VOL. XLII.

JULY.

NOS. 13 AND 14.

A CENTURY OF CONSTITUTIONAL DEVELOPMENT UPON THE NORTH AMERICAN CONTINENT.

4. Primary effect of American Revolution on English colonial policy

454-455

5. The connection between free trade and colonial self-government

455-461

14. Foundation principles of the United States constitution

15. Comments of Sir H. Maine, Mr. Bagehot, and others

16. The actual government of the United States

17. The President

18. The Committees of Congress

463-469

· 466-468

469-470

19. Comments of Mr. Woodrow Wilson, Mr. Joseph Chamberlain, and others

20. The Canadian contrast

21. The Speaker of the House of Representatives

478-481

- 483-484

484-485

24. Lord Brougham's dream of the British Colonial Empire, and

its realization

490-491

A little more than a hundred years ago and within three years of one another, two forms of Constitution were instituted upon the North American Continent both in reality, and one avowedly, in large measure an imitation or adaptation to the circumstances of the country concerned of the British Constitution, as it presented itself to the observer at that stage of its development. The one was the Federal Constitution of the United States, and the other was comprised in the Canadian Constitutional Act of 1791, which imposed one and the same form of Constitution upon each of the provinces of Upper and Lower Canada. The Canadian Constitutions have been replaced by other constitutions imposed by Act of the same Imperial Parliament; the United States Constitution remains after a hundred years, save for a few supplementary provisions with which we are not here concerned, in theory intact; and it is claimed by a recent American writer that it should now be ranked as the oldest but one, or bearing in mind the essential transformation of the British Constitution since the Reform Bill of 1832, as perhaps the very oldest among the constitutional governments now existing in the world.

When, however, we observe the American Constitution in its actual operation at the present time we may, perhaps, be led to the conclusion that the framers of that instrument would find it almost as hard to recognize it as the same constitution which they devised, as those who lived in the British Isles before the days of responsible government and reform would find it to identify the Constitution of England now with that of their own time. To indicate in brief outline some features of this development, to compare the actual constitutional condition of the two great sections of the North American Continent, and to emphasize the value of the British institutions which we enjoy in Canada, is the object of the present paper.

The Constitutional Act of 1791(a), established in each of the

(a) Imp. 31 Geo. III., c. 31.

provinces of Lower and Upper Canada a Legislative Council and a Legislative Assembly, the members of the former to be appointed by the Governor or Lieutenant-Governor under the authorization and direction of the Crown for life, the members of the latter to be elected by voters possessed of a small property qualification, the Governor or Lieutenant-Governor to have the power of fixing the time and place of holding the meetings of the Legislature and to prorogue and dissolve it whenever they deemed either course expedient. The Act also recognized an Executive Council to be appointed by His Majesty, his heirs or successors within each province for the affairs thereof (a1). The Legislature was to be called together once at least every year and to continue for four years unless sooner dissolved by the Governor or Lieutenant-Governor, who were to have power to give or to withhold the royal assent to all bills, and to reserve such as they should think fit for the signification of the pleasure of the Crown. This, Mr. Egerton (b) says, was an imitation of the English Constitution, it is true, but of the English Constitution under the Stuarts. Certain it is, however, that the avowed intention of the Imperial Parliament was to assimilate the Constitution of Canada to that of Great Britain as then existing, "as nearly as the differences arising from the manners of the people and from the present situation of the province will admit"(c). "Part of the province" Edmund Burke had said on the debate on the bill, "was inhabited chiefly by persons who had migrated from the United States. These men had fled from the blessings of American government, and there was no danger of their going back. There might be many causes of emigration not connected with government, such as a more fertile soil, or more genial climate; but they had forsaken all the advantages of a more fertile soil, and more southern latitudes, for the bleak and barren regions of Canada. There was no danger of their being so much shocked by the introduction of the British Con

(a1) S. 38.

(b) Short History of British Colonial Policy, by H. E. Egerton, p. 253. (c) Despatch of Lord Grenville to Lord Dorchester, of October 20th, 1789.

stitution, as to return'(d). And Governor Simcoe, in closing the first session of the Legislature of Upper Canada declared that it was the desire of the Imperial Government to make the new constitutional system "an image and transcript of the British Constitution'(e). What Mr. Egerton seems to have overlooked is the fact that responsible government cannot be said to have been operative in England under George III. at the time when either of the two constitutions we are considering were instituted.

A great step towards that system was taken on the accession of George I., when the principle was adopted of admitting only members of a single party into the Cabinet (f). But when we are dealing with an unwritten constitution in a state of constant development, it is necessarily difficult to fix the precise moment when a change in form which has been gradual in its growth, can be said to have become complete; and it is not surprising that there is some discrepancy of opinion among historians as to when our modern system of Cabinet government can be first said to have established itself. Sir Henry Maine, in his work on Popular Government, says of George III. that Cabinet government was exactly the method to which he refused to submit. He carried on the struggle with the colonists of North America with servants of his own choosing, and when the Americans were framing their constitution he had established his right for the rest of his reign.

Mr. Hearn, in his Government of England (g), considers the second Rockingham Ministry, that of 1782, as the first of the modern ministries, and Mr. Traill (h) appears to agree with him, but the former adds (i) that if it were required to indicate the period at which our modern system of ministries may be re

(d) Parliamentary History, Vol. 29, p. 365.

(e) Cited Bourinot's Manual, p. 25.

(f) Lecky's History of England in XVIIIth Century, Vol. 3, p. 180. (g) P. 213.

(h) Central Government, by H. D. Traill, D.C.L., p. 21.

(i) Hearn, ibid., p. 227.

garded as permanently and completely established we must look to Lord Grenville's administration in 1806. On the other hand Sir William Anson (j) states that "the only ministers before 1830 who resigned in consequence of defeats in the House of Commons were Sir Robert Walpole in 1741 and Lord Shelburne in 1783. . The defeat which drove Walpole from power however, took place in a committee of the House sitting to hear an election petition. Shelburne was beaten on a vote of approval on the Peace of Versailles. There is no instance before 1830 of a ministry retiring because it was beaten on a question of legislation or even of taxation." Nevertheless Mr. Hearn seems to put the matter too strongly when he says (k) that "neither in the writings of Hamilton or of Jefferson, nor in the debates upon the organization of their new Government, can we discover any indication that the statesmen who framed the Constitution of the United States had the least acquaintance with that form of Parliamentary government which now prevails in England.” For we find Roger Sherman, a member of the great convention of 1787, avowing that he "considered the executive ministry as nothing more than an institution for carrying the will of the legislature into effect; that the person or persons (who should constitute the executive) ought to be appointed by and accountable to the legislature only, which was the depository of the supreme will of the society" (l); and we may compare also the words of Madison in No. 47 of the Federalist that "on the slightest view of the British Constitution we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority." Mr. Baldwin goes so far as to say that (m) the framers of the United States Constitution had clearly before their view the system of Cabinet government in Great Britain whereby "the

(j) On the Crown, 2nd ed., pp. 137-8.

(k) Government of England, p. 213.

(1) Quoted in Congressional Government, by Woodrow Wilson, p. 268. (m) Modern Political Institutions, p. 32.