CHAPTER V
LORD JOHN RUSSELL ON TENURE OF OFFICE
IN the session of 1840 Sir John Harvey, the lieutenant-governor, communicated to the legislature a despatch which he had received from Lord John Russell a short time before. This dealt with the question of the tenure of public offices in the gift of the Crown throughout the British colonies. Lord John had been struck by the fact that, while the governor of a colony was liable to have his commission revoked at any time, the commissions of all other public officials were very rarely recalled except for positive misconduct. In New Brunswick offices had been held generally for life and sometimes for two lives, as was the case with the Odells, father and son, who filled the position of secretary of the province for sixty years. One attorney-general of the province had held office for twenty-four years, another for nineteen years and a third for twenty years. One surveyor-general held office for thirty-three years and another for almost thirty years. Under such a system, it was clear that responsible government could make no advance, for these officials held their positions quite independently of the wishes of the legislature. Lord John Russell thought that the time had come when a different course should be followed, and his despatch was for the purpose of announcing to the lieutenant-governor the rules which would hereafter be observed in the province of New Brunswick. He said:—
"You will understand, and cause it to be made generally known, that hereafter the tenure of colonial offices held during Her Majesty's pleasure will not be regarded as equivalent to a tenure during good behaviour, but that not only such officers will be called upon to retire from the public service as often as any sufficient motives of public policy may suggest the expediency of that measure, but that a change in the person of the governor will be considered as a sufficient reason for any alterations which his successor may deem it expedient to make in the list of public functionaries, subject, of course, to the future confirmation of the sovereign.
"These remarks do not extend to judicial offices, nor are they meant to apply to places which are altogether ministerial, and which do not devolve upon the holders of them duties, in the right discharge of which the character or policy of the government are directly involved. They are intended to apply rather to the heads of departments than to persons serving as clerks, or in similar capacities under them. Neither do they extend to officers in the services of the lords commissioners of the treasury. The functionaries who will be chiefly, though not exclusively, affected by them, are the colonial secretary, the treasurer or receiver-general, the surveyor-general, the attorney-general and solicitor-general, the sheriff or provost marshal, and other officers, who under different designations from these, are entrusted with the same or similar duties. To this list must be also added the members of the council, especially in those colonies in which the legislative and executive councils are distinct bodies.
"The application of these rules to officers to be hereafter appointed will be attended with no practical difficulty. It may not be equally easy to enforce them in the case of existing officers, and especially of those who may have left this country for the express purpose of accepting the offices they at present fill. Every reasonable indulgence must be shown for the expectations which such persons have been encouraged to form. But even in these instances it will be necessary that the right of enforcing these regulations should be distinctly maintained, in practice as well as in theory, as often as the public good may clearly demand the enforcement of them. It may not be unadvisable to compensate any such officers for their disappointment, even by pecuniary grants, when it may appear unjust to dispense with their services without such an indemnity."
AN HISTORIC DESPATCH
This despatch produced consternation among those who had been accustomed to regard their offices as held on a life tenure, but it was looked upon by all the friends of good government as the beginning of a new and better order of things with respect to the public services. The matter was considered by a committee of the whole House a few days after the despatch was received, and an effort was made by Wilmot to have a favourable vote with regard to it. But although the friends of the old Family Compact always professed to be extremely loyal and to pay great deference to the wishes of the British government, on this occasion they pursued a different course. A majority of the House voted down a resolution which affirmed that this despatch should be "highly satisfactory," "affording, as it does, the most satisfactory proof of a sincere desire on the part of our Most Gracious Queen and her government to infuse principles in the administration of colonial affairs strictly analogous to the principles of the British constitution." Instead of passing this sensible resolution the committee, by the casting vote of the chairman, passed the following absurd amendment:—
"Resolved, As the opinion of this committee, that there is nothing in the despatch of the Right Honourable Lord John Russell, now under consideration, to call forth any expression from the House on the subject of colonial government, and that in the event of any occurrence taking place to disturb the present happy political state of the province, the House cannot but entertain the opinion that any loyal and dutiful representations which they may have occasion to lay at the foot of the throne will receive, as they have always done, the royal consideration."
The vote on the original resolution was fifteen to thirteen, so that, although defeated, it had a strong support in the House, yet it was years before the principles embodied in the despatch of Lord John Russell were carried into full effect in New Brunswick.
OFFICIAL SALARIES
When the Civil List Bill was passed in 1837, the salaries of the public officials which were provided for in it were placed on a very liberal scale. The lieutenant-governor was to receive £3,500 sterling, or almost double the present salary of the lieutenant-governor of New Brunswick. The commissioner of Crown lands was to have £1,750 sterling, or about five times as much as the present holder of that office; the provincial secretary got £1,430 sterling, or more than three times as much as the secretary of the province now receives. All the other salaries were in the same proportion, and on a scale altogether beyond the means of the province. It was admitted by Lord Glenelg, when the arrangements were being made for the transfer of the casual and territorial revenues, that these salaries might require modification, and he suggested that the legislative council and the House of Assembly should at some future day present him with their views on this subject. At the session of 1837, a committee of the House of Assembly, of which Wilmot was a member, reported in favour of a reduced scale of salaries, and this report was adopted by the House. During the same year, a committee of the council recommended that the salary of the surveyor-general or commissioner of Crown lands should be reduced to twelve hundred pounds currency. This reduction was protested against by Mr. Baillie, who had held the office for many years, but it was thought to be reasonable by Lord Glenelg. The executive council, however, took no steps to effect this reduction, possibly because Mr. Baillie himself was a member of that body. At the instance of Mr. Wilmot, the matter was taken up by the House at the session of 1839, and a strongly worded resolution passed censuring the executive council for not carrying into effect the reduction of the salary of the surveyor-general, according to the views of Lord Glenelg. At a later period in the same session, a committee, of which Wilmot was an active member, laid before the House a scale of salaries which they had prepared and which they considered sufficient for the public officials embraced in the civil list. Under this scale, the salary of the surveyor-general was reduced to £600 currency, and that of the provincial secretary to the same amount. This report was not accepted by the House. There were strong interests working for the retention of the existing salaries, and it was not until a much later period that the salaries of the public officials were placed on a footing that agreed in some measure with the means of the province.
At the session of 1842, Wilmot was an active member of a committee which was appointed to take into consideration the subject of fees and emoluments of the public officers, and at a later period in the session they made a report recommending that all fees should go into the treasury of the province and that all public officers should receive a certain fixed salary. They presented with their report a scale of salaries which they considered sufficient, which gave the provincial secretary, surveyor-general and attorney-general each six hundred pounds. Bills were introduced for the purpose of carrying these recommendations into effect, but, although passed by the House, they were rejected by the council, which for many years was the graveyard of all measures for the improvement of the province.
RESPONSIBLE GOVERNMENT
The general election of 1842 was mainly fought on the Reform issue, and the question of responsible government was discussed on every hustings. Unfortunately very few of the candidates who offered their services as legislators had a clear idea of what responsible government really meant, and some of the gentlemen who were not ashamed to confess their ignorance of the principles of the British constitution were men of education and position, from whom better things might have been expected. Mr. Robert L. Hazen, an eminent lawyer, who was a candidate for the representation of the city of St. John, declared in his nomination speech that he never met with any one who could explain to him satisfactorily what responsible government meant. Mr. Humbert, one of the candidates for St. John County, was entirely averse to the new principles. "And what," he asked, "are these principles?" "Why," he would ask, "should the old system be altered; it had never given cause for complaint, it had always worked well,—then why should the people complain?" He was not in favour of any innovations on British colonial government. Very few people understood what responsible government meant. He hardly understood it himself. It was, in his opinion, just introducing another branch into our government. He was not in favour of the government initiating the money votes. He was always sensitive about the rights of the House—to them ought the power of originating the supplies to belong, and to none other—and if returned he would oppose the measure.
Such absurdities as the above would not be worth quoting, but for the light they throw on the views of the average New Brunswick politician of that period. Mr. Humbert had been for many years a member of the House of Assembly, and yet he had been unable to understand the significance of the changes which the Reformers proposed in the constitution of the country. The result of the election in St. John showed that the people of that city and county were quite indifferent to the new doctrines. For the county, Mr. Partelow was at the head of the poll, and that gentleman on the hustings had declared that he was opposed to any change in the constitution. He went into the House, he said, under a constitution of fifty years' standing, and he was determined to leave it as he found it, unimpaired. He disapproved of the initiation of money votes being placed in the hands of the executive. He thought "such a system would be wrong and pernicious in the extreme."
REFORMERS DEFEATED
When the legislature met in January 1843, it was found that the Reformers were in the minority. Mr. Partelow was determined to make this fact very clear, for in nominating the speaker he made a speech of some length in which he declared that the time had come for testing the principles on which the House should act, and with this object in view he would throw down the gauntlet to the friends of responsible government by nominating Mr. J. W. Weldon, to fill the chair. This gentleman was a very fit representative of the old system, for besides being a member for Kent, he filled almost all the offices in that county which one man could hold. He was postmaster of Richibucto, deputy treasurer for the port of Richibucto, issuer of marriage licenses for the county of Kent, keeper of the seals and clerk of the peace and of the inferior court of common pleas, and registrar of probates for the same county.
Mr. Wilmot was nominated for the speakership by Mr. Hill, of Charlotte, but declined to run; the odds were too great, and so Mr. Weldon, the opponent of responsible government, was elected without opposition. This was an unsatisfactory result after so many years of conflict, but the friends of Reform, although they had to admit defeat, were neither daunted nor discouraged. They knew that many other questions besides the abstract one of the adoption of responsible government had influenced the recent election, and that the new principles had been blamed for results that would have been avoided if they had been in operation. For instance, the transfer of the casual and territorial revenues to the treasury of the province in 1837 had placed a very large sum, amounting to £150,000, at the disposal of the legislature. All this money had been dissipated by extravagant grants, and in 1842 the province was actually in debt. Many ignorant electors were made to believe that this result was due to the Reformers who had been the means of obtaining this money, which the legislature had squandered; and this feeling was so strong in the county of York, that Messrs. Wilmot and Fisher stood lower on the poll than the two anti-Reformers who were elected with them.
CHAPTER VI
THE READE APPOINTMENT
ALTHOUGH elected in opposition to responsible government, the legislature of 1843 at its first session took one important step in favour of Reform. The arrangement by which the executive and legislative councils were separated, which had come into force ten years before, although a decided improvement on the old state of affairs, did not produce universal satisfaction.3 The constitution of the legislative council was complained of, and it was described as an obstructive body which disregarded the wishes of the people. Bills of the utmost importance, which had been passed by large majorities in the House of Assembly, and which were demanded by the people, were frequently rejected by the council without being even discussed. Most of its members were opposed to any change in the constitution of the province, and everything which seemed to be in the direction of giving power to the people was denounced as an innovation and condemned as an infringement of the vested rights of the council. One of the chief causes of complaint against the council was their rejection of every bill for the amendment of the charter of King's College. Wilmot had so frequently had his efforts in this direction nullified by the council that he introduced a resolution in the assembly condemning the conduct of that body for rejecting the college bill, and the council retaliated by unanimously voting this a breach of privilege.4 The complaints of the House of Assembly against the legislative council were now embodied in an address to the queen. In this address it was stated that in the opinion of the House the legislative council should be composed of persons not only representing all the leading interests of the province, but so independent in respect to property and so free from official control as to form a constitutional check on the executive. Although, by the laws that existed then, members of the assembly were required to be possessed of real estate to the value of two hundred pounds, over and above all encumbrances, there was no property qualification whatever required for members of the legislative council. The address of the House expressed the opinion that members of the council should be required to possess a certain amount of real estate, and that their seats should be vacant on the loss of this qualification, or on their becoming bankrupt, or public defaulters, or from neglect to give their attendance for a given time without leave of the lieutenant-governor. The address also stated that the constitution of the legislative council was defective and objectionable in other respects, because, of the eighteen members who composed it, a great proportion held offices at the pleasure of the Crown, and the principal officers of the government usually formed a majority of the members present. It was also complained that members of the Church of England had too great a preponderance in the council, the only members not of that communion being one Presbyterian and one Baptist.
THE LEGISLATIVE COUNCIL
At the next session of the legislature, despatches from Lord Stanley were laid before the House of Assembly in which it was stated that the council would be increased in number to twenty-one, and four new members of the council were to be appointed. The new members then appointed were T. H. Peters, Admiral Owen, William Crane and George Minchin, while the Hon. Thomas Baillie, the surveyor-general, the Hon. Mr. Lee, the receiver-general, the Hon. James Allanshaw, of St. Andrews, and the Hon. Harry Peters, of Gagetown, retired. No doubt the retirement of two officials who received large salaries was some improvement, but the council required further remodelling before it could be said to be an efficient body, or one in sympathy with the inhabitants of the province.
The legislative council has now ceased to exist, and it may be said of it that it was never a very satisfactory body for legislative purposes. Perhaps the original composition of it created such a prejudice against legislative councils as to hamper its activities; and, from having been at first merely the echo of the wishes of the governor, it became latterly, to a large extent, the echo of the wishes of the government. Gradually it became relieved of its official members, and in its last years no head of a department ever occupied a seat in the legislative council; for it was thought, and rightly, that the power ought to be in the House, where the responsibility to the people was most felt, and that it was not wise to place an official whose department expended large sums of money in a body which properly had no control over the public expenditure. The legislative council had undoubtedly from time to time many able and useful members, and, at certain periods in the history of the province, particularly during the confederation discussions, it took a firm stand in favour of measures which seemed essential to the prosperity of the British North American provinces. No one can deny that at that time it exercised an authority fully equal to that of the Lower House, but it cannot be doubted that some of this work was done at the expense of the proper balance of the constitution. Such an exercise of unusual authority on the part of a body not elected by the people may serve a purpose at a particular crisis, but cannot be commended as an example, and if frequently repeated would end in the destruction of the constitution.
THE COUNCIL'S RECORD
The legislative council lost a considerable proportion of its able men at the time of confederation by the removal of eleven of its members to the senate of Canada, although one or two remained with it who were not inferior to any of those who then took their departure. The new members who came in as their successors were naturally inferior to the old in practical experience and ability, and this had, no doubt, an influence on the future of the House. The example of Ontario, which was able to conduct its affairs with one House, showed that two independent branches of the legislature were by no means necessary, and that the council might be abolished with safety. No doubt it was difficult to bring this about among a people who had been trained to believe that there was something essential to legislation in the balance of king, lords, and commons, making up one legislative body. But in the course of time the electors began to think that the council was not exactly the proper equivalent of the House of Lords, and the lieutenant-governor very far from standing in the position of a king. Old prejudices in favour of a constitution framed after a particular model are difficult to remove, but, in the case of New Brunswick, these prejudices were at length overcome, and it is safe to say that in the course of time all the provincial legislatures of Canada will consist of but a single chamber. It is equally safe to assert that under the new system the work of legislation will be as well done as it was under the old.
The session of the legislature in 1843 came to an end on April 11th, and on the seventeenth of the same month Wilmot became a member of the government. His appointment had been preceded by the resignation of five members of the government—Messrs. Black, Shore, Robinson, Odell and Crane—and by the appointment of Messrs. E. B. Chandler, Hugh Johnston, John Montgomery and Robert L. Hazen, to fill the vacancies thus created. Of the retiring members two—Messrs. Black and Shore—were members of the legislative council; one of them, Mr. Crane, was a member of the House of Assembly, while the other two were officials who did not belong to either branch of the legislature. Of the new members of the executive council, Messrs. Chandler and Johnston were members of the legislative council, Messrs. Hazen and Wilmot were members of the House of Assembly, while Mr. Montgomery had no seat in either House. The executive council as made up at that time included four members of the legislative council, three members of the House of Assembly and Mr. Montgomery, who did not become a member of the House of Assembly until three years later. There is no doubt that the composition of the new executive council was more in accordance with correct principles than its predecessor; yet little could be expected from it in the way of Reform, for Wilmot was the only member who was in favour of responsible government.
ENTERS THE GOVERNMENT
Mr. Wilmot has been censured for entering a government composed of men who were opposed to the liberal views he held on public questions. It was thought by many that his conduct in this respect looked too much like a surrender of his principles for the sake of office or official position, and it certainly would have been better if he had continued in Opposition. Yet we can easily conceive that he may have thought at the time he could do more for the cause of Reform inside the government than out of it, and, although this proved to be an error, it was a natural one for which it is not difficult to find an excuse. Fortunately for the cause of Reform, Wilmot's connection with the government did not last long at that time. A storm was gathering in an unexpected quarter which was destined to wreck the government, and to cause some of its Conservative members to reconsider their opinions with reference to some questions which until then they had regarded as fixed and unchangeable.
It has been already stated that the governor of the province made such appointments to office as he pleased, usually without the advice of his council. He was supposed to have the power to do this as the representative of the sovereign and in the exercise of what was termed "the royal prerogative." In this way persons were frequently appointed to offices who were not residents of the province, and in all other cases appointments were given to the members of certain favoured families. In 1834, a vacancy was created on the supreme court bench by the death of Chief-Justice Saunders. Ward Chipman was appointed chief-justice in place of Mr. Saunders, and the vacant puisne judgeship was given to James Carter, who afterwards became chief-justice of the province. Carter was a young Englishman then living in London, and was certainly no better qualified to fill the position of judge than many natives of the province, so that it was regarded as a gross insult to the members of the New Brunswick bar, to give such an appointment to a stranger. Yet so slow was public opinion to make itself felt in regard to the evil of the appointing power being given to the governor without qualification, that ten years later the House of Assembly presented an address to Sir Charles Metcalfe, governor-general of Canada, expressing the high sense entertained by them, as representatives of the people of New Brunswick, of the "constitutional stand" taken by him in maintaining the prerogative of the Crown in the then recent memorable "conflict."5 The city of St. John also, to show its loyalty, presented a similar address; and one signed by one thousand persons was sent from the county of York.
SIR CHARLES METCALFE
Yet nothing can be more clear than that the stand taken by Sir Charles Metcalfe in 1844 was wholly wrong, for it consisted in refusing to consult with his council in regard to appointments, and in making appointments contrary to their advice. What would the people of Canada say to-day to a governor-general who insisted on appointing men to office against the advice of his cabinet? Yet it was for doing this that the New Brunswick House of Assembly, the city and county of St. John and the county of York actually grovelled in the dust before this despotic governor, thus approving of all his acts. Such abasement and subserviency to an unconstitutional governor was certain to bring its own punishment, and it came much sooner than any one could have anticipated. On Christmas Day of the same year the Hon. William Franklin Odell, who had been provincial secretary for thirty-two years, died at Fredericton. Mr. Odell's father had been secretary before him from the foundation of the province, so that the Odell family had held that important and highly lucrative office for sixty years.
The governor at this time was Sir William Colebrooke, and on January 1st, 1845, just one week after the death of Mr. Odell, he appointed his son-in-law, Alfred Reade, who was a native of England and a stranger to the province, to the vacant office. The gentlemen who had been most prominent in shouting their approval of the "constitutional stand" taken by Sir Charles Metcalfe, now suddenly discovered that Sir William Colebrooke's conduct in making this appointment without consulting his council, was a fearful outrage, and their distress was pitiable to behold. Several members of the government, including such zealous upholders of the prerogative as the Hon. Robert L. Hazen, of St. John, at once resigned their positions. A communication from three of them—Hugh Johnston, E. B. Chandler and R. L. Hazen—addressed to His Excellency gave as their reasons for resigning that they could not justify the exercise of the prerogative of the Crown in respect to Mr. Reade's appointment, because they felt that "the elevation to the highest offices of trust and emolument of individuals whose character, services, and claims to preferment, however appreciated elsewhere, are entirely unknown to the country generally, is prejudicial to the best interests of the province." They did not, however, make it a ground of objection that the appointment of Mr. Reade was forwarded for the royal approbation without the advice or concurrence of the council. These gentlemen evidently thought it was too early for them to eat the words in regard to the prerogative of the Crown, of which they had been so free a few months before, but they showed their true characters by deserting the governor because he had been foolish enough to believe that their profuse expressions in favour of the royal prerogative were sincere.
RESIGNATION
Mr. Wilmot, who also resigned, sent a separate communication to the lieutenant-governor in which he stated what he considered to be the true constitutional doctrine which should govern such matters. He said:—
"In the first place, I consider it justly due to the people of this province, that all the offices of honour and emolument in the gift of the administration of the government should be bestowed upon inhabitants of the province who have made this country their home, and, in the cases of the principal offices, those persons should be preferred who have claims for public services rendered to the province, and who can command the respect and confidence of the country. With these views, which I hope I shall ever retain, I must necessarily disapprove of the appointment in question, as I can only look upon Mr. Reade as a comparative stranger and a transient person, while, at the same time, I am of opinion that he has no claim whatever on the ground of public services rendered to this province.
"It would be in vain for the parents of our youth to make every exertion in order to qualify their sons for the higher offices of the province, if the avenues to honourable and profitable preferment are to be thus closed against them; and I therefore cannot but view the appointment under consideration as an act of great injustice to the people of this country; and I can safely assure Your Excellency that it will be thus considered throughout the length and breadth of the province.
"Your Excellency is well aware that ever since I have had the honour of having a seat in the council, I have approved of, and advocated those principles of colonial government which are now in full operation in Canada, which have been distinctly enunciated by the present government in the House of Commons, and which require the administration to be conducted by heads of departments responsible to the legislature, and holding their offices contingently upon the approbation and confidence of the country as expressed through the representatives of the people. Still entertaining a strong attachment to those principles from a clear constitutionality, and, from a conscientious belief in their safe and practical adaptation to a British colony enjoying the privileges of a representative form of government, I can see no sufficient reason for withholding their salutary influence from the loyal and intelligent people of this province; and considering it more advisable that a gradual advancement should be made by the government itself towards those principles as opportunities may offer, than that a concession in gross should hereafter be made to the urgent demands of the country, I am of the opinion that the provincial secretary should now be brought into the executive government, and should hold a seat in one of the Houses of the legislature—his tenure of office being contingent upon the successful administration of the government; and therefore, as the appointment in question has been made irrespective of any of these conditions, I am bound to give it my opposition."