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of holding elections to the assembly, and as to the officers by whom such elections were to be conducted (r), the Act would, upon cursory perusal, appear to give to the legislature no control over the executive, more than had been conferred on the assemblies in the Maritime Provinces; but there is one most important exception, to which particular attention must be given (8).
We have not, of course, overlooked the rule of law, that the consent of the Crown, by its representative in the colony, to any Act of the colonial legislature curtailing the
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 the confidence of the representative branch of the legislature or not, 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 as we proceed, and the question must now be dealt with.
The treatment accoriled 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, of course,
At first, of course, the expense of governing the colonies was borne entirely by the home government, but as early as 1672 (t), the Imperial treasury levied tribute upon the colonies, by the imposition, by Imperial
(r) A parliament so firm in its claim to exclusive control over elections, as was the British Parliament at that time, could scarcely have done otherwise. (8) See post, p. 39.
(t) 25 Car. II. c. 7.
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 (u). 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" (C).
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 were in the nature of regulations of Imperial trade and commerce only, and the extension of the Imperial power of taxation to matters of excise-to laying tribute, in other words, on internal trade—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 (w), 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
(u) 14 Geo. III. c. 88 (noted above) was a “revenue" Act. See post, p. 39. (1) See Todd “Parl. Gov. in Brit. Col.," p. 169, et seq.
(1) 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.
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,” and 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), in order to the carrying on of public improvement and promoting 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 Crown, consisting of the proceeds of the sale or lease of the “waste” lands in the colonies, fines, tolls, etc. Over the revenues arising under colonial Acts, the colonial legislatures could, of course, and did insist on retaining power of appropriation, 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, as it did, 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 or control. To secure control of the executiveto make them feel responsibility-it 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 really a branch of the legislature, and it always continued potentially so, by reason of its members forming the influential portion of the Crown-appointed legislative council. This position of affairs, however, gave the disputes between the legislatnre 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 (x). The real issue, however, was the question of executive responsibility, and, as we have endeavored to point out, that question largely depended upon, and was ultimately solved by, the solution of 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,
(x) 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. 13.
to point out how that same principle could be made effecttive in the colonial machinery of government.
The first concession gained, was of the power of appropriating 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; and this is the point of distinction between the powers of the colonial assemblies under that Act, and under the earlier commissions, to which reference was made a few paragraphs back (y). But the only Imperial tariff Act in force in Canada, was the Act of 1774-a revenue Act (2); and because that Act was contended 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 that Act. This was obtained in 1831 (a).
Still, however, in all the provinces, the “hereditary, territorial, and casual revenues” to which we have referred were amply sufficient to “pay the piper"; and so far as the salaries of all the executive “family-compact” staff were concerned, the legislature had power neither to fix nor withold them. 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 decline to recognize its right to control or 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 resulted in the firm establishment of Responsible Government, is beyond the scope of this work ; but it is curious to
(y) Ante, p. 35.
(z) See note ante, p. 36. (a) 1 & 2 Wm. IV. c. 23. See Houston Const. Doc.' p. 106; Andrew v. White, 18 U. C. Q. B. 170.