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imperial act of 1791 an attempt was made in Upper Canada
to establish the tithe system, as it then existed in connection
with the Episcopalian church in England and Wales and in
Ireland. The legislature, however, ended this attempt in
1821. Cf. Statutes of Upper Canada, 1821, ch. 32.


asked the transfer to the legislature of Canada
of the power of dealing with these reserves. 1

The bill, unlike the bills of 1847 and 1848,
amending the constitution of 1840, met with
opposition in both the house of commons and
the house of lords. In the commons, the strongest
opposition came from Sir John Pakington, who
had been secretary for the colonies in the Con-
servative administration of February-December,
1852. Wilberforce, Bishop of Oxford, was its
most resolute opponent in the house of lords.
But it was carried in both houses; and the only
restriction imposed in the new law on the action
of the legislature was a clause protecting the life
interest of beneficiaries under the act of 1840.
End of The legislature of the United Provinces lost no

nection" t * me m exerc i sm g tne power thus conferred upon
between it. In fact, it had been waiting since 1851 for
Estate aut h r i tv to proceed. A settlement of the
clergy reserves question was made in 1854. All
connection between church and state was then
ended; and in connection with this Canadian
bill, there was an incident in the house of com-
mons which illustrates the new attitude of
parliament and government at Westminster
towards colonial legislation.

A member of the house of commons had moved
that a copy of the bill of 1851 of the legislature of
the United Provinces be laid on the table of the

1 Cf. Speech by Sir William Molesworth, H. C, March 4,


house. Sir George Grey was then colonial secre- Pariia-
tary in the Aberdeen administration. Usually a e d n *
motion of this kind is complied with at once, freedom
But Grey moved that the motion be discharged. (
The government had no copy of the bill. No vinciai
copy had been forwarded by the governor-
general; "and," added Grey, "if the government
should write to the colony for a copy, it would
look like interference on their part with a measure
pending before the colonial legislature." 1

X. Democratic Amendments at Westminster
to the Constitution of 1840

The most important of the democratic amend- Parlia-
ments to the constitution of 1840 were made in ment


1854. At the instance of the Aberdeen govern- renders
ment, parliament then empowered the legislature aveto
of the United Provinces to make radical changes
in its constitution. At the same time parliament
surrendered a right, under the constitution of
1840, to a veto on certain bills enacted by the

These bills were measures concerning religion Religion
and crown lands. In the event of the legislature and


passing such measures it was the duty of the lands
governor-general to reserve them. They were
sent to Westminster. Copies of them must lie
for thirty days on the tables of the house of
commons and the house of lords; and in these
thirty days it was open to any member of parlia-
1 Sir George Grey, H. C, December 19, 1854.



ment to move for an address to the Queen praying

her to withhold the royal assent. In any case

there could be no royal assent until the bills had

thus been before parliament for thirty days.

New At this time 1852-1854 the legislature of

powers t k e United Provinces was intent on several

sought .

by the reforms to its constitution. It was desirous
legislature ( x ) tnat part of the members of the legislative
council should be directly elected; (2) that there
should be an elected speaker of the council,
instead of a speaker nominated by the governor-
general in practice by the government; (3) that
a property qualification should not be required
for election to the assembly; and (4) that the
legislature should have power to increase the
number of members of the assembly, unrestrained
by a section in the constitution of 1840, which
provided that such an increase could be made
only by a two-thirds majority in each branch of
the legislature.
Oppo- The Aberdeen government was quite ready to


amend the act of 1840 as the legislature desired.
leader It was willing, as was bitterly protested by

Stanlev > now Earl of Derby, to agree to "an
ative absolute subversion of the present constitution";
?^ at willing to make a "change from the present form
minster of a limited monarchy into what would be practi-

cally and absolutely a democratical government." *
As Newcastle, the colonial secretary, was of the

house of lords, the bill making these changes was

1 H. L. Debates, June 22, 1854.


introduced in the upper house at Westminster. Aberdeen
In acquainting the house with its provisions, ^ t ra "
Newcastle described the changes desired, and grants
intimated that when the Aberdeen government ^^
acceded to the petition of the legislature three sions
courses were open to it: *^*

The government could have (i) adopted a legis-
draft measure making these changes in the uture
constitution of the legislature, which had been
sent over from Canada, and by following this
course parliament at Westminster would have
settled the question for Canada; (2) it could have
asked the legislature to pass and send to West-
minster a bill making these changes, which
could be confirmed by imperial act; or (3) govern-
ment could ask parliament to repeal the sections
of the constitution of 1840 which prevented the
legislature from making the desired changes

"To have adopted the first course," Newcastle "un-
told the house of lords, "would have been at j^ d
variance with those principles of colonial govern- legis-
ment which I have endeavored to carry out J,*^^ *
during the time I have held the seals of the years"
colonial office." "The proper course to pursue,"
he continued, "is to legislate no more for the
colonies than we can possibly help. Indeed, I
believe that the only legislation now required by
the colonies consists in undoing the bad legisla-
tion of former years." 1

1 H. L. Debates, June 15, 1854.


Failure Newcastle, by inference, thus classed the
nominated man y restraining clauses of the constitution of
legislative 1840 as "bad legislation"; and in defending the
amendment which conceded to the legislature
liberty to reform the legislative council, he
admitted that the nominated legislative council
had been a failure. "It does not," he said,
"exercise that due influence in the colony or the
legislature which it ought to possess."
Nomi- Furthermore, the legislative council, as then

t^the* constituted, was so little esteemed that difficulty
council had been experienced in finding men who were
willing to accept appointments to it. "It has
fallen," added Newcastle, "into disfavor with
the colonists to such an extent that men have
frequently expressed their repugnance and un-
willingness, and in many instances their positive
refusal, to enter the legislative council." l
Oppo- Opposition to these democratic changes was

tothe strongest and most persistent in the lords,
amend- Derby, who was at this time leader of the Con-
in^the 1 servative party, was anxious to retain direct
lords control by parliament at Westminster over the
legislature of the United Provinces. He was
intent on retaining some of the restraining
sections of the act of 1840. But only 39 peers
voted with him 39 to 63 when he divided
the house at second reading of the bill.

In the house of commons the opposition lacked
the spirited lead, the vigor, and the persistence
1 H. L. Debates, June 15, 1854.



of the opposition in the lords. The bill, com- NO
prehensive and far-reaching as it was, was enacted ^ trong
in the form in which it had been introduced by sition
Newcastle, whose name five years later was to inthe

* t com-

be associated with another great concession to mons
political agitation in Canada the concession
to the legislature of the right to make what
tariffs it pleased.

In its exercise of its new powers under the im- A partly
perial acts of 1854, the legislature of the United
Provinces in 1856 enacted a law for the ad-
dition of elected members to the legislative
council. The franchise on which these members
were elected was the same as that on which
members of the assembly were chosen. It was a
prerequisite to election that a candidate should
be the owner of real estate to the value of 2000,
over and above all incumbrances and debts.
There was also a provision in the law which
excluded clergymen of the churches of England,
of Scotland, and of Rome. The term of the
elected members was eight years.

Forty-eight new electoral divisions twenty- New
four in Upper Canada and twenty-four in Lower
Canada were created by the act of 1856.
But all these electoral areas were not to elect
councilors at once. The forty-eight new members
were to be gradually introduced; and lots were
drawn to determine which divisions should form
the groups to elect first. There were only two
elections between 1856 and Confederation, when



the total number of the council nominated and
elected stood at forty-eight. Of these twenty-
three had been appointed, and twenty-five were
of the council by popular election. 1

Extent With the enactment by the imperial parliament

wnces- ^ t ^ ie amen ding l aw f l8 54> about all that now
sionsof remained to the government at Westminster in
connection with the administration of the United
Provinces was the appointment of the governor-
general. It will be recalled that the provinces
had enjoyed the right to frame their own customs
tariffs since 1847; and in that year also, it may
be added, as a result of the thoroughgoing re-
vision of the old navigation code by parliament
at Westminster the United Provinces obtained
the right to make their own coastwise navigation
laws as regards the Great Lakes and other inland

Great In the fourteen years from 1840 to 1854, Great

nJ-fwi Britain had frankly and completely surrendered

sibie to the United Provinces all the rights which were

defense once cons ^ erec ^ a necessary condition to the

of holding of colonies. Great Britain, in those

Canada years, was, as she is today, responsible for the

defense of Canada. "She guards our coasts,

she maintains our troops, she builds our forts,

and she spends hundreds of thousands among us

yearly." So Canadians were reminded in 1851

by George Brown, leader of the Liberal party in

1 Cf. Statutes of U. P., 19 and 20 Viet., ch. 100; Mackenzie,
"Life and Speeches of George Brown," 308.



Upper Canada, when there was an agitation
against the payment of the salary of the governor-
general from the treasury of the United Prov-
inces. 1

Except as regards the navy these direct burdens Growth
of Great Britain were gradually reduced. Most ^ t ^. we
of them, in fact, were entirely removed in the pro-
forty-seven years from Confederation to the great J^* 1
war. But while still carrying all this responsi- lature
bility, while still defraying the cost of patrolling
the coasts, the expense of troops in Canada, and
the maintenance of forts at Kingston, Quebec,
and Halifax, Great Britain conceded to the
United Provinces (i) responsible government;
(2) the patronage of the crown; (3) control over
crown lands; (4) control over the civil list; (5)
the customs; (6) the post office; (7) the clergy
reserves; (8) freedom from the old navigation
laws; and (9) liberty to the legislature, as great
as was then, or at any time, enjoyed by parlia-
ment at Westminster, to change its constitution,
and greater than has ever been enjoyed directly
by congress at Washington.

In this period Great Britain also obtained for Privi-
the United Provinces the right to the free navi- leges


gation of Lake Michigan, and in the years from ceded

1854 to 1866 secured for all the British North ^ ashln

American provinces, except British Columbia, the ton to

advantages of commercial reciprocity with the Canada
United States.

1 Mackenzie, " Life of George Brown," 50.



XI. The Unwritten Constitution of the United
Provinces as Developed from 184.1 to 1859

Canada's Most of these concessions, as well as two others
still to be mentioned, were based on acts of the

from the

adoption imperial parliament. Three of them control
of free o f cus toms, freedom from the old navigation

trade by .

Great laws, and liberty to enjoy commercial reciprocity
Britain w ; t h ^g United States resulted from Great
Britain's adoption of free trade in 1846, and
from the liberalizing amendment, made by
parliament in 1846, to what was known in the
old colonial code as the British possessions act of
I845. 1 Freedom of navigation of Lake Michigan,
an exclusively American lake, was secured by a
treaty negotiated by Great Britain with the
United States.

Powers Three rights, however, were assumed by the
b^thT 1 l e gi s l ature f tne United Provinces between
legis- 1841 and 1859 for which usage was the only
lature basis. For these rights, so long as the constitu-
tion of 1840, as amended by parliament at
Westminster in 1854, was in operation, no act
of the imperial parliament could be cited as the
authority on which the legislature and govern-
ment proceeded.

In the order in which they were assumed, these
rights were (i) the right of the legislature to
insist on an executive or cabinet which was sup-

1 Cf. Porritt, "Sixty Years of Protection in Canada,"
188-189; 8 ~9 Viet. ch. 93; and 9-10 Viet. ch. 94.


ported by a majority in the legislative assembly
- 1841-1849; 1 (2) the right of the legislature
to exercise the same power that parliament at
Westminster then exercised in matrimonial causes
in other words divorce cases, 1853; and (3) the
right of the legislature to enact protective tariffs
without interference from Whitehall, 1859.

XII. The Legislature of the United Provinces
Assumes Control over Divorce

The right of the legislature of the United Matri-
Provinces to grant relief in matrimonial causes monial


would seem to have been assumed in i853- 2
Parliament at Westminster exercised this right
from 1551 to 1857, when the divorce court in
London was created. 3

Not more than four or five divorce bills Five
were enacted by the legislature of the United '^J^ 1106
Provinces from 1853 to Confederation. But at without
Confederation it was not practicable, owing to ^ irts
the opposition of Catholic Lower Canada, to matri-
follow the example of England of 1857, and ^

1 The history of the struggle by which responsible govern-
ment was won has already been recounted.

2 The legislature of Upper Canada, in the last year of its
existence, 1840, had enacted a divorce bill in the interest of
John Stuart, of London, in that province. Cf. Statutes of
Upper Canada, 3 Viet., ch. Ixxii. This was, as far as can be
ascertained, the only divorce bill enacted by the legislature
of Upper Canada during the forty-nine years of its existence.

3 Cf. Clifford, "A History of Private Bill Legislation,"
I, 389-39L

[l6 5 ]


delegate all matrimonial causes to the courts in
all the provinces. By a usage, the origin of which
has thus been described, it comes about that
today petitioners for divorce in Ontario, Quebec,
Manitoba, Saskatchewan, and Alberta the five
provinces in which courts with jurisdiction in
divorce cases have never been established
must go for relief to parliament at Ottawa. 1

XIII. The Fiscal Freedom of the United

Protec- The right to enact protective tariffs without

^ Ss interference from Westminster tariffs which

against might be detrimental to the commercial interests

imports ^ t ^ ie United Kingdom, but which were regarded

as in the interest of the United Provinces was

first asserted by the legislature in 1858. After

one strongly worded protest from the colonial

office the right was conceded by the British

government in 1859.

influence Once again in the period between the rebellions
in Lower and Upper Canada and Confederation,

American r i i i

tariff of but not for the last time in these twenty-nine
years, American influence and example had
weight in determining policies in Canada; and
in this instance in affecting also policies of colo-
nial governments in Australia and New Zealand.

It was the development of manufacturing in
New England and in other states adjacent to

1 Cf. Sinclair, "Rules and Practice before the Parliament
of Canada upon Bills of Divorce," 1-3.



Canada, under the United States tariff of 1842,
that gave the impetus at Hamilton, Toronto, and
Montreal to the protectionist movement. 1 The
movement had its origin at Hamilton in 1847.
It resulted in the enactment in 1858 by the legis-
lature of the United Provinces of what is known
in Canadian fiscal history as the Cayley tariff.

The Cayley tariff takes its name from the cayiey
minister who framed it and piloted it through tariff
the legislative assembly, where in accordance with
British constitutional procedure all money bills
originated. It was a frankly protectionist tariff
the first tariff to protect domestic manufacturers
enacted in any of the British North American
provinces, or in any colony that is now of the

The measure superseded the tariff of the
United Provinces of 1856. In this tariff a
tariff exclusively for revenue the general range
of duties on manufactured goods, imported
either from the United Kingdom or the United
States, was fifteen per cent. Only in a few
instances were the duties on these imports as
high as twenty per cent.

In the Cayley tariff the general range of duties Compari-
was increased to twenty per cent. Duties as ^ erlcan
high as twenty-five per cent were levied on tariff
boots, shoes, harness, and saddlery, on leather,
clothing, and wearing apparel. These duties

1 Cf. Edward Porritt, "Canada's National Policy," Political
Scifncf Quarterly, June, 1917, 197-208.



were nearly as high and as protective as those in

the United States tariff of 1842.

First ana- There was no concealment by the government
dumping Q f tne United Provinces of the character of the


new tariff. Protectionist arguments were ad-
vanced from the treasury bench in the assembly
in support of the higher duties. In particular
when objection was made to the increased duty
, on soap, a duty in the interest of a factory in
Montreal, Rose, the attorney-general, assured
the house that the change was made because the
Canadian market was flooded with the refuse
soap of British manufacturers, which was entered
at the customs house at prices below those at
which soap had ever been sold in the United
Kingdom. 1

Tory By this time, 1858, the name "Tory" was

jJJ^ag disappearing from the phraseology of Canadian
a new politics. It began to be dropped in 1855, after
the Liberals, or "Grits," as they were called,
had carried to success their agitation against the
clergy reserves. The new name of the Tories
was "Liberal-Conservatives." The name was
coined by a Tory newspaper the Spectator, of
Hamilton which was convinced that there was
no future in Canada for a political party living
on the Bourbon Toryism of the United Empire
Loyalists, or of the Family Compact, hopelessly
struggling for ascendancy in church and state.

1 Cf. Porritt, " Sixty Years of Protection in Canada,"





Hamilton had been the center of the movement Father
for the protectionist tariff of 1858. The Spectator, ^a^adian
to which Isaac Buchanan, the father of what has National
been known in Canada since 1879 as the National p Ucy
Policy, was a frequent contributor, had given
the new movement its energetic support. It
accordingly welcomed the Cayley tariff with
enthusiasm; and in expressing this welcome it
acknowledged that the United Provinces were
following the example of the United States.

"The free traders, so called," wrote the Specta- Following
tor, " have been worsted, and they have probably ^^^
learned by this time that their nostrums are by
no means palatable to the people of this country.
Though this country is not, and we trust never
will be, republican, its material interests are the
same as those of our republican neighbors. Can-
ada, therefore, wants no untried theory of trade
and industry, seeing that we have the actual and
dearly bought experience of the United States." 1

No halt in the protectionist movement followed Aier-
the success of 1858. In August of that year J?^
Cayley was succeeded by Alexander Gait. The
new minister of finance was a man of much force,
independence, and individuality, who afterwards
achieved wide fame as one of the fathers of Con-
federation. He was also one of the earliest and
most resourceful protagonists of the movement
for complete liberty for Canada to make her own
commercial treaties. "Canada first," was Gait's
1 Spectator, Hamilton, July 30, 1858.



conception of the duty of a Canadian statesman,
both before and after Confederation.
Gait's Gait was ready and willing to concede more

J^ of protection to Canadian manufacturers. He
framed the tariff of 1859 with this intent; and
it was this tariff that brought Gait into conflict
with Newcastle, who in 1859 was again colonial
secretary this time in the Palmerston-Russell
Whig administration of 1859-1866.

Governor- Elgin had retired in 1854. He had been suc-
hSs- ceeded b ^ Sir Edmund Walker Head. In forward-
ness ing the new tariff to the colonial office, Head ex-
pressed regret at its protectionist features. " But,"
he added, "I must necessarily leave the represen-
tatives of the people in parliament to adopt the
mode of raising supplies which they believe to be
the most beneficial to the constituencies."
Gait's Gait had anticipated that he would come into

toffeT 86 conflict with the free trade government at White-
traders in hall over the new tariff. This may be inferred
England f rom t k e speecn m w hi c h he introduced his bill
to the assembly in March, 1859.

The policy pursued with regard to taxation in this country
he then said has been objected to in England. But I am
perfectly certain that this house will never permit any other
body to interfere with its proper right to determine what
shall be the amount and mode in which taxes shall be put
upon the people. Canada has adopted the protective policy;
and it is scarcely fair for parties in England to criticize our
policy, when in point of fact the greater part of our debt was
incurred when they had a protective policy in England. 1

1 Globe, Toronto, March 14, 1859.



British manufacturers promptly and energeti- Protests
cally protested to the colonial office against the ^ ltlsh
increased duties in the Gait tariff, especially manu-
against increases in the iron and steel schedule, facturers
which, as they asserted, would divert much of
the trade of Sheffield with the United Provinces
to the United States.

Newcastle was a free trader. He had sup- New-
ported Peel in 1846 when, as Earl of Lincoln, he ^[^
was a member of the house of commons. His the
sympathies were consequently with the protesting j
manufacturers. In principle he was opposed to facturers
the upbuilding of a protectionist system in
Canada. This he made clear to the governor-
general in a dispatch dated August 13, 1859.
But, as will be recalled, Newcastle had taken a
prominent part in creating the democratic con-
stitution then in operation in the United Prov-
inces, and political conditions in Canada were
well in mind when he wrote his dispatch to Head.

Whenever the authenticated act of the Canadian parlia- New-
ment on this subject arrives he wrote, concerning the Gait castle
tariff bill I may probably feel that I can take no other
course than signify to you the Queen's assent to it, notwith-
standing the objections raised against the law in this country.
But I consider it my duty, no less to the colony than to the
mother country, to express my regret that the experience of

Online LibraryEdward PorrittEvolution of the Dominion of Canada; its government and its politics → online text (page 11 of 34)