In a letter to his son, I3th March 1768, Franklin said that he could not see clearly an intelligible via media between the positions that " Parliament has a power to make all laws for us, and that Parliament has power to make no laws," and he thought that the arguments for the latter position were the more numerous and weighty. " Supposing that doctrine established, the Colonies would then be so many separate States, only subject to the same king, as England and Scotland were before the Union. And then the question would be whether an union like that with Scotland would or would not be advantageous to the whole. I should have no doubt of the affirmative, being fully persuaded that it would be best for the whole, and that though particular parts might find particular disadvantages in it, they would find greater advantages in the security arising to every part from the increased strength of the whole. But such union is not likely to take place while the nature of our present relation is so 1 " Franklin's Works," vol. vii. p. 374. 8o IMPERIUM ET LIBERTAS little understood on both sides of the water, and sentiments concerning it remain so widely different." Some English statesmen at this time were not in- disposed towards the idea of American representation in Parliament, but they looked at it from a different point of view. To Franklin such an arrangement appeared in the light of an union between previously independent legislatures of distinct States, exactly like that between England and Scotland. To Englishmen it appeared as an extension of representation to parts of the realm not yet directly represented in Parlia- ment a Reform Bill. The important practical con- sequence from Franklin's view was that until such union the British Legislature had no right to tax or legislate for Americans. According to the English view it had the right. The following observations, in a letter written on i7th July 1768 by Mr. George Grenville to Governor Pownall, show this view of the matter : "You are no stranger to the declarations I re- peatedly made in the House at the time when the Repeal of the Stamp Act was agitated, that if an application to Parliament to grant America a com- petent number of representatives to sit in the House of Commons were properly made by the Colonies to Parliament, in the same manner as those which were made from Chester and Durham and probably from Wales, it would in my opinion be entitled to the most serious and favourable consideration. I continue still in the same sentiments, but I am much afraid that neither the people of Great Britain nor those of America are sufficiently apprised of the danger which threatens both from the present state of things to 1 " Franklin's Works," vol. vii. p. 390. THE AMERICAN REVOLUTION 81 adopt a measure to which both one and the other seems to be indisposed. Some of the Colonies, in their address to the Crown against some late Acts of Parliament, have expressly disclaimed it, and I do not think it has been kindly received in Great Britain. . . . The fullest conviction of its necessity, and the hearty concurrence both of the Government and the people are indispensably necessary to set so great a machine in motion as that of uniting all the outlying parts of the British dominions in one system. As to what personally relates to me, I have done my duty by endeavouring to assert the sovereignty of the king and Parliament of Great Britain over all the dominions belonging to the Crown, and to make all the subjects of the kingdom contribute to the public burdens for their own defence, according to their abilities and situation." l On Franklin's theory an Union Act, according to the Scottish precedent, would have had to be passed by each Assembly in America, as well as by the British Parliament. According to Grenville all that was neces- sary was an Act passed in London. Apart from this divergence, it does not seem likely that the great questions at issue would have been successfully solved by the presence of a small number of colonial representatives in the British House of Commons. Burke considered the scheme a wild one, a scheme of " visionary union," and Pownall, in his book on the British Colonies, analysed some very strong objections felt on both sides of the Altantic to the plan of which he himself was so strong an advocate. The British, he says, objected to the scheme as unnecessary, because the power of Parliament already extended to all cases ; as inexpedient, because union would extend 1 "Grenville Correspondence," vol. iv. p. 317. F 82 IMPERIUM ET LIBERT AS trade privileges to the Colonies, and as dangerous, because it might lead to the eventual removal of the seat of Empire to America. The Americans also thought that legislative union would be unnecessary, inexpedient, and dangerous because (i) they had already sufficient legislatures of their own ; (2) if the Colonies were so united to England they would share the burden of British taxes and debt ; (3) representatives in England would be too far from their constituents, and the "will of the Colonies would therefore be transferred out of their power and involved in that of a majority in which the proportion of their representa- tives would hold no balance." There was a good deal to be said both for the American and the British third objection. On the whole it seems unlikely that when two countries are so far apart as England and America, a single legislative assembly can be constituted from both to control all the affairs, domestic and foreign, of the whole Empire. This does not affect the ques- tion, yet unsolved, whether it would not be possible to form a distinct federal legislature and administra- tion, above the heads of the local legislatures, both British and colonial, to deal with a specified class of affairs common to the whole Empire, such as foreign and commercial policy, naval and military affairs, and imperial finance. But this system, even now, is contemplated as possible by few ; in the eighteenth century it was beyond the reach of the wildest political speculation. It is, perhaps, like a shore approached by a ship. Now some on the masthead first see it dimly; an hour ago no one on the ship could see it at all. It is worth while, before ending with Franklin, to THE AMERICAN REVOLUTION 83 contrast his views with those of the Englishmen most favourable to the American cause. Burke, in his magnificent letter to the Sheriff of Bristol in 1777, said : "I am charged with being an 'American/ If warm affection towards those over whom I claim any share of authority be a crime, I am guilty of this charge. But I do assure you that if any one man lived more zealous than another for the supremacy of Parliament and the rights of this imperial crown, it was myself." He went on to say : " When I first came into a public trust I found your Parliament in possession of an unlimited legis- lative power over the Colonies. I could not open the statute-book without seeing the actual exercise of it, more or less, in all cases whatsoever. This possession passed with me for a title. It does so in all human affairs. No man examines into the defects of his title to his paternal estate, or to his established government. " Indeed, common-sense taught me that a legislative authority, not actually limited by the express terms of its foundation or by its own subsequent acts, cannot have its powers parcelled out by argumentative dis- tinctions, so as to say that here they can, and there they cannot bind. Nobody was so obliging as to produce to me any record of such distinctions, by compact or otherwise, either at the successive forma- tion of the several Colonies, or during the existence of any of them." Burke held that this complete, undivided, and indivisible sovereignty existed, and that occasions for its exercise in the interest of the " peace and union of the Colonies amongst themselves, as well as for their perfect harmony with Great Britain " might well 84 IMPERIUM ET LIBERTAS arise. But he thought that, as in many other cases, there should be the " greatest reserve in its applica- tion, particularly in those delicate points, in which the feelings of mankind are the most irritable." Burke illustrated his position by the instance of the royal veto upon legislation, the exercise of which, he said, " is wisely forborne." " Its repose may be the preserva- tion of its existence, and its existence may be the means of saving the Constitution itself, on an occasion worthy of bringing it forth." Lord Chatham's intellectual vision was less clear and strong than that of Burke, but he took much the same line. The Americans, he said in 1770, " must be subordinate in all laws relating to trade and navigation especially. This is the Mother Country they are the children ; they must obey and we pre- scribe. It is necessary, for in these cases between two countries so circumstanced as these two are K there must be something more than connection, there must be subordination, there must be obedience, there must be dependence." Very few Englishmen would have questioned in 1770 the doctrine so laid down by Lord Chatham. But, in Franklin's opinion, the Navigation Laws were no more properly applicable to the Colonies than laws passed by the English Parliament before the Union were applicable to the kingdom of Scotland. They were but usurpations erroneously acquiesced in. In 1770 most Americans swayed by tradition would still have accepted the view of Lord Chatham rather than that of Franklin, but they were beginning unconsciously to move towards the position of the latter, driven by the logic of their reasons against taxation and other recent legislative encroachments of the British Parliament, THE AMERICAN REVOLUTION 85 and stimulated by the practical inconvenience due to the commercial system. In spite of all drawbacks Franklin thought, as late as 1773, that the existing union between the countries was of advantage to both, and might long, if not for ever, continue if England would but abate her pride and temper her policy, and if the Colonists would be patient with the infirmities of their "aged parent" while asserting their privileges and declaring that they intended at the proper time to vindicate them. " We wish it, as we may endeavour it, but God will order it as to His wisdom shall seem most suitable." l It was not to be. The divergence between the British idea and the American idea of the relations between Great Britain and the Colonies was too great. Even if, before 1775, the obnoxious tax upon tea had been repealed, there is not much reason to think that the collision could have been permanently averted. The question of the tea-tax was the most immediate cause, but the conflict, ultimately settled by the sword, was inherent in the whole situation. Two opposite and inconsistent ideas were in the field, that of Imperial Dominion as it was then understood in England, and that of Colonial Freedom as it was then understood in America. The contradiction could only be clearly understood by the few men who at once had experience of the ideas regnant on both sides of the Atlantic, and had minds with which to think. One of these men was Sir Francis Bernard, who was Governor of Massachusetts Bay in the years which immediately preceded and followed the momentous Stamp Act, that first match which set fire to the heaped up 1 Letter of July 7, 1773 : " Works," vol. iv. 86 IMPERIUM ET LIBERT AS materials for a conflagration. He said, in a letter written to a friend in England in 1765: " It is my opinion that all the political evils in America rise from the want of ascertaining the relation between Great Britain and America, so very repugnant and contradictory to each other. In Britain the American Governments are considered as corporations empowered to make bye-laws, existing only during the pleasure of Parliament, who hath never yet done anything to confirm their establishments, and hath at any time a power to dissolve them. In America they claim to be perfect States, no otherwise de- pendent upon Great Britain than by having the same king ; which, having complete legislatures within them- selves, are no way subject to Great Britain, which, in such instances as it has heretofore exercised a legis- lative power, has usurped it." And again he wrote : "The patchwork government of America will last no longer. The necessity of a parliamentary establish- ment of the Governments of America upon fixed constitutional principles is brought on with a pre- cipitation which could not have been foreseen but a year ago, and is become more urgent by the very incidents which make it more difficult." Sir Francis Bernard, while he was a Governor, could not be a public advocate of his opinions. But he wrote a paper called " Principles of Law and Polity applied to the Government of the British Colonies in America," in 1764, and sent it to a few influential persons in England, who probably put it into the drawers of their respective writing-tables and let it sleep there. At a later time it was published as a pamphlet. Bernard's idea was that an Act of Parlia- THE AMERICAN REVOLUTION 87 ment should be passed regulating the whole constitu- tional position, that the Americans should be given representatives in the Imperial Parliament, that the Colonies in America should be consolidated and divided up into a smaller number of sufficiently large provinces, each with a Government and Legislature of its own, fully recognised as such, for the conduct of all domestic affairs. The position was equally clearly seen by Governor Pownall, who had the same experience of both sides of the Atlantic and power of observing and reasoning as Bernard. " Parliament," he said, writing in I768, 1 "has by a solemn Act declared that it hath a right to make laws which shall be binding upon the people of the Colonies, subjects of Great Britain, in all cases whatsoever, while the Colonists say, in all cases which can consist with the fundamental rules of the Constitu- tion, by which limitation they except the case of taxation where there is not representation." And he adds : " When contrary propositions are alternately brought forward by the representatives of two peoples as the avowed principles of their respective constituents ; when an inferior government, which invariably ac- knowledges its dependence on a superior and supreme government, thinks it hath a right to call into question some exertions of power in that government by rules which limit the extent of the power of that government, it is absolutely necessary either to decide such ques- tions or to give such explanations of the matter that it may cease to be a question, for so long as it continues in doubt the parties will alternately charge each other with arbitrary principles and a spirit of sedition, with tyranny and with rebellion." 1 In his book on the " British Colonies." 88 IMPERIUM ET LIBERT AS Pownall poses as the question at issue : " How far the Colonies are to be governed by the rigour of external principles, by the supreme superin- tending power of the Mother Country ; how far by the rigour of internal principles, of their own peculiar body politic. And what ought to be the mode of administration by which they are to be governed in their legislative, executive, judicial, and commercial departments, in the conduct of their money and re- venues, in their power of making peace and war." In short, the whole problem of the relation of a colony to the Mother Country, in such a way as to reconcile the theoretic claim of the Imperial Parlia- ment to supremacy with the practical autonomy of the Colonies, which has since then been slowly worked out, was presented for immediate solution to a genera- tion insufficiently equipped by experience or reflection to solve it. Pownall himself, who had lived in America as well as in England, and studied history, and thought independently, did strike upon the true solution. He held that a colony was sovereign as to its internal affairs, and those only. " It is, so far as respects its own jurisdiction within its own community, national though not independent. It cannot be independent because, so far as it is a part of the whole Empire of Great Britain, it is subordinate." Colonists, he main- tained, had a right to political liberty " as far as is consistent with the vital unity, efficiency, and solus suprema of the imperium of the sovereign State." They had a right to enjoy within the limits of their internal affairs " a free government of the like rights, jurisdictions, and pre-eminences as they did enjoy within the State from whence the colony emigrated. THE AMERICAN REVOLUTION 89 They have the right to enjoy the like power of reason- ing and will in a similar legislature ; a like judicature, and like executive powers so far as respects their inte- rior rights, within the bounds of their corporation, as the Government of the Mother Country hath within its realm. In short, the colony has a right, as a politically free being, to all those internal powers which are essential to its being a free agent." All outside this sphere belonged, he thought, to the sovereign power of the Mother Country, which could also, in the last resort, intervene in the domestic affairs of a colony. The British Government was supreme except in so far as it was limited by its own creation of free political communities, and the Colonies within their own sphere were sovereign or free, except to act in a way opposed to their due subordination to the imperial power. All this is now dogma universally accepted, but then was apparent to very few. We now believe that the Im- perial Parliament should reign but not govern, should retain and hold in reserve the supreme sovereign power in all matters, internal as well as external, even in taxa- tion, but should never (or except in the rarest emergen- cies) exercise it with regard to the internal affairs of a self-governing colony. This idea, this true way of recon- ciling imperium with libertas, then presented itself only to a few superior minds like that of Edmund Burke, who, because he could see, could also foresee. To the vast majority of minds this conception was then as impossible as the modern conception, one very similar in its nature, of the relations between the royal and popular power, was to minds in the reign of Charles I. But just as there were theories clear-cut, though not fulfilled by time, in the minds of a few men like 90 IMPERIUM ET LIBERTAS Strafford on the one side and Henry Vane on the other in the seventeenth century, so in the eighteenth there were clear-cut theories in the minds of the few like George Grenville on the one side and Franklin on the other. By the use of abstractions, used as flags, such as the words " sovereignty" and "liberty," the misty- minded many were rallied by the clear-minded few to the sides whereto their surroundings, interests, preju- dices, and proclivities naturally swayed them. " Men," said Napoleon, " are led like sheep by bell-wethers." Assertion of authority led to resistance, resistance to the further assertion of authority, passion kindled passion, pride resentment, and the muskets went off, as it were, by themselves. In studying a great event of this kind one is brought to see the shallowness of blaming too much individual statesmen or parties. One sees that the links of the chain are wrought by men on both sides, who firmly believe in the justice of their cause, and are acting in what seems to them to be the discharge of their duty. It is because we see things now by the light of experience of the results of their action that they seem to us to be indubitably in the wrong or in the right. Here and there one man makes a better forecast of the future than the rest, but he is powerless, precisely because he is ahead of his generation, and therefore cannot move the governing force of public opinion, controlled, as it ever is, by the " Spirit of the Age." Men seem to be but instruments of that power known to some as Destiny, to others as the Will of God. Strafford is no more morally to blame for aspiring to emulate the policy of Kichelieu, whereby France had risen to so high a position, than Hampden is to blame for resisting the ship-tax. THE AMERICAN REVOLUTION 91 George III. was acting as sincerely and honestly in endeavouring to maintain, as he understood it, British supremacy, as George Washington in defending the liberties of America. The result of the conflict of doctrines, motives, passions, and forces, was on the one side the birth of the American Republic, on the other the rise of those principles upon which now stands the British Colonial Empire. PART II CANADA PART II CANADA CHAPTER I PERIOD 1763 TO 1840 OF CANADIAN HISTORY WHEN the British Government acknowledged the independence of the United States at the Treaty of Versailles in 1783, the Colonial Empire, as distin- guished from the East India possessions, or at least all of it which seemed valuable and glorious, was no more. Australia and New Zealand had not yet been born, those small fragments of South Africa to which Euro- peans had penetrated belonged to Holland and Portu- gal. Jamaica and other West Indian islands, the unhealthy slave-trading settlements on the west coast of Africa, and the barren wastes of Canada with a French population of about a hundred thousand at one end of it, were but small consolation for the loss of thirteen Colonies with three millions of people. " The separa- tion," said Flood, the Irish orator, "had swept away most of our glory and our territory, forty thousand lives, and a hundred millions of treasure." The English people fell into a kind of disgust with colonial matters. They were attentive to the development and administration of the Indian Empire, but for the next half-century no colonial affairs, except in connection with the slave question, attracted much attention. 95 96 IMPERIUM ET LIBERTAS The line of history which connects the colonial affairs of the eighteenth century with the modern Empire is the history of Canada. In Canada two great solutions were slowly worked out : ( i ) how self-government, so far as relates to internal affairs, as full and free as that existing in Great Britain, could be granted to colonies without severance of the bond uniting them to the Empire ; (2) how populations too much divided by race or extent of territory to manage all their affairs in a single legislative assembly could be combined in a federal bond for certain common purposes, while leaving sufficient autonomy to the several provinces. To show this, it is necessary to give a summary account of the constitutional history of Canada since the annexation. It is not so well known as it should be to most Englishmen. By the Treaty of Paris, 1 763, France ceded to Eng- land already mistress of Newfoundland and Nova Scotia the provinces of Canada, Cape Breton, St. John's Island, and other islands along the coast line. The French Canadians, then numbering about 65,000 persons, were by the Treaty secured in the possession of their property and the free exercise of their religion. It was, however, at first the intention of the English Government to anglicise Canada as much as possible, and, for one thing, to introduce the whole English law. This design was abandoned when American dis- content came to a head, because it was thought still more desirable to secure the loyalty of French Cana- dians. By an Act passed in the critical year, 1 7 74, the French law was restored in all matters relating to pro- perty, criminal law remaining English. The same Act instituted an Administrative Council for the province of Quebec. Its fiscal power was limited to raising CANADA 97 funds for local or municipal purposes, the British Parliament expressly reserving all rights of levying export and import duties. The Act also recognised the Roman Catholic religion in the province much to the disgust of the Puritan New Englanders and pro- vided that the Catholic clergy should continue to re- ceive tithes and other dues. At the close of the American War of Independence many of the loyalists who had during it taken part against their fellow-Colonists, were anxious to leave the States, where they were very badly treated, though not to leave America. A public grant of ,4,000,000 was therefore voted for their assistance, and land provided for them in the country between the Ottawa River, the St. Lawrence, and the Lakes. It was estimated that 20,000 loyalists went to Nova Scotia, and 10,000 to this Western Canada or Ontario. The British Government at this time desired to keep the French and English parts of Canada as dis- tinct as possible, so as to obviate the possibility of any combination against the Crown, like to that which had ended in the independence of the southern colonies. 1 In accordance with this policy Parliament passed, in the year 1791, the first of the three great Constitutional Acts relating to Canada. At this date the population of the whole country, then so called, amounted to 150,000 persons, of whom about 130,000 belonged to Lower Canada, or Quebec. The Act provided that each of the two provinces should have a Governor of its own, and a Parliament consisting of two houses, viz., an Assembly elected by the people, and a Legisla- tive Council to consist of members nominated by the 1 Mr. Pitt, in a debate in the House of Commons, distinctly declared this to be the object of the Government. G 98 IMPERIUM ET LIBERTAS Governor on behalf of the Crown, and holding their seats for life. Power was also given to the Crown to con- fer hereditary titles with seats in the Legislative Council. In fact, these second Chambers were intended to re- semble the British House of Lords as nearly as circum- stances would permit. In Lower Canada the House of Assembly was to have fifty members, and the Legisla- tive Council fifteen; in Upper Canada the Assembly was to have sixteen members, the Council seven. 1 The Act of 1791 also provided for the support of a " Protestant clergy " in Upper and Lower Canada by the setting apart of a large extent of wild land called the " Clergy Reserves. " This Act of 1791 is important for one reason, be- cause for the first time a real colonial Constitution was made to rest not upon royal charter or grant made by the owner of a concession, but upon an Act of Parliament. Such an Act can be amended or repealed by the Legislature which made it. Thus recognition was given to the principle of the supremacy of the Imperial Parliament for which England had contended during the American troubles. It could not have been argued with regard to the Canadian Legislatures as Franklin had argued with regard to the American Assemblies, that they were, in and by their origin, entirely independent of the British Parliament. Between the passing of this Act of 1791 and that of the second great Constitutional Act in 1840, by which the two provinces were united in a legislative union, lies a distinct period of Canadian history. Its political interest is chiefly in the Lower or French province. The statesmen who passed the Act of 1791 did 1 Burke thought this constitution too democratic ; Fox thought it too aristocratic ; and their famous final breach took place in this debate. CANADA 99 not intend as would those who should now grant a full Colonial Constitution that the whole local govern- ment should practically pass into the hands of a com- mittee of the majority of the popular Assembly. Even in the United Kingdom this principle of administra- tion was by no means clearly established until after the first Reform Bill, and no one in 1791, or long afterwards, supposed that it could be accepted in the case of a colony compatibly with the maintenance of imperial authority and connection. The popular Assembly in Lower Canada was naturally from the first under the control of French Canadian leaders, but for some time it had little real power. The public expenditure was not very large, and was almost entirely defrayed out of the customs duties, appropriated in 1774 by Act of Parliament to the Home Treasury for Canadian purposes, and by some Crown revenue derived from lands. By these means the Crown could carry on the government without securing the assent of the representative body either to its policy or to the persons by whom their policy was to be administered. The Government held, in fact, the same position with regard to the Assembly as those held by the Crown in England when it could provide for normal administration from its hereditary revenue, and was not obliged to resort to Parliament except for extraordinary grants. But, as in England, so in Canada, this state of things was brought to an end by the natural increase of the cost of government. Expenditure was swelled by the war of 1812-1814 against the United States and other causes. In 1815 the Assembly offered to take upon itself the whole expenses of Lower Canada. This was at first de- clined, but subsequently, in 1818, the Government ioo IMPERIUM ET LIBERTAS was induced by its necessities to accept the Assembly's offer to raise additional revenue by fresh taxes. This acceptance was, in the words of Lord Glenelg (in the House of Lords in May 1837), "the first step which put the colonial Assembly in possession of a practical power of exercising the constitutional right which they derived from the Act of 1791." As time went on a number of British settlers estab- lished themselves in the province of Lower Canada. Numerically they were always in a decided minority (reckoned in 1837 at about 150,000 out of a total of 600,000), but they were energetic and enterprising, and much of the wealth, trade, and commerce of the province passed into their hands. In religion, educa- tion, character, pursuits, language, and ideas, they were in strong contrast to the Canadian peasant-farmers, and their success and progress aroused the fear and jealousy of the older population. Many of the legis- lative acts, or refusals to act, of the popular Assembly were, or seemed to be, prejudicial to the interests of the British settlers, and intended to discourage the further progress of British enterprise and population in the province. The Governors naturally sought re- fuge against French ascendency in the popular Assembly by composing the second Chamber, or nominated Legis- lative Council, almost entirely of English, and from the English also they chose their Executive Council. Thus there came to be a dualism in Lower Canada. On one side was the popular Assembly, controlled by French leaders who never held any office, and thus had no experience of practical administration ; on the other was the provincial Government, supported and shel- tered by the Legislative Council, which threw out, often no doubt very rightly, most of the measures CANADA 1 01 passed by the other House. 1 This system of govern- ment was a great obstacle to the material development of the country, and only intensified and centralised the existing racial divisions, conflicting interests, and ani- mosities. We have seen that in 1 8 1 8 the Government, finding that its revenue from the customs duties appropriated in 1774 was inadequate, accepted additional revenue from the Assembly. The Assembly had power to appropriate the revenue thus raised, but had no more power than before over the reserved customs duties. To achieve this control became the great objective of the French party, and they were in this matter sup- ported by a Whig section of the British inhabitants. More than half the representatives of British origin in the House of Assembly were, it is said, in the constant habit of voting with the popular party. 2 In 1828 the matter was submitted by Mr. Huskis- son to the British Parliament, and a Select Committee was appointed to investigate the question. This com- mittee made a report, which was received by the Canadians with much satisfaction, and in the year 1831 every portion of the reserved revenue was abandoned except certain casual and territorial funds. An attempt was made at the same time, in pursuance of a recommendation of the committee, to bring the 1 When Lord Durham came to inquire into the matter, he thought that many of the measures thus thrown out by the second Chamber were such that " the colony had reason to congratulate itself on the existence of an institution which possessed and used the power of stopping a course of legislation which, if successful, would have sacrificed every British in- terest and overthrown every guarantee of order and national liberty." One of the measures thrown out by the second Chamber was a Bill for its own abolition, which had the additional demerit that it purported to repeal part of the Act of the British Parliament of 1891, upon which the Canadian Constitution was founded. 2 See "Annual Kegister" for 1838, p. 46. 102 IMPERIUM ET LIBERT AS Legislative Council more into harmony with the people by adding to it some acceptable persons. One result of these reforms seems to have been the detachment from the popular party of those British Liberals in the province who had supported it. 1 In spite of this victory, the most substantial cause of conflict still remained. The Assembly had acquired entire control over public revenues, but had no more voice than before in the choice or designation of the administrators of affairs. " Conciliation," said Lord Glenelg, in his speech in 1837, "was not attended with any good effect on the Assembly, for, in pro- portion as concessions were made, the Assembly increased in their demands." The real struggle, that for power, was fought under the cover of innumerable special grievances, into the merits of which there is no need to enter in a study of the general outline of Canadian constitutional history. In 1833 the Assembly passed a bill granting sup- plies conditionally. The conditions were refused, and supply failed. In 1834 no supply was granted, and the Assembly passed ninety-two resolutions, virtually forming an impeachment of the Governor. They were transmitted to England, debated in Parliament, and referred to a committee. In 1835 the Assembly for the third time refused supplies. In 1836 a Commission of Inquiry was appointed by the British Government, and, when the Assembly again refused supplies in 1836, they sent in an interim report recommending the repeal of the Act of 1831, and the restoration of the reserved revenue to the Crown. In the same year the Canadian Assembly sent an address to the Governor, Lord Gos- ford, demanding repeal of the Tenures Act, subversion 1 Lord Glenelg's speech, Qth May 1837. CANADA 103 of the Land Commission, control over revenue derived from Crown lands (from which the Government, de- prived of supplies, derived a scanty sustenance), and that the Executive Council should be made directly responsible to the Assembly, " conformably," as they said, "to the principles and practice of the British Constitution." This last point was the one most to the root of the question, and it was hotly debated in the debate in the British Parliament at the beginning of 1837. Lord Stanley, for the Tories, attacked the demand that " the Executive Council should be rendered directly respon- sible to the House of Assembly." Here, he said, was confounded the wide and manifest distinction between an independent and subordinate State. The king was subordinate to no one the king's Ministers were re- sponsible for him to the country ; but what was the situation of a governor of a colony ? He was respon- sible to the Crown and the Government here, and it was proposed to make him responsible to the House of Assembly ; though how he was to act under this double and frequently conflicting responsibility was not clearly explained. " The question then," said Lord Stanley, " was no longer one of expediency but of empire. If it were proposed to give the colony up, let the proposi- tion be openly and plainly stated and decided upon accordingly. If it were desirable to retain the colony, a project which would at once render nugatory on our part all control over the province, and plunge us into difficulties which could only be escaped from by violence, must not be entertained for a moment." For the time all parties, except a few Radicals like Roebuck and Hume and O'Connell, agreed with these views, so soon to be discarded, and when Lord John io 4 IMPERIUM ET LIBERTAS Russell moved for the Government a resolution that " while it is expedient to improve the Executive Council in Lower Canada, it is unadvisable to subject it to the responsibility demanded by the House of Assembly in that province," his motion was carried by 269 votes to 46. In August 1837, the Assembly, under the leader- ship of M. Papineau, for the fifth year in succession refused to grant supplies, and were prorogued. Violent meetings were held, and Lord Gosford dis- missed from the militia certain officers who had taken part in them. Upon this the people proceeded to elect officers for themselves, and acts of violence took place. In a despatch of the 2nd September, Lord Gosford said : " It is evident that the Papineau faction are not to be satisfied with any concession that does not place them in a more favourable position to carry into effect their ulterior objects namely, the separa- tion of this country from England and the establish- ment of a Republican form of government." The disturbance of the atmosphere was increased by the violent attacks of the ultra-Tory, ultra-Loyalist, and ultra-Protestant party upon the French Catholics. Orders were made for the arrest, on the charge of high-treason, of several persons in the Montreal district, and the attempt to effect these arrests by means of the military, led to some fighting in the villages of St. Denis and St. Charles. The British loss was about ten men killed and thirty wounded. This petty fighting was the most severe in the disturb- ances glorified by the name of the Canadian Rebellion. In these circumstances Lord John Russell, on the 1 6th January 1838, introduced a Bill for the tempo- rary suspension of the existing Constitution of Lower .-^:<> : ' ~ ff OF THE ^\ CANADA 105 Canada, and the vesting of legislative powers in a special Council, pending the result of the investiga- tion which Lord Durham was commissioned to make in Canada with regard to the causes of the difficulty, and to the best future policy. At this point we may turn for a moment to the history of the province of Upper Canada. In this province no deep division of race and language made a dividing line between parties. Nevertheless a contest had long been carried on presenting many of the ex- ternal characteristics of that which had been waged in Lower Canada. In Upper Canada, as in Lower, the object of the popular party was to raise the popular Assembly to the position of power occupied by the British House of Commons, and to secure its ultimate control over the Executive Government. The Upper Province had long been controlled by a group of men, closely resembling the last century Beresford or Ponsonby groups in Ireland, commonly designated the "Family Compact," well organised, holding all the chief offices, and controlling the Executive Council and successive Governors by social and political influences. "The bench," said Lord Durham's report, "the magistracy, the high offices of the Episcopal Church, and a great part of the legal profession are filled by the adherents of this party ; by grant or purchase they have acquired nearly the whole of the waste lands of the province ; they are all-powerful in the chartered banks, and, till lately, shared among themselves ex- clusively all offices of trust and profit. The bulk of this party consists of native-born inhabitants of the colony, or of emigrants who settled in it before the last war with the United States; the principal members 106 IMPERIUM ET LIBERT AS of it belong to the Church of England, and the main- tenance of the claims of that Church has always been one of its distinguishing characteristics." The political battles in Upper Canada were fought largely upon this Church question. By the Constitu- tional Act of 1791, a certain portion of land in every township was set apart for the maintenance of what, with unhappy vagueness, the framers of the Act called a " Protestant clergy." Under that term the clergy of the Church of England had always claimed the sole enjoyment of this endowment. But a consider- able proportion of the population consisted of Scottish Presbyterians, who demanded an equal division be- tween their clergy and that of the Church of England. Other Protestant Dissenters also claimed a share, while many Protestants, together with the Catholics of the province, were in favour of the application of these funds to the general purposes of government or to education. The irritation about this matter seems to have been increased by the assertion by the endowed Anglican clergy of the kind of social and offi- cial precedence and position held by clergy of the Established Church in England. The whole issue was embittered, moreover, by the existence of the Orange Association in the province. The Family Compact were predominant in the Executive and Legislative Councils, but the Assembly usually contained a majority of the opposite party, called the " Reformers." The main object of this group was, to use their own expression, to make the colonial Constitution "an exact transcript" of that of Great Britain ; and they desired that the Crown should, in Upper Canada, as at home, entrust the administration of affairs to men possessing the con- CANADA 107 fidence of the Assembly. The long unsuccessful struggle turned the minds of some of the Reformers in the direction of the United States ; the ruling con- nection were able to appeal to the sentiment of loyalty and the fear of separation, and, assisted by Orange violence, won a majority in the Assembly at the elections of 1836. This was followed by Mackenzie's treasonable enterprise, and the outbreak of 1837.* The rising was promptly quelled, but met with a great deal of sympathy in the province, petitions for the pardon of two of the leaders, who were executed, being signed by 30,000 of their fellow-countrymen. 1 Mackenzie took possession of Navy Island, in the Niagara Kiver ; held it with a force of 1000 men, and issued a proclamation declaring the whole of Canada to be a Kepublic. CHAPTER II LORD DURHAM'S REPORT SUCH was the state of affairs in Lower and Upper Canada when the Koyal Commission was issued on the 3 ist March 1838, appointing the Earl of Durham to be " Captain-General and Governor-in-Chief in and over each of our provinces of Lower Canada, Upper Canada, Nova Scotia, and New Brunswick, and in and over our island of Prince Edward in North America " ; and also " High Commissioner for the adjustment of certain important questions depending in the said provinces of Lower and Upper Canada respecting the form and future government of the said provinces." Lord Durham went out as a temporary Dictator and as a Constitution-maker. His mission and report and the policy founded upon it form a great epoch in the history of the British Colonial Empire. The statesmen who were at this date in the time of life when convictions have been formed had been brought up under the influence of the ideas which were generated by the loss of the older American Colonies. Englishmen had not at once been taught by this severe lesson to shake off the old colonial theory that colonies existed for the sake of the Mother Country and must be governed from it. But they now thought that if and as soon as a colony became perfectly self-governing it would desire to become independent; that probably it would not be possible 108 CANADA 109 to resist this desire ; and that, moreover, it was of doubtful advantage to England to maintain any con- nection with colonies at all. This view was the old colonial idea tinctured with a new pessimism, the result of the American War of Independence. There was an absence of faith, and therefore of enthusiasm, as to the future of the Colonial Empire. The low-water mark of this reaction from the disastrous imperial policy of George III. was cer- tainly reached by Jeremy Bentham, who, writing in 1789, laid it down as a fundamental proposition that "it is not the interest of Great Britain to have any foreign dependencies whatever," on the grounds (i) that distant dependencies increase the chance of war ; and (2) that colonies are seldom, if ever, sources of profit to the Mother Country. But the feeling con- tinued to exist long after Bentham's time. In proof of this it is worth while to quote a few passages from the debates in Parliament at the time of these Canadian troubles. Lord John Russell said, on the i6th May 1836 : "The House of Assembly of Lower Canada have asked for an elective Legislative Council and an Exe- cutive Council which shall be responsible to them, and not to the Government and Crown of Great Britain. We consider that these demands are incon- sistent with the relations between a Colony and the Mother Country, and that it would be better to say at once, ' Let the two countries separate/ than for us to pretend to govern the Colony afterwards." These, be it noted, are the words of one bred in the purest Whig principles, and himself a leader of the Reform movement at home. They are inspired by a sentiment like that of a father who might say to his no IMPERIUM ET LIBERT AS son : " So long as you continue to live in my house you must be governed by me ; but I do not expect you always to remain at home, and you had better leave at once, if you prefer liberty." When, on the i6th January 1838, Lord John Russell, as Prime Minister, brought in the Bill to suspend the liberties of Lower Canada, he again re- ferred to the Canadian demand that the Executive Council should be responsible to the Assembly in these terms : " I stated that there was one place in which the power of the Executive could be thus entirely controlled, and this was at the seat of the Imperial Government. If the Sovereign of this country were to select those who had the confidence of the Crown, but who possessed none of the confidence of the House of Commons, there must be a speedy change in the administration, and the Constitution could only pro- ceed in consequence of that change. But, in a colony, if the Executive Council are to be named according to the will of the Assembly, there is another question which arises, namely, what is to become of the orders given by the Imperial Government and the Governor of the colony." Here was the still unsolved problem, how to recon- cile colonial liberty with imperial supremacy. The same speech of the Whig leader contains a passage which gives, unadulterated, the pure com- mercial theory of the old colonial school. He said : " With respect to trade, it has always been ad- mitted that an Imperial Legislature has a right to compel a colony to receive the produce of the Mother Country, and a right to restrict that colony in its commerce with other nations." CANADA 1 1 1 That a Whig Premier, in 1838, should still have proclaimed in Parliament the doctrine which largely contributed to our loss of the United States, and nearly brought about the loss of Ireland, is a striking proof of the vitality of deeply-rooted ideas. The Tory Duke of Wellington expressed the old view more concisely than did Lord John Russell, when in 1840, speaking in the House of Lords, he said: " Their Lordships might depend that local responsible government and the sovereignty of Great Britain were completely incompatible." The indifference, common at that time, as to the maintenance of the connection with the Colonies appears in many passages. The Eadical Roebuck said in the House of Commons on the i4th April 1837 : " Wliatever may be the course we pursue, the time must inevitably come when our American colonies will become independent States." A very well-informed and distinguished peer, Lord Ash- burton, said in the House of Lords in 1840 that, in his opinion, it was useless to keep these Colonies. Lord John Russell, in his speech of i6th January 1838 went, indeed, so far as to say that he did not think that England was ready to abandon North America. "I do believe that the possession of our Colonies tends materially to the prosperity of the Empire. On the preservation of our Colonies depends the continu- ance of our commercial marine, and on our commercial marine depends our naval power, and on our naval power mainly depends the strength and supremacy of our arms." Not a trace here of the imperial idealism which has grown up since the day of Lord John. The retention ii2 IMPERIUM ET LIBERTAS of the Colonies was merely a matter of material expediency. Lord John went on to say : " Although I am not prepared to give immediate independence, this I will say, that, if the time were to come at which such an important change might be safely and advantageously made, I should by no means be indisposed to give the 1,400,000 of our present fellow-subjects who are living in the provinces of North America a participation in the perfect freedom enjoyed by the Mother Country. If it were a fit time, if circumstances of all kinds were such as to render such an arrangement desirable, I think that our Colonies might with propriety be severed from us, and formed into a separate and distinct State, in alliance offensive and defensive with this country." : How impossible it is to imagine a speech in this tone made by Lord Rosebery or Mr. Chamberlain, modern representatives of the Liberal party. But Lord John Russell had been bred in a very different atmo- sphere, and could not, in 1838, conceive of perfect freedom without severance, or how Canada, while being virtually " a distinct State in alliance offensive and defensive with this country," could yet remain an integral portion of the Empire. Sir Wilfrid Laurier, the Dominion Premier, in one of his speeches made in the Jubilee Year of 1897, said " Canada is a nation" Canada is no longer a colonial dependency. It is a distinct State. It is in alliance offensive and defensive with this country. Yet 1 As late as 1852 Sir Henry Taylor, who was Permanent Under- secretary for the Colonies, wrote to Lord Grey : " I cannot but regard the North American Provinces as a most dangerous possession for this country, either as likely to breed a war with the United States, or to make a war otherwise generated more grievous and disastrous. I do not suppose the provinces to be useless to us at present, but I regard any present uses not obtainable from them as independent nations as no more than the dust in the balance compared with the evil contingencies." CANADA 113 it has not ceased to be an integral portion of the Empire. Thus in the case of Canada we have succeeded in reconciling " Imperium et Libertas "-autonomy and imperial connection " res olim dissociabiles." Lord Durham's report marks the end of the old colonial theory and the triumph of the new idea. It is, therefore, well worth while to examine with care this remarkable State paper. The troubles both in Lower and Upper Canada appeared to Lord Durham to be due to the absence of a working identity of will between the popular assemblies on the one side, and, on the other, the executive power supported by its nominees in the legislative councils. In Lower Canada there was also the difficulty arising from the presence of two races one in a great numerical majority, French in origin and language, Roman Catholic in religion, mainly agri- cultural by occupation in the small farmer or peasant way, poorer and more content, less progressive, ambi- tious, and enterprising ; the other British by origin, Protestant in religion, commercial, or farming on a large scale, far more energetic, restless, and enterpris- ing, and richer. The two races were divided by race, language, religion, occupation, education, tastes, aims, and social differences. The English were irritated by the obstacles to the improvement of trade and com- merce which were placed in their way by French jealousy ; the French were irritated by the political and economic ascendency of a minority. " The ascendency," wrote Lord Durham, " which an unjust favouritism had contributed to give to the English race in the government and the legal profes- sion, their own superior energy, skill, and capital, secured to them in every branch of industry. They H n 4 IMPERIUM ET LIBERT AS have developed the resources of the country ; they have constructed or improved its means of communi- cation ; they have created its internal and foreign commerce. The entire wholesale and a large portion of the retail trade of the province, with the most profitable and flourishing farms, are now in the hands of this numerical minority of the population." The English looked on the French with contempt ; the French, as the English economic conquest progressed, saw their rivals with " alarm, with jealousy, and finally with hatred." Intermarriages were rare ; there was no com- bination for public objects of any kind, not even for those of charity. " The only public occasion," said Lord Durham, " on which they ever meet is in the jury-box, and they meet there only to the utter ob- struction of justice." The feeling of hostility between two races thus deeply divided had been rapidly increasing during the years preceding the outbreak of 1837, and was exces- sively detrimental to the economic progress of the pro- vince. The entire want of municipal self-government obliged the English even in some districts where they were in a majority to come to the Assembly for every road, or bridge, or canal, or other public work that was needed. Here they encountered every kind of obstacle and delay, until the English inhabitants came to regard the policy of the Assembly " as a plan for preventing any further emigration to the provinces, of stopping the growth of English wealth, and of rendering precarious the English property already in- vested or acquired in Lower Canada." One is reminded in many ways of the complaints made against the Boer Legislature by the English settlers in the Transvaal. It was in any case difficult for the English minority, CANADA 115 feeling itself superior in political energy and intelli- gence, to submit to a majority elected by constituents who could not, for the most part, read or write ; and when material interests were gravely touched the situation became almost impossible. Thus in the violent contests between the popular Assembly and the Executive Government in the years preceding the insur- rection of 1837, the English minority rallied round the Government, supported its claims, called themselves " loyal," and the French, who asserted the rights of the majority, " rebels." The resort to arms and shedding of blood and destruction of property brought these hos- tile and divided races into fierce collision. Here is the impression made upon Lord Durham's mind by what he saw and heard in the year 1838 : "It is not difficult to conceive how greatly the evils, which I have described as previously existing, have been aggravated by the war ; how terror and revenge nourished in each portion of the population a bitter and irreconcilable hatred to each other and to the institutions of the country. The French popu- lation, who had for some time exercised a great and increasing power through the medium of the House of Assembly, found their hopes unexpectedly pros- trated in the dust. . . . Eemoved from all actual share in the government of their country, they brood in sullen silence over the memory of their fallen countrymen, their burnt villages, of their ruined property, of their extinguished ascendency, and of their humbled nation- ality. Nor have the English inhabitants forgotten in their triumph the terror with which they suddenly saw themselves surrounded by an insurgent majority, and the incidents which alone appeared to save them from the unchecked domination of their antagonists. They find themselves still a minority in the midst of a hostile and organised people. Apprehensions of secret con- n6 IMPERIUM ET LIBERTAS spiracles and sanguinary designs haunt them unceas- ingly, and their only hope of safety is supposed to rest on systematically terrifying and disabling the French, and in preventing a majority of that race from ever again being predominant in any portion of the legislature of their province. . . . Never again will the present generation of French Canadians yield a loyal submis- sion to a British Government ; never again will the English population tolerate the authority of a House of Assembly in which the French shall possess, or even approximate to, a majority." Recent events had for the time replaced the ancient antipathy of the French Canadians to the United States by a still stronger antipathy to their Anglo-Saxon fellow-Colonials, and it was agreed by all that an in- vading American army would, in 1838, have been secure of the co-operation of the whole French popu- lation. On the other side, the English population of the provinces were not, after the rebellion, in a loyal mood. They complained of the whole course of policy pursued by the British Legislature and Government, which had, they said, encouraged the mischievous French nationalist pretensions, had been vacillat- ing and inconsistent, had discouraged loyalty and fomented rebellion, and had been founded upon utter ignorance of the real condition of affairs. They went so far as to say that they would not endure being made the sport of parties at home, and that if the Mother Country forgot what was due to the loyal and enter- prising men of her own race, they must protect them- selves. In the language of one of their advocates, they asserted that " Lower Canada must be English, at the expense, if necessary, of not being British." They hinted that if Canada became part of the United States, CANADA 117 the connection and the consequent immigration from the States would soon establish Anglo-Saxon superi- ority and bring to an end all French pretensions, and that Canada might then begin to share the amazing progress and prosperity of her American neighbours. If any attempt were made to restore the Assembly with its French majority, it seemed to Lord Durham quite certain that the English Colonists would seek, on any terms, an union with the United States. One result of all these political troubles and racial animosities was the retardation of economic and material development in British North America. " It is melancholy," said Lord Durham, speaking of Lower Canada, " to think of the opportunities of good legislation which were sacrificed in this mere contest for power. No country in the world ever demanded from a paternal Government, or from patriotic repre- sentatives, more unceasing and rigorous reforms both of its laws and its administrative system." Lower Canada possessed neither municipal institu- tions, the foundation of Anglo-Saxon progress, nor any- thing resembling the powerful centralisation of France. It enjoyed neither the advantages of Anglo-Saxon nor of Latin institutions. Its judicial institutions were de- fective, its land laws uncongenial to progress. While the Assembly and the Executive Government were engaged in a contest for power, they left untouched " those vast and easy means of communication which deserved, and would have repaid, the application of the provincial revenues. The State of New York made its own St. Lawrence from the Erie to the Hudson, while the Government of Canada could not achieve, or even attempt, the few miles of canal and u8 IMPERIUM ET LIBERT AS dredging which would have rendered its mighty rivers navigable almost to their sources." In Upper Canada, on the other hand, there was much energy, almost too much in proportion to re- sources, as to public works. The House of Assembly of that province began the great ship canal, called the Cornwall Canal, with a view of enabling ships of con- siderable size to avoid the Long Sands Rapids, and this work was at a great cost brought near to com- pletion. But the whole of these works, when com- pleted, would be of small value without the execution of similar works on that part of the St. Lawrence River lying between the province border and Montreal. This co-operation the Assembly of Lower Canada refused, or neglected, to give, and at the date of Lord Durham's report the works had consequently been suspended, while the Upper Province was left heavily indebted. Of all governmental matters in a new country with vast territory and scarce population, each competing with other countries in the endeavour to attract de- sirable emigrants, the most important is the system for disposing of unoccupied lands. In the United States, since the year 1796, the system had been regulated by a law of Congress applicable to the whole territory. This law rendered acquisition of land easy, and yet, by means of a price, restricted appropriation to the actual wants of the settler, was so simple as to be easily understood, provided for accurate surveys and against needless delays, gave an instant and secure title, and admitted of no favouritism. " That system," said Lord Durham, " has promoted an amount of immigration and settlement of which the history of the world affords no other example/' besides producing a steady and increasing revenue to the Federal Government. CANADA 119 In the British American Colonies, on the contrary, there never had been at that date any general and well-designed system of land allotment. Surveys had been inadequate everywhere, boundaries uncertain, delays vexatious, and favouritism prevalent. Every- where the allotment had erred on the side of profusion, and the Government had alienated much more land than the grantees were able to reclaim. In some of the Colonies it was almost impossible for a person without political influence to obtain any of the public land. The administration of the public lands cost for a long time more than it produced. The market value of land was, as a rule, much higher on the United States side than on the Canadian side of the border line. At the date of the report the price of wild land in Vermont and New Hampshire, close to the line, was five dollars an acre ; but similar land in the adjoining British townships was only worth one dollar an acre, and even at that price was often unsaleable. In Lower Canada, one witness declared that there had been no increase in the value of much wild land for twenty years. The superiority of the American system at- tracted emigration out of Canada into the United States. The fact was that the general effect of Canadian methods was to place a vast extent of land outside the control of Government, and yet to keep it in a state of wildness. In both Upper and Lower Canada, in Nova Scotia and Prince Edward's Island, the great mass of public lands had been alienated before 1838, either as " Clergy Reserves " under the Act of 1791, or in grants to the loyalists from the United States after the War of Independence, or to discharged soldiers and sailors, executive and legislative councillors, and other political 120 IMPERIUM ET LIBERT AS personages. Families of this kind were frequently not occupants of any part of it, but held it in hopes of a rise in value through increase of population. The Constitutional Act of 1791 had attempted to introduce some limitations as to the dimensions of land grants, but these had been largely evaded. The result of this system of making grants to individuals who were not settlers or cultivators, but merely speculative land- holders, was that everywhere there were large blocks of wild land separating the real holdings, hindering the construction of roads, and otherwise defeating the benefits to be derived from concentration of population. Many farms, and even whole townships, had been abandoned on this account. In fact, large parts of these colonies suffered the evils of absenteeism in its worst form. The absentees neither improved the land themselves, nor would they let others improve it. In 1838 the argument, from the point of view of material interests, in favour of the union of Canada with the Southern Republic was strong. The two sides of the border line presented an instructive and, to an English observer, a mortifying contrast. " On the American side all is activity and bustle. The forest has been widely cleared ; every year nume- rous settlements are formed, and thousands of farms are erected out of the waste ; the country is intersected by common roads ; canals and railroads are finished, or in the course of formation ; the ways of communication and transport are crowded with people, and enlivened by numerous carriages and large steamboats. The observer is surprised at the number of harbours on the lakes, and the number of vessels they contain ; while bridges, artificial landing - places, and commodious wharves are formed in all directions as soon as re- quired. Good houses, warehouses, mills, inns, villages, CANADA 121 towns, and even great cities, are almost seen to spring up out of the desert. Every village has its school- house and place of public worship. Every town has many of both, with its township buildings, its book stores, and probably one or two banks and newspapers ; and the cities, with their fine churches, their great hotels, their exchanges, court-houses, and municipal halls of stone or marble, so new and fresh as to mark the recent existence of the forest where they now stand, would be admired in any part of the Old World." Now for the Canadian picture. " On the British side of the line, with the exception of a few favoured spots where some approach to Ameri- can prosperity is apparent, all seems waste and desolate. There is but one railroad in all British America, and that is only fifteen miles long. " The ancient city of Montreal, which is naturally the commercial capital of the Canadas, will not bear the least comparison in any respect with Buffalo, which is an erection of yesterday. But it is not in the differ- ence between the larger towns on the two sides that we shall find the best evidence of our own inferiority. That painful but undeniable truth is most manifest in the country districts through which the line of national separation passes for a thousand miles. There, on the side of both the Canadas and also of Brunswick and Nova Scotia, a widely scattered population, poor and apparently unenterprising, though hardy and industri- ous, separated from each other by tracts of intervening forest, without towns and markets, almost without roads, living in mean houses, drawing little more than a rude subsistence from ill-cultivated land, and seem- ingly incapable of improving their condition, present the most instructive contrast to their enterprising and thriving neighbours on the American side." One is reminded of the contrast which might have 122 IMPERIUM ET LIBERTAS been drawn between England and Ireland at any time during the last two or three centuries. It has been pointed out that the entire political independence of each other of two provinces so natur- ally interdependent as Upper and Lower Canada had impeded the execution of great public works. It also led to difficulties in financial relations. As all over- sea imports into Upper Canada entered through the ports of Lower Canada, the duties levied upon them were collected in the latter province. Upper Canada had naturally claimed a proportion of this revenue, and this proportion was settled from time to time by Commissioners appointed by each province. But, as recently in the case of the financial " ausgleich " between Austria and Hungary, these settlements had given rise to dispute and discontent, and promised to give more. The revenue of Upper Canada being utterly inadequate to its expenditure, that province wished to increase its customs duties. But this could not be done without increasing the taxation of Lower Canada, where the revenue was usually in excess of the expenditure. It was on account of these difficul- ties that the union of the two provinces was proposed in 1822, and the same reason influenced the people of Upper Canada in 1838, and made them desire an union. So, then, affairs stood in British North America when the Earl of Durham landed there at the begin- ning of the year 1838. In Lower Canada the Con- stitution was suspended. A political struggle had raged for years between, on the one side, the popular Assembly supported by the great majority of the people, and, on the other, the high officials of the Crown supported by the English minority and the second Chamber. This struggle had culminated in CANADA 123 fighting and bloodshed, and a racial animosity closely resembling that which existed in Ireland immediately after 1798. Lord Durham found in both the Canadas, and also in the minor Colonies, Nova Scotia and Prince Edward's Island, a defective constitutional practice which prevented the existence of harmonious working between Government and Assembly, and almost insured discord. Throughout British North America there was neither co-operation for the com- mon good between the different Colonies nor institu- tions for effecting such co-operation. The result of these causes was stagnation and arrest of economic development, the more evident by reason of the con- trast exhibited by the adjoining American States. The magnitude of the interests involved in the right settlement of the question is finely set forth in the following section of Lord Durham's report : " On the course which your Majesty and your Par- liament may adopt with respect to the North American Colonies will depend the future destinies not only of the million and a half of your Majesty's subjects who at present inhabit those provinces, but of that vast population which those ample and fertile territories are fit and destined hereafter to support. No portion of the American Continent possesses greater natural resources for the maintenance of large and flourishing communities. An almost boundless range of the richest soil still remains unsettled, and may be ren- dered available for the purposes of agriculture. The wealth of inexhaustible forests of the best timber in America, and of extensive regions of the most valuable minerals have as yet been scarcely touched. Along the whole line of sea-coast around each island, and in every river, are to be found the greatest and richest fisheries in the world. The best fuel and the most I2 4 IMPERIUM ET LIBERT AS abundant water-power are available for the coarser manufactures, for which an easy and certain market will be found. Trade with other Continents is favoured by the possession of a large number of safe and spacious harbours ; long, deep, and numer- ous rivers and vast inland seas supply the means of easy intercourse ; and the structure of the country generally affords the utmost facility for every species of communication by land. Unbounded materials of agricultural, commercial, and manufacturing industry are there ; it depends upon the present decision of the Imperial Legislature to determine for whose benefit they are to be rendered available. The country which has founded and maintained these Colonies at a vast expense of blood and treasure may justly expect its compensation in turning their unappropriated resources to the account of its own redundant population ; they are the rightful patrimony of the English people, the ample appanage which God and Nature have set aside in the New World for those whose lot has assigned them but insufficient portions in the Old. Under wise and free institutions these great advantages may yet be secured to your Majesty's subjects, and a connection secured by the link of kindred origin ; and mutual benefits may continue to bind to the British Empire the ample territories of its North American provinces, and the large and flourishing population by which they will assuredly be filled." Such were the words addressed by the English nobleman, sent to Canada upon a mission of such high issue, to the young queen who had just ascended the British throne. She lived to see, long before the end of her glorious and beneficial reign, peace and pro- sperity flourish in her North American dominions. Two races, still sharply divided by blood, language, and re- ligion, live side by side. If entire harmony and good CANADA 125 will does not always exist, yet a working solution has at least been discovered for the most difficult of all political problems, and, beyond doubt, success, energy, boundless hope, replace lethargy and stagnation. Let us now trace the process by which this change came to pass. CHAPTEE III THE LEGISLATIVE UNION OF 1841 IN Lord Durham's opinion the primary remedy for the evils which had vexed these colonies and thwarted their economic development was obvious. Follow out, he advised, the logical consequences of the establish- ment in 1791 of representative Assemblies. Bring about, by applying the British method, identity of will between the executive and legislative powers. He said in his report : "It is difficult to conceive what could have been their theory of government who imagined that, in any colony of England, a body invested with the name and character of a representative Assembly could be de- prived of any of those powers which, in the opinion of Englishmen, are inherent in a popular legislature. It was a vain delusion to imagine that by mere limita- tions in the Constitutional Act, or an exclusive system of government, a body, strong in the consciousness of wielding the public opinion of the majority, could regard certain portions of the provincial revenues as sacred from its control, could confine itself to the mere business of making laws, and look on as a passive or indifferent spectator while those laws were carried into effect by men in whose intentions or capacity it had not the slightest confidence. Yet such was the limita- tion placed upon the authority of the Assembly of Lower Canada ; it might refuse or pass laws, vote or withhold supplies, but it could exercise no influence on the nomination of a single officer of the Crown. The 126 CANADA 127 Executive Council, the law officers, and whatever heads of departments are known to the administrative system of the province, were placed in power without any regard to the wishes of the people or their repre- sentatives ; nor indeed are there wanting instances in which a mere hostility to the majority of the Assembly elevated the most incompetent persons to posts of honour and trust. However decidedly the Assembly might condemn the policy of the Government, the persons who had advised that policy retained their offices and the power of giving bad advice. If a law was passed after repeated conflicts, it had to be carried into effect by those who most strenuously opposed it." Lord Durham had to meet the argument used in England by the Duke of Wellington, Lord Stanley, and Lord John Russell, that a colony which should name all its own administrative functionaries would, in fact, cease to be dependent. He admitted that the system proposed would place the internal affairs of a colony in the hands of the colonists themselves, and would give to them the execution of the laws which they had long been entrusted to make. In this, he maintained, there was no evil to the Mother Country, and he observed that it could not be to the interest of Great Britain to keep a most expensive military possession of the Colonies in order that a Governor or Secretary of State might be able to confer colonial appointments on one rather than on another set of persons in the Colonies. For that, he said, was really the only question at issue. One result of the divorce between Executive and Assembly had been that the initiative in voting and appropri- ating public money had been lodged in the Assembly. 1 1 In the United States the initiative and responsibility of raising and appropriating public revenue are lodged not with the President and his 128 IMPERIUM ET LIBERT AS While this system lasted Lord Durham held that good government was not attainable. "As long as a revenue is raised which leaves a large surplus after the payment of the necessary ex- penses of the civil government, and as long as any member of the Assembly may, without restriction, propose a vote of public money, so long will the Assembly retain in its hands the powers which it everywhere abuses of misapplying that money. The prerogative of the Crown, which is constantly exercised in Great Britain for the real protection of the people, ought never to have been waived in the Colonies, and, if the rule of the Imperial Parliament, that no money vote should be proposed without the previous consent of the Crown, were introduced into these Colonies, it might be wisely employed in protecting the public interests now frequently sacrificed in that scramble for local appropriations which chiefly serves to give an undue influence to particular individuals or parties. " Responsibility and initiative in the hands of a body of Ministers identified with the majority for the time being in the Legislative Assembly representing the will of the people, and a Representative of the Ministers, but with Congress. Mr. Bryce, in his book on " The American Commonwealth," thinks this system most unsatisfactory. He says (vol. i. p. 281 : " In the supremely important matter of raising and applying the public revenue, the Executive Government, instead of proposing and supervising, instead of securing that each department gets the money that it needs, that no money goes where it is not needed, that revenue is procured in the least troublesome and expensive way, that an exact yearly balance is struck, that the policy of expenditure is self-consistent and reasonably permanent from year to year, is, by its exclusion from Congress, deprived of influence on the one hand, of responsibility on the other. The Chan- cellorship of the Exchequer, to use an English expression, is put into commission, and divided between the chairmen of several unconnected committees of both Houses. A mass of business which, as English experi- ence shows, specially needs the knowledge, skill, and economical conscience of a responsible Ministry, is left to committees which are powerful but not responsible, and to Houses whose nominal responsibility is in practice sadly weakened by their want of appropriate methods and organisation." CANADA 129 Crown acting upon the advice of those Ministers such was the system recommended for the Canadian Colonies. If, however, this system had been introduced into the several North American Colonies and their mutual independence had remained, the difficult questions arising as to customs duties and public works affecting two or more of these States would not have been solved. These questions were certain to increase in magnitude as trade increased with Europe, and when main lines of railway were constructed through British North America. They were by themselves sufficient to suggest the advisability of a federal, if not of a legislative or incorporating union. Lord Durham found other reasons for an union of the provinces. The North American colonist, a member of a mighty but widely divided Empire, in the govern- ment of which he had no voice, could not feel himself to be, like the citizen of the United States, a member of a great and vigorous nation. His country, for practical purposes, was a province with a few hundred thousand inhabitants, and he felt the deadening in- fluence of the narrow and subordinate community to which he belonged. The Colonists were in danger, so long as they had no national feeling of their own, of being subjugated by the thoughts and manners of the lively and powerful nationality lying to the south of their frontier. Moreover, the rising power of the United States made an union between the Canadian provinces very important from a military point of view. " War," said Heraclitus, " is the father of all things." The old force which has moulded so many nations, the necessity of union for common defence, shaped also the destinies of Canada. Unity in post-office administra- tion, currency, and the banking system was also desired, I 130 IMPERIUM ET LIBERT AS A motive of union more immediately pressing than all the rest was the difficulty of giving perfect con- stitutional freedom and control over Government to the people of Lower Canada, were that province to retain its previous isolation and independence. To do so would be to place the interests of the English minority, possessing a large proportion of the wealth and commerce of the province, in the hands of a majority of a different race and Church, mainly elected by peasants, and embittered by a long and furious political struggle ending in an unsuccessful and still smouldering rebellion. This consideration was by itself sufficient reason for an union of some kind. Indeed, the only alternative was to deprive the people of Lower Canada, or the majority of them, of the franchise, and to govern the province as a Crown Colony, or through an Assembly virtually elected by the English minority. If schemes of this kind were rejected, as they were by Lord Durham, nothing re- mained but to bring the English population of the Upper Province to redress the racial balance in the Lower. Thus all the conditions of the problem clearly indicated the necessity either of a federal or of an incorporating union between the various Canadian Colonies. Lord Durham when he landed in Canada was in- clined towards the project favoured also by Sir Robert Peel of a federal union, but as an intermediate step and not as a final end. " I thought (he said) that it would be the ten- dency of a federation, sanctioned and consolidated by a monarchical government, gradually to become a complete legislative union ; and that thus, while con- ciliating the French of Lower Canada by leaving them CANADA 131 the government of their own province and their own internal legislation, I might provide for the protection of British interests by the general Government, and for the gradual transition of the provinces into an united and homogeneous community." But Lord Durham, after discussion and inquiry, changed his view, and recommended an immediate " Legislative " or "Incorporating" union. He was influenced by two main reasons. One was his con- viction of the necessity of anglicising the French Canadians. He asked the question, " Is this French Canadian nationality one which, for the good merely of that people, we ought to strive to perpetuate ? " His answer was a decided "No." He thought that this separate racial character, language, and institu- tions placed them at a great disadvantage in the midst of the Anglo-Saxon world of North America, and retained them in a position of hopeless inferiority. "It is to elevate them from that inferiority that I desire to give to the Canadians our English character." No plan for the future government of Lower Canada would avail unless it included the settlement " at once and for ever of the national character of the province." He added : " I entertain no doubt as to the national character which must be given to Lower Canada ; it must be that of the British Empire ; that of the majority of the population of British America ; that of the great race which must, in the lapse of no long period of time, be predominant over the whole North American Con- tinent. Without effecting the change so rapidly or so roughly as to shock the feelings and trample on the welfare of the existing generation, it must hence- forth be the first and steady purpose of the British Government to establish an English population, with 132 IMPERIUM ET LIBERTAS English laws and language, in this province, and to trust its Government to none but a decided English Legislature." It has been said of Cardinal Newman that he was the greatest man that ever tried, and made the most heroic attempt ever made, to change the character of a nation, and that he failed. That which Newman could not do in England, a legislative union failed to achieve in Canada, as it has failed to achieve it in Ireland. Even a despotic union has failed to effect this result in Poland, and in the case of the Jews not even a dis- persion of two thousand years over the face of the earth has succeeded in accomplishing it. A nation which is marked off from the surrounding peoples by descent, language, religion, and local habitation will not easily undergo the metamorphosis contemplated by Lord Durham. Lord Durham's second reason for an union of the more complete kind, that is to say, a legislative or incorporating union, was sounder and more practical. It was that, for the present at any rate, in the embittered state of feeling, not even the limited power of a state or provincial assembly subject to a federal union could be entrusted to the French majority in Lower Canada. " In the present state of feeling among the French population, I cannot doubt that any power which they might possess would be used against the policy and the very existence of any form of British government. I cannot doubt that any French Assembly that shall meet again in Lower Canada will use whatever power, be it more or less limited, it may have to obstruct the Government, and undo whatever has been done by it. Time, and the honest co-operation of the various parties, would be required to aid the action of a federal CANADA 133 constitution ; and time is not allowed, in the present state of Lower Canada, nor co-operation to be expected from a legislature of which the majority shall represent its French inhabitants. I believe that tranquillity can only be restored by subjecting the province to the rigorous rule of an English majority ; and that the only efficacious government would be that formed by a legislative union." Lord Durham called attention to the precedents of the unions between England and Scotland, and between Great Britain and Ireland. " The experience of the two unions in the British Isles may teach us how effectively the strong arm of a popular legislature would compel the obedience of the refractory population ; and the hopelessness of success would gradually subdue the existing animosities, and incline the French Canadian population to acquiesce in their new state of political existence. I certainly should not like to subject the French Canadians to the rule of the identical English minority with which they have been so long contending, but from a majority, emanating from so much more extended a source, I do not think they would have any oppression or injustice to fear ; and, in this case, the far greater part of the majority never having been brought into previous collision, would regard them with no animosity that could warp their natural sense of equity. The endow- ments of the Catholic Church in Lower Canada, and the existence of all its present laws, until altered by the united Legislature, might be secured by stipulations similar to those adopted in the union between Great Britain and Scotland." In 1839 the constitution of the population was just such as would secure a sufficient working majority to the English population under a legislative union. The population of Upper Canada was estimated at 400,000, 134 IMPERIUM ET LIBERTAS the English inhabitants of Lower Canada at 150,000, and the French at 450,000. This English majority in the whole of Canada, in spite of the prolificness of the French Canadians, would draw ahead, it was thought, under the influence of emigration. Lord Durham's report, summarised, comes to this. The cause of the political discontents in all the North American Colonies is due to the absence of the full system of representative government, and consequently, of working identity of will between the Executives and the popular Assemblies. It is, however, impossible to concede full representative government to Lower Canada so long as it remains independent, by reason of the racial animosities and the unfitness of the French majority to govern. This indicates the neces- sity of an union. An union will also solve the questions of financial relations between the provinces and the imposition and division of customs duties, of large public works in which co-operation of provinces is requisite, and of common military defence. An union is, moreover, necessary, in view of the growth of the United States, to create a national existence and feeling in British North America, and to save these provinces from being absorbed morally, econo- mically, and, finally, politically, by the Republic to their south. An union may be federal, or it may be legislative. In this case a legislative union is to be preferred because it would accelerate the merging of the French nationality in the English, and is, more- over, under present circumstances, the only means of preventing abuse of political power by the French majority in Lower Canada. Thus the union was recommended partly in order to fuse into a single anglicised nationality the two Canadian CANADA 135 races, partly as a measure of defence against the United States, partly as the only means of conceding to the Canadian provinces the full benefit of representative institutions without allowing the ascendency of the French over the English in the Lower Province, and partly with a view to the better development of the territories through united action. The report was presented to the House of Commons on February n, 1839. On October 14, 1839, an important despatch upon general colonial policy was sent by Lord John Russell to Lord Durham. It stated that the Queen's Government had " no desire to thwart the representative Assemblies of British North America in their measures of reform and improve- ment," or to " make these provinces the resource for patronage at home," but wished to give a full career in the Colonies to the talent and character of leading persons. " Her Majesty has no desire to maintain any system in policy among her North American subjects which opinion condemns." It was her Majesty's gracious intention " to look to the affectionate attach- ment of her people in North America as the best security for permanent dominion. It is necessary for this purpose that no official misconduct should be screened by her Majesty's representative in the provinces, and that no private interests should be allowed to compete with the general good." The despatch adds that there was no surer way of earning the approbation of the Queen " than by maintain- ing the harmony of the executive with the legis- lative authorities." Both Governor and Assembly were recommended to exercise a wise moderation in the use of their respective powers. "The Governor must only oppose the wishes of the Assembly where 136 IMPERIUM ET LIBERT AS the honour of the Crown or the interests of the Empire are deeply concerned ; and the Assembly must be ready to modify some of its measures for the sake of harmony and from a reverent attachment to the authority of Great Britain." This reassuring despatch might be compared with the Proclamation addressed to the peoples of India after the Mutiny of 1857. It was an assurance and a concession. Lord John Eussell retreated from the position which he had himself recently maintained that full representative government, as in England, could not safely be conceded to a colony. The remnants of that old colonial theory which had caused the loss to the British Crown of the best part of America were now swept away. England has hitherto succeeded because her Government and People are capable of learning lessons from experience, just as Spain has lost a splendid empire because she could learn no lesson. In November 1839 six resolutions were passed by the [special or interim Council of Lower Canada on the subject of the proposed union. The first of these declared ''That, under existing circumstances, in order to provide adequately for the peace and tranquillity, and the good, constitutional, and efficient government of the provinces of Upper and Lower Canada, the reunion of these provinces under one legislature, in the opinion of this Council, has become of indispensable and urgent necessity." The Assembly and Legislative Council of Upper Canada also came to a resolution in favour of an union. Upper Canada was no doubt influenced to a consider- able degree by commercial and financial reasons in its CANADA 137 desire for an union. Its zeal in public works had resulted in a large debt and deficient revenue, while Lower Canada had a small debt and surplus revenue. Hence the consolidation of debts and revenue was to the advantage of the Upper Province. Naturally, also, the Upper Canadians were anxious to have greater control over their communications with the sea and the duties levied at the ports. The Union Bill passed smoothly through the two Houses of the British Parliament in the year 1840, and took effect on the loth February 1841. The Act provided for the union of the two provinces in one province to be called " Canada." The legisla- tive body was to consist (i) of the "Legislative Council," to be composed of not fewer than twenty members, nominated by the Crowd and holding their seats for life, unless they resigned or became disquali- fied by certain circumstances ; (2) an Assembly, con- sisting of eighty-four members, forty-two from each province, to be elected by popular suffrage. The first Parliament of the United Provinces under this Act met on June i3th, 1841, and was opened with all the ceremony due to so important an occasion. CHAPTEE IV LORD ELGIN'S GOVERNMENT, 1847 TO 1854 THE two short administrations of Lord Sydenham and Sir Charles Bagot after the union were followed in 1842 by that of Lord Metcalfe, whose training in India had hardly been of a kind to fit him for constitutional government in the closing years of his career. He was soon at issue with his Ministry on a question of patronage. The Ministry resigned, and Lord Metcalfe formed a new one from the Conservative minority, dissolved Parliament, and threw his whole personal influence into the electoral contest with as much party zeal as did King George III. in like circumstances in 1784 or Marshal Macmahon in 1877. Lord Metcalfe succeeded in obtaining a small majority, and in his speech to the new Parliament declared that, " while he recognised the just power and privilege of the people to influence their rulers, he reserved to himself the selection of the Executive." The effect of this line of action, said Lord Grey in his book " The Colonial Policy of Lord John Russell's Administration," was to direct parliamentary opposition no longer merely against the advisers of the Governor, but " against the Governor personally and the British Government of which he was the organ." It was contrary to the prin- ciples advocated in Lord Durham's report and to the true meaning of Lord John Russell's despatch of October 1839, in which he announced that for the 138 CANADA 139 future the principal offices in the North American Colonial Government would not be considered as being held by a tenure equivalent to one during good beha- viour, but that the holders would be liable to be called upon to retire whenever, from motives of public policy or for other reasons, this should be found expedient." Lord Metcalfe, however, would probably have found small difficulty in reconciling this cautious and am- biguous language with his own declaration of policy. The full establishment in Canada of the principle of administration through Ministers in harmony with the majority for the time being of the popular Assembly dates from the administration of Lord Elgin, 1847 to 1854. Lord Elgin, second of three bearers of that illustrious name distinguished in the history of the Empire, was at the date of his appointment a man of thirty-six years of age, who had for several previous years been Governor of Jamaica. 1 Lord Grey, the Colonial Secretary, in sending out Lord Elgin, gave him instructions which may thus be summarised. The Governor-General was to choose his Executive Council from the party which for the time being commanded the confidence of the Legisla- ture, was not to identify himself with either party, but to act as a mediator and moderator between the influ- ential of all parties, and never to refuse to accede to the advice of his Council for the time being except upon matters of " very grave concern." 2 Lord Elgin arrived in Canada at the beginning of 1847. He was at once struck by this great difficulty which beset the Legislature and Government of the United Provinces, viz., that "a Conservative Govern- 1 See " Life and Letters of Lord Elgin," by Walrond. 2 Lord Grey's Colonial Policy," i. 212. 1 40 IMPERIUM ET LIBERT AS ment has meant a government of Upper Canadians, which is intolerable to the French, and a Radical Government a government of French, which is no less hateful to the British." Judged by the English stan- dard the names were misnomers, since the French Radicals of Canada, elected by Catholic peasants, were in most questions entirely averse to what in England are deemed to be Radical or even Liberal principles and measures. Lord Elgin came resolved to take, so far as he could, the position held by the constitutional monarch at home. " I still adhere," he wrote to his wife (who was Lord Durham's daughter), "to my opinion that the real and effectual vindication of Lord Durham's memory and proceedings will be the success of a Governor-General of Canada who works out his views of government fairly." The tenacity with which Lord Elgin held to these principles was at once put to a severe test. The Canadian Parliament was dis- solved at the end of 1847, the existing " Conservative" Ministry found itself in a decided minority, and in the spring of 1848 resigned. A new Ministry was formed from the Opposition, and included the French leaders, much to the dissatisfaction of the old Tory party, who thus saw power given to men whom they still considered to be rebels at heart. There was, moreover, much discontent of a general character in Canada at the time in consequence of an industrial depression. All this fuel was kindled into conflagra- tion by a Bill introduced by the new Ministry in January 1849 for indemnifying persons in Lower Canada, other than convicted rebels, for losses sustained by the destruction of property during the rebellion of 1837 and 1838. The loyalists whose property had been CANADA 141 destroyed by the rebels had already received compensa- tion. It was now proposed to give compensation to those also whose property had been injured by the indiscriminating fury of the troops or the loyalists. This modest and just measure met with a most violent opposition, and petitions flowed in from all parts of Upper Canada asking that Parliament might be dis- solved on the question, or that the Bill might be reserved for the royal sanction. Among the objectors were many most worthy colonials, to whom, as Lord Elgin wrote to Lord Grey, " the principles of consti- tutional government are unfathomable mysteries," and who regarded the representative of the Crown, and, more remotely, the Imperial Government, with the "most intense and unrelenting indignation" if poli- tical affairs were not " administered in entire accord- ance with their sense of what is right." When Lord Elgin assented to the Bill, fierce rioting broke out in Montreal, then the seat of Government. The carriage of the Governor-General was twice as- saulted in the streets, and the mob set fire to the House of Parliament while the members were in actual session and burnt it to the ground. The leaders mean- while sent in petitions to the queen for the recall of Lord Elgin and the disallowance of the Bill. Lord Elgin calmly held to his position in spite of the violent feeling in Upper Canada, which was supported and justified by a powerful portion of the English press. The Bill was two months later vehemently attacked in the British House of Commons (i4th June) by Mr. Gladstone as being a measure for the rewarding of rebels, and by Lord Brougham, with his usual ex- aggerated rhetoric, in the House of Lords. Mr. Glad- stone said in his speech, " I cannot admit that the 142 IMPERIUM ET LIBERT AS sense of the people of Canada is to limit the criterion that ought to be taken on imperial questions, and in- volving the highest imperial considerations. If this question involved local considerations only I would bow to their opinion at once, but as it involves im- perial questions, here, and here only, can it receive its final decision." In the House of Lords the resolutions condemning the conduct of the Canadian Government were only defeated by a majority of three. The Home Govern- ment, however, stood by Lord Elgin, and the feeling on the question gradually subsided. Nothing, probably, did so much to inspire the French Canadians with faith in the justice of imperial suzerainty as the resistance of Lord Elgin to the attacks made upon him on this occasion by the Tory, Orange, or so-called Loyalist party. Years later, when he was Viceroy of India, in a letter observing upon the policy of his predecessor, Lord Canning, whose cle- mency after the Mutiny had drawn upon him similar attacks, Lord Elgin wrote : " If I were to venture to compare great things with small, I should say that the feelings of the natives towards Canning were due to causes somewhat similar to those which earned for me the goodwill and con- fidence of the French Canadians in Canada. Both he and I adopted on some important points views more favourable to the subject races than those which had been entertained by our respective predecessors. So far we established substantial and legitimate claims on their regard. But it was not so much the intrinsic merit of those views, still less was it the extent to which we acted upon them, which won for us the favour of those races ; we owed that mainly to the uncompromising hostility, the bitter denunciations, CANADA 143 and the unmeasured violence which the promulga- tion of those views provoked from those who were regarded by them as their oppressors." In the case of these indemnifications, Lord Elgin victoriously maintained the principle of government by the will of the majority against a minority still inspired by ascendency feelings. In two other questions of importance his influence obtained for Canada the right to legislate on questions exclusively concerning herself, even though those questions had already been settled by Acts of the Imperial Parliament. One of these questions was that of the Clergy Reserves, that old source of discord in Upper Canada. It has been stated that large quantities of land had been set apart under the Act of 1791 for the support of a " Protestant clergy." Till 1820 this had been held as meaning exclusively the clergy of the Church of England ; but in that year, under an opinion given by the law officers of the Crown in England, the mean- ing of the Act was extended to clergy of the Church of Scotland, but not to Dissenters. In 1840 the British Parliament passed an Act recognising the claims of clergy of all Protestant denominations, empowering the Governor to sell the lands, and apply one-half of the proceeds, subject to the life-interests of the exist- ing clergy, to the colonial churches of England and Scotland, in proportion to their respective numbers, and to distribute the remaining half among the clergy of other denominations. This arrangement did not satisfy the majority of the Colonists, especially after the Scottish Eree Church schism in 1843, an ^ in 1850 the colonial Parliament voted an address to the Queen praying that the Act of 1840 might be repealed, and 144 IMPERIUM ET LIBERT AS that the local Legislature might be empowered to deal with the lands and their proceeds, subject to the life- interests of existing stipend-holders. This was resisted by the clergy and laity of the two endowed Protestant churches in Canada, who desired that the matter should not be dealt with by the local Parliament, so largely elected by Catholics ; but, on the advice of Lord Elgin, opposed though his personal feeling was to secularisa- tion, the concession was made by the British Govern- ment and Parliament. Lord Elgin was informed, in a despatch intended as an answer to the Address of the Canadian Parlia- ment, that the Imperial Government would accede to the settlement of the matter by that Parliament. " In coming to this conclusion " (he was told), " her Majesty's Government have been mainly influenced by the consideration that, great as in their judgment would be the advantages which would result from leaving undisturbed the existing arrangement by which a certain portion of the public lands of Canada are made available for the purpose of creating a fund for the religious instruction of the inhabitants of the pro- vince, still the question whether that arrangement is to be maintained is one so exclusively affecting the people of Canada that its decision ought not to be withdrawn from the provincial Legislature, to which it properly belongs to regulate all matters concerning the domestic interests of the province." By an Act passed in 1853, the Act of 1840 was re- pealed and power given to the Canadian Parliament to deal with the question. The Imperial Government also allowed the Cana- dian Legislature to reform itself, although its con- stitution rested upon a British Act of Parliament. This CANADA 145 was done in two ways by the increase of the numbet of representatives, and by the change from nomination to election in the case of the second Chamber. At Lord Elgin's recommendation the English Government carried, in 1854, a Bill through the Imperial Parlia- ment enabling the Colonial Legislature to effect the latter important change, in spite of the protest of Lord Derby, who thought that with an elective second Chamber monarchy could not exist in Canada. It is worthy of note that this change in the democratic direction did not endure. Under the federal con- stitution of 1867 a return was made to the system of nomination by the Crown. Lord Durham laid foundations, and his son-in-law, Lord Elgin, built upon them. The solution of the question how to reconcile the integrity of the Empire with the freedom of those Colonies which possess populations capable of freedom, is largely due to these two statesmen. The question whether Canada would remain part of the British Empire was far from settled when Lord Elgin took the helm in 1847. The exist- ing aspirations of a certain party towards union with the States had been enhanced by the economic results of British variations of trade policy. The British Navigation Laws, injurious to Canadian interests by enhancing freights for the benefit of English shipowners, were not repealed till June 1849. Again, until 1843, the English Corn Laws affected Canada and the States alike. But by the Corn Act of 1843, a kind of half-way house to Free Trade, wheat and flour from Canada were admitted into England at a nominal duty. Thus a premium was put upon the grinding of American wheat in Canada and its tran- shipment thence as flour, and a great amount of Cana- K 146 IMPERIUM ET LIBERT AS dian capital was invested in mills. But almost before these arrangements were completed and the newly built mills fairly at work, the Free Trade Act of 1846 swept away the advantage conferred upon Canada, and rendered useless all the expenditure of capital. 1 " I do not think," wrote Lord Elgin to the Secretary of State, " that you are blind to the hardships which Canada is now enduring, but, I must own, I doubt much whether you fully appreciate their magnitude, or are aware how directly they are chargeable on imperial legislation. Stanley's Bill of 1843 attracted all the produce of the west to the St. Lawrence, and fixed all the disposable capital of the province in grinding mills, warehouses, and forwarding establishments. Peel's Bill of 1846 drives the whole of the produce down the New York channels of communication, destroying the revenue which Canada expected to derive from canal dues, and ruining at once millowners, forwarders, and merchants. The consequence is, that private property is unsaleable in Canada, and not a shilling can be raised on the credit of the province." Canadian produce was driven to seek a market in the States, and, as it paid a heavy duty on the frontier, farmers on the north side of the line found themselves much worse off than their immediate neighbours to the south of it. " All the prosperity," said Lord Elgin, " of which Canada is robbed is transplanted to the other side of the lines, as if to make Canadians feel more bitterly how much kinder England is to the children who desert her than to those who remain faithful. . . . I believe that the conviction that they would be better off if they were * annexed ' is almost universal among the commercial classes at present." How would it have been, one asks oneself, for 1 See Lord Grey's " Colonial Policy," i. 220, CANADA 147 Canada and the Empire, if the line of policy taken by Lord Stanley's Act of 1843 na ci not been abandoned but developed, and fiscal preference had been given by England to colonial and Indian exports ? One would imagine that England would then in turn have been able to require free admission of her own exports by all the Colonies, and that the arrange- ment might have grown into an imperial zollverein of the whole Empire. We might have had free inter- change of commodities within and uniform duties against the outer world, and eventually, perhaps, a Federal Council of the Empire to regulate the whole system. But the urban populations in Great Britain, led by Cobden and Bright, were at that time intent upon nothing but the cheap loaf, and by no means in the mood for far-reaching imperial policy. Lord Grey, in his book of 1853 on " Colonial Policy," points out the connection between the free trade move- ment in England and the temporary loosening of the bonds of the British Empire. For more than two cen- turies the great object of all European nations in colonial extension, as it still is that of most, was to give on the one hand a monopoly of their colonies' com- merce to the parent State, and on the other to give a preference to their produce in its markets. Sir Kobert Peel's measure in 1846, placing foreign and colonial commerce^upon an equal footing, shocked long-held con- victions, and was one cause of the doubts which then prevailed in England as to the benefit of preserving con- nection with the Colonies, and, in the Colonies, as to the benefit of remaining attached to the British Empire. " Not only," says Lord Grey, " those who still ad- hered to the opinion that the former policy with respect to colonial commerce was the right one, but many of 148 IMPERIUM ET LIBERTAS the most eager advocates of the principles of free trade, concurred in arguing that, if the Colonies were no longer to be regarded as valuable on account of the commercial advantages to be derived from their possession, the country had no interest in keeping those dependencies, and that it would be better to abandon them ; thus getting rid of the heavy charge on the country, especi- ally in providing the requisite amount of naval and military force for their protection. In like manner, the Colonists began to inquire whether, if they were no longer to enjoy their former commercial privileges in the markets of the Mother Country, they derived any real benefit from a continuance of the connection." Lord Grey's answer was that the British Empire ought to be maintained from the English point of view, because it added to our strength to have faithful and steady allies in various parts of the world, and because from a higher point of view we had incurred a great responsibility, and were bound to support it with a view to maintaining peace and extending civilisation. To the Colonies, he thought, the connection was of still greater material importance, because, while they were still small and weak communities, their inhabitants enjoyed, in return for allegiance to the Crown, all the security and consideration belonging to subjects of an exceedingly powerful State. These considerations are of a high order and have prevailed, but at the moment of the repeal of the old British commercial policy the opposite reasonings seemed plausible. It was one of the moments of unloosening which from time to time recur in history. Writing in 1849 Lord Elgin said that the "dis- affection now existing in Canada, whatever be the forms in which it may clothe itself, is due mainly to commercial causes." CANADA 149 " So general," he added, " is the belief that under the present circumstances of our commercial condition, the Colonists pay a heavy pecuniary fine for their fidelity to Great Britain, that nothing but the existence to an unwonted degree of political contentment of the masses has prevented the cry for annexation from spreading like wildfire through the province." This, he pointed out, was a new feature in Canadian politics. "The plea of self-interest, the most powerful weapon, perhaps, which the friends of British con- nection have wielded in times past, has not only been wrested from my hands, but transferred since 1846 to those of the adversary." 1 The remedy offered to the Canadians was, he pointed out, perfectly definite and intelligible. "They are invited to form part of a community which is neither suffering nor free-trading, which never makes a bargain without getting at least twice as much as it gives ; a community the members of which have been within the last few weeks pouring into their multifarious places of worship to thank God that they are exempt from the ills which afflict other men, from those more especially which afflict their despised neighbours, the inhabitants of North America, who have remained faithful to the country which planted them." Lord Elgin was convinced that economic motives of self-interest of the most palpable description were suggesting separation, and that these influences were only counteracted by a feeling of gratitude "for what 1 He showed that a bushel of wheat, grown on the Canadian side of the line, fetched 91] . to is. less that year in the market than did a bushel of wheat grown in a farm in New York State distant less than a mile. 150 IMPERIUM ET LIBERTAS has been done and suffered in this year in the cause of Canadian self-government." So strong was the " annexation " movement in 1849 that Lord Elgin and his Executive Council had to remove from office several magistrates, queen's counsel, militia officers, and other holders of public office, who had signed an elaborate manifesto in favour of that policy. He was supported in this step by the Imperial Government, but the Canadian disaffection was fostered by that indifference to the colonial con- nection, and pessimism as to its continuance, which still prevailed among English public men. Lord John Eussell himself was incorrigible, and thought that every measure which he supported for widening the limits of colonial home-rule, was but one step more in the direction of inevitable, and not altogether to be feared, separation. On the 8th February 1850, speaking in the House of Commons upon the subject of colonial policy generally, he said : " I anticipate, indeed, with others, that some of the Colonies may so grow in population and wealth that they may say, * Our strength is sufficient to enable us to be independent of England. The link is now become onerous to us ; the time is come when we can, in amity and alliance with England, maintain our independence.' I do not think that that time is yet approaching. But let us give them, as far as we can, the capacity of ruling their own affairs ; let them increase in wealth and population, and, whatever may happen, we of this great empire shall have the con- solation of saying that we have contributed to the happiness of the world." Lord Elgin's comments upon these words, made in a letter to Lord Grey, dated 23rd March 1850, are well CANADA 151 worth quoting at length, because they show most clearly the divergence of thought between the fore- runners of the coming imperial faith, and men bred up like Lord John Eussell upon the lines of thought inspired by the old colonial theory, as modified by j the loss of the first American Colonies, men to whom it seemed that there was no final alternative to govern- ment from Downing Street except entire separation and colonial independence. " On this solemn occasion," wrote Lord Elgin, " the Prime Minister of England, amid the plaudits of a full senate, declared that he looked forward to the day when the ties which he was endeavouring to render so easy and mutually advantageous would be severed. And wherefore this foreboding? or, perhaps I ought not to use the term foreboding, for really, to judge by the comments of the press upon this declaration of Lord John's, I should be led to imagine that the prospect of these sucking democracies, after they have drained their old mother's life-blood, leaving her in the lurch and setting up as rivals, just at the time when their increasing strength might render them a support instead of a burden, is one of the most cheering which has of late presented itself to the English imagination. But wherefore, then, this anticipation if foreboding be not the correct term ? Because Lord John and the people of England persist in assuming that the colonial relation is incompatible with maturity and full development. And is this really so incontestable a truth that it is a duty not only to hold but to proclaim it? Consider for a moment what is the effect of proclaiming it in our case. We have on this continent two great empires in presence, or rather, I should say, two great imperial systems. In many respects there is much similarity between them. In so far as powers of self-government are concerned, it is certain that our 152 IMPERIUM ET LIBERT AS Colonists in America have no reason to envy the citizens of any State in the Union. The forms differ, but it may be shown that practically the inhabitants of Canada have a greater power in controlling their own destiny than those of Michigan or New York, who must tolerate a tariff imposed by twenty other States, and pay the expenses of a war undertaken for objects which they profess to abhor. And yet there is a difference between the two cases ; a difference of sentiment rather than of substance, which renders the one a system of life and strength, the other a system of death and decay. No matter how raw and rude a territory may be when it is admitted as a State into the Union of the United States, it is at once, by the popular belief, invested with all the dignity of man- hood, and introduced into a system which, despite the combativeness of certain ardent spirits from the South, every American believes and maintains to be immortal. But how does the case stand with us? No matter how great the advance of a British colony in wealth and civilisation, no matter how absolute the powers of self-government conceded to it, it is still taught to believe that it is in a condition of pupilage from which it must pass before it can attain maturity. For one, I have never been able to comprehend why, elastic as our constitutional system is, we should not be able, now more especially when we have ceased to control the trade of our Colonies, to render the links which bind them to the British Crown at least as lasting as those which unite the component parts of the Union. . . . One thing is, however, indispen- sable to the success of this, or any other, system of colonial government. You must renounce the habit of telling the Colonies that the colonial is a provisional existence. You must allow them to believe that, without severing the bonds which unite them to Great Britain, they may attain the degree of perfection, and of social and political development, to which CANADA 153 organised communities of free men have the right to aspire" Lord Elgin, after giving some striking instances of the discouragement caused to loyal Canadians by speeches like Lord John Russell's, and by the "per- fectly unsound and most dangerous theory that British Colonies could not attain maturity without separa- tion," and dwelling upon the economic and commercial instability due to the idea that the existing connection between Canada and England was but temporary and transient, went on to ask : " Is not the question at issue a most momentous one? Is the Queen of England to be the sovereign of an Empire, growing, expanding, strengthening itself from age to age, striking its roots deep into fresh earth, and drawing new supplies of vitality from fresh soils ? Or is she to be for all essential purposes of might and power monarch of Great Britain and Ireland merely her place and that of her line in the world's history determined by the productiveness of 12,000 square miles of a coal formation, which is being rapidly ex- hausted, and the duration of the social and political organisation over which she presides dependent on the annual expatriation, with a view to its eventual alienation, of the surplus swarms of her born sub- jects?" Lord John Russell would, his critic suggested, have adopted a safer and better course if, instead of virtually bidding the Colonists to prepare for separa- tion, he had shown that the Government and Parlia- ment had no end in view save the "establishment of the relation between the Colonies and the Mother Country on a basis of mutual affection," and that " as the idea of maintaining a Colonial Empire for 154 IMPERIUM ET LIBERT AS the purpose of exercising dominion or dispensing patronage had been for some time abandoned, and that of regarding it as a hotbed for forcing com- merce and manufactures more recently renounced, a greater amount of free action and self-government might be conceded to British Colonies without any breach of imperial unity, or the violation of any principle of imperial policy, than had under any scheme yet devised fallen to the lot of the com- ponent parts of any federal or imperial system." To read the speech of Lord John Russell and this commentary upon it is to see the movement of thought in this matter. Lord Elgin's conviction has now be- come an imperial creed held by almost all men. When the American Foreign Secretary, in his des- patch in 1896 concerning the Venezuela question, announced that there could be no permanent con- nection between one country and another country three thousand miles distant, he was but behind his time. 1 His doctrine was held by many Englishmen, if not by most Englishmen, fifty years earlier; but, when he wrote, it had been almost entirely abandoned upon this side of the Atlantic. It is true that unless British statesmen had conceded to the Canadians the full right to live as a nation, permanent union with the British Empire would have been impos- sible. A distinguished Irishman has said that Canada did not receive home-rule because she was loyal, but is loyal because she received home-rule. To no one man was this solution of the problem due more than to Lord Elgin. In his last speech made at Quebec on the eve of his departure in December 1854, he most truly said that it had been his earnest endeavour to implant and establish the principle CANADA 155 " of national life in harmony with British con- nection." Lord Elgin's services cannot be rated too highly. His tenure of office in Canada came to bridge the interval of indifference when the connection with the Colonies had lost the old value given to it for reasons of patronage and exclusive commerce, and before England perceived how immense was to her the value of a Colonial Empire if she was to hold her own in the world. In 1850 the Russian Power was not within a measurable distance of the Indian frontier and the Chinese provinces. The instinct of common danger and the need of joint defence now teaches to all men the imperial doctrine, not, in the mid-century, clearly seen except by statesmen like Lord Elgin and Lord Grey. Before quitting this subject, it will be well to consider Lord Elgin's conception of the functions of a Canadian Viceroy. In Lord Elgin's view, the Viceroy of Canada should consent to all the proposals definitely made by his Ministers so long as they were not repugnant to public morals or injurious to imperial interests. He was to be the guardian in the last resort of the highest interests, the link between the Mother Country and the colony, an adviser of his advisers in matters above the plane of party politics. In 1852 he wrote to a friend : " I have been possessed (I use the word advisedly, for I fear that most persons in England still consider it a case of possession) with the idea that it is possible to maintain on this soil of North America, and in the face of Republican North America, British connections and British institutions, if you give the latter freely and 156 IMPERIUM ET LIBERT AS trustingly. ... I believe that it is equally an error to imagine, with an old-fashioned party, that you can govern such dependencies as this on the antiquated bureaucratic principle, by means of rescripts from Downing Street, in defiance of the popular legis- latures, and on the hypothesis that one local faction monopolises all the loyalty of the colony ; and to suppose, with the Radicals, that all is done when you have simply told ' the Colonists to go to the devil their own way.' I believe, on the contrary, that there is more room for the exercise of influence on the part of the Governor under my system than under any that ever was before devised ; an influence, however, wholly moral an influence of suasion, sympathy, and moder- ation, which softens the temper while it elevates the aim of local politics. It is true that on certain questions of public policy, especially with regard to Church matters, views are propounded by my Ministers which do not exactly square with my preconceived opinions, and which I acquiese in, so long as they do not contravene the fundamental principles of morality, from a conviction that they are in accordance with the general sentiment of the community. ... I have always said to my advisers, * While you continue my advisers you shall enjoy my unreserved confidence, and, en revanche, you shall be responsible for all acts of government.' But it is no less certain that there is not one of them who does not know that no induce- ment on earth would prevail with me to bring me to acquiesce in any measures which seemed to be repug- nant to public morals or imperial interests ; * and I must say that, far from finding in my advisers a desire to entrap me into proceedings of which I might dis- 1 " But there are cases of internal government in which the honour of the Crown, or the faith of Parliament, or the safety of the State, are so seriously involved, that it would not be possible for her Majesty to dele- gate her authority to a Ministry in a colony." Lord John Russell's Despatch to Lord Sydenham, i4th October 1839. CANADA 157 approve, I find a tendency, constantly increasing, to attach the utmost value to my opinion on all questions, local or general, that arise" (p. 127). In the last official despatch which he wrote from Canada, on December 18, 1854, Lord Elgin repeated his conviction that the beneficial influence of a Governor in a colony like Canada was most surely confirmed and extended by a frank acceptance of the parliamentary system : " Placed by his position above the strife of parties holding office by a tenure less precarious than the Ministers who surround him having no political in- terests to serve but that of the community, whose affairs he is appointed to administer his opinion can- not fail, when all cause for jealousy and suspicion is removed, to have great weight in the colonial Councils, while he is set at liberty to constitute himself in an especial manner the patron of those larger and higher interests such interests, for example, as those of education and of moral and material progress in all its branches which, unlike the contests of party, unite instead of dividing the members of the body politic.' In some respects the Viceroy of a free colony like Canada may have, if he is prudent and clever, more real guiding power than the Governor of a Crown Colony, who has to refer his actions to the Colonial Office ; or even than a Viceroy of India, who on the one side is checked by the Secretary of State and the Indian Council, and on the other has to consider the opinion of a highly skilled and hierarchically organised bureaucracy. Lord Elgin had experience of all three positions. He was at first Governor of a Crown Colony Jamaica then of Canada, and finally, though un- 158 IMPERIUM ET LIBERT AS happily but for a short space, he was Viceroy of India. In Canada he said : " I have tried both systems. In Jamaica there was no responsible government, but I had not half the power I had here with my constitutional and changing Cabinet." And in India he wrote on December 9, 1862 : " Perhaps I may see reason after a little more experi- ence here to modify my opinion on these points. If I were to tell you what I now think of the relative amount of influence which I exercised over the march of affairs in Canada, where I governed on strictly constitutional principles, and with a free Parliament, as compared with that which the Governor-General wields in India when at peace, you would accuse me of paradox." Sir Mountstuart Grant Duff records, in his " Notes from a Diary," the saying of an old English Jesuit: "It is surprising how much good a man may do in the world if he allows others to take the credit of it." A con- stitutional monarch, or viceroy, holds a singularly good position for influencing in this unseen way the course of the world's history. These considerations have an important bearing upon the future position of the monarchy in the United Kingdom and the British Empire. CHAPTER V THE CREATION OF THE CANADIAN DOMINION (1867) LORD DURHAM contemplated in his report the eventual amalgamation under a legislative union, not only of the two Canadas, but of the other British North American provinces, Newfoundland, Nova Scotia, New Bruns- wick, and Prince Edward Island. It was not found practicable to carry into effect this wider concentration, and, as the years went on, there was a return of public opinion towards the idea of a federal union of the whole great territory. The Constitution of 1840 had secured equal representation in the Canadian Parlia- ment to the provinces of Upper and Lower Canada. At that date the arrangement was favourable to the Upper Province, which was, under it, largely over- represented in proportion to its population. But, after 1840, the stream of emigration from Europe to Upper Canada set in strongly, and the proportions were altogether changed. Three decennial returns show these results : In 1841 Upper Canada numbered . . 465,000 Lower Canada . . 691,000 In 1851 Upper Canada . . 952,000 Lower Canada . . 890,000 In 1 86 1 Upper Canada . . 1,396,000 Lower Canada . . 1,1 11,000* 1 The census of 1891 gives the following figures for the whole J 59 160 IMPERIUM ET LIBERT AS Time evidently would increase the advantage of the Upper Province. The Upper Canadians began to demand a larger representation, and this was resisted by the French. Moreover, the system of equal repre- sentation of the two provinces was not favourable to the working of constitutional government of the English kind. Parties were too nearly balanced to allow of strong and stable Ministries. At first it was only possible to make the United Parliament work at all by the adoption of the " double majority system" that is, that a majority not only of the whole Assembly, but of each of the two sets of provincial representatives, should be secured for every measure. This principle was abandoned by the Macdonald Ministry of 1857, who relied upon the votes of Lower Canada supported by an Upper Canadian minority. At once the cry of " French domination " arose in Upper Canada, and it was found that as soon as the "double majority" compromise was given up, nothing was to be looked for but a succession of weak and unstable Ministries. The Upper Cana- dians were discontented also with the application of revenue. They now contributed the larger proportion, and resented the expenditure of so much of it in public works in French Canada. Moreover, the whole of British North America suffered from the evils of Dominion. The results of the census of 1901 did not appear in time to be inserted here. Prince Edward Island 109,078 Nova Scotia 45o>396 New Brunswick 321,263 Quebec 1,488,535 Ontario 2,114,321 Manitoba 152,506 British Columbia 97?6i3 Territories and Arctic Islands 98,967 Total, 4,832,679 CANADA 161 disunion. Canada, Nova Scotia, New Brunswick, and Newfoundland were separated by hostile tariffs and Custom-houses ; there was no identity of banking system among these colonies, no uniform postal arrangements, no identical currency, no combination for military defence. Thus on all sides arose a pre- disposition towards an union of a new and wider nature ; decentralising, so far as regards the two Canadas, centralising, as regarded the whole of the North American Colonies. In 1864 the Governments of the Maritime Pro- vinces of Nova Scotia, New Brunswick, and Prince Edward Island appointed delegates to arrange the terms of a legislative union among themselves. Shortly before this a Coalition Ministry, supported by the Upper Canadian Keformers and a branch of the Lower Canadian Conservatives, had been formed upon the policy of a federal union. This Govern- ment asked permission to join the Conference of the Maritime Provinces, and sent delegates, who proposed the confederation of all the British North American Colonies. The Conference adjourned from Charlotte- town, where it had first met, to Quebec, and there were drawn up the resolutions afterwards known as the Quebec scheme. These resolutions, with some slight changes, formed the basis of the measure afterwards submitted to the Imperial Parliament. The policy was strongly supported by the Imperial Government. During the American Civil War, the military power of the United States had been enor- mously developed, and at one critical point seemed upon the verge of being directed against the British Empire. The necessity for consolidating the North American dominions, and creating in Canada a true L 1 62 IMPERIUM ET LIBERT AS and powerful nation capable of assisting in its own defence against southern aggression became manifest. In his speech at the opening of the Canadian Parlia- ment, in 1865, the Govern or -General, Lord Monck, said : " It remained with the public men of British North America to say whether the vast tract of country which they inhabited should be consolidated into a State, combining within its area all the elements of national greatness, providing for the security of its component parts, and contributing to the strength and security of the Empire ; or whether the several provinces of which it was constituted should remain in their present frag- mentary and isolated condition, comparatively power- less for mutual aid, and incapable of undertaking their proper share of imperial responsibility." Both Houses of the Canadian Legislature adopted the Quebec resolutions by a large majority in Feb- ruary 1865. There was much opposition, however, in the Maritime Provinces, and in Newfoundland and Prince Edward Island the Legislatures refused to pro- ceed. The remaining provinces, New Brunswick and Nova Scotia, sent delegates to London to arrange the basis of a federal union, in concert with delegates from Upper and Lower Canada and with the Imperial Government. The four provinces then entering into confederation combined 400,000 square miles, or an area more than four times the size of England and Scot- land, with a population, in 1867, of about four millions, and a revenue then amounting to about ,3,000,000. The Federation Bill was introduced into the House of Lords by Lord Carnarvon in February 1867, and it passed through both Houses of the Imperial Par- liament with very little discussion and without a CANADA 163 division, and received the royal assent on the ist July the birthday of the great Dominion, kept as a public holiday, under its title of "Dominion Day,' throughout British North America. Lord Carnarvon, in his speech introducing the measure, said : " It is not every nation or every stage of the national existence that admits of a federative govern ment, Federation is only possible under certain con- ditions, when the States to be federated are so far akin that they can be united, and yet so far dis- similar that they cannot be fused into a single body politic. And this I believe to be the present condition of the provinces of North America." These words were an admission that, after an ex- periment lasting for twenty-seven years, the fusion of French and English predicted and relied upon by Lord Durham had failed to take place. The "British North America Act, 1867," begins by a recital of the desire of the provinces of Canada, Nova Scotia, and New Brunswick to be "federally united into a Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a con- stitution similar in principle to that of the United Kingdom." It then directs a division into four provinces, to be called Ontario, Quebec, Nova Scotia y and New Brunswick, the two first provinces being formed by the severance of the province of Canada into the two component parts out of which it had been formed in 1840, viz., Upper Canada and Lower Canada. 1 1 The following provinces have since then been admitted, viz. : In 1870. Manitoba and North- West Territories. ,, 1871. British Columbia. ,, 1873. Prince Edward Island. Newfoundland still remains outside, 164 IMPERIUM ET LIBERTAS The Act declares ,^that the executive government of Canada, together with supreme command over all naval and military forces, continues to be vested in the Queen. A Privy Council for Canada was insti- tuted, and all powers and functions then vested in the Governors and Executive Councils of the several amalgamated provinces were by the Act vested in the Governor-General and the Privy Council. The Act also provides that there shall be " One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, consisting of members nominated by the Crown for life, and the House of Commons." In each province also there was to be a Lieutenant- Governor, appointed by the Governor-General, an Executive and a Legislature, and these minor govern- ments were to fulfil, each within the sphere of subjects allotted to it, the duties and functions performed by the Governor-General and the Dominion Ministry and Parliament in the affairs of the whole Dominion. No attempt was made to construct the Provincial Legis- latures on a uniform scheme. By the Act of 1867 the Ontario Legislature was to consist of a single House, that of Quebec of two Chambers, and as the provinces have the power to alter their constitutions, except as regards the office of Lieuten ant-Governor, plenty of variety may be expected in the future. The Act of 1867 makes clear the intention that both in the case of the Dominion Government, and the provincial Governments, the full modern working principles of the British Constitution were to prevail. These principles had already been established in Canada. The most important novelty in the Act of 1867 consisted in the distribution of powers between the Federal Parliament and the Provincial Legislatures. CANADA 165 This important delimitation was effected in clauses 91 to 95 of the Act, which are printed in full in the Appendix to the present book. Section 91 of the Act, provides that it " shall be lawful for the Queen, by and with the assent of the Senate and House of Commons to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the pro- vinces/' For greater clearness or certainty twenty- eight classes of subjects thus falling within the general powers of the Dominion Parliament are then specified. Section 92 states sixteen classes of subjects exclusively given to the local Legislatures. It must be carefully observed that the twenty-eight classes of subjects specified as belonging to the Central Parliament are to be taken as leading examples only, and not as exhausting the general powers of that Parliament ; while, on the other hand, the Provincial Legislatures have no powers outside the classes of subjects speci- fically assigned to their jurisdiction. To the Central Parliament the Act specifically assigns all questions of the public debt and property, regulation of trade and commerce, the raising of money by any mode or system of taxation, customs and excise, currency, coinage, and banking laws, postal arrange- ments, census and other statistics, the enactment of criminal law, marriage and divorce, the laws of bankruptcy, patents and copyright, questions of naturalisation and aliens, the regulation of Indians and Indian reserves ; within their province also fall all matters relating to military and naval service, coast control, and sea-coast and internal fisheries. The chief subjects reserved to the Provincial Legis- 1 66 IMPERIUM ET LIBERTAS latures are the management and sale of public lands belonging to the province, the control of asylums, charitable and municipal institutions, and prisons, provincial roads, railways and public works, the solemnisation of marriage, property and civil rights, the administration of justice in the province, and regulation of civil proceedings, and, subject to certain guarantees for the protection of religious minorities, education. The Provincial Legislature has also the power of direct taxation, though the Dominion Parlia- ment can also impose direct taxation if it desires. 1 The Provincial Legislature may also make laws with regard to Agriculture and Immigration within their areas, but not so as to be repugnant to any Acts which the Parliament of Canada may, under their general powers, pass on the same subjects. The power of amending their own constitutions has also been entrusted to the Provincial Legislatures. Just as an absolute monarchy is a much simpler political machine than a form of government which guarantees the rights and liberties of the subjects, so also a country in which there is but a single legislative power has a constitution simpler and more easy to understand than one in which a federal system pre- vails. 2 The relations between the central and pro- vincial powers, and the border line between their respective spheres of action, are often delicate and difficult to define. An original constitution like that of the United States of America, or that embodied in 1 Consequently the Judicial Committee of the Privy Council has had to define " direct taxation." It has been held to include licences. 2 M. Laveleye says, in his Essai sur les Formes de Gouvernement : " On pourrait meme forrnuler ce principe que plus un regime politique est simple plus il se rapproche a 1'absolutisme ; au contraire plus il donne de garanties a la liberte plus il est complique. Eien n'est aussi simple que le despotisme orientale, rien n'est plus complique que les institutions des fitats Unis." CANADA 167 the Dominion Act of 1867, can but mark out the broad lines of organisation. Mr. Story in his book on " The Constitution of the United States," 1 justly remarks that " The erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety ; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. Time alone can mature and perfect so compound a system, liquidate the meaning of all the parts, and adjust them to each other in an harmonious and consistent whole." One question which, in the Canadian case, led to discussion, but may now be taken as settled, is that of the relation of Crown and Governor-General to pro- vincial legislation. The Act of 1867 declares that the Governor-General may either assent to any Bill passed by the Dominion Parliament, or can withhold assent or reserve the Bill for the Queen's pleasure. Even when he assents the Bill can be annulled by the Queen in Council within two years after its passing. The Act made it clear that in the case of provincial enact- ments the Governor-General occupied in these respects, with regard to the Lieutenant-Governor and Legisla- ture of the province, the same position as that occupied by the Queen in respect of the Governor-General and the Dominion Parliament. The provinces are, in this way, directly subordinated to a federal government instead of to imperial authority. The principle has been well established "that the Queen in Council claims no jurisdiction over provincial legislation, 1 Fifth edition, vol. ii. p. 654. 1 68 IMPERIUM ET LIBERT AS that the only tribunal before which any provin- cial enactment could be questioned was that of the Governor-General, and that no imperial Secretary of State would undertake to advise an interference by the Crown with the action or determination of the Governor-General in such matters." It is clear that the control of the Crown over the provinces is exer- cised not directly but indirectly through the Canadian Viceroy. But the Act did not make it clear whether in allowing or disallowing the Acts of Provincial Legisla- tures the Governor-General was to act as an imperial officer, subject to instructions from London, or, as in other matters, upon the advice and responsibility of his Dominion Ministers. There was some division of opinion upon this matter, but the Colonial Office has apparently acquiesced in the Canadian contention that the Governor-General must, in this respect also, act upon the advice of his Ministers. 2 In any case the Governors-General have, as a matter of fact, it seems, invariably followed this course. As the Imperial Ministry and not the Monarch are responsible for allowing or disallowing, in the last resort, Acts of the Dominion Parliament, so the Dominion Ministry and not the Governor-General are responsible for allowing or disallowing the Acts of Provincial Legislatures. As to the principles which should govern the Canadian Viceroy in Council, or, in other words, the Dominion Cabinet, in exercising power over provincial legislation, Mr Todd's resum is worth quoting, although since the practice of referring doubtful cases to the Supreme Court has been established, the 1 Alpheus Todd, " Parliamentary Government in the British Colonies." 2 There is a resume" of the discussion in Mr. Todd's book, p. 332, &c. CANADA 169 whole question of the veto has become of diminished importance : " In deciding upon the validity or expediency of provincial enactments, the Governor - General in Council has no arbitrary discretion. The decision of the Dominion Government upon all such questions must be in conformity with the letter and spirit of the British North America Act. That statute has been correctly termed the * great charter of our constitu- tion/ It recognises and guarantees to every province in the confederation the right of local self-government in all cases within the competency of the provincial authorities. And it does not contemplate or justify any interference with the exclusive powers which it en- trusts to the Legislatures of the several provinces ; except in regard to Acts which transcend the lawful bounds of provincial jurisdiction, or which assert a principle, or prefer a claim, that might injuriously affect the interests of any other portion of the Dominion, as in the case of Acts which diminish rights of minorities in the particular province in rela- tion to education that had been conferred by law in any province prior to confederation." l It is not enough that the Dominion Government should disapprove of any particular provincial Act. In practice, says the author last quoted "As a rule the Dominion Government refrains from any interference with provincial legislation, so long as the Acts passed are clearly within the com- petency of the local authorities, unless they contain provisions which are open to objection upon grounds of public policy, as being calculated to affect injuriously the interests of the Dominion or of any particular portion thereof" (p. 366). 1 Todd's " Parliamentary Government in the British Colonies," p. 343. i yo IMPERIUM ET LIBERTAS Just, therefore, as " no mere calculations of poli- tical expediency or difference of opinion in regard to the policy of a colonial enactment would suffice to induce the Crown to veto the same, provided only it was within the legislative competency of the colony, and did not injuriously affect the interests of other parts of the Empire," so also " a similar restraint has been observed by the Dominion Government in its control over provincial legislation delegated to it by the Imperial Parliament." As a matter of fact, a very small number of the Acts of Provincial Legislatures have been wholly dis- allowed by the Dominion Government, though many such Acts have been objected to by that Government, and, in consequence, repealed or amended by the Legislatures themselves. 1 If provincial statutes are ultrd vires their invali- dity, even if they are not disallowed by the Dominion Government, can be decided, subject to appeal, by any court of law when cases arise upon them, and this has frequently occurred. A Supreme Court of Appeal was established in Canada in 1875. ^ can entertain appeals from all Courts in the Dominion in civil and criminal cases. It also has jurisdiction in controversies between the Dominion of Canada and any province, or between any two or more provinces, or in suits in which the validity of any Dominion or provincial Acts shall be raised by a suitor, provided that the Court below deems such contention material. Under an amending Act of 1891, the Governor in Council has power to refer 1 Between 1867 and 1878 the province of Ontario passed 1000 Acts, of which only three were disallowed. Quebec in the same period passed 812, of which two were disallowed. I CANADA 171 to the Supreme Court " any important question of law or fact touching provincial legislation, or as to educa- tional matters ... or touching the constitutionality of any legislation of the Parliament of Canada, or any other matter with reference to which he sees fit to exercise this power." The Supreme Court hears all parties interested in questions so referred, and gives an opinion which, " although advisory only, shall for all purposes of appeal to her Majesty in Council be treated as a final judgment of the Court between parties." An instance of an important matter referred in this way to the Supreme Court, and afterwards by appeal to the Privy Council, was the question as to the remedial powers of the Dominion Government in the matter of the Manitoba educational grievance. It is obvious that a Court of this character is very necessary in a federal constitution, for although the main division of power between the central and local authorities may be clear and well-defined, yet con- stant questions must arise upon the frontier line between these powers. In the United States the central government possesses no political veto over the measures of the State Legislatures. Hence the whole work of holding the balance between Federal rights and State rights throughout the rapidly changing con- ditions of a hundred years has devolved upon the Supreme Court, deciding principles upon cases as they arose. That tribunal, as a maker of constitutional law, holds a position of the greatest power and dignity. The Supreme Court of Canada arbitrates in the same kind of questions, deciding what Acts are ultrd vires or intrd vires the Dominion Parliament and Provincial Legislatures. It is not, however, like the Supreme Court of tie United States, a final tribunal whose 172 IMPERIUM ET LIBERT AS judgments cannot be reversed, for an appeal can be made from its decisions to the Queen in Privy Council. As a matter of fact, the principles of division of power between the several authorities in Canada have been worked out in a series of cases heard by the Judicial Committee in Whitehall. 1 As in the United States, so now in the British Empire, a great school of con- stitutional lawyers is arising to meet the new problems involved in the federal system. The question of the constitutionality of a statute was a new one to English lawyers. The word itself is transatlantic in origin. In this country every Act of Parliament has been con- stitutional, because sovereignty is undivided, and con- centrated in one supreme legislature. But when the Canadian federal system has been extended to South Africa as well as to Australia, when it is adopted, possibly, in the United Kingdom itself, and even, conceivably, for the whole Empire, questions of this kind will become of immense importance. The ex- isting Canadian decisions may therefore prove to be the foundation of a vast superstructure of what might well be called imperial law, and they are of the greatest value and interest. An excellent study of the whole doctrine of ultrd vires as applied to the relations of central and subordinate legislatures has been made by a member of the Canadian Bar, Mr. Lefroy, in his book called "Legislative Power in Canada." 2 A perusal of this book, with some refer- 1 Section 45 of the Supreme Court of Canada Act, 1875 (Canadian Statutes) runs thus : " The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any Court of Appeal estab- lished by the Parliament of Great Britain and Ireland by which appeals or petitions to her Majesty in Council may be ordered to be heard, saving any right which her Majesty may be graciously pleased to exercise by virtue of her Royal Prerogative." 2 Published at Toronto in 1897. CANADA 173 ence made to the original cases, may be recommended to any one who desires to understand more exactly the working of a federal constitution. I cannot here do more than refer to certain doctrines of chief importance which have been laid down by the Courts in interpretation of the Act of 1867. The powers of the Dominion Parliament and those of the Provincial Legislatures alike proceed from an outside sovereign authority, the Imperial Parliament ; nor do the provinces in any sense derive their poli- tical existences from the Dominion. The Dominion Parliament cannot by direct legislation take away from the Provincial Legislatures any power which the Imperial Parliament has given to them, nor can it bestow any power upon them which the Imperial Parliament has not given. Nor, of course, can a Provincial Legislature extend its own powers. All the sovereign power within the Canadian territory, in so far as it does not conflict with any law made by the Imperial Parliament for the whole of the Queen's dominions (such as the law against slave- trading), is divided between the Dominion Parliament and the several Provincial Legislatures. The Federa- tion Act " exhausts the whole range of legislative power, and whatever is not thereby given to the Provincial Legislatures rests with the Dominion Par- liament." l The larger share by far belongs to the Dominion, but within its own sphere the Province enjoys "authority as plenary and as ample within the limits prescribed as the Imperial Parliament in the plenitude of its power possessed and could bestow." : The Province of Quebec, equally with the 1 Judicial Committee in Bank of Toronto v. Lambe, 12 App. Ca., p. 587. 2 Judicial Committee in Hodge u the Queen, 9 App. Ca., p. 117. 174 IMPERIUM ET LIBERT AS Dominion of Canada, has vested in it (so long as the Act of 1867 stands unrepealed) a portion of sove- reign power, and this it exercises not as a delegate of, or agent for, either the Imperial Parliament or the Dominion Parliament, but in the same sense as that in which either of those authorities exercise their powers. 1 But while the powers of the Provincial Legislature are limited both to its prescribed subjects and to its territory, the powers of the Dominion Parliament are not, within Canada, limited by territory, and are non- existent there only where the subject matter is part of that exclusively allotted to the province. 2 A Canadian judge has said : " Before the laws enacted by the federal authority within the scope of its powers the provincial laws disappear ; for these laws we have a quasi-legislative union ; these laws are the local laws of the whole Dominion, and of each and every Province thereof. The Dominion as to such laws is but one country, having but one legislative power." 3 The exact division of all legislative power between the Dominion and the Provincial Legislatures is easy to state as a principle, but not easily reduced to practice. In fact, a subject looked at from one point of view often falls within the sphere of the Dominion, 1 Judicial Committee in Hodge v. the Queen, 9 App. Ca. 2 The Judicial Committee of the Privy Council said in the Manitoba education case ( 1 894) : " It must be remembered that the Provincial Legislature is not in all respects supreme within the province. Its legis- lative power is strictly limited. It can only deal with matters declared to be within its cognisance by the British North America Act as varied by the Manitoba Act. In relation to the subjects specified in section 92 of the British North America Act, and not falling within those set forth in section 91, the exclusive power of the Provincial Legislature may be said to be absolute." 3 Taschereau, J., in 4 S.C.R., p. 307. i CANADA 175 looked at from another, within that of a Provincial Legislature. In this way, for example, a law for local option in temperance passed by the Dominion Parlia- ment under its general power of legislation for "the peace, order, and good government of Canada " clashed in its effects with certain legislation which appeared to be within the powers of a Provincial Legislature. In cases of such conflict "it may now be regarded as settled law that . . . the enactments of the Parlia- ment of Canada, in so far as these are within its competency, must over-ride provincial legislation." * The Dominion Parliament cannot expressly and directly repeal an Act, even if ultra vires, passed by a Provincial Legislature ; but it can, under certain circumstances, indirectly supersede or invalidate a Provincial Act, even if ultrd vires, by passing an Act upon the same subject. If Dominion and provincial legislation clash in this way it is for the judicial tribunals to decide which has the right to prevail. Suppose the case of an individual who resists the operation of a Dominion Act upon the ground that it is ultrd vires. The duty of the Courts would be in the first place to inquire whether the subject of the Act was one of those exclusively assigned to the Provincial Legislatures. If not, it would hold good. If it did fall within the power of the Pro- vincial Legislature the further question would arise whether any concurrent power in the same matter was vested in the Dominion Parliament, expressly or impliedly, so as to over-ride the provincial legislation, 1 Liquor Prohibition Appeal, 1895, in 1896 A.C., pp. 366-67, 369. The Australian Commonwealth Act, 1900, expressly enacts this principle in section 109 : "When a law of the State is inconsistent with a law of the Commonwealth the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." 176 IMPERIUM ET LIBERT AS or whether the Dominion could properly legislate in the matter under their general power of legislating for the " peace, order, and good government" of Canada. Under this last head, the Courts may have to decide very difficult and delicate questions. It has been held that this general power of legislation, in addition to the enumerated powers vested in the Dominion Parliament by the Act of 1867, must be strictly confined to such matters as are unquestionably of national interest and importance, and must not trench upon any of the subjects enumerated in sec- tion 92 as within the scope of provincial legislation, unless the evils to be remedied have obtained such dimensions as to affect the body politic of the Dominion. To attach any other meaning to this general power would, the Privy Council said, " prac- tically destroy the autonomy of the provinces. If it were once conceded that the Parliament of Canada has authority to make laws applicable to the whole Dominion, in relation to matters which in each pro- vince are substantially of local or private interest, upon the assumption that these matters also concern the peace, good order, and government of the Dominion, there is hardly a subject enumerated in section 92 upon which it might not legislate to the exclusion of the Provincial Legislatures." The Judicial Committee added that great caution was necessary in distinguishing between that which is local and provincial and that which has ceased to be so, and has become matter of concern to the whole Dominion. For instance, they said, an Act restraining the right to carry or sell arms to young persons might be a matter of provincial legislation, but traffic in arms or the sale of them under such circumstances as to CANADA 177 raise a suspicion that they were to be used for seditious purposes, or for a raid against a foreign State, would properly fall within the control of the Canadian Parliament. 1 Under a federal constitution a great deal of power rests with the judicial authorities. They are, as it were, the wardens of the marches between the sphere of central and that of provincial legislation, and can in border-line cases practically determine under which law men are to live. So, for instance, Chinamen forbidden to work in the mines of British Columbia by provincial legislation, have been, on judicial interpre- tation, enabled to do so under Dominion legislation. It may be fairly argued that the fact that these diffi- culties arise, that there is this increased possibility of litigation, that it should be doubtful sometimes whether a statute is valid or not till points have been decided in the Courts, is, to say the least, a defect of the qualities of a federal system. This may be ad- mitted, but even under an Unitarian constitution like that of the United Kingdom, almost every new statute gives rise to difficulties of application and interpre- tation, and the meaning is seldom clear until the statute has been enriched with the costly comments of the law-courts. A few more questions thus to be decided make small practical difference. It may be added that since the Dominion Government now has the power to refer dubious provincial statutes to the Supreme Court at the public cost on the question of constitutionality, uncertainty as to validity of laws and the cost to individuals of ascertaining it is likely to diminish. 1 Judgment in the Liquor Prohibition Appeal, 1895 (1896 A.C., p. 366, &c.). M 178 IMPERIUM ET LIBERT AS A comparison has often been made between the organisation of the federation called the United States and the federalised Dominion of Canada. The authors of the Canadian Constitution of 1867 were influenced by the experience of their neighbours, whose insti- tutions had just been tested to the foundation by the civil war. The Canadians desired a closer bond, a stronger central power, and a smaller sphere of State rights. Canada was to be rather a nation divided into provinces than States united for certain purposes into a nation. It seems to the English mind that in the United States, a nation which, in many respects and in an increasing degree, is one by natural fusion, the internal differences of laws and administration are too great. It is possible that by the criminal law of New York State the punishment for murder may be death by electricity; in Texas it may be only two years' imprisonment. In Massachusetts it might be made impossible to obtain a divorce for any cause ; while in Kentucky it might be sufficient to prove in- compatibility of temper, and in Colorado it might be sufficient to produce an agreement to separate. No law of any State, however contrary to the general interests of the American nation, can be vetoed by the Central Government. The Federal Government has not the slightest voice in the appointment of the executive or judicial authorities in any State, so that administration and justice in any State are too largely dependent upon the local level of morality and opinion, and insufficiently swayed by more universal wisdom. One may add that the extent of State liberty cost America the most terrific civil war in history. The makers of the Canadian Constitution took three CANADA 179 main precautions to avoid the ill consequences of over decentralisation. They gave to the Governor-General in Council a veto over provincial legislation ; they sub- stituted in all important judicial posts, and in the case of the second Chamber of the Dominion Parliament, the principle of appointment from above for that of election from below; 1 and they made strong the sphere of the Central Parliament as against that of the Provincial Legislatures. By the declaratory Amendment 10 of the year 1789, "the powers not delegated to the United States by the constitution, nor prohibited by it to the States " are declared to be " reserved to the States respectively, or to the people." In the Canadian Constitution of 1867, the opposite rule is adopted, and all powers not specifically assigned to the provinces are reserved to the Dominion, or to the Imperial Parliament. The Canadian federal union of 1867, like that of the American States in the previous century, was in part a consolidation of separate legislatures and executives previously only connected through their relationship to the Crown and Imperial Parliament. But the United States arose out of a successful rebellion by a group of adjacent colonial provinces which, when they had broken with the English Crown, became for the moment independent and sovereign States. The Canadian Dominion arose by a peaceful evolution, whereby separate colonial provinces became provinces of a single nation, organically one and 1 Under the Act of 1 867 (section 96) the Governor-General is to appoint the Judges of the Superior, District, and County Courts in each province. The Australians have not followed this precedent. Under the Common- wealth Act (section 72) the Justices of the Federal Supreme Court, and such other Federal Courts as may be hereafter erected, are to be appointed by the Governor-General ; other judicial appointments remain with the State authorities. i8o IMPERIUM ET LIBERT AS subject to the British Crown. The American Union is possessed of specific powers surrendered by States, which when they made the surrender were sovereign and independent. The Canadian Union derives its legal force from an outside power the Imperial Parliament, which, acting on the wishes of the Canadians and sanctioning the previous agreement of the several provinces, divided from above the powers and functions of legislature and government into two classes, and gave the larger portion to the central bodies and authorities, and the smaller portion to the provincial. The principle upon which the founders of the Dominion acted in this very important matter were well expressed by Lord Carnarvon in his speech intro- ducing the Constitution Bill of 1867 i n t the House of Lords. He said : " If, on the one hand, the central government be too strong, then there is risk that it may absorb the local action and that wholesome self-government by the provincial bodies which it is a matter both of good faith and political expediency to maintain. If, on the other hand, the central government is not strong enough, then arises a conflict of State rights and pre- tensions, cohesion is destroyed, and the effective vigour of the central authority is encroached upon. The real object which we have in view is to give to the central government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions which are of common import to all the provinces, and, at the same time, to retain for each province so ample a measure of municipal liberty and self-government as will allow and indeed compel them to exercise those local powers which they can exercise with great advan- tage to the community." CANADA 181 During the legislative union of Upper and Lower Canada there had been frequent complaints that Upper Canada contributed most of the revenue, but that Lower Canada enjoyed much the larger share of expenditure upon public works. It was contended, in favour of the separation of the provinces, that this grievance would cease. Lord Carnarvon said : " Henceforward, apart from the revenue raised for the common purposes of the confederation, local taxa- tion and expenditure will depend upon the local authorities. Thus, all those complaints which must arise under the circumstances of such an union as now exists complaints of partiality, of neglect, of mis- management, of roads, of bridges, and those public works which are the very life of a young community must cease. All local works will devolve upon local authorities, who in turn will be responsible to the taxpayers/' It is a question whether the Canadian Con- stitution does not err upon the side of limiting too narrowly the area of provincial action. One would have thought, for instance, that it would have been better to entrust specifically to the Provincial Legislatures that liquor * question which has led to so much litiga- tion. If, however, the Canadians should desire at any time to extend the area of provincial power, it would be open to them to submit to the Imperial Parliament an Act amending that of 1867. It is well to notice here, in passing, two other differences between the system of Canada and that of the United States, not so strictly relevant to the object of this book as is the division of power between the 1 The Australian Commonwealth Act of 1900 makes it clear that, although excise is to be a branch of Commonwealth revenue, the power of liquor legislation is to remain with the States (Sect. 113). 1 82 IMPERIUM ET LIBERT AS Central Government and the States or provinces. The first of these is that the Canadian follows the spirit of the English Constitution, and entrusts executive power to a Committee of Ministers sitting in Parliament, constructed and led by the statesman who, for the time being, most largely commands the confidence of the popular Chamber. The Premier is, virtually, nomin- ated by the party which is in a majority in the House of Commons, and is formally called to office by the Viceroy, who represents the Crown. In the United States, executive government is in the hands of the President, who combines the office of King and Prime Minister. He is elected in theory by a College of Electors chosen for that purpose, but in practice by the whole electorate of the nation, voting by States as electoral divisions. The President is independent of the will of Congress, except that he cannot declare war without their consent ; his Ministers do not hold seats in Congress ; he makes federal appointments, subject to a check possessed by the Senate. The second of these great differences between the United States and Canada is that the power of amend- ing the constitution is reserved to the people of the United States, a special process being devised to pre- vent any such change being made without the consent of the great majority of the nation and States. The Canadian Constitution, being the act of the Imperial Parliament, can only be amended by that Parliament, or by the Canadian Parliament, with the permission and authority of the Imperial Parliament. In prac- tice, no doubt, a direct " reference " to the Canadian electorate would precede any such amendment, and the Imperial Parliament would sanction almost any amendment upon which the Canadians were agreed. CANADA 183 The Australian Federal Constitution, sanctioned by the Imperial Parliament in the year 1900, stands between the Constitution of Canada and that of the United States. 1 Like the Canadian, it follows the fundamental English principle of government by Ministers belonging to 2 and dependent upon Parlia- ment. In other respects the Australians have followed more nearly the American than the Canadian model. In Canada every power not expressly given to the Provincial Legislatures is reserved to the Dominion Parliament. In Australia, as in the United States, the reverse holds good, and the Commonwealth Parliament has those powers only which are expressly assigned to it by the constitution. 3 An Australian State, again, resembles an American State, and differs from a Cana- dian province, in that the Commonwealth Government has no veto over State legislation. In Canada the Senators are nominated for life by the Crown in theory, and in practice by the Dominion Premier, and are taken from the several provinces in proportion to their population. Australian senators are elected by the same electors as members of the other Chamber, but each State votes for this purpose as a single constituency. Each State, moreover, whether large or small in population, returns the same number of senators. 4 It is clear that the 1 See Appendix II. 2 See Appendix II., section 64. 3 Section 107 : " Every power of the Parliament of a colony which has become or becomes a State, shall, unless it is by this constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth." The powers exclusively vested in the Commonwealth Parliament by the Constitution are few (sect. 52), but the subjects in which that Parliament has power to make laws are numerous (sect. 51), and by virtue of section 109 such laws, when made, will over-ride any State law which is inconsistent with them. Till they are made, a State can continue to legislate on the subject (section 108). 4 See section 7, &c. 184 IMPERIUM ET LIBERT AS Australian Senate will be a more powerful body than the Canadian, and more nearly resemble that of the United States. In Australia also, as in the United States, there are special provisions for the amendment of the con- stitution. A law amending the constitution must pass both Houses and then be submitted in each State to the vote of the electorate. If either House twice re- jects an amendment proposed by the other, the fate of the amendment is to be decided by reference to the same electorate. "And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent." l Thus the Imperial Parliament in sanctioning the Australian Constitution has surrendered its power of amending that constitution, although in theory it retains the power of amending the Canadian Constitution, and its formal consent would be necessary in the latter case. It should be observed that the Conferences in which the Canadian Constitution of 1867 was pre- pared, were in constant communication with represen- tatives of the Imperial Government and the Colonial Office. The Australians, on the contrary, prepared their constitution without asking or receiving any advice from the Home Government. The federating Colonies acted in every way as spontaneously as the States which entered into the American Union, and the decisions of their representatives were confirmed in each colony by a direct vote of the electorate. The result has been that the Australian States retain a sphere wider than that of the Canadian Provinces. 1 Constitution, Art. 128. CANADA 185 I have now dealt with the chief points in the history of the constitutional development of the Cana- dian Dominion. I am aware that the working of the provincial institutions subsequently to 1867 has offered sides open to criticism. 1 It is, perhaps, unavoidable that in young and free communities there should not be at once the high standard of political integrity and sagacity which has been evolved, after much of the quite contrary kind, by centuries of national life in England. Yet, on the whole, Canada has little cause for self-reproach. Certainly her main difficulty of old days, that of enabling people of very different race, history, and religion to live peaceably side by side, has been overcome. There is a special satisfaction in knowing that, under this system of provincial Home Rule within the Dominion, the old religious bitterness, which so long was an element in the distractions of Lower Canada, has given place to goodwill. A very striking speech was made in the Dominion Parliament in 1889 by Mr. Colby, a Protestant member for a Protestant district in the province of Quebec. 2 He said : " I believe that there is nowhere in this Dominion a body of Protestants more willing to make sacrifices for the preservation of their rights than are the Pro- testants of the province of Quebec. I do not believe that they are disloyal to Protestant ideas. But the Protestants of the province of Quebec have lived for many years in close relation and contact with their fellow-citizens of a different religion, and many pre- judices which the one might feel against the other 1 Such criticism has been unsparingly applied to his country by Mr. Gold win Smith in his book on Canada. 2 Quoted in a debate in our House of Commons. "Hansard," i2th April 1893. 1 86 IMPERIUM ET LIBERT AS have been worn away by contact. The Protestants and the Catholics of the province of Quebec live happily together upon mutually respecting terms, each respecting even the .other's sensibilities and preju- dices, and co-operating together, working together for what they believe to be the common interest, without jealousy, without friction, without over-sen- sitiveness ; recognising the good things in each other ; if they differ, quietly differing, and not making them- selves obnoxious to each other. These are the rela- tions which have grown out of long years of personal contact, living together side by side, meeting and knowing each other. That is a happy condition of affairs, but it is an actual condition of affairs in those parts of the province with which I am per- fectly acquainted. The Protestants of Quebec and I think I fairly voice their sentiments acknowledge the fact, and, if they do not acknowledge it, it is a fact, that never was a minority in any country treated with more justice, with more liberality, with more generosity, than the Protestant minority in the pro- vince of Quebec have been treated. They have always had the control of affairs that most concerned them those matters connected with education and other matters concerning which the Protestants were most interested as Protestants, and they have had as much control over such questions as if they had had an entire Legislature of Protestants ; they have not been meddled with, they have been simply permitted to manage their own affairs, and they have not felt that they were in a minority in any instance that I recollect. " No contrast could be much greater than that be- tween the social relations in Lower Canada, testified to by Mr. Colby, and that depicted in Lord Durham's report as existing fifty years earlier. It is a remark- able testimony to the healing effects of freedom, equality, and removal of artificial ascendency. CANADA 187 Lord Durham, when he arrived in Canada in 1838, found the country not only divided by great racial and religious bitterness, but in a condition of industrial and economic stagnation which presented a great contrast to the lively prosperity of the neigh- bouring States of America. There can be no doubt as to the immense advance made by Canada under the subsequent forms of political organisation, and especially since 1867, in spite of the obstacles to her development which have for many years, and especially since 1885, been due to the unfriendly commercial policy, soon, it may be hoped, to be mitigated, of the United States. But political in- stitutions may have more than the negative merit of not hindering progress. A Government, whether autocratic or popular, may do much to lead and guide the social and economic advance. No better work has been done in Canada than that by which the Central and Provincial Departments of Agriculture, acting in concert or separately, have afforded assistance and advice to the farmers by means of the skilled experts whom they can enlist in public service, and the facilities for centralising information and distributing it which they possess. 1 The greatest material work done in Canada has been that of railway construction. In this there has been a happy co-operation between Government and private enterprise. In 1867 there were only 2087 miles of railway in the whole Dominion. In 1897 there were 16,687 miles, constructed by capital of which about ^40,000,000 had been contributed by the Dominion and Provincial Governments. In this year 1 See " Report of Minister of Agri 1897 " ; " Reports on Experimental F culture for the Dominion of Canada arms for 1 897," &c. 1 88 IMPERIUM ET LIBERTAS the proportions in which the total railway capital had been subscribed stood as follows : * Ordinary share capital . . 28.25 per cent. Bonded debt . . . .37.84 Dominion Government aid . 16.27 Preference share capital . . 11.63 Provincial Government aid . 3.37 Municipal aid . . . i .69 Other sources .... 0.95 In these and other ways the Canadians, released hitherto from the complexity of State affairs, military, naval, diplomatic, Indian, and Colonial, which con- sume so much of the energy of the British Govern- ment and Parliament, are able to devote their whole strength to the development of their magnificent domain. The provincial institutions also release the statesmen and Legislature of the Dominion from a number of minor local matters which have to be settled in this country by the Imperial Parliament, while, at the same time, these institutions supply centres of energy in the sphere of action which lies between that of the Dominion and that, also existing in Canada in a very complete form, of the County or Municipal Council. The Canadians look forward with a cheerful hope- fulness. In his Budget speech at Ottawa in 1898, Mr. Fielding, the Minister of Finance, said : " At no time in the history of the Dominion have the people been more united, more harmonious, and more hopeful and confident respecting the future of our country. In the centres of manufactures, trade and commerce, there is an activity which tells of con- 1 See "Statistical Year-Book of Canada" for 1897 (published 1898), p. 299. CANADA 189 fidence in the present and in the future. The great agricultural interests, which are the foundation of our country's prosperity, are on a better footing than for many years past. Encouraged to produce not only for the home markets but for the markets of the world, our farmers everywhere are applying themselves to their work with intelligence and skill. The ships which have come to our seaports during the past year are insufficient to carry the increasing volume of com- merce, and the shipwrights of the world are busy in constructing new vessels for this trade. Our long delayed canal enlargements are being pressed forward to early completion, and give promise of affording in- creased facilities for the transportation of the products of the great west to our shipping ports. Railway enterprises east and west are actively assisting in the good work. The fishermen of our Atlantic and Pacific coasts continue to reap the rich harvest of the sea. In all directions we find an extraordinary development of the mineral wealth of the Dominion. The powerful magnet of gold, which is found in several quarters of the Dominion, is doing much to attract capital and population. The new mines in the province of Ontario give promise of great development and profit. In the east, the mines of Nova Scotia, which have been work- ing with considerable success for many years, are to-day giving most satisfactory results, and new discoveries are constantly being made. In the west, the province of British Columbia is steadily growing in fame as a rich mining country. The northern regions of our Dominion, which were long regarded as of little value, have become sources of boundless wealth. In nearly every depart- ment of industry in Canada there is activity and con- fidence." Thus Canada stands, hopeful and strong, providing, if not much superfluous wealth and luxury, yet that which is needful, subsistence and healthy occupation 1 90 IMPERIUM ET LIBERT AS for a great number of households, with vast possi- bilities of economic development. Canada is well organised with forms for national, provincial, and municipal energy ; a nation, yet peacefully combining two unlike races a nation, yet part of an Empire. Canada, as Tennyson wrote, is " daughter in her mother's house, and mistress in her own." So far have been solved successfully the twin problems of reconciling imperial connection with national freedom, and national power with sub-national or provincial self- government. Canada is a loyal and free nation amid the nations of the Empire ; Quebec a loyal and free province amid the provinces of the Dominion. PART III THE UNITED KINGDOM PART III THE UNITED KINGDOM CHAPTER I THE UNION OF l8oi l IN the year 1719 there was a dispute whether a law appeal from the Irish House of Lords could be carried across the Channel. The British Parliament took the occasion to pass " An Act for better securing the de- pendency of the Kingdom of Ireland upon the Crown of Great Britain." This Act declared " That the Kingdom of Ireland hath been, is, and of right ought to be, subordinate unto and dependent on the Imperial Crown of Great Britain, as being in- separably united and annexed thereunto, and that the King's Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons of Great Britain in Parliament assembled, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the kingdom and people of Ireland." 2 Five years later, in 1724, Dean Swift, resisting in his " Draper's Letters " the insidious fiscal encroach- ment of "Wood's halfpence," boldly traversed the British claim to legislative paramountcy. He wrote, on the nth November: 1 The Act was passed in Great Britain and Ireland in 1 800, but came into force ist January 1801. 2 6 Geo. I. c. 5. '93 194 IMPERIUM ET LIBERTAS " Those who come over hither to us from England, and some weak people among ourselves, whenever in discourse we make mention of liberty and property, shake their heads, and tell us that Ireland is a depend- ing kingdom, as if they would seem, by this phrase, to intend that the people of Ireland is in some state of slavery or dependence different from those of Eng- land. Whereas a depending kingdom is a modern term of art, unknown, as I have heard, to all ancient civilians and writers upon government, and Ireland is, on the contrary, called in some statutes an Imperial Crown, as held only from God, which is as high a style as any kingdom is capable of receiving, There- fore, by this expression, ' a depending kingdom/ there is no more understood than that, by a statute made here in the 33 Henry VIII. , the king and his suc- cessors are to be Kings Imperial of this realm as united and knit to the Imperial Crown of England. I have looked over all the English and Irish statutes without finding any law that makes Ireland depend upon England any more than England does upon Ireland ; for the law was made by our own Parliament, and our ancestors then were not such fools as to bring themselves under I know not what dependence, which is now talked of, without any ground of law, reason, or common-sense." The Dean altogether ignores the British Act of 1719, passed by the hated Whigs ; but he admits : "It is true that, within the memory of man, the Parliament of England have sometimes assumed the power of binding this kingdom by laws enacted there, wherein they were at first openly opposed (as far as truth, reason, and justice are capable of opposing) by the famous Mr. Molyneux, an English gentleman born here, as well as by several of the greatest patriots and best Whigs in England ; but the love and torrent of power prevailed. Indeed, the arguments on both THE UNITED KINGDOM 195 sides were invincible, for, in reason, all government without the consent of the governed is the very defini- tion of slavery ; but, in fact, eleven men well-armed will certainly subdue one in his shirt." Most Englishmen denied that the American Col- onies were distinct from the realm of Great Britain, and they refused to admit that the colonial Assemblies had the status of Parliaments. No one denied that Ireland was a distinct kingdom with a real if " depend- ing" Parliament of its own. Therefore the advocates of the American cause naturally made much of the case of Ireland, as an existing example of the position which should, they thought, be conceded to the Colonies. Just as now the Irish look to the Colonies for a precedent of Home Rule, so then the Colonies looked to Ireland. Lord Shelburne said in the House of Lords : " I have always thought, and ever shall think, that both Ireland and America are subordinate to this country, but I shall likewise retain my former opinion that they have rights, the free and unimpaired exer- cise of which should be preserved inviolate. The principal fundamental right is that of granting their own money." So also Burke, himself an Irishman, after tracing the history of Ireland, 1 said : " You changed the people ; you altered the reli- gion ; but you never touched the form or the vital substance of free government in that kingdom. You deposed kings ; you restored them ; you altered the succession to their as well as to your own crown ; but you never altered their constitution ; the prin- 1 In his speech on " Conciliation with America." 196 IMPERIUM ET LIBERTAS ciple of which was respected by usurpation, restored with the restoration of monarchy, and established, I trust for ever, by the glorious Revolution. This has made Ireland the great and flourishing kingdom it is ; and from a disgrace and burthen intolerable to this nation has rendered her a principal part of our strength and ornament. This country cannot be said to have ever formally taxed her." And again, he said : " Ireland has ever had from the beginning a sepa- rate but not an independent Legislature, which, far from distracting, promoted the union of the whole." But while no attempt was made by the British Parliament to tax Ireland, the English did feel it to be a grievance that the Irish, though supporting some regiments for the royal service, made no contribution to naval and other expenditure. For this reason some English writers advocated the incorporating union many years before it took place. So Sir M. Dexter wrote in 1751 : " By a union with Ireland the taxes on Britain will be lessened, whereby they will contribute to make our goods cheaper, and consequently more vendible." And Postlethwayt wrote in 1767, the year of the tea duty : " By the Union Ireland would soon be enabled to pay a million a year towards the taxes of Great Britain, beside the full support of their own establish- ment. And would not this in time of war greatly contribute to raise the supplies within the year ? " The Irish statute of Henry VII. (Poyning's Act) gave all initiative in Irish legislation to the king THE UNITED KINGDOM 197 and Council in England. The humiliating Act of 1719 asserted in set terms the sovereignty of the British Parliament, and the Navigation Laws and the whole commercial policy pursued at Westminster were deliberately injurious to Irish interests. All this made the Protestant oligarchy dominant in Ire- land feel their cause to be substantially the same as that of the Americans. When, during the last years of the American War, England was fighting not only her revolted Colonies, but France, Spain, and Holland, backed by the somewhat more than passive sympathy of other Powers, the Irish Protestants, under cover of the Volunteer movement, assumed an attitude fore- boding rebellion. 1 The English Government drank the cup of forced repentance. They were obliged first to relax the commercial system in favour of Ire- land, and next, in 1782, to repeal both the Poyning's Act and the Declaratory Act of 1719. A mere repeal was not sufficient to satisfy the Irish Protestants, and, at their instance, an Act was passed at Westminster in 1 783 expressly declaring that the " Right claimed by the people of Ireland to be bound by laws enacted by his Majesty and the Par- liament of that kingdom in all cases whatsoever .... shall be and it is hereby declared to be established 1 Dr. Johnson, at this time conversing with an Irish gentleman, said : " After all, sir, though I hold the Irish to be rebels, I don't think they have been so very wrong ; but you know you compelled our Parliament, by force of arms, to pass an Act in your favour. That I call rebellion." " But, doctor," said I, " did the Irish claim anything that ought not to have been granted ? " " Sir, I won't dispute that matter with you, but what I insist upon is that the mode of requisition was rebellious." " Well, doctor, but let me ask you one more question, Do you think that Ireland would have obtained what it has got by any other means ? " " Sir," says he candidly, " I believe it would not. However, a wise Government should not grant even a claim of justice if an attempt is made to extort it by force." "Anecdotes by the Rev. Thomas Campbell." 198 IMPERIUM ET LIBERT AS and ascertained for ever, and shall at no time here- after be questioned or questionable." The question immediately arose in what way two kingdoms united by so slender a bond were to be driven in double harness. The question was espe- cially difficult in days when Free Trade, now an or- thodox dogma, was yet but an heretical opinion. Would not Ireland, now free to adopt her own system of commercial and navigation laws, prove, with cheaper labour and lighter taxation, a formidable trade rival to England? An attempt was made by the Shel- burne Ministry in 1782 to obtain (as a quid pro quo for the repeal of the Declaratory Act of 1719) an arrangement by which, as the Duke of Portland, then Viceroy in Ireland, wrote to Lord Shelburne on the 6th June 1782 "The superintending power and supremacy of Great Britain in all matters of State and general commerce will be effectually acknowledged, a share of the expense of carrying on a defensive or offensive war .... borne by Ireland in proportion to the state of her abilities, and commercial regulations judged necessary by Great Britain be adopted by Ireland." " This arrangement, however, could not be brought to pass. Three years later Mr. Pitt attempted to effect a treaty by which Ireland should be given full free trade with England, and should make in return a regular contribution towards naval and military expenses. The leading principle, said Pitt, in his speech of May 12, 1785, was " That a treaty should be concluded with Ireland by which that country should be put on a fair, equal, 1 " Life of Lord Shelburne," vol. iii. p. 149. THE UNITED KINGDOM 199 and impartial footing with Great Britain in point of commerce with respect to foreign countries and to our Colonies, and as to the mutual intercourse between each other, that this equality should extend to manu- factures, importation and exportation, and that Ireland in return for this concession should contribute her share towards the protection and security of the general commerce of the Empire." In order to effect the last-mentioned object, Pitt proposed that any surplus of the Irish "hereditary revenue " (consisting of certain fixed duties) over and above ,656,000 a year should be appropriated to the support of the naval force of the Empire, as a * 'pro- vision proportioned to the growing prosperity of that kingdom towards defraying in time of peace the neces- sary expenses of protecting the trade and general interests of the Empire." The proposal was fair. Ireland was to be admitted to a full share in the trade protected by the naval strength, and in return was to pass in her Parliament all laws relating to commerce passed in the British Parliament, and to make a regular contribution towards the defence of the two kingdoms and their commerce. 1 The nearest modern approach to an arrangement of this kind is to be found in the Austrian Empire. Austria and Hungary con- tribute to imperial expenditure in certain proportions fixed by a treaty (ausgleich) periodically revised. It is a method difficult to carry out, because of the diffi- culty of assessing the right proportions of contribution, 1 The provision that the Irish Parliament was to pass all navigation and commercial laws which had been passed by the British Parliament did not form part of Pitt's original propositions. It was added later, together with other modifications, to appease English commercial feeling. This addition was the chief cause of the rejection of the propositions in Ireland. Grattan had approved the original idea, exchange of the surplus of the Irish hereditary revenue for free trade. 200 IMPERIUM ET LIBERTAS and a temporary financial arrangement of the kind which followed the Union of Great Britain and Ireland soon broke down. Pitt's attempt in 1785 to make Great Britain and Ireland work together for commer- cial, military, and naval purposes, without political union under a common Parliament, was defeated by political jealousies in Ireland and by commercial jea- lousies in England. The English feeling was well set forth in a petition from Liverpool, which ran thus : "That an equal participation in all the privileges and advantages of a community should, by every rule of right, reason, and justice, include in it a mutual obligation to encourage, maintain, and defend these rights, and to contribute equally to their support; that the island of Great Britain, when first united in legislation, manufactures, navigation, and commerce, became united also in taxation towards the general support of the common good ; that admission of any neighbouring kingdom to a full share in all these rights without subjecting her to sustain a due pro- portion of the general burthen too, would be a great deviation from those principles upon which the union of this island was wisely founded." The idea that Ireland had lighter taxation, and therefore cheaper labour, had long weighed heavily on the British mercantile mind, and was at the bottom of the resistance to relaxation of the commercial policy as against Ireland, unless coupled with a political union and equal taxation. Burke, defending his sup- port of the measures of relaxation, in 1778 wrote to his Bristol constituents : "I know it is said that the people of Ireland do not pay the same taxes, and therefore ought not in THE UNITED KINGDOM 201 equity to enjoy the same benefits with this country. ... To that argument of equal taxation I can only say that Ireland bears as many taxes as those who are the best judges of her powers are of opinion she can bear. To bear more she must have more ability, and, in the order of nature, the advantage must precede the charge." On the other side of the Channel, Grattan, in the Irish Parliament, denounced the Commercial Propo- sitions on the ground that such a treaty would deprive Ireland of her free will in commercial policy and of the full disposal of her [national revenue. He said : " It is an union, a creeping and incipient union, a virtual union establishing one will in the general concerns of commerce and navigation, and reposing that will in the Parliament of Great Britain ; an union where our Parliament preserves its existence after it has lost its authority, and our people are to pay for a parliamentary establishment without any proportion of parliamentary representation. In opposing the Bill, I consider myself to be opposing an union in limine." The project of partial union for common purposes involved in the Commercial Propositions was aban- doned after a hostile vote in the Irish House of Commons. This was looked at as a great victory in Ireland, and was celebrated by popular rejoicings at Dublin, but there is no doubt that this success of 1 So Sheridan said in the British Parliament : " A new scheme of commercial arrangement is proposed to the Irish as a boon, and the sur- render of their constitution is tacked on to it as a commercial regulation. Ireland, hardly escaped from harsh trammels and severe discipline, is treated like a high-mettled horse, hard to catch ; and the Irish Secretary is to return to the field, soothing and coaxing him, with a sieve of pro- vender in one hand, but with a bridle in the other, ready to slip over his head while he is snapping at the food." 202 IMPERIUM ET LIBERTAS the national party in the Protestant Irish Parliament hastened the day of the Legislative Union. The debates of 1785 and their result created in the commercial mind, which has always guided English policy, a strong predisposition to think that the inde- pendence of the Irish Parliament could be only an interim arrangement, due to the stress of circumstances in which it arose, and that, logically, there was no tenable ground between the old supremacy of the British Parliament in matters of trade and commerce and a complete " melting down," as one English speaker expressed it, " of the Legislature of the inferior into that of the superior kingdom." Although Ireland has possessed a Parliament, and between 1782 and 1800 a theoretically free Parliament, there has never yet been at any time an executive government placed in power or deposed by the Irish Parliament and electorate. Indeed, in the eighteenth century this law of modern politics hardly prevailed in England itself. Ministers were still really, as well as formally, appointed and dismissed by the king, subject to the indirect influence of Parliament, and it would be almost more true to say that Ministers then made a majority in the House of Commons by means of influ- ence over borough-owners than to say that a majority of the House of Commons made the Ministers. In Ireland this was still more truly the case. The sapient Boswell, not a bad medium of ideas in the air, arguing with Dr. Johnson, on the 23rd September 1777, con- tended that " America might be very well governed and made to yield sufficient revenue by means of influence, as exemplified in Ireland, while the people might be pleased with the imagination of their participating in THE UNITED KINGDOM 203 the British Constitution by having a body of represen- tatives without whose consent money could not be extracted from them." * After 1782, as before, the Irish executive government was carried on, though with increased difficulty, by ministers appointed from England and controlled by the English Government. A working majority in the Irish Parliament was secured by means of influence exercised over the owners of small and rotten boroughs, and by other devices. This was sufficient except in times when national feeling ran very high. The party led by Grattan advocated the reform of Parliament and the emancipation of Roman Catholics, and so far pre- vailed that, in 1793, Catholics were admitted to the franchise, and, in 1795, were near being admitted to sit in Parliament. It became a question whether, if the Irish Legislature was to be made more nearly repre- sentative of the Irish nation, it would be possible to govern Ireland as before, or, indeed, to preserve the political connection between the two islands. Pitt himself, at the beginning of his political career, had been in favour of liberal reforms. Their immediate possibility was diminished by the struggle against the French Revolution, but he knew full well that religious equality and parliamentary reform could not be for ever postponed, either in Ireland or in Great Britain. Yet so melancholy had been the history, and so deep were the social, racial, and religious divisions in Ireland, that no British statesman could regard without fear the prospect of Catholic emancipation and parlia- 1 An argument which enraged the sage and threw him into a " violent agitation," because he could not endure to hear the doctrine that the American Assemblies were virtually Parliaments. Boswell's evening, which had begun well, was quite spoiled. 204 IMPERIUM ET LIBERTAS mentary reform in Ireland, so long as that country had an independent Legislature. In Ireland there was an established and richly endowed Church belonging to a Protestant minority ; the land was owned by a class of men whose original title was for the most part confisca- tion, and whom the Irish people had never ceased to regard as usurpers. How would these questions be treated by a Catholic majority in a reformed Irish Parliament? The Duke of Rutland, Irish Viceroy, wrote to Pitt, on the i6th of June 1784: " The question of reform, should it be carried in England, would tend greatly to increase our difficulties, and I do not see how it would be evaded. In England it is a delicate question, but in this country it is diffi- cult and dangerous in the last degree. The views of the Catholics render it extremely hazardous." To give a fair franchise to all Ireland, and to allow Catholics to enter the Irish Parliament, seemed to be like a sudden opening of a dam behind which waters had long been pent up. But if the Irish people were fused politically with the more numerous Protestant population of Great Britain it would be possible to concede Catholic emancipation without danger to the interests of the Irish Protestant minority. The path towards redress of Irish wrongs seemed to Pitt to lie through legislative union. To permit the continuance of the Irish Parliament involved either non-redress of Catholic disabilities, or the risk of social and religious revolution. On the i8th November 1792, Pitt wrote as follows to the Irish Viceroy : * " The idea of the present fermentation gradually bringing both parties to think of an union with this 1 Quoted by Mr. Lecky, "Hist." vi. p. 513. THE UNITED KINGDOM 205 country has long been in my mind. I hardly dare flatter myself with the hope of its taking place ; but I believe it, though itself not easy to be accomplished, to be the only solution for other and greater difficul- ties. The admission of the Catholics to the share of the suffrage could not then be dangerous. The Pro- testant interest in point of power, property, and Church interest would then be secure, because the decided majority of the supreme legislature would necessarily be Protestant." The fact that in the following year, 1793, Irish Catholics were admitted to the electorate, though not yet to sit in Parliament, no doubt strengthened Pitt's conviction of the necessity of an union. Some of the leading Whigs who joined the Government in 1795, and among them Lord Fitzwilliam, were in favour of the admission of the Catholics to sit in the Irish Parliament. For a moment, when Lord Fitzwilliam was sent as Viceroy to Ireland, the British Govern- ment seemed to have made up its mind to take this step. What then happened is not very clear. Either a sudden change of policy took place, or Lord Fitz- william had misunderstood his instructions and the intention of Government. He was recalled, as one committed to a policy of which Government dis- approved ; the chance of nationalising the Irish Parlia- ment vanished, and the policy of legislative union only awaited its hour. That hour struck in 1 798, year of the formidable attempt of Hoche upon the southern coast of Ireland, the fierce though local rebellion in the south-east, and the French raid in the west. On the 22nd January 1799, the following fateful message was delivered to the British House of Commons : 206 IMPERIUM ET LIBERTAS " His Majesty is persuaded that the unremitting industry with which our enemies persevere in their avowed design of effecting the separation of Ireland from this kingdom cannot fail to engage the particular attention of Parliament ; and his Majesty recommends it to the House to consider of the most effectual means of counteracting and finally defeating this design ; and he trusts that a review of all the circum- stances which have lately occurred (joined to the sentiment of mutual affection and common interest) will dispose the Parliaments of both kingdoms to provide, in the manner which they shall judge most expedient, for settling such a complete and final adjustment as may best tend to improve and per- petuate a connection essential for their common security, and to augment and consolidate the strength, power, and resources of the British Empire." The resolutions forming the basis of the union were then introduced in the British and Irish Parlia- ments, but they were so unfavourably received in the latter that a year had to be spent in convincing, by promises of cash and titles, recalcitrant owners of Irish pocket boroughs. The Irish Chancellor, Lord Clare, made a powerful speech on the loth February 1800 in the Irish House of Lords. He insisted, with an outspokenness almost brutal, upon certain aspects of the question. He described the wrongs done to the sentiments and interests of the Irish masses by the ascendant Pro- testant minority, planted upon Irish soil by violent methods in order to serve the purpose of an English garrison ; he showed how this garrison was entirely dependent upon English support for defence against native revenge ; he pointed out that the position had been rendered impossible by the policy of opposition THE UNITED KINGDOM 207 to England and advocacy of reform pursued by Grattan's Parliament for the last twenty years ; and he drew the moral that in close union with Great Britain now lay the one hope of safety of the Irish Protestants and landed aristocracy. This speech, so much admired by Mr. Froude, con- tained the following passage of striking frankness : "What then was the situation of Ireland at the Revolution, and what is it at this day ? The whole power and property of the country has been conferred by successive monarchs of England upon an English colony, composed of three sects of English adventurers, who poured into this country at the termination of three successive rebellions. Confiscation is their common title, and from their first settlement they have been hemmed in on every side by the old in- habitants of the island, brooding over their discontents in sullen indignation. It is painful for me to go into this detail, but we have been for twenty years in a fever of intoxication, and must be stunned into sobriety. What, then, was the security of the English settlers for their physical existence at the Revolution, and what is the security of their descendants at this day ? The powerful and commanding protection of Great Britain. If by any fatality it fails, you are at the mercy of the old inhabitants of the island." The semi-rebellious Protestants of 1782 and the reform party in the Irish Parliament seemed to Lord Clare like the fabled ape sawing at the bough on which he was seated. These domestic reasons for the legislative union coincided with reasons connected with foreign affairs. England had been for seven years engaged in a war of principle against France, a country all the more dangerous to a slightly tempered oligarchy like that of 208 IMPERIUM ET LIBERTAS eighteenth century England because her democrats appealed to revolutionary feelings everywhere, and raised the war-cry of " equal rights " for all men. France had invaded Ireland with ideas and with material force, and in no country was there a more flagrant inequality of civic rights than in Ireland. It was necessary to concentrate as much as possible all the military and financial resources of the three king- doms. But the Irish Parliament, so long as it existed, could refuse or diminish its military and financial assistance, and might even adopt a hostile attitude, as in 1782. At best the Irish Parliament contributed nothing to naval expenditure, except occasional grants when in good humour, and the Irish regiments were an insufficient quota in proportion to population. Irish military aid became a very different thing after the Union. The Duke of Wellington said in a speech in 1814 that at least half of his total forces during the Peninsular War had been drawn from the Catholic peasantry of Ireland. The financial resources and credit of Ireland were used to the uttermost during the war. At the close of it Ireland, which till then, under the terms of the Union, retained a distinct exchequer and financial system, was virtually bank- rupt, and her enormous public debt had to be consoli- dated with that of Great Britain. A still more cogent reason for the Union was that so long as an independent legislature existed in Dublin, English ministers could not feel secure of their power to provide against invasions of Ireland or rebellion there. 1 Mr. Pitt, in his speeches assumed 1 In 1792 Grattan met Mr. Pitt at a dinner party in London, and there was some talk about Irish politics. Grattan said afterwards, " Mr. Pitt does not like Ireland. She is not handy enough for him." Much in the THE UNITED KINGDOM 209 that the only alternative to legislative union was the eventual separation of the two countries. Then again, Pitt was a real disciple of Adam Smith, and truly anxious, as he showed himself to be in 1785, to abrogate all the residue of the English commercial policy hostile to Ireland, and to establish a system of perfect free trade as between the three kingdoms. But the Irish Parliament, since 1782, was pursuing a vigorous protective policy designed towards the building up of Irish industries, much to the alarm of English manufacturers, who feared Irish cheap labour and light taxation. Pitt wished to secure commercial, military, naval, and fiscal unity between the two islands, and to avoid certain dangers to the existing connection suggested by the line taken by the Irish Parliament on the Eegency question. The union between England and Scotland, a century earlier, had been due to motives precisely of the same kind. Then again, there was the difficulty and danger of carrying through the religious emancipation and parliamentary reform demanded by the spirit of the rising age, so long as there existed an Irish Legislature possessing the complete internal sovereignty conceded to the armed claimants of 1782. Thus several converging lines of reasoning and interest led English statesmen to the conclusion that a legis- lative union was necessary. The student of the history of French Canada is frequently reminded of that of Ireland. There is a real analogy between the causes of the Legislative Union of Great Britain and Ireland in 1801 and those of the Legislative Union of 1841 between the two Rutland correspondence and in the letters between Chief -Secretary Orde and Mr. Pitt shows the difficulty of managing Ireland after 1782. O 210 IMPERIUM ET LIBERT AS Canadian provinces. It has been shown that the union of Lower with Upper Canada was made advis- able (1) by the necessity of concentration in face of a great adjacent Power and possible enemy ; (2) for reasons of finance and commercial unity ; (3) because it was deemed impossible at the time in Lower Canada to concede the full principles of English constitutional self- government to a population divided into two parts, numerically very unequal, by race, religion, language, education, distribution of wealth, and modes of occupation, divided also by a long contest for political power, by the ascendency of the minority, and by the fresh and bitter memory of a recent armed rebellion and violent reprisals. It was justly thought that, if French Canada were fused by a legislative union with Upper Canada, it would be possible to concede full liberty to the amalga- mated colony, and to carry out all desirable reforms without exposing a small but wealthy minority to injustice at the hands of a great majority. The opposition of country gentlemen and others to the Act of Union was strong in Ireland, even after the rebellion of 1 798. For a time it was doubtful whether it could be overcome by all the influence and expendi- ture in hard cash and titles which the British Govern- ment determined to carry through its high policy brought to bear upon the owners of seats in the Irish House of Commons. Let us suppose that, as seemed possible in 1799, the Irish Parliament had rejected the Act of Union, and had, some years later, adopted Grattan's alternative national policy of Catholic emanci- THE UNITED KINGDOM 211 pation and parliamentary reform. It can hardly be doubted that upon ecclesiastical, educational, and agrarian questions the reformed Irish House of Com- mons would have followed a policy which would have been highly revolutionary, or at any rate seemed to be so to the Irish House of Lords and to public opinion in England. It is certain that the English Govern- ment would have refused to permit the administration of Irish affairs by a Cabinet consisting of Ministers representing the majority in the Irish House of Com- mons, and that the Irish House of Lords would have thrown out most of the more important measures passed by the popular Chamber. That Chamber pro- bably would have retaliated by refusing money sup- plies, and the deadlock which existed in Lower Canada between 1830 and 1837 would have also existed in Ireland. The same results of an armed insurrection, a suspension, whether legal or illegal, of the Irish consti- tution, and a legislative union effected by superior power, with the consent of the Irish minority, would in all probability have ensued. So far as one can see, then, a legislative union between Great Britain and Ireland was necessary in order to settle the burning religious, civil, and agrarian questions. It was in- scribed upon the books of destiny. Had it not been effected at the beginning, it would have been by the middle, of the nineteenth century. The Legislative Union has now endured exactly a hundred years. Under it the questions which were formerly in Ireland seeds of revolution and race-hatred have been fairly settled. The richly endowed Church of the Protestant minority (or rather the Church of half that minority) has been disestablished and dis- endowed with much respect to life interests and WPERIUM ET UBERTAS :: ;::;:-..:< .v. .' f mfc~*Mg* (*j* to .-.: -...*: ;-.-.: v; :'.-- :.:.:--. rf OMnAmr ate, Tjyft of of the riwd thi - ' --: ;;;-, THE UNITED KINGDOM 213 should be relegated to purely provincial government* and legislatures, and matters of general concern dealt with by a central legislature and administration re* presenting the whole of British North America, in- '; province* till that time only connected with Upper and Lower Canada by a common tie with Crown, The Act of 1867, while retaining union common purposes, restored Home Rule in domestic matters to the provinces of Quebec and Ontario, The measure wa, so far a* concerned these two provinces, one of decentralisation. Suppose now that Scotland had never entered into a legislative union with England, but that the legislative union between England and Ireland had taken place when it did Suppose that this union bad not in all respects worked well by reason of the inability of Englishmen and Irishmen to fuse together, and that subsequently Scotland had expressed a wish to enter into a federal union while retaining her separate Parliament and Executive for purely provincial purposes. Suppose, finally, that advantage had been taken of this occasion to restore the separate English and Irish Parliaments and Execu- tives for provincial purposes, and to constitute a single federal or central Parliament and Government for all common or imperial purposes. The history of the United Kingdom would in these events have had a close resemblance to that of Canada. Mr. Pitt's great speech in proposing the Union makes it clear that he had the same erroneous faith in the social and political fusion in the course of time of England and Ireland, as that which Lord Durham felt forty years later with regard to the social and political fusion of the two Canadas. Mr. Pitt believed that the fusion would be at least as great as that which 2i 4 IMPERIUM ET LIBERTAS had taken place between England and Scotland. The legislative marriage between England and Scotland had indeed been successful. But then the conditions of success existed. The two countries were not seriously divided by race or language, for the Celtic Highlands were hardly part of the Union till much later. His- torical memories were not those of stern and cruel domination on one side and fierce insurrections on the other. They were memories of transactions be- tween two unequal but independent kingdoms, the weaker of which successfully maintained its liberty until the two crowns were united in the person of its king. Above all, there was no deep gulf made by religious doctrine, since England and Scotland were two Protestant countries of different shades. England had before the Union abandoned the attempt to impose her own ecclesiastical system upon Scotland. It was not, as in the case of Ireland, a foreign, but a truly national Church that was guaranteed in Scotland by the treaty of Union. Nor had the English ever con- fiscated Scottish land for their own use. No agrarian question supplied fuel to national animosity. No sea divided the two countries. The social contrast between Dover and Calais is far greater than any which exists between two continental border towns. On any land border, unless there are very high mountains, the populations on either side shade ; into each other. Not so when a sea lies between. There is, and always has been, even when England and Scotland were separate realms, far more difference between Northumberland and Kent than between Northum- berland and Selkirkshire, but the difference between Kent and Picardy is great. For all these reasons the social and political fusion between England and Scot- THE UNITED KINGDOM 215 land, though not complete, has been sufficient to justify and render workable, and even useful, a fully incor- porating union. Scottish members often act in concert, more or less, with regard to unimportant Scottish affairs ; but there has never yet been a Scottish party ; Scotland is politically divided upon the same lines as England, Englishmen frequently sit for Scotch and Scotchmen for English seats. Englishmen and Scotch- men are combined in the Executive Governments formed by each of the two great parties. The present accomplished leader of the Conservative party in the House of Commons may be taken as a type of the social, political, and even religious fusion, adequate, if not complete, of the two countries. The Union was not very willingly entered into, nor for long, as Sir Walter Scott shows in his novels, was it warmly acquiesced in by the Scottish people. It was certainly no love match, but it was a reasonable marriage between two nations of sufficient natural affinity. Therefore the working of time, increasing the community of interests, and diminishing friction and jealousies, has removed dislike of the legal union, and it now rests on consent on both sides. It is an union of a real and substantial, although not enthusiastic, kind. No one would desire to change, or even to modify, the nature of the union between England and Scotland, except for the one purpose of accelerating the despatch of business, in- creasing the wholesome operation of local government, improving the method of legislation, and giving the Imperial Parliament and Government more time for imperial affairs. The ground for suggesting the ex- tension of a degree of national self-government to Scotland is that the laws and circumstances of the two countries are so far different, in consequence of their 216 IMPERIUM ET LIBERTAS whilom independence, that, as it is, a great deal of Scottish business and legislation has to be taken separately. 1 It may fairly be held that, for this reason, it would be convenient to delegate purely Scottish affairs to a Scottish Legislature and pro- vincial Government, in view of the vast increase in the business of the Imperial Parliament and Govern- ment. In the case of Ireland, all the causes which have led to a large degree of social and political fusion between England and Scotland were absent. Mr. Pitt, in 1800, could not, however, have known, a priori, whether political and social fusion might not to a great degree be the result of the Union. Till after the first Reform Bill the Irish members in Parliament gave no trouble. This was not wonderful, regard being had to the constituencies by which they were returned. One of Mr. Pitt's opponents in the English Parliament made it, indeed, an objection to the proposed union that Ireland would send across the sea one hundred mere ministerial dependents, so that the English reformers would never flourish again. 2 Until the first Reform Bill this prophecy was partly fulfilled, and it certainly was not till long afterwards that Grattan's contrary prediction that Ireland would send "a hundred rebels" to the British Parliament was largely justified. The distinct Irish Nationalist party 1 There is, indeed, some additional ground, so long as there continues to be an Established Anglican Church in England, and Presbyterian in Scotland. English Churchmen might justly complain if they were dis- established and disendowed, or reformed in an ultra-Protestant direction, by the help of Scotch votes. 2 Sir Robert Peel first entered Parliament in the year 1809, as mem- ber for Cashel in County Tipperary. His father purchased the seat for the youth, but this Irish representative never even was in Ireland till three years later, when, at the age of twenty-four, he had become Irish Chief Secretary. He then exchanged Cashel for Chippenham in Wiltshire. THE UNITED KINGDOM 217 coincided in its growth with successive reforms of Parliament and lowerings of the franchise. It hardly appeared above ground until Catholic emancipation had been followed by the Reform Bill of 1832 ; it was not complete until the Reform of 1884 a revolution in Ireland had enfranchised the poorer rural classes. Then, for the first time in their history, the Irish people were truly represented, and there appeared at once, vividly and undeniably mirrored in their representation, the natural line of demarcation which exists between them and the English and Scottish nations. At the general election of 1885 Parnell returned from Ireland at the head of eighty-six out of the hundred and five Irish members, all pledged to recover a national Parlia- ment for Ireland, and the majority has since then remained virtually unbroken. This is the result of a political union which has now lasted for exactly one hundred years. Like the Canadian legislative union of 1841, the union of 1801 succeeded in its immediate object, but has failed to effect the real fusion of the nations which entered into it. One of the best and wisest of the Irish opponents of the Union, Lord Charlemont, pre- dicted this result. He said in his protest : " It would more than any measure contribute to a separation of the two countries." Mr. Lecky, writing seventy years later, thought (that this prophecy had been fulfilled. He said : " The measure of Pitt centralised but it did not unite, or, rather, by uniting the legislatures it divided the nations." The reason is that once given by Cardinal Manning with reference to certain pro- posals for corporate union between the Roman, Greek, and. Anglican Churches: "Union is not necessarily 1 "Leaders of Public Opinion in Ireland," p. 192. \ 2i 8 IMPERIUM ET LIBERT AS unity. Heterogeneous and repugnant things may be arbitrarily tied together, but this is not unity. Closer contact elicits the repugnances which rend all external bonds in sunder." Or, to quote Master Slender : " I will marry her, sir, at your request, but if there be no great love in the beginning yet Heaven may decrease it upon further acquaintance, when we are married and have more occasion to know one another." But two persons so far dissimilar that they cannot happily keep house together for all purposes may yet very well be partners in a business which concerns them both. Are Great Britain and Ireland in the relation attributed by Lord Carnarvon in 1867 to the French and British Canadas, " so far akin that they can be united, and yet so far dissimilar that they cannot be fused into one body politic?" And, if so, is it possible by decen- tralisation on federal lines to reconcile the free- dom to manage their own affairs, long and steadily demanded by the great majority of the Irish people, with the unity for other purposes of the United King- dom ? The question is worth more consideration than it has yet received. Mr. Lecky, writing thirty years ago, said: "No Government will ever command the real affection and loyalty of the people which is not in some degree national, administered in a great measure by Irishmen and through Irish institutions," and he added that it should be the aim of every statesman " to give to Ireland the greatest amount of self-government that is compatible with the unity and security of the Empire." The question whether it was possible to give to Ireland as a whole any legislative and executive powers, or collective legal personality, was discussed in 1886 and in 1893. Most Englishmen were then of opinion that THE UNITED KINGDOM 219 it was impossible to do so. As Englishmen of 1774 could see no real alternative but that of the full supremacy in all matters of the Imperial Parliament, or the complete independence of the Colonies, so, to most Englishmen of 1886, it seemed that there was no real alternative but the existing legislative union for all purposes, or virtual separation between Great Britain and Ireland. I propose in the following chapter to review the history of the Home Kule controversy. CHAPTER II THE HOME RULE MOVEMENT THE nineteenth century was marked all the world over by the struggle between nationality and empire. In some cases one force has won, in some the other ; sometimes the struggle has ended in a compromise. The Poles have failed to recover their existence as a nation, but on the other hand the Spanish provinces of America have achieved an existence a troubled existence as independent States ; Greece, Servia, Roumania, and Bulgaria have broken away from the Ottoman rule ; the northern Italians have emanci- pated themselves from the Austrian Empire, and luivc been moulded with their southern compatriots into a nation. In the case of Austria and Hungary an attempt has been made, the resultant of conflicting forces, to reconcile national existences with the pre- servation of an imperial connection. The English have, on the whole, sympathised with the cause of nations against empires. They were themselves en- gaged during the first years of the century in de- fending the European nations against the Napoleonic attempt to re-establish the Empire of the West. In this we were following our old tradition of foreign policy, for England had played the same part when Europe was threatened in the sixteenth century by the Spanish, and at the end of the seventeenth by the French power and ambition. Our policy had ever THE UNITED KINGDOM 221 been to defend the weaker national existences in Europe, while we ourselves built up an Empire in Asia and America. When Napoleon had been warred down, the governing Tory party in England assisted, or ac- quiesced, in the European arrangement which re- stored to a large extent the divisions of territory existing before the French Revolution, without regard to the national feelings and aspirations called to life by that revolution. The rest of the century saw the struggle of national will-to-live against this artificial arrange MM >nt ; of nature against the design of states- men. The English Liberals had, up to a certain point, sympathised with the original spirit of the French Revolution ; they disliked the arrangements made at Vienna ; they sympathised with the Spanish Americans, with the Poles, with the Greeks, the Italians, the Hungarians ; it seemed to them a divine law that a people marked out as a distinct nation by race, language, religion, geography, history, and UK; collective self-consciousness which is the result of all these things, should also possess a free political existence. Englishmen, brought up in this creed and temper, hardly even desired or hoped for a lasting connection between England and the English-speaking Colonies. But they made a distinction between the case of Ireland and that of Poles, Greeks, Italians, or Hungarians. These races were subject to " des- potic " Governments or bureaucratic Empires, the Irish were (by statute) an integral part of the freest, most self-governing nation in the world. Therefore Mazzini, Garibaldi, Kossuth were acclaimed, but O'Connell found no sympathy in England ; yet the vast and impressive assembly at the Hill of Tara in 222 IMPERIUM ET LIBERTAS 1843 was essentially a manifestation of the spirit which inspired the national movements on the Con- tinent. 1 English Liberals had not yet learned that the Irish people had less reason to be satisfied with the Union than had the English. Nor did they then know that if a national sentiment and desire for national self - government exists, it will come into collision as much, or more, with the dominion of a practically alien Parliament as with dominion by an alien autocracy. Although the Liberal party resisted the earlier Irish national movement, and, for many years, the later movement, their antecedents and education in nationalistic sympathies created a certain pre - dis- position in favour of Home Rule. It was less won- derful than it appeared that, when Mr. Gladstone in 1886 suddenly declared his conversion, he should have been able to carry with him more than half of his old party, in spite of the deadly parliamentary warfare which they had waged for some years against the Irish Nationalists. The Liberal party was born in sympathy with the American centrifugal movement of the eighteenth century, reached its height of power and influence about the middle of the nineteenth century, when nationalism was carrying all before it in Europe, and has fought, since then, a losing battle against the rising imperial spirit of the English people. History seems to move in alternate centrifugal and 1 About 250,000 persons met O'Connell at the Hill of Tara. A reso- lution was passed in the name of the Irish people for the restoration of the Irish House of Commons. " The Irish people," it said, " have sub- mitted to the Union as being binding in law, but they declare solemnly that it is not founded on right or on constitutional principle, and that it is not obligatory on their conscience." A certain number of Irish gentry joined this movement, or sympathised more or less with it. THE UNITED KINGDOM 223 centripetal directions, and the word of command is at some times Solve, and at others Coagula. 1 The Repeal movement of Daniel O'Connell was virtually crushed by the great Irish famine, and ended with his death in 1847. The modern Home Rule movement dates from a meeting held in Dublin on the 1 9th May 1870, at which the Home Rule Association was founded. The following resolution was passed at this meeting : "That it is the opinion of this meeting that the true remedy for the evils of Ireland is the establish- ment of an Irish Parliament with full control over our domestic affairs." The objects of the new Association were thus defined : " i. This Association is formed for the purpose of obtaining for Ireland the right of self-government by means of a National Parliament. " 2. It is hereby declared as the essential principle of this Association that the objects, and the only objects, contemplated by its organisation are : "To obtain for our country the right and privilege of managing our own affairs by a Parliament assembled in Ireland, composed of her Majesty the Sovereign and her successors, and the Lords and Commons of Ireland ; " To secure for that Parliament, under a federal arrangement, the right of legislating for and regu- lating all matters relating to the internal affairs of Ireland, and control over Irish resources and expen- diture, subject to the obligation of contributing our just proportion of the imperial expenditure ; "To leave to an Imperial Parliament the power of dealing with all questions affecting the Imperial 1 The inner feelings of parties were curiously revealed in 1877-78 in connection with the Russo-Turkieh War. 224 IMPERIUM ET LIBERT AS Crown and Government, legislation regarding the Colonies and other dependencies qf the Crown, the relations of the United Empire with foreign States, and all matters appertaining to the defence and sta- bility of the Empire at large ; " To attain such an adjustment of the relations between the two countries, without any interference with the prerogatives of the Crown, or any disturb- ance of the principles of the Constitution. "3. The Association invites the co-operation of all Irishmen who are willing to join in seeking for Ire- land a federal arrangement based upon these general principles." This was the moderate Home Rule programme advocated by Mr. Isaac Butt, and it secured before long the approval of a few Englishmen. Some years later Mr. Chamberlain said, in the House of Commons, that all his " speeches had been in favour of the federal system upon the lines though not committing myself to the details of Mr. Butt's proposal ; and, as everybody knows, Mr. Butt was a strenuous advocate of the full and complete representation of Ireland in the Imperial Parliament." 1 At the general election of 1874, fifty-nine Irish seats were carried by men pledged to support Home Rule. On June 3 Four Provinces. Provinces of Ontario and Nova Scotia and New Brunswick. Decennial Census. APPENDICES 325 10. The Provisions of this Act referring to the Governor Application General extend and apply to the Governor General for the Time being of Canada, or other the Chief Executive Officer or Adminis- grring to trator for the Time being carrying on the Government of Canada General, on behalf and in the Name of the Queen, by whatever Title he is designated. 11. There shall be a Council to aid and advise in the Govern- Constitu- ment of Canada, to be styled the Queen's Privy Council for Canada ; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General. cil for Canada. 12. All Powers, Authorities, and Functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legis- lature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice, or with the Advice and Consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exerciseable by the Governor General, with the Advice or with the Advice and Consent of or in conjunction with the Queen's Privy Council for Canada, or any Members thereof, or by the Governor General individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parlia- ment of Canada. 13. The Provisions of this Act referring to the Governor General in Council shall be construed as referring to the Gover- nor General acting by and with the Advice of the Queen's Privy Council for Canada. 14. It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor General from Time to Time to appoint any Person or any Persons jointly or severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor General such of the Powers, Authorities, and Functions of the Governor General as the Governor General deems it necessary or expedient to as- sign to him or them, subject to any Limitations or Directions All powers under Acts to be exer- cised by Governor General with Advice of Privy Council, or alone. Application of Provi- sions re- ferring to Governor General in Council. Power to Her Majesty to authorize Governor General to appoint Deputies. 326 APPENDICES Command of armed Forces to continue to be vested in the Queen. Seat of Go- vernment of Canada. expressed or given by the Queen ; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority, or Function. 15. The Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen. 16. Until the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa. Constitu- tion of Par- liament of Canada. Privileges, &c., of Houses. First Ses- sion of the Parliament of Canada. Yearly Ses- sion of the Parliament of Canada. Number of Senators. Representa- tion of Pro- vinces in Senate. IV. LEGISLATIVE POWER. 17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons. 18. The Privileges, Immunities, and Powers to be held, en- joyed, and exercised by the Senate and by the House of Commons and by the Members thereof respectively shall be such as are from Time to Time denned by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parlia- ment of the United Kingdom of Great Britain and Ireland and by the Members thereof. 19. The Parliament of Canada shall be called together not later than Six Months after the Union. 20. There shall be a Session of the Parliament of Canada once at least in every Year, so that Twelve Months shall not intervene between the last Sitting of the Parliament in one Session and its first Sitting in the next Session. The Senate. 21. The Senate shall, subject to the Provisions of this Act, consist of Seventy-two Members, who shall be styled Senators. 22. In relation to the Constitution of the Senate Canada shall be deemed to consist of Three Divisions : 1. Ontariaj 2. Quebec; 3. The Maritime Provinces, Nova Scotia and New Brunswick ; which Three Divisions shall (subject to the Provisions of this Act) be equally represented in the Senate as follows : Ontario by Twenty-four Senators ; Quebec by Twenty-four Senators ; and the Maritime Provinces by Twenty-four Senators, Twelve thereof representing Nova Scotia, and Twelve thereof representing New Brunswick. APPENDICES 327 In the Case of Quebec each of the Twenty-four Senators representing that Province shall be appointed for One of the Twenty-four Electoral Divisions of Lower Canada specified in Schedule A to Chapter One of the Consolidated Statutes of Canada. 23. The Qualifications of a Senator shall be as follows : Quaiiflca- (1.) He shall be of the full Age of Thirty Years : senatoJ. (2.) He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of one of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union : (3.) He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Francalleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or pay- able out of or charged on or affecting the same : (4.) His Real and Personal Property shall be together worth Four thousand Dollars over and above his Debts and Liabilities : (5.) He shall be resident in the Province for which he is appointed : (6.) In the case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division. 24. The Governor General shall from Time to Time, in the Summons of Queen's Name, by Instrument under the Great Seal of Canada, Senator - summon qualified Persons to the Senate ; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator. 25. Such Persons shall be first summoned to the Senate as Summons of the Queen by Warrant under Her Majesty's Royal Sign Manual thinks fit to approve, and their Names shall be inserted in the Queen's Proclamation of Union. 26. If at any Time on the Recommendation of the Governor Addition of General the Queen thinks fit to direct that Three or Six Members certahT in be added to the Senate, the Governor General may by Summons Cases. 328 APPENDICES Reduction of Senate to normal Number. Maximum Number of Senators. Tenure of Place in Senate. Resignation of Place in Senate. Disqualifi- cation of Senators. to Three or Six qualified Persons (as the Case may be), repre- senting equally the Three Divisions of Canada, add to the Senate accordingly. 27. In case of such Addition being at any Time made, the Governor General shall not summon any Person to the Senate, except on a further like Direction by the Queen on the like Recommendation, until each of the Three Divisions of Canada is represented by Twenty-four Senators and no more. 28. The Number of Senators shall not at any Time exceed Seventy-eight. 29. A Senator shall, subject to the Provisions of this Act, hold his Place in the Senate for Life. 30. A Senator may by Writing under his Hand addressed to the Governor General resign his Place in the Senate, and there- upon the same shall be vacant. 31. The Place of a Senator shall become vacant in any of the following Cases : (1.) If for Two consecutive Sessions of the Parliament he fails to give his Attendance in the Senate : (2.) If he takes an oath or makes a Declaration or Acknow- ledgment of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or entitled to the Rights or Pri- vileges of a Subject or Citizen, of a Foreign Power : (3.) If he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter : (4.) If he is attainted of Treason or convicted of Felony or of any infamous Crime : (5.) If he ceases to be qualified in respect of Property or of Residence; provided, tha 4 -- a Senator shall not be deemed to have ceased to be qualified in respect of Residence by reason only of his residing at the Seat of the Government of Canada while holding an Office under that Government requiring his presence there. Summons 32. When a Vacancy happens in the Senate by Resignation, fn Senate? 7 Death, or otherwise, the Governor General shall by Summons to a fit and qualified Person fill the Vacancy. Questions as 33. If any Question arises respecting the Qualification of a t?on?and Ca " Senator or a Vacancy in the Senate the same shall be heard and determined by the Senate. 34. The Governor General may from Time to Time, by Instru- ment under the Great Seal of Canada, appoint a Senator to be tions and Vacancies in Senate. Appoint- ment of Speaker of Senate. APPENDICES 329 Speaker of the Senate, and may remove him and appoint another in his Stead. 35. Until the Parliament of Canada otherwise provides, the Quorum of Presence of at least Fifteen Senators, including the Speaker, shall Senate - be necessary to constitute a Meeting of the Senate for the Exer- cise of its Powers. 36. Questions arising in the Senate shall be decided by a voting in Majority of Voices, and the Speaker shall in all Cases have a Senate - Vote, and when the Voices are equal the Decision shall be deemed to be in the Negative. The House of Commons. 37. The House of Commons shall, subject to the Provisions of Constitu- this Act, consist of One hundred and eighty-one Members, of House'of whom Eighty-two shall be elected for Ontario, Sixty-five for Quebec. Commons in Nineteen for Nova Scotia, and Fifteen for New Brunswick. 38. The Governor General shall from Time to Time, in the Summoning Queen's Name, by Instrument under the Great Seal of Canada, commons * summan and call together the House of Commons. 39. A Senator shall not be capable of being elected or of sitting or voting as a Member of the House of Commons. 40. Until the Parliament of Canada otherwise provides, Ontario, Quebec, Nova Scotia, and New Brunswick shall, for the Purposes of the Election of Members to serve in the House of Commons, be divided into Electoral Districts as follows : Senators not to sit in House of Commons. Electoral Districts of the Four Provinces. [Omitted.] [Sections 41-43 are omitted. They relate to continuance of existing Electoral Laws, till otherwise provided.] [Sections 44-49, which relate to Election of Speaker and Rules of the House, are also omitted.] 50. Every House of Commons shall continue for Five Years Duration of from the Day of the Return of the Writs for choosing the House commons (subject to be sooner dissolved by the Governor General), and no longer. 51. On the Completion of the Census in the Year One thou- Decennial sand eight hundred and seventy-one, and of each subsequent jntnt of St " decennial Census, the Representation of the Four Provinces shall Representa- be readjusted by such Authority, in such Manner, and from such 330 APPENDICES Time, as the Parliament of Canada from Time to Time provides, subject and according to the following Rules : (1.) Quebec shall have the fixed Number of Sixty-five Members : (2.) There shall be assigned to each of the other Provinces such a Number of Members as will bear the same Proportion to the Number of its Population (ascer- tained at such Census) as the Number Sixty-five bears to the Number of the Population of Quebec (so ascertained) : (3.) In the computation of the Number of Members for a Province a fractional Part not exceeding One Half of the whole Number requisite for entitling the Pro- vince to a Member shall be disregarded ; but a frac- tional Part exceeding One Half of that Number shall be equivalent to the whole Number : (4.) On any such Readjustment the Number of Members for a Province shall not be reduced unless the proportion which the Number of the Population of the Province bore to the Number of the aggregate Population of Canada at the then last preceding Readjustment of the Number of Members for the Province is ascertained at the then latest Census to be diminished by One Twentieth Part or upwards : (5.) Such Readjustment shall not take effect until the Termination of the then existing Parliament. Increase of 52. The number of Members of the House of Commons may be House e of f fr m Time to Time increased by the Parliament of Canada, pro- Commons, vided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed. Money Votes; Royal Assent. Appropria- 53. Bills for appropriating any Part of the Public Revenue, or Tax Bins ^ or i m P os i n g anv Tax or Impost, shall originate in the House of Commons. 54. It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropria- tion of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed. Royal As- 55. Where a Bill passed by the Houses of the Parliament is pre- sent to Bills, sen ted to the Governor General for the Queen's Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty's Instructions, either that he Recommen- dation ol Money Votes. APPENDICES assents thereto in the Queen's Name, or that he withholds the Queen's Assent, or that he reserves the Bill for the Signification of the Queen's Pleasure. 56. Where the Governor-General assents to a Bill in the Queen's Name, he shall by the first convenient Opportunity send an authentic Copy of the Act to One of Her Majesty's Principal Secretaries of State, and if the Queen in Council within Two Years after Receipt thereof by the Secretary of State thinks fit to disallow the Act, such Disallowance (with a Certificate of the Secretary of State of the Day on which the Act was received by him) being signified by the Governor General, by Speech or Message to each of the Houses of the Parliament or by Proclamation, shall annul the Act from and after the Day of such Signification. 57. A Bill reserved for the Signification of the Queen's Pleasure Signiflca- shall not have any Force unless and until, within Two Years from Disallow- ance by Order in Council of Act as- sented to by Governor General. the Day on which it was presented to the Governor General for Pleasure the Queen's Assent, the Governor General signifies, by Speech or served. Message to each of the Houses of the Parliament or by Proclama- tion, that it has received the Assent of the Queen in Council. An Entry of every such Speech, Message, or Proclamation shall be made in the Journal of each House, and a Duplicate thereof duly attested shall be delivered to the proper Officer to be kept among the Records of Canada. Appoint- ment of Lieutenant Governors of Provinces. Tenure of Office of Lieutenant Governor. V. PROVINCIAL CONSTITUTIONS. Executive Power. 58. For each Province there shall be an Officer, styled the Lieutenant Governor, appointed by the Governor General in Council by Instrument under the Great Seal of Canada. 59. A Lieutenant Governor shall hold Office during the Pleasure of the Governor General ; but any Lieutenant Governor appointed after the Commencement of the First Session of the Parliament of Canada shall not be removeable within Five Years from his Appointment, except for Cause assigned, which shall be communi- cated to him in Writing within One Month after the Order for his Removal is made, and shall be communicated by Message to the Senate and to the House of Commons within One Week thereafter if the Parliament is then sitting, and if not then within One Week after the Commencement of the next Session of the Parliament. 60. The Salaries of the Lieutenant Governors shall be fixed Salaries of and provided by the Parliament of Canada. 332 APPENDICES Oaths, and in tne nrst instance of the follow- Quebec. ing Officers, namely, the Attorney General, the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agri- culture and Public Works, with in Quebec the Speaker of the Legislative Council and the Solicitor General. Executive 64. The Constitution of the Executive Authority in each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until wick. altered under the Authority of this Act. Powers to be exercised by Lieu- tenant Gov- ernor of Ontario or Quebec with Advice, or alone. 65. All Powers, Authorities, and Functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, or Canada, were or are before or at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice or with the Advice and Consent of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Gover- nors individually, shall, as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Lieutenant Governor of Ontario and Quebec respectively, with the Advice or with the Advice and Consent of or in conjunc- tion with the respective Executive Councils, or any Members thereof, or by the Lieutenant Governor individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Or eat Britain, or of the Parlia- ment of the United Kingdom of Great Britain and Ireland,) to be abolished or altered by the respective Legislatures of Ontario and Quebec. I OF f UNIVERSITY I APPENDICES 333 66. The Provisions of this Act referring to the Lieutenant Gov- ernor in Council shall be construed as referring to the Lieutenant Governor of the Province acting by and with the Advice of the Executive Council thereof. 67. The Governor General in Council may from Time to Time appoint an Administrator to execute the Office and Functions of Lieutenant Governor during his Absence, Illness, or other In- ability. 68. Unless and until the Executive Government of any Province Seats of otherwise directs with respect to that Province, the Seats of Gov- Govern C - lal ernment of the Provinces shall be as follows, namely, of Ontario, ments. the City of Toronto; of Quebec, the City of Quebec; of Nova Scotia, the City of Halifax ; and of New Brunswick, the City of Fredericton. Application of Provi- sions refer- ring to Lieutenant Governor in Council. Administra- tion in Ab- sence,&c.,of Lieutenant Governor. Legislative Power. 1. ONTARIO. 69. There shall be a Legislature for Ontario consisting of the Legislature Lieutenant Governor and of One House, styled the Legislative for Ontaria Assembly of Ontario. 70. The Legislative Assembly of Ontario shall be composed of Electoral Eighty-two Members, to be elected to represent the Eighty-two Districts. Electoral Districts set forth in the First Schedule to this Act. 2. QUEBEC. 71. There shall be a Legislature for Quebec consisting of the Legislature Lieutenant Governor and of Two Houses, styled the Legislative for Quebec- Council of Quebec and the Legislative Assembly of Quebec. 72. The Legislative Council of Quebec shall be composed of constitu- Twenty-four Members, to be appointed by the Lieutenant ^is'lative Governor, in the^ Queen's Name, by Instrument under the Great Council. Seal of Quebec, one appointed to represent each of the Twenty- four Electoral Divisions of Lower Canada in this Act referred to, and each holding Office for the Term of his Life, unless the Legislature of Quebec otherwise provides under the Provisions of this Act. 73. The Qualifications of the Legislative Councillors of Quebec Quaiifica- shall be the same as those of the Senators for Quebec. Legislative Councillors. 74. The place of a Legislative Councillor of Quebec shall become Resigna- vacant in the Cases, mutatis mutandis, in which the place of Senator becomes vacant. tion 334 APPENDICES Vacancies. Questions as to Vacan- cies, &c. Speaker of Legislative Council. Quorum of Legislative Council. Voting in Legislative Council. Constitu- tion of Legislative Assembly of Quebec. 75. When a Vacancy happens in the Legislative Council of Quebec by Resignation, Death, or otherwise, the Lieutenant Governor, in the Queen's Name, by Instrument under the Great Seal of Quebec, shall appoint a fit and qualified Person to fill the Vacancy. 76. If any Question arises respecting the Qualification of a Legislative Councillor of Quebec, or a Vacancy in the Legislative Council of Quebec, the same shall be heard and determined by the Legislative Council. 77. The Lieutenant Governor may from Time to Time, by Instrument under the Great Seal of Quebec, appoint a Member of the Legislative Council of Quebec to be Speaker thereof, and may remove him and appoint another in his Stead. 78. Until the Legislature of Quebec otherwise provides, the Presence of at least Ten Members of the Legislative Council, including the Speaker, shall be necessary to constitute a Meeting for the Exercise of its Powers. 79. Questions arising in the Legislative Council of Quebec shall be decided by a Majority of Voices, and the Speaker shall in all Cases have a Vote, and when the Voices are equal the Decision shall be deemed to be in the Negative. 80. The Legislative Assembly of Quebec shall be composed of Sixty-five Members, to be elected to represent the Sixty-five Electoral Divisions or Districts of Lower Canada in this Act re- ferred to, subject to Alteration thereof by the Legislature of Quebec : Provided that it shall not be lawful to present to the Lieutenant Governor of Quebec for Assent any Bill for altering the Limits of any of the Electoral Divisions or Districts mentioned in the Second Schedule to this Act, unless the Second and Third Readings of such Bill have been passed in the Legislative As- sembly with the Concurrence of the Majority of the Members representing all those Electoral Divisions or Districts, and the Assent shall not be given to such Bill unless an Address has been presented by the Legislative Assembly to the Lieutenant Governor stating that it has been so passed. First Ses- sion of Legisla- tures. Summon- ing of Legislative Assemblies. 3. ONTARIO AND QDEBEC. 81. The Legislatures of Ontario and Quebec respectively shall be called together not later than Six Months after the Union. 82. The Lieutenant Governor of Ontario and of Quebec shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of the Province, summon and call together the Legislative Assembly of the Province. APPENDICES 335 83. Restriction on Election of Holders of Offices, [Omitted.] 84. Continuance of existing Election Laws. [Omitted.] 85. Every Legislative Assembly of Ontario and every Legisla- Duration of tive Assembly of Quebec shall continue for Four Years from the Assembles. Day of the Return of the Writs for choosing the same (subject nevertheless to either the Legislative Assembly of Ontario or the Legislative Assembly of Quebec being sooner dissolved by the Lieutenant Governor of the Province), and no longer. 86. There shall be a Session of the Legislature of Ontario and Yearly Sea- of that of Quebec once at least in every Year, so that Twelve Legislature. Months shall not intervene between the last Sitting of the Legis- lature in each Province in one Session and its first Sitting in the next Session. 87. The following Provisions of this Act respecting the House Speaker, of Commons of Canada shall extend and apply to the Legislative ' am> c " Assemblies of Ontario and Quebec, that is to say, the Provisions relating to the Election of a Speaker originally and on Vacancies, the Duties of the Speaker, the Absence of the Speaker, the Quorum, and the Mode of voting, as if those Provisions were here re-enacted and made applicable in Terms to each such Legis- lative Assembly. 4. NOTA SCOTIA AND NEW BBDNSWICK. 88. The Constitution of the Legislature of each of the Pro- Constitu- vinces of Nova Scotia and New Brunswick shall, subject to the Pro- Legislatures visions of this Act, continue as it exists at the Union until altered * Nova under the Authority of this Act ; and the House of Assembly of New Bruns- New Brunswick existing at the passing of this Act shall, unless wick - sooner dissolved, continue for the Period for which it was elected. 5. ONTARIO, QUEBEC, AND NOVA SCOTIA. 89. Each of the Lieutenant Governors of Ontario, Quebec, and First Elec- Nova Scotia shall cause Writs to be issued for the First Election of tlons ' Members of the Legislative Assembly thereof in such Form and by such Person as he thinks fit, and at such Time and addressed to such Returning Officer as the Governor General directs, and so that the First Election of Member of Assembly for any Electoral District or any Subdivision thereof shall be held at the same Time and at the same Places as the Election for a Member to serve in the House of Commons of Canada for that Electoral District. 336 APPENDICES 6. THE FOUR PROVINCES. Application 90. The following Provisions of this Act respecting the Parlia- tures 8 of la naent of Canada, namely, the Provisions relating to Appropriation Provisions and Tax Bills, the Recommendation of Money Votes, the Assent Money n| to Bills, the Disallowance of Acts, and the Signification of Plea- Votes, &c. sure on -gins reserved, shall extend and apply to the Legislatures of the several Provinces as if those Provisions were here re- enacted and made applicable in Terms to the respective Provinces and the Legislatures thereof, with the Substitution of the Lieu- tenant Governor of the Province for the Governor General, of the Governor General for the Queen and for a Secretary of State, of One Year for Two Years, and of the Province for Canada. VI. DISTRIBUTION OF LEGISLATIVE POWERS. Powers of the Parliament. Legislative 91. It shall be lawful for the Queen, by and with the Advice Parliament an( ^ Consent of the Senate and House of Commons, to make Laws of Canada. f or the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces ; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enume- rated ; that is to say, 1. The Public Debt and Property. 2. The Regulation of Trade and Commerce. 3. The raising of Money by any Mode or System of Taxation. 4. The borrowing of Money on the Public Credit. 5. Postal Service. 6. The Census and Statistics. 7. Militia, Military, and Naval Service, and Defence. 8. The fixing of and providing for the Salaries and Allow- ances of Civil and other Officers of the Government of Canada. 9. Beacons, Buoys, Lighthouses, and Sable Island. 10. Navigation and Shipping. 11. Quarantine and the Establishment and Maintenance of Marine Hospitals. 12. Sea Coast and Inland Fisheries. 13. Ferries between a Province and any British or Foreign Country or between Two Provinces. APPENDICES 337 14. Currency and Coinage. 15. Banking, Incorporation of Banks, and the Issue of Paper Money. 16. Savings Banks. 17. Weights and Measures. 18. Bills of Exchange and Promissory Notes. 19. Interest. 20. Legal Tender. 21. Bankruptcy and Insolvency. 22. Patents of Invention and Discovery. 23. Copyrights. 24. Indians, and Lands reserved for the Indians. 25. Naturalization and Aliens. 26. Marriage and Divorce. 27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. 28. The Establishment, Maintenance, and Management of Penitentiaries. 29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. Exclusive Powers of Provincial Legislatures. 92. In each Province the Legislature may exclusively make Subjects of Laws in relation to Matters coming within the Classes of Subjects provincial next herein-after enumerated ; that is to say, Legislation. 1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor. 2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes. 3. The borrowing of Money on the sole Credit of the Province. 4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers. 5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon. 338 APPENDICES 6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province. 7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals. 8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes. 10. Local Works and Undertakings other than such as are of the following Classes : a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province : . Lines of Steam Ships between the Province and any British or Foreign Country : . Such Works as, although wholly situate within the Province, are before or after their Execu- tion declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces. 11. The Incorporation of Companies with Provincial Objects. 12. The Solemnization of Marriage in the Province. 13. Property and Civil Rights in the Province. 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Mat- ters in those Courts. 15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section. 16. Generally all Matters of a merely local or private Nature in the Province. Education. Legislation 93. In and for each Province the Legislature may exclusively Education, make Laws in relation to Education, subject and according to the following Provisions : APPENDICES 339 (1.) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union : (2.) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec : (3.) Where in any Province a System of Separate or Dis- sentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Pro- vince, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education : (4.) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section. Uniformity of Laws in Ontario, Nova Scotia, and New Brunswick. 94. Notwithstanding anything in this Act, the Parliament of Legislation Canada may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Provinces. Courts in those Three Provinces, and from and after the passing of any Act in that Behalf the Power of the Parliament of Canada to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted ; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have effect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof. 340 APPENDICES Concurrent Powers of Legislation respecting Agriculture, &c. Agriculture and Immigration. 95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Pro- vince; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. Appoint- ment of Judges. Selection of Judges in Ontario, &c. Selection of Judges in Quebec. Tenure of Office of Judges of Superior Courts. Salaries, &c. of Judges. General Court of Appeal, &c. VII. JUDICATURE. 96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. 97. Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and Neio Brunswick, and the Procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces. 98. The Judges of the Courts of Quebec shall be selected from the Bar of that Province. 99. The Judges of the Superior Courts shall hold Office during good Behaviour, but shall be removeable by the Governor General on Address of the Senate and House of Commons. 100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada. 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organisation of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada. VIII. REVENUES; DEBTS; ASSETS; TAXATION. Creation of 102. All Duties and Revenues over which the respective Legis- date^Re- latures of Canada, Nova Scotia, and New Brunswick before and at venue Fund, the Union had and have Power of Appropriation, except such APPENDICES Portions thereof as are by this Act reserved to the respective Legislatures of the Provinces, or are raised by them in accordance with the special Powers conferred on them by this Act, shall form One Consolidated Revenue Fund, to be appropriated for the Public Service of Canada in the Manner and subject to the Charges in this Act provided. 103. The Consolidated Revenue Fund of Canada shall be per- Expenses of manently charged with the Costs, Charges, and Expenses incident &c. 6 l n> to the Collection, Management, and Receipt thereof, and the same shall form the First Charge thereon, subject to be reviewed and audited in such Manner as shall be ordered by the Governor General in Council until the Parliament otherwise provides. I Salary of Governor General. Appropria- tion from Time to Time. Transfer of Stocks, &c. 104. The annual Interest of the Public Debts of the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union Public shall form the Second Charge on the Consolidated Revenue Fund of Canada. 105. Unless altered by the Parliament of Canada, the Salary of the Governor General shall be Ten thousand Pounds Sterling Money of the United Kingdom of Great Britain and Ireland, pay- able out of the Consolidated Revenue Fund of Canada, and the same shall form the Third Charge thereon. 106. Subject to the several Payments by this Act charged on the Consolidated Revenue Fund of Canada, the same shall be appropriated by the Parliament of Canada for the Public Service. 107. All Stocks, Cash, Banker's Balances, and Securities for Money belonging to each Province at the Time of the Union, except as in this Act mentioned, shall be the property of Canada^ and shall be taken in Reduction of the Amount of the respective Debts of the Provinces at the Union. 108. The Public Works and Property of each Province, enu- Transfer of merated in the Third Schedule to this Act, shall be the Property schedule in of Canada. 109. All Lands, Mines, Minerals, and Royalties belonging to Property in the several Provinces of Canada, Nova Scotia, and New Brunswick Mines', 35 8 APPENDICES (i.) Trade and commerce with other countries, and among the States : (ii.) Taxation ; but so as not to discriminate between States or parts of States : (iii.) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth : (iv.) Borrowing money on the public credit of the Common- wealth : (v.) Postal, telegraphic, telephonic, and other like services : (vi.) The naval and military defence of, the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Common- wealth : (vii.) Lighthouses, lightships, beacons and buoys : (viii.) Astronomical and meteorological observations : (ix.) Quarantine: (x.) Fisheries in Australian waters beyond territorial limits : (xi.) Census and statistics : (xii.) Currency, coinage, and legal tender : (xiii.) Banking, other than State banking ; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money : (xiv.) Insurance, other than State insurance ; also State insurance extending beyond the limits of the State concerned : (xv.) Weights and measures : (xvi.) Bills of exchange and promissory notes : (xvii.) Bankruptcy and insolvency: (xviii.) Copyrights, patents of inventions and designs, and trade marks : (xix.) Naturalization and aliens : (xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth : (xxi.) Marriage : (xxii.) Divorce and matrimonial causes ; and in relation thereto, parental rights, and the custody and guar- dianship of infants : (xxiii.) Invalid and old-age pensions : (xxiv.) The service and execution throughout the Common- wealth of the civil and criminal process and the judgments of the courts of the States: (xxv.) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States : APPENDICES 359 (xxvi.) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws : (xxvii.) Immigration and emigration : (xxviii.) The influx of criminals : (xxix.) External affairs : (xxx.) The relations of the Commonwealth with the islands of the Pacific : (xxxi.) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws : (xxxii.) The control of railways with respect to transport for the naval and military purposes of the Common- wealth : (xxxiii.) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State : (xxxiv.) Railway construction and extension in any State with the consent of that State : (xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State : (xxxvi.) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides : (xxxvii.) Matters referred to the Parliament of the Common- wealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law : (xxxviii.) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United King- dom or by the Federal Council of Australasia : (xxxix.) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or office of the Commonwealth. 52. The Parliament shall, subject to this Constitution, have Exclusive exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to ment. (i.) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes : 3 6 APPENDICES (ii.) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth : (iii.) Other matters declared by this Constitution to be within the exclusive power of the Parliament. Powers of 53. Proposed laws appropriating revenue or moneys, or inrespedfof imposing taxation, shall not originate in the Senate. But legislation. a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appro- priation of fees for licences, or fees for services under the proposed law. The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordi- nary annual services of the Government. The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people. The Senate may at any stage return to the House of Repre- sentatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all pro- posed laws. Appropria- 54. The proposed law which appropriates revenue or moneys 3llls * for the ordinary annual services of the Government shall deal only with such appropriation. Tax Bill. Recommen- dation of money votes. 55. Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only ; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only. 56. A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor General to the House in which the proposal originated. APPENDICES 361 57. If the House of Representatives passes any proposed law, Dtaagree- and the Senate rejects or fails to pass it, or passes it with amend- between the ments to which the House of Representatives will not agree, and Houses - if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, sug- gested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the GoVfcrnor General may dissolve the Senate and the House of RepresentaliiTOs simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time. If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor General may convene a joint sitting of the members of the Senate and of the House of Representatives. The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an abso- lute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parlia- ment, and shall be presented to the Governor General for the Queen's assent. 58. When a proposed law passed by both Houses of the Parlia- Royal assent ment is presented to the Governor General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure. The Governor General may return to the house in which it Recommen- originated any proposed law so presented to him, and may transmit Govenior y therewith any amendments which he may recommend, and the General. Houses may deal with the recommendation. 59. The Queen may disallow any law within one year from the Disallow- Governor General's assent, and such disallowance on being made Queen. y th Significa- tion of Queen's pleasure on Bills reserved. 362 APPENDICES known by the Governor General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known. 60. A proposed law reserved for the Queen's pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor General for the Queen's assent the Governor General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen's assent. CHAPTER II. THE EXECUTIVE GOVERNMENT. 61. The executive power of the Commonwealth is vested in the Queen and is exerciseable by the Governor General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. 62. There shall be a Federal Executive Council to advise the Governor General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor General and sworn as Executive Councillors, and shall hold office during his pleasure. 63> Tne P rovisions of tnis Constitution referring to the Governor Governor General in Council shall be construed as referring to the Governor G enera i ac ting with the advice of the Federal Exe- cutive Council. Executive power. Federal Executive Council. General. Ministers of State. Ministers to sit in Parlia- ment. Number of Ministers. 64. The Governor General may appoint officers to administer such departments of State of the Commonwealth as the Governor General in Council may establish. Such officers shall hold office during the pleasure of the Governor General. They shall be members of the Federal Execu- tive Council, and shall be the Queen's Ministers of State for the Commonwealth. After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives. 65. Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor General directs. APPENDICES 363 66. There shall be payable to the Queen, out of the Consoli- Salaries of dated Revenue Fund of the Commonwealth, for the salaries of * the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year. 67. Until the Parliament otherwise provides, the appointment Appoint- and removal of all other officers of the Executive Government of servants? the Commonwealth shall be vested in the Governor General in Council, unless the appointment is delegated by the Governor General in Council, or by a law of the Commonwealth to some other authority. 68. The command in chief of the naval and military forces of Command the Commonwealth is vested in the Governor General as the m iiitlry an Queen's representative. forces. 69. On a date or dates to be proclaimed by the Governor Transfer of General after the establishment of the Commonwealth the follow- ing departments of the public service in each State shall become transferred to the Commonwealth : Posts, telegraphs, and telephones : Naval and military defence : Lighthouses, lightships, beacons, and buoys : Quarantine. But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its estab- lishment . 70. In respect of matters which, under this Constitution, pass certain to the Executive Government of the Commonwealth, all powers gJJJJJ^ and functions which at the establishment of the Commonwealth to vest in are vested in the Governor of a Colony, or in the Governor of a General!* Colony with the advice of his Executive Council, or in any autho- rity of a Colony, shall vest in the Governor General, or in the Governor General in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires. CHAPTER III. THE JUDICATURE. 71. The judicial power of the Commonwealth shall be vested in judicial a Federal Supreme Court, to be called the High Court of Aus- g^ r e t r s and tralia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. 3^4 APPENDICES Judges' ap- pointment, tenure, and remunera- tion. Appellate jurisdiction of High Court. Appeal to Queen inj Council. 72. The Justices of the High Court and of the other courts created by the Parliament (i.) Shall be appointed by the Governor General in Council : (ii.) Shall not be removed except by the Governor General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity : (iii.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office : 73. The High Court shall have jurisdiction, with such excep- tions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences (i.) Of any Justice or Justices exercising the original juris- diction of the High Court : (ii.) Of any other federal court, or court exercising federal jurisdiction ; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council : (iii.) Of the Inter-State Commission, but as to questions of law only : and the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court. 74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Com- monwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. APPENDICES 365 Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor General for Her Majesty's pleasure. 75. In all matters Original .. jurisdiction (i.) Arising under any treaty : of High (ii.) Affecting consuls or other representatives of other Court - countries : (iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party : (iv.) Between States, or between residents of different States, or between a State and a resident of another State. (v.) In which a writ of Mandamus or prohibition or an in- junction is sought against an officer of the Common- wealth : the High Court shall have original jurisdiction. 76. The Parliament may make laws conferring original juris- Additional diction on the High Court in any matter jSdfc- (i.) Arising under this Constitution, or involving its inter- tion. pretation : (ii.) Arising under any laws made by the Parliament : (iii.) Of Admiralty and maritime jurisdiction : (iv.) Relating to the same subject-matter claimed under the laws of different States. 77. With respect to any of the matters mentioned in the last Power to two sections the Parliament may make laws diSSon. 11 8 " (i.) Defining the jurisdiction of any federal court other than the High Court : (ii.) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States : (iii.) Investing any court of a State with federal jurisdiction. 78. The Parliament may make laws conferring rights to proceed Proceed- against the Commonwealth or a State in respect of matters within SS^iS? Bt the limits of the judicial power. we * lth or 79. The federal jurisdiction of any court may be exercised by Number of such number of judges as the Parliament prescribes. judges. 80. The trial on indictment of any offence against any law of Trial by the Commonwealth shall be by jury, and every such trial shall be W- 366 APPENDICES held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. Consoli- dated Revenue Fund. Expendi- ture charged thereon. Money to be appropri- ated by law. Transfer of officers. CHAPTER IV. FINANCE AND TRADE. 81. All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Com- monwealth in the manner and subject to the charges and liabilities imposed by this Constitution. 82. The costs, charges, and expenses incident to the collection, management, and receipt of the Consolidated Revenue Fund shall form the first charge thereon ; and the revenue of the Common- wealth shall in the first instance be applied to the payment of the expenditure of the Commonwealth. 83. No money shall be drawn from the Treasury of the Com- monwealth except under appropriation made by law. But until the expiration of one month after the first meeting of the Parliament the Governor General in Council may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth and for the holding of the first elections for the Parliament. 84. When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth. Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other com- pensation, payable under the law of the State on the abolition of his office. Any such officer who is retained in the service of the Common- wealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth ; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his APPENDICES 367 whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the State at the time of the transfer. Any officer who is, at the establishment of the Commonwealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a depart- ment transferred to the Commonwealth and were retained in the service of the Commonwealth. 85. When any department of the public service of a State is Transfer of transferred to the Commonwealth State. (i.) All property of the State of any kind, used exclusively in connection with the department, shall become vested in the Commonwealth ; but, in the case of the depart- ments controlling customs and excise and bounties, for such time only as the Governor General in Council may declare to be necessary : (ii.) The Commonwealth may acquire any property of the State, of any kind used, but riot exclusively used in connexion with the department ; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Common- wealth : (iii.) The Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section ; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament : (iv.) The Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred. 86. On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth. 87. During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise pro- vides, of the net revenue of the Commonwealth from duties of customs and of excise not more than one-fourth shall be applied annually by the Commonwealth towards its expenditure. 368 APPENDICES Uniform duties of customs. Payment to States before uniform duties. Exclusive power over customs, excise, and bounties. Exceptions as to bounties. Trade within the Common- wealth to be free. The balance shall, in accordance with this Constitution, be paid to the several States, or applied towards the payment of interest on debts of the several States taken over by the Commonwealth. 88. Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth. 89. Until the imposition of uniform duties of customs (i.) The Commonwealth shall credit to each State the reve- nues collected therein by the Commonwealth, (ii.) The Commonwealth shall debit to each State (a) The expenditure therein of the Commonwealth incurred solely for the maintenance or con- tinuance, as at the time of transfer, of any department transferred from the State to the Commonwealth ; (6) The proportion of the State, according to the number of its people, in the other expenditure of the Commonwealth. (in.) The Commonwealth shall pay to each State month by month the balance (if any) in favour of the State. 90. On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and not otherwise. 91. Nothing in this Constitution prohibits a State from grant- ing any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods. 92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods APPENDICES 3 6 9 Payment to States for five years after uni- form tariffs. into the Commonwealth, less any duty paid in respect of the goods on their importation. 93. During the first five years after the imposition of uniform duties of customs, and thereafter until the Parliament otherwise provides (i.) The duties of customs chargeable on goods imported into a State and afterwards passing into another State for consumption, and the duties of excise paid on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been collected not in the former but in the latter State : (ii.) Subject to the last subsection, the Commonwealth shall credit revenue, debit expenditure, and pay balances to the several States as prescribed for the period preced- ing the imposition of uniform duties of customs. 94. After five years from the imposition of uniform duties of Distribution customs, the Parliament may provide, on such basis as it deems of surplus - fair, for the monthly payment to the several States of all surplus revenue of the Commonwealth. 95. Notwithstanding anything in this Constitution, the Par- Customs liament of the State of Western Australia, if that State be an western Original State, may, during the first five years after the imposition Australia, of uniform duties of customs, impose duties of customs on goods passing into that State and not originally imported from beyond the limits of the Commonwealth ; and such duties shall be col- lected by the Commonwealth. But any duty so imposed on any goods shall not exceed during the first of such years the duty chargeable on the goods under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, third, fourth, and fifth of such years respectively, four-fifths, three-fifths, two-fifths, and one-fifth of such latter duty, and all duties imposed under this section shall cease at the expiration of the fifth year after the imposition of uniform duties. If at any time during the five years the duty on any goods under this section is higher than the duty imposed by the Commonwealth on the importation of the like goods, then such higher duty shall be collected on the goods when imported into Western Australia from beyond the limits of the Commonwealth. 96. During a period of ten years after the establishment of the Financial Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit. 2 A APPENDICES Audit. Trade and commerce includes navigation and State railways. Common- wealth not to give pre- ference. Nor abridge right to use water. Inter-State Commis- sion. Parliament may forbid preferences by State. Commis- sioners' appoint- ment, tenure, and remunera- tion. 97. Until the Parliament otherwise provides, the laws in force in any Colony which has become or becomes a State with respect to the receipt of revenue and the expenditure of money on account of the Government of the Colony, and the review and audit of such receipt and expenditure, shall apply to the receipt of revenue and the expenditure of money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or the Government or an officer of the Common- wealth, were mentioned whenever the Colony, or the Government or an officer of the Colony, is mentioned. 98. The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State. 99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof. 100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conserva- tion or irrigation. 101. There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder. 102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State ; due regard being had to the financial re- sponsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission. 103. The members of the Inter-State Commission (i.) Shall be appointed by the Governor General in Council : (ii.) Shall hold office for seven years, but may be removed within that time by the Governor General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity : (iii.) Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office. APPENDICES 104. Nothing in this Constitution shall render unlawful any Saving of rate for the carriage of goods upon a railway, the property of a rates" 1 State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States. 105. The Parliament may take over from the States their public Taking over debts as existing at the establishment of the Commonwealth, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States. CHAPTER V. THE STATES. 106. The Constitution of each State of the Commonwealth Saving of shall, subject to this Constitution, continue as at the establish- ment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. 107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be. 108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Con- stitution, continue in force in the State ; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of appeal in respect of any such law as the Parliament of the Colony had until the Colony became a State. 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Saving of Power of State Par- liaments. Saving of State laws. Inconsist- ency of laws, 372 APPENDICES Provisions Govermfr. States may surrender territory. States may levy charges for inspec- tion laws. 110. The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State. 111. The Parliament of a State may surrender any part of the State to the Commonwealth ; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Common- wealth. 112. After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State ; but the net produce of all charges so levied shall be for the use of the Commonwealth ; and any such inspection laws may be annulled by the Parliament of the Com- monwealth. 113. All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State. 114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State. 115. A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts. 116. The Commonwealth shall not make any law for establish- ing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. Rights of 117. A subject of the Queen, resident in any State, shall not states ntS in be sut) J ect in anv otner State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. Recognition 118. Full faith and credit shall be given, throughout the Corn- el fa*tatef C '' monwealth to the laws, the public Acts and records, and the judicial proceedings of every State. Intoxicat- ing liquids. States may not raise forces. Taxation of property of Common- wealth or State. States not to coin money. Common- uf fegfciate in respect of Protection from'inva- sion and yiolence, 119. The Commonwealth shall protect every State against in- vasion and, on the application of the Executive Government of th e state, against domestic violence. APPENDICES 373 120. Every State shall make provision for the detention in its Custody of prisons of persons accused or convicted of offences against the agahisUaws laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Common- wealth may make laws to give effect to this provision. CHAPTER VI. NEW STATES. 121. The Parliament may admit to the Commonwealth or New states establish new States, and may upon such admission or establish- mSe^cr* ment make or impose such terms and conditions, including the established, extent of representation in either House of the Parliament, as it thinks fit. 122. The Parliament may make laws for the government of any Government territory surrendered by any State to and accepted by the Com- monwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. 123. The Parliament of the Commonwealth may, with the con- Alteration sent of the Parliament of a State, and the approval of the majority stetS ltS f of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected. 124. A new State may be formed by separation of territory Formation from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parlia- ments of the States affected. CHAPTER VII. MISCELLANEOUS. 125. The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be Seat of Go- vernment. 374 APPENDICES in the State of New South Wales, and be distant not less than one hundred miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any pay- ment therefor. The Parliament shall sit at Melbourne until it meet at the seat of Government. Power to 126. The Queen may authorise the Governor General to appoint Her Majesty . . , , to authorise any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capa- city to exercise during the pleasure of the Governor General such powers and functions of the Governor General as he thinks fit to assign to such deputy or deputies, subject to any limitations ex- pressed or directions given by the Queen ; but the appointment of such deputy or deputies shall not affect the exercise by the Gover- nor General himself of any power or function. Aborigines 127. In reckoning the numbers of the people of the Common- counted^n wealth, or of a State or other part of the Commonwealth, abori- reckoning ginal natives shall not be counted, population. Governor General to appoint deputies. Mode of altering the Constitu- tion. CHAPTER VIII. ALTERATION OF THE CONSTITUTION. 128. This Constitution shall not be altered except in the fol- lowing manner : The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two or more than six months after its passage through both Houses the proposed law shall be submitted in each State to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an abso- lute majority, and the other House rejects or fails to pass it or passes it with any amendment to which the first -mentioned House will not agree, and if after an interval of three months the first- mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amend- ment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor General may submit the proposed law as last pro- posed by the first -mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the APPENDICES 375 electors in each State qualified to vote for the election of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half of the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be pre- sented to the Governor General for the Queen's assent. No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representa- tives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. SCHEDULE. OATH. I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. So HELP ME GOD ! AFFIRMATION. I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. (NOTE. The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.) INDEX ACLAND, Mr., 64 Adams, John, 66, 71 Africa, South, 172, 261 ; war of (1899), 5, 275, 299 American Revolution, 23-91 "Annual Register," 35, 40, 50, 56, 57, 58,60 Arnold, Matthew, 259 Augustine, St., 13 Australia, 172, 182, 270, 310; and Ap- pendix, 345 BACON, Francis, 42 Bagot, Sir Charles, 138 Balfour, Right Hon. A., 215 Right Hon. Gerald, 246 Bancroft, Mr., 24 Barre, Colonel, 5 Bentham, Jeremy, 109 Bernard, Sir Francis, 85 Blackburn, Mr. Justice, 269 Boswell, J., 27, 202 Braddon, Sir E. N., 307 British Empire, 1-20, 265-319 Brougham, Lord, 141 Bryce, Right Hon. J., 128, 306 Bundesrath, in German Empire, 305 Burke, Mr. Edmund, 15, 29, 40, 44, 46, 51, 54, 58, 83, 195, 200, 267, 272, 287 Butt, Isaac, 224 CADOGAN, Lord, 245 Camden, Lord, 37 Canada, 16, 95-190 ; and Appendix, 323 Canning, Lord, 142 Carnarvon, Lord, 162, 180, 218, 229, 291 Cecil, Lord Hugh, 287 Chamberlain, Right Hon. Joseph, 112, 230, 236, 238, 244, 272, 295, 303 Charlemont, Lord, 217 Chatham, Earl of , 25, 37, 51, 61, 84 Childers, Right Hon. Hugh, 227, 235 Churchill, Lord Randolph, 229 Clare, Lord, 206 Clarke, 2 Claudian, i Colby, Mr., 185 Corn Laws, 145 Cowen, Mr. J., 279 DEVONSHIKE, Duke of (Lord Harting- ton), 239, 244 Dexter, Sir M., 196 Dicey, Professor, 268 Disraeli, Mr., 212 Dunraven, Lord, 292 Durham, Lord, 105, 108, 113, 115, 117, 122, 129, 159, 186, 212 ELGIN, Lord, 139 et seq., 146, 148, 151, 154 et seq., 279 England and Wales. See United King- dom FIELDING, Mr., 188 Fitzgibbon, Mr., 55 Fitz william, Lord, 205 Flood, Mr., 95 Franklin, Benjamin, 31, 38, 47, 64, 73, 77, 79< 84 French Republic, 18, 252 Froude, Mr. J. A., 207 377 2 B 378 INDEX GAGE, General, 63 George III., King, 76 German Empire, 7, 300, 301, 305 Gibbon, Mr., 53 Gladstone, Mr., 141, 222, 234, 243, 252 Glenelg, Lord, 102 Gosford, Lord, 102 Grant-Duff, Sir M. E., 158 Grattan, Mr., 201, 208, 216 Grenville, George, 23, 32, 80 Grey, Lord, 138, 146, 147, 289 Grotius, 2 Guizot, 7, 14 HARTINGTON, Lord. See Duke of Devonshire Hervey, Captain, 76 Hicks-Beach, Eight Hon. Sir Michael, 226, 298 Holland, Dr., 3 Hooker, 3 Horace, I Hutchison, Governor, 69 INDIA, 12, 16, 270, 300, 317 Ireland. See United Kingdom JAY, John, 65 Jefferson, Thomas, 66, 69 Johnson, Dr., 27, 53, 202 Johnstone, Governor, 52 Junius, 39 KIMBEKLEY, Lord, 288, 291 Knutsford, Lord, 302 LAUBIEB, Sir Wilfred, 112, 275, 297 Laveleye, M., 166 Lecky, The Eight Hon. W., 24, 62, 217, 218 Lefroy, Mr., 172 Livy, 4 Locke, John, 3 Lothian, Lord, 253 Lyttelton, Lord, 34 MACAULAY, Lord, 24 Macdonald Ministry, 160 Mackenzie, Mr., 107 Manning, Cardinal, 217 Mansfield, Lord, 35, 53, 64, 76 Metcalfe, Lord, 138 Mommsen, Professor, 277 Monck, Lord, 162 Montesquieu, 5, 12 Montreal, 141 NAVIGATION Laws, 28, 38, 42, 84, 145 New Brunswick, 161, 162 Newfoundland, 161, 162 Newman, Cardinal, 132, 260 North, Lord, 23, 44 Nova Scotia, 119, 123, 161, 162 O'CoNNELL, Daniel, 103, 221 Ontario. See Canada PAINE, Thomas, 67 Parnell, Charles Stewart, 217, 226, 229, 282 Papineau, M., 104 Pascal, i Peel, Sir Eobert, 216, 240 Penn, Eichard, 67 William, 27 Pitt, Mr., 97, 198, 204, 208, 213, 216 Plunkett, Eight Hon. Horace, 245 Ponsonby, Mr., 56 Portland, Duke of, 198 Postlethwaite, Mr., 196 Pownall, Governor, 42, 46, 49, 78, 81, 87, 286, 315 Poynings' Act, 196 Prince Edward Island, 119, 123, 161 Privy Council, Judicial Committee, 10, 171 el seq., 271, 309 et seq. QUEBEC. See Canada EAYNAL, 4 Eeid, Eight Hon. G. H., 271 Ehodes, Eight Hon. Cecil, 281, 296 Eockingham, Lord, 40, 51 Eoebuck, Mr., 103, in Eoman Empire, r, 12, 265 Eosebery, Lord, 112 INDEX 379 Russell, Lord John, 104, no, in, 135, 150 Russian Empire, 18 Rutland, Duke of, 204 SALISBUEY, Lord, 230, 280, 294 Scotland. See United Kingdom Seddon, Mr., 307 Shelburne, Lord, 59, 195 Sheridan, R., 201 Shirley, Governor, 31 Smith, Adam, 79 Spalding, Mr. T. A., 255 Stanley, Lord, 103 Story, Mr., 167 Swift, Dean, 193 Sydenham, Lord, 138 TEMPLE, Lord, 61 Todd, Alpheus, 168 Townshend, Charles, 23, 24, 43 Trevelyan, Sir G., 24 UNITED Kingdom, 193-261 United States of America, 117, 118, 120, 128, 129, 134, 149, 152, 161, 178 181 VICTOKIA, Queen, 318 WASHINGTON, George, 66 Wedderburn, Sir David, 252 Wellington, Duke of, ill, 208 Wesley, John, 54, 315 UNIVERSITY OF Printed by BALLANTTNE, HANSON & Co Edinburgh 6 London p Octobtr> I90I . Mr. Edward Arnold's New and Popular Books. Telegrams : 37 Bedford Street, ' Scholarly, London.' Strand, London. LINKS WITH THE PAST. By MRS. CHARLES BAGOT. Demy Svo. t with Photogravure Portrait, 165. This interesting volume of reminiscences goes back a long way into the century just closed. The author was born in 1821, and her parents and grandparents had taken their share in the public affairs of their day, so that the book contains ample justification for its title. It is full of anecdotes and entertaining episodes, and throws new side-lights upon several important historical events in the shape of personal recollections by those who took part in them. In addition to the stories transmitted in the author's family and narrated by her, the work is carried beyond the range of her own memory by means of extracts from the valuable private diaries of Miss Mary Bagot, a Staffordshire lady, who saw much of Society at the beginning of the nineteenth century ; she was a singu- larly clever woman, and possessed a fund of penetration and critical observation which make her diaries extremely good reading. Her pictures of Society and anecdotes of well-known personages of the time are singularly vivid. MEMORIALS OF THE VERY REV. W. C. LAKE, D.D., DEAN OF DURHAM, 1869-1894.. Edited by his Widow, KATHARINE LAKE. One volume^ &V0., with Photogravure Portrait, i6s. At the time of his death in 1897, the late Dean of Durham was engaged upon his Reminiscences, but they were unfortunately left in a very frag- mentary and incomplete condition. Mrs. Lake has, however, put the MSS. in order, with the co-operation of Canon Rawlinson, of Canterbury, and supplemented it with such additional materials as were in her possession, including a selection from the Dean's full and varied correspondence. Dean Lake was a Fellow and Tutor of Balliol during the height of the Oxford Movement, and was afterwards a member of the famous Royal Commission on Education, which may be said to have laid the foundation for all subsequent legislation on the subject. He was on intimate terms with the leading men in the English Church during an eventful period of its history, but, though a strong Churchman, he was a thorough man of the world, of broad views and wide culture. Mrs. Lake has been permitted to publish letters to her husband from his numerous friends, including Arch- bishop Tait, Dean Church, Dean Stanley, Mr. Gladstone, Canon Liddon, Dr. Pusey, Lord Halifax, and others letters that not only add considerably to our knowledge of those distinguished characters, but contain many valuable comments upon large questions of permanent interest. THE NATAL FIELD FORCE OF 1900. By ERNEST BLAKE KNOX, B.A., M.D., LIEUTENANT ROYAL ARMY MEDICAL CORPS. With Plans and Illustrations, One vol., demy %vo. Mr. Knox is exceptionally qualified for writing an account of the work of the Natal Field Force, having been present with the attacking force in all the engagements of General Buller's army from Colenso to the final breaking up at Pretoria. His object has been to lay before the general public in a concise and clear way the history of General Buller's campaign, the difficulties and hardships encountered, the fighting, and the treatment of the sick and wounded. Incidentally, Mr. Knox includes many interest- ing anecdotes, and notes of the fights from the enemy's point of view. LIVES OF HOLY MEN. MONSIEUR VINCENT. A SKETCH OF A CHRISTIAN SOCIAL REFORMER OF THE SEVENTEENTH CENTURY. By JAMES ADDERLEY, AUTHOR OF 'FRANCIS, THE LITTLE POOR MAN OF ASSISI,' 'STEPHEN REMARX,' ETC. Small crown 8z/0., 'js. 6d. FIFTH IMPRESSION. ' We congratulate Mr. Peel most heartily on his frank and manly book. That it will obtain a very large number of readers we do not doubt, for it is a fascinating record of service in perhaps the most interesting body of troops that took part in the war. In his book we get war as seen from the ranks, recorded not only by a singularly able and cultivated man, but by one who had plenty of experience of men and cities, and one who had a first-hand acquaintance of generals and politicians before he went campaigning.' Spectator. 1 This book seems to us to be perhaps the best contribution to the literature of the war that has yet been written. It is a plain soldierly narrative of what the writer actually did and saw, set down in unvarnished language, yet in English which it is a pleasure to read for its straightforward fluency.' St. James's Gazette. 1 From first page to last it is a good book.' Pilot. ' A most lively and amusing record.' Daily Express. 1 Written in a remarkably easy and interesting manner, leaving one with a vivid impression of what campaigning under present-day conditions really means.' Westminster Gazette. KING EDWARD'S COOKERY BOOK. By FLORENCE A. GEORGE, TEACHER OF COOKERY IN KING EDWARD'S SCHOOLS, BIRMINGHAM. Crown Sv0. t 3$. 6d. This little volume is designed to give practical instruction in simple cookery. It takes nothing for granted, and gives sensible notes and rules for every phase of culinary work. The chief part of the book is occupied with recipes suitable for ordinary English households under economical management. It will be found equally useful in Schools of Cookery and for domestic purposes. THE BALANCING OF ENGINES. )ALBY, M.A., B.Sc., M.lNST.C.E \NICAL ENGINEERING AND APPLIED MATHEMA'J ILDS OF LONDON TECHNICAL COLLEGE, FINSBU Demy 8v