HL Deb 06 September 1831 vol 6 cc1183-9
Viscount Goderich,

in moving the third reading of the Canadian Revenue Bill, wished, as shortly as possible, to state the grounds on which he asked their Lordships to assent to his motion. In the year 1774, duties were imposed by the British Parliament on articles of various kinds imported into Quebec, for the purpose of forming a fund for the support of the Civil Government in Canada, and under the authority of that Act of Parliament, the money so levied was directed to be applied by warrant from the Treasury. At that period there was no legislative power exercised in Canada. In the year 1791, however, Parliament granted to the province of Canada a Constitution, consisting of two legislative bodies, and Canada was divided into two portions, Upper and Lower Canada. From this time the Legislative Assembly and Council formed, with the Governor, a complete legislative government, in whom was vested the right of imposing taxes and rates, to meet the exigencies of these provinces, with certain exceptions in respect to particular articles of trade and commerce, to be imported into them. In 1795, the legislative body granted in perpetuity the sum of 5,000l. a-year, in aid of the funds appropriated towards the expenses of the civil government, which for a long time proved sufficient for the purpose. But at a subsequent period this sum became inadequate, and it was necessary for the British Parliament to vote money for the purpose of maintaining the civil establishments in Canada. The expenses of the government, however, had a natural tendency to increase, and at length they exceeded the sum voted by Parliament, and it then became necessary for that government to apply to this coun- try to make up the deficiency. It must be quite obvious to their Lordships, that from the moment it became necessary to apply to Parliament for relief it acquired a power of control. In progress of time, however, the Legislative Assembly, feeling that the executive was, as regarded these funds, in some dependence on it, wished to appropriate those duties, which by the Act of 1774, were to be appropriated by virtue of the warrants of the Lords of the Treasury, and it applied to the British Government for its approval of this wish. As regarded the question at law, there could be no doubt whatever that the law imposed upon the Lords of the Treasury the duty of issuing warrants for the purpose of appropriating that money; but the obligations of the law did not remove the constitutional objections, which were made to that appropriation on the part of the Assembly, and a discussion ensued, which had the effect of placing the executive government of the colony, and the other branches of the legislature, in a state of constant collision. The result was, first to cause, and then to widen, the breach between the different branches of the legislature, when every principle of policy rendered it most desirable that the utmost harmony should exist between them. The subject, after various attempts to settle the disputes, was taken into consideration by a Committee of the other House, to which it was referred on the part of his Majesty's Government. This particular part of the question was examined at very considerable length by that Committee, which recommended that the money levied by virtue of the Act of 1774, should be laid out according to the approbation of the Legislative Assembly and Council of Canada, on condition that they would undertake to provide a fixed and permanent income for the Governor and the Judges. There could be no doubt, that it was of infinite importance that the Governor of the colony, representing his Majesty, and the judicial body discharging such important functions, should be rendered independent of the fluctuating opinions and feelings of any separate branch of the legislature; and therefore it was recommended, with much propriety, that whatever arrangement was made with regard to other persons, some mode should be fixed for the permanent and certain payment of the Governor and the Judges. The Report of that Committee was presented to the other House of Parliament in the year 1828. During the following Session the time and attention of Parliament were occupied in the consideration of a very great question, in which the country took a deep interest; and this circumstance precluded Parliament from taking any step towards getting rid of this difficulty. The warrants of the Lords of the Treasury were withheld, in consequence of the recommendation of the Committee with respect to the Judges not having been complied with. A very embarrassing state of things followed. The Governor was placed in a situation of extreme difficulty; quarrels ensued between him and the legislative body, which continued through several years, and made the colony a scene of unpleasant contention. In the year 1830, his right hon. friend who succeeded him as Secretary of State, introduced a bill into the other House for the purpose of bringing this matter to a conclusion; and that bill, as first introduced, was to this effect:—it provided, that after retaining a given sum for the purpose of meeting certain specified charges, all the surplus money receivable under the Act of 1774, should be paid over to the Treasury, to be at the disposal of the Legislature. It was afterwards found out, however, that this was a very imperfect mode of settling the question, because it reproduced, or rather re-enacted, the very point in dispute. The alterations which were made, began by enacting that the whole sum should be placed at the disposal of the Legislature, provided a copy of the civil list was furnished; and they also contained an original proviso, that if such an arrangement, was not acceded to, then 20,000l. should be returned. The arrangement still kept alive the point in dispute, and it consequently appeared liable to objection, and far from a satisfactory mode of settling the question. That bill, however, did not become a law; it was one of those measures which was interrupted in its progress by the demise of the Crown, and the dissolution of Parliament. The matter remained in this state when the Seals of the Colonial Department were confided to him. He would have been happy to follow the course chalked out by his right hon. friend; but on the best consideration he could give the question, after an attentive perusal of the correspondence, and after a conference with many persons extremely competent to form correct opinions, he became satisfied that the provisions contained in that Bill could not succeed, and he had then to consider what mode could be adopted, by which the matter might be amicably settled, without any derogation from the dignity of the Crown and Parliament of England, and, at the same time, without requiring from the Legislature in Canada any unreasonable concession. It appeared to him, that the best course would be, to apply to the case of Canada the same principle that had been just applied to the Parliament of the United Kingdom, namely, to place at the disposal of the Legislature there the revenues of Canada, and, at the same time, to have a Civil List, which the Governor was directed to prepare: he was authorized to receive and listen to any objections that might be made to it. That course was perfectly constitutional and reasonable; and he flattered himself that the provision would have been favourably received, and would answer the object for which it was intended; particularly as the Governor was instructed, that in the Civil List which he was to endeavour to obtain, in lieu of the duties which he was authorized to give up, he should insert the salaries of the Governor and those of the Judges, intending thereby to ensure by this arrangement the attainment of the two important objects he had explained to their Lordships. In the province of Upper Canada, this proposition was favourably received, and the Legislature there passed a Bill, in which a permanent provision was made for the payment of the salaries of the Governor, the Judges, the Solicitor General, and some other Officers. The Governor, by virtue of his instructions, accepted that Bill, and if the measure under consideration was agreed to, it would give effect to the law which the Assembly and Council of Upper Canada then passed. In Lower Canada, however, the Legislative Assembly did not accede to the proposition, not thinking it expedient to proceed at that time to the consideration of the question. They did not positively refuse, but they returned that answer. If he had considered that this proceeding on, their part, arose from any insuperable objections likely to be thrown in the way of the final adjustment of the question, he certainly should not have been disposed to include Lower Canada in that Bill; but being convinced that this answer was dictated by a variety of other matters, that had been in progress of angry discussion for a very considerable time, he had in- cluded Lower Canada, expecting a better disposition in a short time. Of course, if the province of Lower Canada did not pass an Act to give salaries to the Governor and Judges, as far as that province was concerned, the subject would remain in exactly the same situation as at present, and the House must ascertain whether any other mode could be adopted by which these difficulties could be removed. He hoped, however, that no such necessity would arise. That which was proposed ought to satisfy the Legislature of Canada. Without introducing anything unfit to be adopted, it was the duty of the Government to endeavour to further the welfare of both these colonies, which were most important on account of their geographical positions. One of the most essential objects at which their Lordships could aim, was, to secure a good understanding and perfect harmony between this country and her colonial possessions, which were in many respects essential to her strength and security; and if it were necessary to sacrifice some trifling interests, yet this object was of so much importance, that he should call upon their Lordships to sanction a Bill which would give contentment to Canada. He certainly should not be disposed to advise his Majesty to give his assent to the present Bill, until the Canadian Assemblies agreed to provide, in the manner he had pointed out for the expenses of the civil Government and the administration of justice; but he believed that that Assembly would do what was just and due to the mother country.

Earl Bathurst

was of opinion, that nothing could be more improper than to leave Judges to be provided for by an annual vote of the Colonial Legislature; and he thought that the noble Lord, before introducing this measure, ought either to have obtained the consent of the legislative assemblies of the Canadas to make a permanent provision for the Civil Government and the Judges, or he should have inserted into the Bill a proviso, to render it inoperative unless such an agreement was come to. He had no doubt that his noble friend had kept the object in view of having a proper provision made for the Governor and Judges, but he feared the measure would have the effect of placing the Governor in opposition to the Assembly, because he would be the party who was to accept or reject the Bill, am it might not be advisable always to give the Governor this uncontrolled power. Their Lordships would, however, recollect, that there was not much doubt with respect to the operation of the Act, 14th Geo. 3rd, which was to continue for upwards of twenty years. First, 5,000l. was granted under it, then another 5,000l. was required, and when an application was made to the Colonial Assembly for this addition, they said, "If you apply to us or additional votes, we surely have a right to know in what manner you are to expend it;" and they certainly had a right, such circumstances, to say they would object to any expenses which, in their opinion, were improper, and, upon this ground it was, that the circumstances occurred which his noble friend had described with regard to the Treasury warrant. The circumstances of the Civil List were essentially different from those which his noble friend had cited as precedents, and he (Earl Bathurst) considered it would be unadvisable to place the whole of this sum at the mercy of the Colonial Legislative Assembly, to be provided by annual votes, the consequence of which would be, the officers to be paid under it would look with some anxiety to the effect their conduct might have on the Colonial Assembly with respect to the receipt of their salaries. His noble friend had stated, that a fixed and permanent provision would be made for the Governor and Judges under this Bill: he had no doubt his noble friend thought so; but he (Earl Bathurst) could not consider it in that light, and he most decidedly objected to the Governor and Judges being provided for by an annual vote of the Legislative Assembly, which, he feared, would injure the integrity and impartiality of the administration of justice.

Viscount Goderich

said, if he understood the noble Earl correctly, he did not object to the Judges having a permanent salary, but to their being paid by annual grants voted by the Colonial Assembly. There had been very great difficulties in bringing this point to a satisfactory conclusion, and he must then say, that he did not feel the force of his noble friend's objection. If the Bill were passed without this clause, the question would remain just as it was, and he must say for himself, he had not the smallest intention of giving one party an improper control over another.

The Duke of Wellington

said, that if this Bill was agreed to, the effect would be, that a fund would be provided o[...]ve which the government of Canada alone had control, and if it did not exercise the power to the satisfaction of the Government at home, the Treasury would have no control over it. The effect of the noble Lord's Bill would go to deprive the Legislature here of all the power it at present possessed. He did not see, if that Bill received their Lordships' sanction, what was to prevent the Canadian legislatures doing what they pleased with their revenue. He, therefore, agreed with the noble Earl, that some qualifying provision ought to be introduced into the Bill. It was a question whether some of the provisions of that Bill might not interfere with the independence and functions of the Judges of the land.

Viscount Goderich

thought the administration of justice ought to remain as it was at present, but he certainly was of opinion, taking into consideration the increased expenses, that the legislature of Canada should possess a control over its own revenues, which he was certainly not disposed to think very objectionable in itself, nor likely to lead to the consequences which his noble friends seemed to anticipate.

Bill read a third time and passed.