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PARLIAMENTARY GOVERNMENT



IN THE



BRITISH COLONIES.



PARLIAMENTARY GOVERNMENT



IN THE



BRITISH COLONIES:






ALPHEUS TODD,



LIBRARIAN OF PARLIAMENT, CANADA; AUTHOR OF "PARLIAMENTARY
GOVERNMENT IN ENGLAND," ETC.



OF THE

VVITBASITT




LONDON:
LONGMANS, GREEN, AND CO.

1880.



>



TO

THE EARL OF DUFFERIN,

WHO, FROM HIS FIRMNESS IN UPHOLDING THE LAWFUL AUTHORITY OF THE

CROWN, AND HIS UNCEASING EFFORTS TO PROMOTE THE

WELFARE OF THE PEOPLE, DURING

^

HIS ADMINISTRATION IN CANADA,

WAS AN EXAMPLE TO ALL

CONSTITUTIONAL GOVERNORS,

THIS VOLUME IS INSCRIBED.



PREFACE. ,



IN presenting this volume to the public, I have been
enabled to complete a design which I have long had in
contemplation, and which was partly fulfilled when,
about thirteen years ago, I published my treatise on
Parliamentary Government in England. In the pre-
face to the first volume of that work, I alluded to the
obvious want of some manual to explain the operation
of " parliamentary government," in furtherance of its
application to colonial institutions. For over a quar-
ter of a century my own researches had been largely
directed to this subject, in assisting Canadian statesmen
in giving effect to the grant of " responsible govern-
ment," which began to be extended to the colonies of
Great Britain when it was introduced into Canada in
1841. The fruit of this protracted investigation into a
hitherto untrodden field was embodied in the publica-
tion, in 1867 and in 1869 respectively, of the volumes
above mentioned, which, however imperfectly, supplied
for the first time a practical exposition of " the laws,
usages, and traditions of Parliamentary Government."

The favour with which this attempt was received
throughout the British dominions, and the desire so



Vlii PREFACE.

frequently expressed for additional information upon
the matter, in its relation to the British colonies, have
induced me to undertake the present work.

Desirous of avoiding needless repetitions, I have re-
ferred to my former treatise in all points of detail or of
general principle wherein colonial practice is profes-
sedly identical with that of the mother country, and
have aimed in this volume to treat the subject from a
strictly colonial aspect. This has compelled me to cite,
more frequently than I could have wished, my pre-
vious publication, as it still remains the only existing
work devoted to the elucidation of this important
topic from a practical point of view.

It will be noticed that I have bestowed much atten-
tion to questions which have arisen in the working of
the new constitution conferred upon the British North
American colonies in 1867, when they were confede-
rated into the Dominion of Canada. Whilst this por-
tion of my work is primarily intended for Canadian
use, it may not be without interest or value in other
parts of the empire, in anticipation of the contemplated
introduction of similar institutions in South Africa and
in Australia.

In the discussion of certain weighty precedents which
have been recently determined in Canada and else-
where, it is not unlikely that the opinions I have
expressed thereon may differ from those entertained
by prominent public men who have taken part in their
consideration and settlement. I would, however, ven-
ture to affirm, that I have approached the investigation
of these " burning questions " in an impartial spirit,



PREFACE. IX

having no party bias or inclinations, and seeking only
the public good. If my criticisms contribute, in any
measure, to promote that end, they will not have been
in vain.

I would further remark that in this as in my
larger work I have directed particular attention to
the political functions of the Crown, which are too
frequently assumed to have been wholly obliterated
wherever a " parliamentary government " has been
established. In combating this erroneous idea, I have
been careful to claim for a constitutional governor
nothing in excess of the recognized authority and voca-
tion of the sovereign whom he represents ; while, on
the other hand, I have endeavoured to point out the
beneficial effects resulting to the whole community
from the exercise of this superintending office, within
the legitimate lines of its appropriate position in the
body-politic.

Practical statesmen are usually well-informed upon
this question. But much ignorance and confusion of
thought prevails upon it amongst all classes outside
of Parliament. As was pertinently observed by the
Marquis of Hartington (the leader of the Opposition in
the House of Commons), in a debate during the last
session of the Imperial Parliament, " There is no doubt
that men of great ability, in periodicals of much politi-
cal influence, have put forward doctrines respecting
the relations of the Executive to Parliament and the
Crown, which are altogether contrary to the doctrines
which have been generally held on both sides of this
House " (Hansard's Debates, vol. 246, p. 318).



X PREFACE.

If, then, I appear to have laid too much stress, in
this volume, upon those attributes and functions of the
Crown which are lawfully exercisable by a governor
under " responsible government," it is because I am
impressed with the great and growing necessity for
properly instructing the public mind upon a vital ques-
tion of practical politics. But, as this treatise is in-
tended to be expository and not speculative, I have
uniformly refrained from obtruding individual opinions,
and have stated nothing therein that is not capable of
proof and corroboration from the public utterances of
English statesmen of the present day, irrespective
of party divisions, and of unquestionable authority in
the interpretation of our constitutional system,

ALPHEUS TGDD.

LIBRARY OF PARLIAMENT, OTTAWA, CANADA,
January 24, 1880.



CONTENTS.



CHAPTER I.

PAGE

THE SOVEREIGN IN RELATION TO PARLIAMENTARY GO-
VERNMENT IN ENGLAND 1



CHAPTER II.

THE APPLICATION OF PARLIAMENTARY GOVERNMENT TO
COLONIAL INSTITUTIONS 24



CHAPTER III.

HISTORICAL ACCOUNT OF THE INTRODUCTION OF PARLIA-
MENTARY GOVERNMENT INTO THE COLONIES OF GREAT
BRITAIN ..... 54



CHAPTER IV.

PRACTICAL OPERATION OF PARLIAMENTARY GOVERNMENT
IN THE BRITISH COLONIES.

PART I.

IMPERIAL DOMINION EXERCISABLE OVER SELF-GOVERNING COLONIES :

a. In the appointment and control of governors 76

b. In matters of local legislation 125

c. In matters of internal administration 161

d. By means of imperial legislation 168

e. In foreign relations; and through the operation of treaties 192
/. By appeals to the courts of law and to the privy council . 218
g. By the grant of honours and titular distinctions in the

colonies 225

h. By the administration of the prerogative of mercy . . 251

f. In military and naval matters 274

j. By the supremacy of the Crown, and of the civil power, in

ecclesiastical matters "^4



xii CONTENTS.

CHAPTER IV.
PART II.

PAGE

DOMINION EXERCISABLE OVER SUBORDINATE PROVINCES OF THE

EMPIRE BY A CENTRAL COLONIAL GOVERNMENT .... 319

a. Provincial governments in New Zealand 319

1. Provincial governments in South Africa 320

c. Provincial governments in Canada . . " 325

1. Dominion control in matters of legislation . . . 325

2. Dominion control over the Canadian provinces in mat-

ters of administration 388

CHAPTER IV.

PART III.
LOCAL SELF-GOVERNMENT IN THE COLONIES 429

a. Colonial rights of self-government in local affairs, and the posi-

tion of a governor in relation thereto 429

b. The constitution and powers of Colonial Parliaments, and the

position of a governor in relation to the legislative chambers 460

c. Discretion of the sovereign or her representative in granting or

refusing to ministers a dissolution of Parliament .... 525

CHAPTER V.

POSITION AND FUNCTIONS OF A COLONIAL GOVERNOR

REVIEWED . 574



INDEX 595



O

NIVERSITY




PARLIAMENTARY GOVERNMENT



IN THE



BRITISH COLONIES.



CHAPTER I.

THE SOVEREIGN, IN RELATION TO PARLIAMENTARY GOVERN-
MENT IN ENGLAND.

THE government of England is conducted in confor- English
mity with certain traditional maxims, which limit and jrj 8 ^ 11 "
regulate the exercise of all political powers in the state, maxims.
These maxims are, for the most part, unwritten and
conventional. They have never been declared in any
formal charter or statute, but have developed, in the
course of centuries, side by side with the written law.
They embody the matured experience of successive
generations of statesmen in the conduct of public affairs,
and are known as the precepts of the Constitution.*

Prominent amongst these constitutional maxims is
the principle that " the king can do no wrong." Rightly
understood, this precept means, that the personal actions
of the sovereign, not being acts of government, are not
under the cognizance of the law, and that as an indivi-
dual he is not amenable to any earthly power or jurisdic-
tion. He is, nevertheless, in subjection to God and to
the law. For the law controls the king, and it is, in
fact, " the only rule and measure of the power of the

ft See Freeman, Growth of Eng. Constitution, chapter iii.



2 THE SOVEREIGN, IN RELATION TO

Crown, and of the obedience of the people." b And
while the sovereign is personally irresponsible for all
acts of government, yet the functions of royalty which
appertain to him in his political capacity are regulated
by law, or by constitutional precept, and must be dis-
charged by him solely for the public good, and not to
gratify personal inclinations. c

Govern- Before the Revolution of 1688, the monarchs of Eng-
preroga^ l an d ruled by virtue of their prerogative, and with the
aid of ministers of their own choice. These ministers
had no necessary connection with Parliament; although,
if peers of the realm, they were entitled to sit therein.
The sovereign was the originator of his own policy, and
was not bound to take advice before deciding upon
affairs of state. Moreover, he was usually sufficiently
conversant with the details of administration, to be able
to govern independently of the consent of his ministers.
They were only answerable to Parliament for high
crimes and misdemeanors, and for acts of mal-ad minis-
tration which were directly attributable to themselves.
This method of government gave rise to frequent alter-
cations and struggles between the Crown and Parlia-
ment, which sometimes could only be decided by an
appeal to the sword.

Revoiu- The Revolution of 1688 was the great epoch at
1688. which the power of the Crown was subjected to con-
stitutional limitations and restraints, for the purpose of
bringing it into harmony with the will of Parliament.
The foundation principle of monarchy, upon which the
Constitution of England is based, was carefully main-
tained : the ancient maxim, that " the king can do no
wrong," was deliberately re-asserted, and thereby the
monarchy itself was protected from injurious aspersion
or assault; but this maxim was interpreted so as to

b Sir R. Walpole, in State Trials, vol. xv. p. 115.
c Todd, Parl. Govt. vol. i. pp. 168, 242.



PARLIAMENTARY GOVERNMENT IN ENGLAND. 3

mean that no mismanagement in government is im-
putable to the sovereign personally. Furthermore,
another counterbalancing principle of equal importance
was then brought into manifestation ; namely, that no
wrong can be done to the people for which the Con-
stitution does not provide a remedy. The application
of these principles, at the period of the Revolution, to
acts of government contributed to the introduction of
our present political system, under which ministers
of state participate in all the functions of royalty, on
condition that they assume a full responsibility for the
same, before Parliament and the people. And inas-
much as no minister could appropriately undertake to
be responsible for a policy which he could not control,
or for acts which he did not approve, it has necessarily
followed that the direction and administration of the
policy of government has passed into the hands of the
constitutional advisers of the Crown, for the time being ;
subject only to their continuing to retain the confidence
of their sovereign and of Parliament, and to their admi-
nistration of public affairs being approved both by the
Crown and by the people.

The three leading maxims of the British Constitu- Definition
tion, in its modern form and developments, are : the
personal irresponsibility of the king ; the responsibility
of his ministers for all acts of the Crown ; and the in-
quisitorial power and ultimate control of Parliament.
These maxims were first distinctly asserted and poten-
tially secured by the Revolution of 1688. Since that
epoch, they have been gradually matured, by practice
and precedent, so as to embody and constitute in their
operation what is known as Parliamentary Government.

Personal government by royal prerogative having
given place, under the British Constitution as now inter-
preted, to parliamentary government, the question arises
as to what is the actual position, and what are the



THE SOVEREIGN, IN RELATION TO



Constitu- powers possessed by the sovereign in connection there-

tional . , x m iii i i

powers of with. lo assume that the sovereign has become a
reign ve ~ cipher in the state, " a dumb and senseless idol,"
without any measure of political power, is entirely in-
consistent with the continued existence in England of a
monarchical government. Such an assumption would
transform the queen's cabinet ministers into an oli-
garchy, exercising an uncontrolled power over the pre-
rogatives of the Crown and the administration of public
affairs, upon the sole condition that they are able to
secure and retain a majority in the popular branch of
the legislature, to approve their policy and to justify
their continuance in office. There have not been want-
ing some political thinkers who have argued in favour
of a system of this kind ; but, however theoretically
defensible it may appear from their point of view, it is
not a true representation of the British Constitution,
and, should it ever unhappily prevail, would deprive us
of one of the main securities upon which the liberties of
England depend.

Moreover, the fallacy of such an idea, and its con-
trariety to existing constitutional practice, will be
readily apparent to those who will refer to the ex-
pressed opinions of the most eminent British statesmen
of our own day upon this subject. Brougham, Grey,
Russell, Derby, Gladstone, Disraeli, and Stafford North-
cote all of them representative men, of diverse par-
ties have severally testified, upon different occasions,
to the vital and influential position which appertains to
the sovereign of Great Britain under parliamentary
government. 4



d See Todd, Parl. Govt., vol. i.
pp. 201-211, vol. ii. pp. 205-214,
408. Mr. Gladstone, in Contempo-
rary Review, vol xxvi. p. 10 ; and
see, especially, his able paper, here-
inafter cited, in the North Ameri-
can Review, for Sept.-Oct. 1878,



pp. 179-212. (See his Gleanings of
Past Years, vol. i. for a reprint of
both these articles.) " The consti-
tutional maxim, 'the king reigns
and does not govern,' has never been
accepted in England in the sense of
reducing the sovereign to a cipher. ' "



PARLIAMENTARY GOVERNMENT IN ENGLAND. 5

It is true that, under our parliamentary system. Functions
which regards the sovereign as the representative and crown,
living symbol of the institutions of the country, 6 rather
than as an active, energetic personality, the personal
will of the monarch can only find a legitimate public
expression through official channels, or in the perform-
ance of acts of state which have been advised or
approved by responsible ministers. But we must not
lose sight of the fact, that what has been termed the
impersonality of the Crown only extends to direct acts
of government ; that the sovereign is no mere automa-
ton, or ornamental appendage to the body-politic,
but is a personage whose consent is necessary to every
act of state, and who possesses full discretionary
powers to deliberate and determine upon every recom-
mendation which is tendered for the royal sanction by
the ministers of the Crown. As every important act
that is to say, every thing that is not in the nature
of ordinary official routine, but which involves a dis-
tinct policy, or would commit the Crown to a definite
action, or line of conduct, which had not previously
received the royal approbation should first be sanc-
tioned by the sovereign, the Crown is thereby enabled
to exercise a beneficial influence, and an active super-
vision over the government of the empire ; and an
opportunity is afforded to the sovereign for exercising
that " constitutional criticism " in all affairs of state,
which is the undoubted right and duty of the Crown,
and which, in its operation, Earl Grey and Mr. Disraeli,
amongst living statesmen, have concurred in declaring
to be most salutary and efficacious/

During the lifetime of the prince consort, her



Mr. Cardwell's opinion (secretary e Martin, Life of the Prince Con-

of state for the colonies), cited in sort, vol. iv. pp. 40, 154.
Commons Papers, 1867, v. 49, Todd, Parl. Govt. vol. ii. pp.

p. 664. Hansard Debates, vol. 209,212.
clxxxviii. p. 1113, vol. cxci. p.
1705: vol. cxlvi. p. 311.



6 THE SOVEREIGN, IN RELATION TO

present Most Gracious Majesty enjoyed, as is well
known, exceptional advantages in the fulfilment of the
arduous and responsible duties which devolve upon
the Crown. The eminent qualities of Prince Albert,
his extensive and accurate political knowledge, and
his varied attainments in other fields of research and
observation, enabled him to render incalculable service
to the queen, and his acknowledged constitutional
position as her Majesty's alter ego, justified him in the
performance of the onerous and multifarious duties,
appertaining to the " consort and confidential adviser
and assistant of a female sovereign." g

After the lamented death of the prince, in 1861,
her Majesty was compelled to withdraw, for a season,
into retirement, and she has never since been able to
resume, as fully as before, her public and ceremonial
duties. But while her long continued seclusion has
been a source of universal regret, and even to some
extent of complaint, " it is the only reproach which
her people have ever addressed to her." Ten years
after this overwhelming affliction befell the queen,
two eminent English statesmen gave assurance of her
Majesty's unabated zeal and efficiency in the fulfilment
of all other duties appropriate to her exalted station.
Earl Granville, then secretary of state for foreign
affairs, said, in the House of Lords, on August 8, 1871,
"I do not know any time of her life when her Majesty
has given more attention than she does at present to
the current business of the state, or when the inte-
rest she takes in all parliamentary and administrative
measures, the knowledge she takes care to possess on
all important measures, whether home or foreign, and
the supervision she exercises over all appointments to
be made and honours to be distributed, have been more



s For a discussion of the constitutional position of a prince consort,
see ibid. vol. i. p. 195.



PARLIAMENTARY GOVERNMENT IN ENGLAND. 7

strikingly shown." He added, that so far from her
Majesty, as some had surmised, "only getting informa-
tion from one political party," it was characteristic of
her " that, whatever party may be in power, she ever
holds the most open and confidential communications
with them;" but that, "without in any degree acting
in a manner liable to misconstruction, she does see the
leaders of the party in opposition to the government." 11
A few weeks afterwards, Mr. Disraeli (then the
leader of the opposition) corroborated the foregoing
statement ; and took occasion to observe that, although
the queen was still unable " to resume the performance
of those public and active duties which it was once
her pride and pleasure to fulfil," yet that, " with regard
to those much higher duties which her Majesty is
called upon to perform, she still performs them with a
punctuality and a precision which have certainly never
been surpassed and rarely equalled by any monarch of
these realms." He went on to say that " a very erro-
neous impression is prevalent respecting the duties of
a sovereign of this country. Those duties are multi-
farious ; they are weighty ; they are incessant. I will
venture to say that no head of any department of the
state performs more laborious duties than those which
fall to the sovereign of this country. There is no
despatch received from abroad, nor any sent from the
country, which is not submitted to the queen ; the
whole of the national administration of this country
greatly depends upon the sign-manual; and of our
present sovereign it may be said that her signature
has never been placed to any public document of which
she did not approve. Cabinet councils . . . are re-
ported and communicated on their termination by the



h Hans. Deb. vol. ccviii. p. 1069. mons, in the debate on May 13, 1879,

See also the observations of Sir Staf- on the Prerogative of the Crown,

ford Northcote (chancellor of the Ibid. vol. ccxlvi. p. 311.
exchequer) in the House of Com-



the sove-
reign.



8 THE SOVEREIGN, IN RELATION TO

minister to the sovereign, and they often call from
her remarks that are critical, and necessarily require
considerable attention," . . . and " such complete mas-
tery of what has occurred in this country, and of the
great, important subjects of state policy, foreign and
domestic, for the last thirty years," is possessed by
the queen, that " he must be a wise man who could
not profit by her judgment and experience." *
Forma- Adverting to a point referred to in Earl Granville's
opinion by speech, in 1871, above cited, and discussing the deli-
cate constitutional question involved in the peculiar
relations occupied, as well by Baron Stockmar and
by the prince consort, in their lifetime, towards the
Throne, Mr. Gladstone speaking with the weight
which belongs to his position as an ex-prime-minister,
and with the precision which distinguishes his utter-
ances upon public questions claims for the sove-
reign, liberty to seek for information, to assist her own
judgment, from every available source at her com-
mand. He says, "it does not seem easy to limit the
sovereign's right of taking friendly counsel, by any
absolute rule, to the case of a husband. If it is the
queen's duty to form a judgment upon important
proposals submitted to her by her ministers, she has
an indisputable right to the use of all instruments
which will enable her to discharge that duty with
effect; subject always, and subject only, to the one
vital condition that they do not disturb the relation,
on which the whole machinery of the Constitution
hinges, between those ministers and the queen. She
cannot, therefore, as a rule, legitimately consult in
private on political matters with the party in opposi-



1 Speech at Hughendon, on Sept. proval of her Majesty, are cited in

26, 1871. Remarkable examples of Martin's Life of the Prince Consort,

judicious and efficacious criticism vol. iv. pp. 78, 88, 90, 201-205, 284,

upon ministerial measures, submit- 310, 486.
ted for the consideration and ap-



PARLIAMENTARY GOVERNMENT IN ENGLAND. 9

tion to the government of the day; but she will have
copious public means, in common with the rest of the
nation, for knowing their general views, through Par-
liament and the press. She cannot consult at all,
except in the strictest secrecy; for the doubts, the
misgivings, the inquiries, which accompany all impar-
tial deliberation in the mind of a sovereign as well as
of a subject, and which would transpire in the course
of promiscuous conversation, are not matters fit for
exhibition to the world.'* Of such private and con-
fidential counsellors, Prince Albert was a conspicuous
and truly normal example; "and another, hardly less
normal, was Baron Stockmar. Both of them observed,
all along, the essential condition, without which their
action would have been not only most perilous, but
most mischievous. That is to say, they never affected
or set up any separate province or authority of their
own ; never aimed at standing as an opaque medium
between the sovereign and her constitutional advisers.
In their legitimate place, they took up their position
behind the queen ; but not, so to speak, behind the
Throne. They assisted her in arriving at her conclu-



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