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The consent of the Crown by its representative in the colony to any Act of the colonial legislature curtailing the power of the Crown in the exercise of any prerogative right is as effective to that end as is an Act of the Imperial parliament in similar case; but, by reason of the refusal to concede to the colonies the control of the revenues raised therein, the colonial assemblies were unable to force consent to Acts in curtailment of prerogative. Not being able to starve the executive, they were unable to hold the officers of that department to responsibility for the due performance of their duties; and whether they had or had not the confidence of the representative branch of the legislature was a matter of perfect indifference to these executive officers. The importance, therefore, of this question of revenue and its expenditure the power to make provision for a revenue and to appropriate it when raised becomes more and more apparent.
The treatment accorded by Great Britain to her colonies in the matter of taxation was entirely regulated by the view taken in England of the necessities of Imperial trade and commerce. At first the expense of governing the colonies was borne entirely by the home government, but as early as 1672 the Imperial treasury levied tribute upon the colonies. by the imposition, by Imperial Act, of export duties on certain articles shipped from the colonies for consumption elsewhere than in England; the proceeds of which duties were, of course, a set-off to the expense of government in those colonies. During the century which followed, Imperial Acts were from time to time passed providing for the collection of both export and import duties, but always as part and parcel of the regulation of trade and commerce. In 1763 permanent provision was made with regard to these colonial duties and it was provided that the net proceeds thereof should be reserved for the disposition of the Imperial parliament "towards defraying the necessary expenses of defending, protecting, and securing the British colonies in America."
2 Exchange Bank v. Reg., 11 App. Cas. 157; 55 L. J. P. C. 5. See notes to s. 9 of the B. N. A. Act, post, p. 86.
$25 Car. II. c. 7.
This, then, was the position of affairs at the time when regular forms of civil government began to be established in Nova Scotia, Prince Edward Island, New Brunswick, and Quebec. The abandonment by the Imperial parliament of the principle that these duties should only be imposed when necessary for the due regulation of Imperial trade and commerce, and the extension of the Imperial power of taxation to matters of excise-to laying tribute, in other words, on the internal trade of a colony-and the consequent loss of the southern half of this continent, is a familiar story. During the progress of the struggle, but too late to win back the revolting colonies, the Imperial parliament passed the celebrated Renunciation Act of 1778, by which it was declared and enacted that "the King and parliament of Great Britain will not impose any duty, tax, or assessment whatever, payable in any of his Majesty's colonies, provinces, and plantations in North America or the West Indies; except only such duties as it may be expedient to impose for the regulation of commerce; the net produce of such duties to be always paid and applied to and for the use of the colony, province, or plantation in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective general courts or general assemblies of such colony, province, or plantation, are ordinarily paid and applied." This principle was followed until the free trade campaign in England led to the abandonment of the system of taxing trade for the benefit of trade, and, with it, the regulation of colonial tariffs by Imperial legislation.
During this period, however, the practical result of the colonial system was this: With the exception of such sums as the colonial assemblies were minded to raise (usually by the imposition of customs duties) for public improvement and to promote settlement, the revenues which came to the hands of the executive were, (1) the proceeds of customs, excise, and license duties, levied under Imperial Acts, and (2) the hereditary, territorial, and casual revenues of the
18 Geo. III. c. 12. This Act is, of course, powerless to bind the Imperial parliament; but it is a most emphatic expression of a "conventional" rule to be thereafter followed.
Crown, consisting of the proceeds of the sale or lease of the "waste" lands in the colonies, fines, tolls, etc. The colonial legislatures could, of course, and did insist on retaining power of appropriation over the revenues arising under colonial Acts, and, so far as these revenues were concerned, could withhold supplies. But their action in such case made no difference to the executive, however it might do harm to the colony; the cost of the administration of justice and of civil government (including the salaries of the entire executive staff, administrative and judicial) was paid out of the other two sources of revenue, and over these the colonial assemblies had for many years no power of appropriation. To secure control of the executive-to make them feel responsibilityit was indispensably necessary to get control of these revenues and their appropriation; and the history of the growth of the principle of "Responsible government" is the history of the gradual acquisition by the colonial legislatures of the right to appropriate revenue from whatever source within. the colony arising. The "tenure-of-office" question practically depended upon this question of control over the purse strings.
In all the provinces the real issue was somewhat obscured by reason of the fact that under the then arrangement the legislative council, or second chamber, acted as a shield to the governor and his executive council, and was interposed to bear the brunt of all attacks upon executive methods. In the earlier stages of colonial history the executive council was a branch of the legislature, and it always continued potentially so because its members formed the influential portion of the Crown-appointed legislative council. This position of affairs, however, gave the disputes between the assembly and the executive the appearance of being disputes between the two branches of the legislature; and it is not surprising, therefore, to find that the efforts of Howe, Wilmot, Papineau, and Baldwin, were directly and ostensibly bent to secure reform in the constitution of the legislative council."
'J. G. Bourinot, "Responsible Government in Canada ”—a paper read before the National Club, Toronto, during the winter of 1890-91, and published sub-tit. "Maple Leaves," p. 43.
The real issue, however, was the question of executive responsibility, and that question largely depended upon the more sordid one as to control of expenditure. Perhaps there was a lack, too, of proper appreciation of the way in which the principle of responsible government was working its way into the fibre of the British constitution-through the medium of cabinet government-and this may have tended to the adoption of the less direct route to the establishment of responsible government here. It needed men like Lord Durham and Charles Buller, who were able to see through the intricacies of governmental machinery and discern the true principle of the British system, to point out how that same principle could be made effective in colonial govern
The first concession gained was of the power to appropriate the proceeds of Imperial tariffs in force in the colonies. As far back as "The Constitutional Act, 1791," this power of appropriation was expressly given to the legislatures of Upper and Lower Canada over the proceeds of all customs duties levied as part of the commercial policy of the Empire. But the only Imperial tariff Act then in force in Canada, was the Act of 1774,6-a revenue Act; and because that Act was thought not to come within the terms of "The Constitutional Act, 1791," express legislation was necessary to give the colonial legislature control over the revenue arising under it. This was not obtained until 1831.7
For many years, however, in all the provinces, the "hereditary, territorial, and casual revenues" were amply sufficient to pay the salaries of all the executive "family-compact staff, and these salaries the legislature had power neither to fix nor withhold. Secure in the enjoyment of the emoluments of office, the executive were able to thwart the wishes of the popular branch of the legislature and to ignore its claim to control and regulate their mode of conducting public business.
The history of the struggles, which in the Upper Provinces culminated at one time in open rebellion, and in all See note, ante, p. 9.
71 & 2 Wm. IV. c. 23. See Houston "Const. Doc." p. 106; Andrew v. White, 18 U. C. Q. B. 170.
resulted in the firm establishment of Responsible Government, is beyond the scope of this work; but it is curious to note that the contemporary statutory records appears in Acts relating to colonial control of colonial finances,-the "tenure of office" question appearing only in the "conventional" aspect of despatches, instructions, etc. Not to dwell at undue length upon this point: first to New Brunswick and afterward to Canada (1847) and Nova Scotia (1849) full control over the revenues from, all sources was conceded; and, having that full control, the Legislative Assemblies slowly but surely overcame the stubborn resistance or active opposition of the governors of the early 'forties, and the principle of executive responsibility was firmly and permanently established in all the pre-Confederation provinces.
The nature of the constitutions existing in the provinces immediately prior to the coming into force of the B. N. A. Act may now, perhaps, be defined with some approach to accuracy. What Lieut.-Gov. Archibald has said in reference to the constitution of Nova Scotia is equally applicable to the other maritime provinces: "No formal charter or constitution ever was conferred, either on the province of Nova Scotia or upon Cape Breton while that island was a separate province. The constitution of Nova Scotia has always been considered as derived from the terms of the royal commissions to the Governors and Lieutenant-Governors, and from the 'instructions' which accompanied the same, moulded from time to time by despatches from Secretaries of State, conveying the will of the Sovereign, and by Acts of the local legislature, assented to by the Crown; the whole to some extent interpreted by uniform usage and custom in the colony."
1 & 2 Wm. IV. c. 23 (Imp.); 8 Wm. IV. c. 1 (N.B.); 3 & 4 Vic. c. 35 (Imp.); 6 & 7 Vic. c. 29 (Imp.); 6 Vic. c. 31 (Can.); 9 & 10 Vic. c. 94 (Imp.); 9 Vic. c. 114 (Can.); 10 & 11 Vic. c. 71 (Imp.); 12 & 13 Vic. c. (N.S.); 12 & 13 Vic. c. 29 (Imp.); 15 & 16 Vic. c. 39 (Imp.); 17 & 18 Vic. c. 118 (Imp.). For historical statements on this subject see Mercer v. Atty.-Gen'l. of Ont., 5 S. C. R. at p. 700, et seq., per Gwynne, J.: Ontario Mining Co. v. Seybold, 31 O. R. 386, per Boyd, C.; Algoma Central Ry. Co. v. Reg., 7 Exch. C. R. 239, per Burbidge, J.; Todd "Parl. Gov't in Brit. Col.,” pp. 25-6, 169, et seq.
Can. Sess. Papers, 1883, No. 70.