CHAPTER VI
THE HINCKS-MORIN MINISTRY.
When LaFontaine resigned the premiership the ministry was dissolved and it was necessary for the governor-general to choose his successor. After the retirement of Baldwin, Hincks and his colleagues from Upper Canada were induced to remain in the cabinet and the latter became the leader in that province. He was endowed with great natural shrewdness, was deeply versed in financial and commercial matters, had a complete comprehension of the material conditions of the province, and recognized the necessity of rapid railway construction if the people were to hold their own against the competition of their very energetic neighbours to the south. His ideas of trade, we can well believe, recommended themselves to Lord Elgin, who saw in him the very man he needed to help him in his favourite scheme of bringing about reciprocity with the United States. At the same time he was now the most prominent man in the Liberal party so long led by Baldwin and LaFontaine, and the governor-general very properly called upon him to reconstruct the ministry. He assumed the responsibility and formed the government known in the political history of Canada as the Hincks-Morin ministry; but before we consider its personnel and review its measures, it is necessary to recall the condition of political parties at the time it came into power.
During the years Baldwin and LaFontaine were in office, the politics of the province were in the process of changes which eventually led to important results in the state of parties. The Parti Rouge was formed in Lower Canada out of the extreme democratic element of the people by Papineau, who, throughout his parliamentary career since his return from exile, showed the most determined opposition to LaFontaine, whose measures were always distinguished by a spirit of conservatism, decidedly congenial to the dominant classes in French Canada where the civil and religious institutions of the country had much to fear from the promulgation of republican principles.
The new party was composed chiefly of young Frenchmen, then in the first stage of their political growth—notably A.A. Dorion, J.B.E. Dorion (l'enfant terrible), R. Doutre, Dessaules, Labrèche, Viger, and Laflamme; L.H. Holton, and a very few men of British descent were also associated with the party from its commencement. Its organ was L'Avenir of Montreal, in which were constantly appearing violent diatribes and fervid appeals to national prejudice, always peculiar to French Canadian journalism. It commenced with a programme in which it advocated universal suffrage, the abolition of property qualification for members of the legislature, the repeal of the union, the abolition of tithes, a republican form of government, and even, in a moment of extreme political aberration, annexation to the United States. It was a feeble imitation of the red republicanism of the French revolution, and gave positive evidences of the inspiration of the hero of the fight at St. Denis in 1837. Its platform was pervaded not only by hatred of British institutions, but with contempt for the clergy and religion generally. Its revolutionary principles were at once repudiated by the great mass of French Canadians and for years it had but a feeble existence. It was only when its leading spirits reconstructed their platform and struck out its most objectionable planks, that it became something of a factor in practical Canadian politics. In 1851 it was still insignificant numerically in the legislature, and could not affect the fortunes of the Liberal party in Lower Canada then distinguished by the ability of A.N. Morin, P.J.O. Chauveau, R.E. Caron, E.P. Taché, and L.P. Drummond. The recognized leader of this dominant party was Morin, whose versatile knowledge, lucidity of style, and charm of manner gave him much strength in parliament. His influence, however, as I have already said, was too often weakened by an absence of energy and of the power to lead at national or political crises.
Parties in Upper Canada also showed the signs of change. The old Tory party had been gradually modifying its opinions under the influence of responsible government, which showed its wisest members that ideas that prevailed before the union had no place under the new, progressive order of things. This party, nominally led by Sir Allan MacNab, that staunch old loyalist, now called itself Conservative, and was quite ready, in fact anxious, to forget the part it took in connection with the rebellion-losses legislation, and to win that support in French Canada without which it could not expect to obtain office. The ablest man in its councils was already John Alexander Macdonald, whose political sagacity and keenness to seize political advantages for the advancement of his party, were giving him the lead among the Conservatives. The Liberals had shown signs of disintegration ever since the formation of the "Clear Grits," whose most conspicuous members were Peter Perry, the founder of the Liberal party in Upper Canada before the union; William McDougall, an eloquent young lawyer and journalist; Malcolm Cameron, who had been assistant commissioner of public works in the LaFontaine-Baldwin government; Dr. John Rolph, one of the leaders of the movement that ended in the rebellion of 1837; Caleb Hopkins, a western farmer of considerable energy and natural ability; David Christie, a well-known agriculturist; and John Leslie, the proprietor of the Toronto Examiner, the chief organ of the new party. It was organized as a remonstrance against what many men in the old Liberal party regarded as the inertness of their leaders to carry out changes considered necessary in the political interests of the country. Its very name was a proof that its leaders believed there should be no reservation in the opinion held by their party—that there must be no alloy or foreign metal in their political coinage, but it must be clear Grit. Its platform embraced many of the cardinal principles of the original Reform or Liberal party, but it also advocated such radical changes as the application of the elective principle to all classes of officials (including the governor-general), universal suffrage, vote by ballot, biennial parliaments, the abolition of the courts of chancery and common pleas, free trade and direct taxation.
The Toronto Globe, which was for a short time the principal exponent of ministerial views, declared that many of the doctrines enunciated by the Clear Grits "embody the whole difference between a republican form of government and the limited monarchy of Great Britain." The Globe was edited by George Brown, a Scotsman by birth, who came with his father in his youth to the western province and entered into journalism, in which he attained eventually signal success by his great intellectual force and tenacity of purpose. His support of the LaFontaine-Baldwin ministry gradually dropped from a moderate enthusiasm to a positive coolness, from its failure to carry out the principles urged by The Globe—especially the secularization of the clergy reserves. Then he commenced to raise the cry of French domination and to attack the religion and special institutions of French Canada with such virulence that at last he became "a governmental impossibility," so far as the influence of that province was concerned. He supported the Clear Grits in the end, and became their recognized leader when they gathered to themselves all the discontented and radical elements of the Liberal party which had for some years been gradually splitting into fragments. The power of the Clear Grits was first shown in 1851, when William Lyon Mackenzie succeeded in obtaining a majority of Reformers in support of his motion for the abolition of the court of chancery, and forced the retirement of Baldwin, whose conservatism had gradually brought him into antagonism with the extremists of his old party.
Although relatively small in numbers in 1851, the Clear Grits had the ability to do much mischief, and Hincks at once recognized the expediency of making concessions to their leaders before they demoralized or ruined the Liberal party in the west. Accordingly, he invited Dr. Rolph and Malcolm Cameron to take positions in the new ministry. They consented on condition that the secularization of the clergy reserves would be a part of the ministerial policy. Hincks then presented the following names to the governor-general:
Upper Canada.—Hon. F. Hincks, inspector-general; Hon. W.B.
Richards, attorney-general of Upper Canada; Hon. Malcolm
Cameron, president of the executive council; Hon. John
Rolph, commissioner of crown lands; Hon. James Morris,
postmaster-general.
Lower Canada.—Hon. A.N. Morin, provincial secretary, Hon. L.P. Drummond, attorney-general of Lower Canada; Hon. John Young, commissioner of public works; Hon. R.E. Caron, president of legislative council; Hon. E.P. Taché, receiver-general.
Later, Mr. Chauveau and Mr. John Ross were appointed solicitors-general for Lower and Upper Canada, without seats in the cabinet.
Parliament was dissolved in November, when it had completed its constitutional term of four years, and the result of the elections was the triumph of the new ministry. It obtained a large majority in Lower Canada, and only a feeble support in Upper Canada. The most notable acquisition to parliament was George Brown, who had been defeated previously in a bye-election of the same year by William Lyon Mackenzie, chiefly on account of his being most obnoxious to the Roman Catholic voters. He was assuming to be the Protestant champion in journalism, and had made a violent attack on the Roman Catholic faith on the occasion of the appointment of Cardinal Wiseman as Archbishop of Westminster, an act denounced by extreme Protestants throughout the British empire as an unconstitutional and dangerous interference by the Pope with the dearest rights of Protestant England. As soon as Brown entered the legislature he defined his political position by declaring that, while he saw much to condemn in the formation of the ministry and was dissatisfied with Hincks's explanations, he preferred giving it for the time being his support rather than seeing the government handed over to the Conservatives. As a matter of fact, he soon became the most dangerous adversary that the government had to meet. His style of speaking—full of facts and bitterness—and his control of an ably conducted and widely circulated newspaper made him a force in and out of parliament. His aim was obviously to break up the new ministry, and possibly to ensure the formation of some new combination in which his own ambition might be satisfied. As we shall shortly see, his schemes failed chiefly through the more skilful strategy of the man who was always his rival—his successful rival—John A. Macdonald.
During its existence the Hincks-Morin ministry was distinguished by its energetic policy for the promotion of railway, maritime and commercial enterprises. It took the first steps to stimulate the establishment of a line of Atlantic steamers by the offer of a considerable subsidy for the carriage of mails between Canada and Great Britain. The first contract was made with a Liverpool firm, McKean, McLarty & Co., but the service was not satisfactorily performed, owing, probably—according to Hincks—to the war with Russia, and it was necessary to make a new arrangement with the Messrs. Allan, which has continued, with some modification, until the present time.
The negotiations for the construction of an intercolonial railway having failed for the reasons previously stated, (p. 100), Hincks made successful applications to English capitalists for the construction of the great road always known as the Grand Trunk Railway of Canada. It obtained a charter authorizing it to consolidate the lines from Quebec to Richmond, from Quebec to Rivière du Loup, and from Toronto to Montreal, which had received a guarantee of $3,000 a mile in accordance with the law passed in 1851. It also had power to build the Victoria bridge across the St. Lawrence at Montreal, and lease the American line to Portland. By 1860, this great national highway was completed from Rivière du Loup on the lower St. Lawrence as far as Sarnia and Windsor on the western lakes. Its early history was notorious for much jobbery, and the English shareholders lost the greater part of the money which they invested in this Canadian undertaking.[13] It cost the province from first to last upwards of $16,000,000 but it was, on the whole, money expended in the interests of the country, whose internal development would have been very greatly retarded in the absence of rapid means of transit between east and west. The government also gave liberal aid to the Great Western Railway, which extended from the Niagara river to Hamilton, London and Windsor, and to the Northern road, which extended north from Toronto, both of which, many years later, became parts of the Grand Trunk system.
In accordance with its general progressive policy, the Hincks-Morin ministry passed through the legislature an act empowering municipalities in Upper Canada, after the observance of certain formalities, to borrow money for the building of railways by the issue of municipal debentures guaranteed by the provincial government. Under this law a number of municipalities borrowed large sums to assist railways and involved themselves so heavily in debt that the province was ultimately obliged to come to their assistance and assume their obligations. For years after the passage of this measure, Lower Canada received the same privileges, but the people of that province were never carried away by the enthusiasm of the west and never burdened themselves with debts which they were unable to pay. The law, however, gave a decided impulse at the outset to railway enterprise in Upper Canada, and would have been a positive public advantage had it been carried out with some degree of caution.
The government established a department of agriculture to which were given control of the taking of a decennial census, the encouragement of immigration, the collection of agricultural and other statistics, the establishment of model farms and agricultural schools, the holding of annual exhibitions and fairs, and other matters calculated to encourage the cultivation of the soil in both sections of the province. Malcolm Cameron became its first minister in connection with his nominal duties as president of the executive council—a position which he had accepted only on condition that it was accompanied by some more active connection with the administration of public affairs.
For three sessions the LaFontaine-Baldwin ministry had made vain efforts to pass a law increasing the representation of the two provinces to one hundred and thirty or sixty-five members for each section. As already stated the Union Act required that such a measure should receive a majority of two-thirds in each branch of the legislature. It would have become law on two occasions had it not been for the factious opposition of Papineau, whose one vote would have given the majority constitutionally necessary. When it was again presented in 1853 by Mr. Morin, it received the bitter opposition of Mr. Brown, who was now formulating the doctrine of representation by population which afterwards became so important a factor in provincial politics that it divided west from east, and made government practically impossible until a federal union of the British North American provinces was brought about as the only feasible solution of the serious political and sectional difficulties under which Canada was suffering. A number of prominent Conservatives, including Mr. John A. Macdonald, were also unfavourable to the measure on the ground that the population of Upper Canada, which was steadily increasing over that of Lower Canada, should be equitably considered in any readjustment of the provincial representation. The French Canadians, who had been forced to come into the union hi 1841 with the same representation as Upper Canada with its much smaller population, were now unwilling to disturb the equality originally fixed while agreeing to an increase in the number of representatives from each section. The bill, which became law in 1853, was entirely in harmony with the views entertained by Lord Elgin when he first took office as governor-general of Canada. In 1847 he gave his opinion to the colonial secretary that "the comparatively small number of members of which the popular bodies who determine the fate of provincial administrations" consisted was "unfavourable to the existence of a high order of principle and feeling among official personages." When a defection of two or three individuals from a majority of ten or so put an administration in peril, "the perpetual patchwork and trafficking to secure this vote and that (not to mention other evils) so engrosses the time and thoughts of ministers that they have not leisure for matters of greater moment" He clearly saw into the methods by which his first unstable ministry, which had its origin in Lord Metcalfe's time, was alone able to keep its feeble majority. "It must be remembered," he wrote in 1847, "that it is only of late that the popular assemblies in this part of the world have acquired the right of determining who shall govern them—of insisting, as we phrase it, that the administration of affairs shall be conducted by persons enjoying their confidence. It is not wonderful that a privilege of this kind should be exercised at first with some degree of recklessness, and that while no great principles of policy are at stake, methods of a more questionable character for winning and retaining the confidence of these arbiters of destiny should be resorted to."
While the Hincks government was in office, the Canadian legislature received power from the imperial authorities—as I shall show later—to settle the question of the clergy reserves on condition that protection should be given to those members of the clergy who had been beneficiaries under the Constitutional Act of 1791. A measure was passed for the settlement of the seigniorial tenure question on an equitable basis, but it was defeated in the legislative council by a large majority amongst which we see the names of several seigneurs directly interested in the measure. It was not fully discussed in that chamber on the ground that members from Upper Canada had not had a sufficient opportunity of studying the details of the proposed settlement and of coming to a just conclusion as to its merits. The action of the council under these circumstances was severely criticized, and gave a stimulus to the movement that had been steadily going on for years among radical reformers of both provinces in favour of an elective body.
The result was that in 1854 the British parliament repealed the clauses of the Union Act of 1840 with respect to the upper House, and gave full power to the Canadian legislature to make such changes as it might deem expedient—another concession to the principle of local self-government. It was not, however, until 1856, that the legislature passed a bill giving effect to the intentions of the imperial law, and the first elections were held for the council. Lord Elgin was always favourable to this constitutional change. "The position of the second chamber of our body politic"—I quote from a despatch of March, 1853—"is at present wholly unsatisfactory. The principle of election must be introduced in order to give to it the influence which it ought to possess, and that principle must be so applied as to admit of the working of parliamentary government (which I for one am certainly not prepared to abandon for the American system) with two elective chambers… When our two legislative bodies shall have been placed on this improved footing, a greater stability will have been imparted to our constitution, and a greater strength." Lord Elgin's view was adopted and the change was made.
It is interesting to note that so distinguished a statesman as Lord Derby, who had been colonial secretary in a previous administration, had only gloomy forebodings of the effects of this elective system applied to the upper House. He believed that the dream that he had of seeing the colonies form eventually "a monarchical government, presided over by one nearly and closely allied to the present royal family," would be proved quite illusory by the legislation in question. "Nothing," he added, "like a free and regulated monarchy could exist for a single moment under such a constitution as that which is now proposed for Canada. From the moment that you pass this constitution, the progress must be rapidly towards republicanism, if anything could be more really republican than this bill." As a matter of fact a very few years later than the utterance of these gloomy words, Canada and the other provinces of British North America entered into a confederation "with a constitution similar in principle to that of the United Kingdom"—to quote words in the preamble of the Act of Union—and with a parliament of which the House of Commons is alone elective. More than that, Lord Derby's dream has been in a measure realized and Canada has seen at the head of her executive a governor-general—the present Duke of Argyle—"nearly and closely allied to the present royal family" of England, by his marriage to the Princess Louise, the fourth daughter of Queen Victoria, who accompanied her husband to Ottawa.
One remarkable feature of the Imperial Act dealing with this question of the council, was the introduction of a clause which gave authority to a mere majority of the members of the two Houses of the legislature to increase the representation, and consequently removed that safeguard to French Canada which required a two-thirds vote in each branch. As the legislature had never passed an address or otherwise expressed itself in favour of such an amendment of the Union Act, there was always a mystery as to the way it was brought about. Georges Étienne Cartier always declared that Papineau was indirectly responsible for this imperial legislation. As already stated, the leader of the Rouges had voted against the bill increasing the representation, and had declaimed like others against the injustice which the clause in the Union Act had originally done to French Canada. "This fact," said Cartier, "was known in England, and when leave was given to elect legislative councillors, the amendment complained of was made at the same time. It may be said then, that if Papineau had not systematically opposed the increase of representation, the change in question would have never been thought of in England." Hincks, however, was attacked by the French Canadian historian, Garneau, for having suggested the amendment while in England in 1854. This, however, he denied most emphatically in a pamphlet which he wrote at a later time when he was no longer in public life. He placed the responsibility on John Boulton, who called himself an independent Liberal and who was in England at the same time as Hincks, and probably got the ear of the colonial secretary or one of his subordinates in the colonial office, and induced him to introduce the amendment which passed without notice in a House where very little attention was given, as a rule, to purely colonial questions.
In 1853 Lord Elgin visited England, where he received unqualified praise for his able administration of Canadian affairs. It was on this occasion that Mr. Buchanan, then minister of the United States in London, and afterwards a president of the Republic, paid this tribute to the governor-general at a public dinner given in his honour.
"Lord Elgin," he said, "has solved one of the most difficult problems of statesmanship. He has been able, successfully and satisfactorily, to administer, amidst many difficulties, a colonial government over a free people. This is an easy task where the commands of a despot are law to his obedient servants, but not so in a colony where the people feel that they possess the rights and privileges of native-born Britons. Under his enlightened government, Her Majesty's North American provinces have realized the blessings of a wise, prudent and prosperous administration, and we of the neighbouring nation, though jealous of our rights, have reason to be abundantly satisfied with his just and friendly conduct towards ourselves. He has known how to reconcile his devotion to Her Majesty's service with a proper regard to the rights and interests of a kindred and neighbouring people. Would to heaven we had such governors-general in all the European colonies in the vicinity of the United States!"
On his return from England Lord Elgin made a visit to Washington and succeeded in negotiating the reciprocity treaty which he had always at heart. It was not, however, until a change of government occurred in Canada, that the legislature was able to give its ratification to this important measure. This subject is of such importance that it will be fully considered in a separate chapter on the relations between Canada and the United States during Lord Elgin's term of office.
In 1854 the Roman Catholic inhabitants of Quebec and Montreal were deeply excited by the lectures of a former monk, Father Gavazzi, who had become a Protestant and professed to expose the errors of the faith to which he once belonged. Much rioting took place in both cities, and blood was shed in Montreal, where the troops, which had been called out, suddenly fired on the mob. Mr. Wilson, the mayor, who was a Roman Catholic, was accused of having given the order to fire, but he always denied the charge, and Hincks, in his "Reminiscences," expresses his conviction that he was not responsible. He was persuaded that "the firing was quite accidental, one man having discharged his piece from misapprehension, and others having followed his example until the officers threw themselves in front, and struck up the firelocks." Be this as it may, the Clear Grits in the West promptly made use of this incident to attack the government on the ground that it had failed to make a full investigation into the circumstances of the riot. As a matter of fact, according to Hincks, the government did take immediate steps to call the attention of the military commandant to the matter, and the result was a court of inquiry which ended in the removal of the regiment—then only a few days in Canada—to Bermuda for having shown "a want of discipline." Brown inveighed very bitterly against Hincks and his colleagues, as subject to Roman Catholic domination in French Canada, and found this unfortunate affair extremely useful in his systematic efforts to destroy the government, to which at no time had he been at all favourable.
Several changes took place during 1853 in the personnel of the ministry, which met parliament on June 13th, with the following members holding portfolios:
Hon. Messrs. Hincks, premier and inspector-general; John Ross, formerly solicitor-general west in place of Richards, elevated to the bench, attorney-general for Upper Canada; James Morris, president of the legislative council, in place of Mr. Caron, now a judge; John Rolph, president of the executive council; Malcolm Cameron, postmaster-general; A.N. Morin, commissioner of crown lands; L.P. Drummond, attorney-general for Lower Canada; Mr. Chauveau, formerly solicitor east, provincial secretary; J. Chabot, commissioner of public works in place of John Young, resigned on account of differences on commercial questions; and E.P. Taché, receiver-general. Dunbar Ross became solicitor-general east, and Joseph C. Morrison, solicitor-general west.
The government had decided to have a short session, pass a few necessary measures and then appeal to the country. The secularization of the reserves, and the question of the seigniorial tenure were not to be taken up until the people had given an expression of opinion as to the ministerial policy generally. As soon as the legislature met, Cauchon, already prominent in public life, proposed an amendment to the address, expressing regret that the government had no intention "to submit immediately a measure to settle the question of the seigniorial tenure." Then Sicotte, who had not long before declined to enter the ministry, moved to add the words "and one for the secularization of the clergy reserves." These two amendments were carried by a majority of thirteen in a total division of seventy-one votes. While the French Liberals continued to support Morin, all the Upper Canadian opponents of the government, Conservatives and Clear Grits, united with a number of Hincks's former supporters and Rouges in Lower Canada to bring about this ministerial defeat. The government accordingly was obliged either to resign or ask the governor-general for a dissolution. It concluded to adhere to its original determination, and go at once to the country. The governor-general consented to prorogue the legislature with a view to an immediate appeal to the electors. When the Usher of the Black Rod appeared at the door of the assembly chamber, to ask the attendance of the Commons in the legislative council, a scene of great excitement occurred. William Lyon Mackenzie made one of his vituperative attacks on the government, and was followed by John A. Macdonald, who declared its course to be most unconstitutional. When at last the messenger from the governor-general was admitted by order of the speaker, the House proceeded to the council chamber, where members were electrified by another extraordinary incident. The speaker of the assembly was John Sandfield Macdonald, an able Scotch Canadian, in whose character there was a spirit of vindictiveness, which always asserted itself when he received a positive or fancied injury. He had been a solicitor-general of Upper Canada in the LaFontaine-Baldwin government, and had never forgiven Hincks for not having promoted him to the attorney-generalship, instead of W.B. Richards, afterwards an eminent judge of the old province of Canada, and first chief justice of the Supreme Court of the Dominion. Hincks had offered him the commissionership of crown lands in the ministry, but he refused to accept any office except the one on which his ambition was fixed. Subsequently, however, he was induced by his friends to take the speakership of the legislative assembly, but he had never forgiven what he considered a slight at the hands of the prime minister in 1851. Accordingly, when he appeared at the Bar of the Council in 1853, he made an attempt to pay off this old score. As soon as he had made his bow to the governor-general seated on the throne, Macdonald proceeded to read the following speech, which had been carefully prepared for the occasion in the two languages:
"May it please your Excellency: It has been the immemorial custom of the speaker of the Commons' House of Parliament to communicate to the throne the general result of the deliberations of the assembly upon the principal objects which have employed the attention of parliament during the period of their labours. It is not now part of my duty thus to address your Excellency, inasmuch as there has been no act passed or judgment of parliament obtained since we were honoured by your Excellency's announcement of the cause of summoning of parliament by your gracious speech from the throne. The passing of an act through its several stages, according to the law and custom of parliament (solemnly declared applicable to the parliamentary proceedings of this province, by a decision of the legislative assembly of 1841), is held to be necessary to constitute a session of parliament. This we have been unable to accomplish, owing to the command which your Excellency has laid upon us to meet you this day for the purpose of prorogation. At the same time I feel called upon to assure your Excellency, on the part of Her Majesty's faithful Commons, that it is not from any want of respect to yourself, or to the August personage whom you represent in these provinces, that no answer has been returned by the legislative assembly to your gracious speech from the throne."
It is said by those who were present on this interesting occasion that His Excellency was the most astonished person in the council chamber. Mr. Fennings Taylor, the deputy clerk with a seat at the table, tells us in a sketch of Macdonald that Lord Elgin's face clearly marked "deep displeasure and annoyance when listening to the speaker's address," and that he gave "a motion of angry impatience when he found himself obliged to listen to the repetition in French of the reproof which had evidently galled him in English." This incident was in some respects without parallel in Canadian parliamentary history. There was a practice, now obsolete in Canada as in England, for the speaker, on presenting the supply or appropriation bill to the governor-general for the royal assent, to deliver a short address directing attention to the principal measures passed during the session about to be closed.[14] This practice grew up in days when there were no responsible ministers who would be the only constitutional channel of communication between the Crown and the assembly. The speaker was privileged, and could be instructed as "the mouth-piece" of the House, to lay before the representative of the Sovereign an expression of opinion on urgent questions of the day. On this occasion Mr. Macdonald was influenced entirely by personal spite, and made an unwarrantable use of an old custom which was never intended, and could not be constitutionally used, to insult the representative of the Crown, even by inference. Mr. Macdonald was not even correct in his interpretation of the constitution, when he positively declared that an act was necessary to constitute a session. The Crown makes a session by summoning and opening parliament, and it is always a royal prerogative to prorogue or dissolve it at its pleasure even before a single act has passed the two Houses. Such a scene could never have occurred with the better understanding of the duties of the speaker and of the responsibilities of ministers advising the Crown that has grown up under a more thorough study of the practice and usages of parliament, and of the principles of responsible government. This little political episode is now chiefly interesting as giving an insight into one phase of the character of a public man, who afterwards won a high position in the parliamentary and political life of Canada before and after the confederation of 1867, not by the display of a high order of statesmanship, but by the exercise of his tenacity of purpose, and by reason of his reputation for a spiteful disposition which made him feared by friend and foe.
Immediately after the prorogation, parliament was dissolved and the Hincks-Morin ministry presented itself to the people, who were now called upon to elect a larger number of representatives under the act passed in 1853. Of the constitutionality of the course pursued by the government in this political crisis, there can now be no doubt. In the first place it was fully entitled to demand a public judgment on its general policy, especially in view of the fact, within the knowledge of all persons, that the opposition in the assembly was composed of discordant elements, only temporarily brought together by the hope of breaking up the government. In the next place it felt that it could not be justified by sound constitutional usage in asking a parliament in which the people were now imperfectly represented, to settle definitely such important questions as the clergy reserves and the seigniorial tenure. Lord Elgin had himself no doubt of the necessity for obtaining a clear verdict from the people by means of "the more perfect system of representation" provided by law. In the debate on the Representation Bill in 1853, John A. Macdonald did not hesitate to state emphatically that the House should be governed by English precedents in the position in which it would soon be placed by the passage of this measure. "Look," he said, "at the Reform Bill in England. That was passed by a parliament that had been elected only one year before, and the moment it was passed, Lord John Russell affirmed that the House could not continue after it had declared that the country was not properly represented. How can we legislate on the clergy reserves until another House is elected, if this bill passes? A great question like this cannot be left to be decided by a mere accidental majority. We can legislate upon no great question after we have ourselves declared that we do not represent the country. Do these gentlemen opposite mean to say that they will legislate on a question affecting the rights of people yet unborn, with the fag-end of a parliament dishonoured by its own confessions of incapacity?" Hincks in his "Reminiscences," printed more than three decades later than this ministerial crisis, still adhered to the opinion that the government was fully justified by established precedent in appealing to the country before disposing summarily of the important questions then agitating the people. Both Lord Elgin and Sir John A. Macdonald—to give the latter the title he afterwards received from the Crown—assuredly set forth the correct constitutional practice under the peculiar circumstances in which both government and legislature were placed by the legislation increasing the representation of the people.
The elections took place in July and August of 1854, for in those times there was no system of simultaneous polling on one day, but elections were held on such days and as long as the necessities of party demanded.[15] The result was, on the whole, adverse to the government. While it still retained a majority in French Canada, its opponents returned in greater strength, and Morin himself was defeated in Terrebonne, though happily for the interests of his party he was elected by acclamation at the same time in Chicoutimi. In Upper Canada the ministry did not obtain half the vote of the sixty-five representatives now elected to the legislature by that province. This vote was distributed as follows: Ministerial, 30; Conservatives, 22; Clear Grits, 7; and Independents, 6. Malcolm Cameron was beaten in Lambton, but Hincks was elected by two constituencies. One auspicious result of this election was the disappearance of Papineau from public life. He retired to his pretty chateau on the banks of the Ottawa, and the world soon forgot the man who had once been so prominent a figure in Canadian politics. His graces of manner and conversation continued for years to charm his friends in that placid evening of his life so very different from those stormy days when his eloquence was a menace to British institutions and British connection. Before his death, he saw Lower Canada elevated to an independent and influential position in the confederation of British North America which it could never have reached as that Nation Canadienne which he had once vainly hoped to see established in the valley of the St. Lawrence.
The Rouges, of whom Papineau had been leader, came back in good form and numbered nineteen members. Antoine A. Dorion, Holton, and other able men in the ranks of this once republican party, had become wise and adopted opinions which no longer offended the national and religious susceptibilities of their race, although they continued to show for years their radical tendencies which prevented them from ever obtaining a firm hold of public opinion in a practically Conservative province, and becoming dominant in the public councils for any length of time.
The fifth parliament of the province of Canada was opened by Lord Elgin on February 5th, 1854, and the ministry was defeated immediately on the vote for the speakership, to which Mr. Sicotte—a dignified cultured man, at a later time a judge—was elected. On this occasion Hincks resorted to a piece of strategy which enabled him to punish John Sandfield Macdonald for the insult he had levelled at the governor-general and his advisers at the close of the previous parliament. The government's candidate was Georges Étienne Cartier, who was first elected in 1849 and who had already become conspicuous in the politics of his province. Sicotte was the choice of the Opposition in Lower Canada, and while there was no belief among the politicians that he could be elected, there was an understanding among the Conservatives and Clear Grits that an effort should be made in his behalf, and in case of its failure, then the whole strength of the opponents of the ministry should be so directed as to ensure the election of Mr. Macdonald, who was sure to get a good Reform vote from the Upper Canadian representatives. These names were duly proposed in order, and Cartier was defeated by a large majority. When the clerk at the table had called for a vote for Sicotte, the number who stood up in his favour was quite insignificant, but before the Nays were taken, Hincks arose quickly and asked that his name be recorded with the Yeas. All the ministerialists followed the prime minister and voted for Sicotte, who was consequently chosen speaker by a majority of thirty-five. But all that Hincks gained by such clever tactics was the humiliation for the moment of an irascible Scotch Canadian politician. The vote itself had no political significance whatever, and the government was forced to resign on September 8th. The vote in favour of Cartier had shown that the ministry was in a minority of twelve in Upper Canada, and if Hincks had any doubt of his political weakness it was at once dispelled on September 7th when the House refused to grant to the government a short delay of twenty-four hours for the purpose of considering a question of privilege which had been raised by the Opposition. On this occasion, Dr. Rolph, who had been quite restless in the government for some tune, voted against his colleagues and gave conclusive evidence that Hincks was deserted by the majority of the Reform party in his own province, and could no longer bring that support to the French Canadian ministerialists which would enable them to administer public affairs.
The resignation of the Hincks-Morin ministry begins a new epoch in the political annals of Canada. From that time dates the disruption of the old Liberal party which had governed the country so successfully since 1848, and the formation of a powerful combination which was made up of the moderate elements of that party and of the Conservatives, which afterwards became known as the Liberal-Conservative party. This new party practically controlled public affairs for over three decades until the death of Sir John A. Macdonald, to whose inspiration it largely owed its birth. With that remarkable capacity for adapting himself to political conditions, which was one of the secrets of his strength as a party leader, he saw in 1854 that the time had come for forming an alliance with those moderate Liberals in the two provinces who, it was quite clear, had no possible affinity with the Clear Grits, who were not only small in numbers, but especially obnoxious to the French Canadians, as a people on account of the intemperate attacks made by Mr. Brown in the Toronto Globe on their revered institutions.
The representatives who supported the late ministry were still in larger numbers than any other party or faction in the House, and it was obvious that no government could exist without their support. Sir Allan MacNab, who was the oldest parliamentarian, and the leader of the Conservatives—a small but compact party—was then invited by the governor-general to assist him by his advice, during a crisis when it was evident to the veriest political tyro that the state of parties in the assembly rendered it very difficult to form a stable government unless a man could be found ready to lay aside all old feelings of personal and political rivalry and prejudice and unite all factions on a common platform for the public advantage. All the political conditions, happily, were favourable for a combination on a basis of conciliation and compromise. The old Liberals in French Canada under the influence of LaFontaine and Morin had been steadily inclining to Conservatism with the secure establishment of responsible government and the growth of the conviction that the integrity of the cherished institutions of their ancient province could be best assured by moving slowly (festina lente), and not by constant efforts to make radical changes in the body politic. The Liberals, of whom Hincks was leader, were also very distrustful of Brown, and clearly saw that he could have no strength whatever in a province where French Canada must have a guarantee that its language, religion, and civil law, were safe in the hands of any government that might at any time be formed. The wisest men among the Conservatives also felt that the time had arrived for adopting a new policy since the old questions which had once evoked their opposition had been at last settled by the voice of the people, and could no longer constitutionally or wisely be made matters of continued agitation in or out of parliament. "The question that arose in the minds of the old Liberals," as it was said many years later by Thomas White, an able journalist and politician,[16]
"was this: shall we hand over the government of this country to the men who, calling themselves Liberals, have broken up the Liberal party by the declaration of extravagant views, by the enunciation of principles far more radical and reckless than any we are prepared to accept, and by a restless ambition which we cannot approve? Or shall we not rather unite with the Conservatives who have gone to the country declaring, in reference to the great questions which then agitated it, that if the decision at the polls was against them, they would no longer offer resistance to their settlement, but would, on the contrary, assist in such solution of them as would forever remove them from the sphere of public or political agitation."
With both Liberals and Conservatives holding such views, it was easy enough for John A. Macdonald to convince even Sir Allan MacNab that the time had come for forgetting the past as much as possible, and constituting a strong government from the moderate elements of the old parties which had served their turn and now required to be remodelled on a wider basis of common interests. Sir Allan MacNab recognized the necessity of bringing his own views into harmony with those of the younger men of his party who were determined not to allow such an opportunity for forming a powerful ministry to pass by. The political situation, indeed, was one calculated to appeal to both the vanity and self-interest of the veteran statesman, and he accordingly assumed the responsibility of forming an administration. He communicated immediately with Morin and his colleagues in Lower Canada, and when he received a favourable reply from them, his next step was to make arrangements, if possible, with the Liberals of Upper Canada. Hincks was only too happy to have an opportunity of resenting the opposition he had met with from Brown and the extreme Reformers of the western province, and opened negotiations with his old supporters on the conditions that the new ministry would take immediate steps for the secularization of the clergy reserves, and the settlement of the seigniorial tenure, and that two members of the administration would be taken from his own followers. The negotiations were successfully closed on this basis of agreement, and on September 11th the following ministers were duly sworn into office:
Upper Canada.—Hon. Sir Allan MacNab, president of the executive council and minister of agriculture; Hon. John A. Macdonald, attorney-general of Upper Canada; Hon. W. Cayley, inspector-general; Hon. R. Spence, postmaster-general; Hon. John Ross, president of the legislative council.
Lower Canada.—Hon. A.N. Morin, commissioner of crown lands; Hon. L.P. Drummond, attorney-general for Lower Canada; Hon. P.J.O. Chauveau, provincial secretary; Hon. E.P. Taché, receiver-general; Hon. J. Chabot, commissioner of public works.
The new cabinet contained four Conservatives, and six members of the old ministry. Henry Smith, a Conservative, became solicitor-general for Upper Canada, and Dunbar Ross continued in the same office for Lower Canada, but neither of them had seats in the cabinet. The Liberal-Conservative party, organized under such circumstances was attacked with great bitterness by the leaders of the discordant factions, who were greatly disappointed at the success of the combination formed through the skilful management of Messrs. J.A. Macdonald, Hineks and Morin.
The coalition was described as "an unholy alliance" of men who had entirely abandoned their principles. But an impartial historian must record the opinion that the coalition was perfectly justified by existing political conditions, that had it not taken place, a stable government would in all probability have been for some time impossible, and that the time had come for the reconstruction of parties with a broad generous policy which would ignore issues at last dead, and be more in harmony with modern requirements. It might with some reason be called a coalition when the reconstruction of parties was going on, but it was really a successful movement for the annihilation of old parties and issues, and for the formation on their ruins of a new party which could gather to itself the best materials available for the effective conduct of public affairs on the patriotic platform of the union of the two races, of equal rights to all classes and creeds, and of the avoidance of purely sectional questions calculated to disturb the union of 1841.
The new government at once obtained the support of a large majority of the representatives from each section of the province, and was sustained by the public opinion of the country at large. During the session of 1854 measures were passed for the secularization of the reserves, the removal of the seigniorial tenure, and for the ratification of the reciprocity treaty with the United States. As I have only been able so far in this historical narrative to refer in a very cursory manner to these very important questions, I propose now to give in the following chapter a succinct review of their history from the time they first came into prominence down to their settlement at the close of Lord Elgin's administration in Canada.
CHAPTER VII
THE HISTORY OF THE CLERGY RESERVES, (1791-1854)
For a long period in the history of Canada the development of several provinces was more or less seriously retarded, and the politics of the country constantly complicated by the existence of troublesome questions arising out of the lavish grants of public lands by the French and English governments. The territorial domain of French Canada was distributed by the king of France, under the inspiration of Richelieu, with great generosity, on a system of a modified feudal tenure, which, it was hoped, would strengthen the connection between the Crown and the dependency by the creation of a colonial aristocracy, and at the same time stimulate the colonization and settlement of the valley of the St. Lawrence; but, as we shall see in the course of the following chapter, despite the wise intentions of its promoters, the seigniorial tenure gradually became, after the conquest, more or less burdensome to the habitants, and an impediment rather than an incentive to the agricultural development and peopling of the province. Even little Prince Edward Island was troubled with a land question as early as 1767, when it was still known by the name St. John, given it in the days of French rule. Sixty-seven townships, containing in the aggregate 1,360,600 English acres, were conveyed in one day by ballot, with a few reservations to the Crown, to a number of military men, officials and others, who had real or supposed claims on the British government. In this wholesale fashion the island was burdened with a land monopoly which was not wholly removed until after the union with the Canadian Dominion in 1873. Though some disputes arose in Nova Scotia and New Brunswick between the old and new settlers with respect to the ownership of lands after the coming of the Loyalists, who received, as elsewhere, liberal grants of land, they were soon settled, and consequently these maritime provinces were not for any length of time embarrassed by the existence of such questions as became important issues in the politics of Canada. Extravagant grants were also given to the United Empire Loyalists who settled on the banks of the St. Lawrence and Niagara rivers in Upper Canada, as some compensation for the great sacrifices they had made for the Crown during the American revolution. Large tracts of this property were sold either by the Loyalists or their heirs, and passed into the hands of speculators at very insignificant prices. Lord Durham in his report cites authority to show that not "one-tenth of the lands granted to United Empire Loyalists had been occupied by the persons to whom they were granted, and in a great proportion of cases not occupied at all." The companies which were also in the course of time organized in Great Britain for the purchase and sale of lands in Canada, also received extraordinary favours from the government. Although the Canada Company, which is still in existence, was an important agency in the settlement of the province of Upper Canada, its possession of immense tracts—some of them, the Huron Block, for instance, locked up for years—was for a time a great public grievance.
But all these land questions sank into utter insignificance compared with the dispute which arose out of the thirty-sixth clause of the Constitutional Act of 1791, which provided that there should be reserved for the maintenance and support of a "Protestant clergy," in the provinces of Upper and Lower Canada, "a quantity of land equal in value to a seventh part of grants that had been made in the past, or might be made in the future." Subsequent clauses of the same act made provision for the erection and endowment of one or more rectories in every township or parish, "according to the establishment of the Church of England," and at the same time gave power to the legislature of the two provinces "to vary or repeal" these enactments of the law with the important reservation that all bills of such a character could not receive the royal assent until thirty days after they had been laid before both Houses of the imperial parliament. Whenever it was practicable, the lands were reserved under the act among those already granted to settlers with the intention of creating parishes as soon as possible in every settled township throughout the province. However, it was not always possible to carry out this plan, in consequence of whole townships having been granted en bloc to the Loyalists in certain districts, especially in those of the Bay of Quinté, Kingston and Niagara, and it was therefore necessary to carry out the intention of the law in adjoining townships where no lands of any extent had been granted to settlers.
The Church of England, at a very early period, claimed, as the only "Protestant clergy" recognized by English law, the exclusive use of the lands in question, and Bishop Mountain, who became in 1793 Anglican bishop of Quebec, with a jurisdiction extending over all Canada, took the first steps to sustain this assertion of exclusive right. Leases were given to applicants by a clerical corporation established by the Anglican Church for the express purpose of administering the reserves. For some years the Anglican claim passed without special notice, and it is not until 1817 that we see the germ of the dispute which afterwards so seriously agitated Upper Canada. It was proposed in the assembly to sell half the lands and devote the proceeds to secular purposes, but the sudden prorogation of the legislature by Lieutenant-Governor Gore, prevented any definite action on the resolutions, although the debate that arose on the subject had the effect of showing the existence of a marked public grievance. The feeling at this time in the country was shown in answers given to circulars sent out by Robert Gourlay, an energetic Scottish busy-body, to a number of townships, asking an expression of opinion as to the causes which retarded improvement and the best means of developing the resources of the province. The answer from Sandwich emphatically set forth that the reasons of the existing depression were the reserves of land for the Crown and clergy, "which must for long keep the country a wilderness, a harbour for wolves, and a hindrance to compact and good neighbourhood; defects in the system of colonization; too great a quantity of land in the hands of individuals who do not reside in the province, and are not assessed for their property." The select committee of the House of Commons on the civil government of Canada reported in 1828 that "these reserved lands, as they are at present distributed over the country, retard more than any other circumstance the improvement of the colony, lying as they do in detached portions of each township and intervening between the occupations of actual settlers, who have no means of cutting roads through the woods and morasses which thus separate them from their neighbours." It appears, too, that the quantity of land actually reserved was in excess of that which appears to have been contemplated by the Constitutional Act. "A quantity equal to one-seventh of all grants," wrote Lord Durham in his report of 1839, "would be one-eighth of each township, or of all the public land. Instead of this proportion, the practice has been ever since the act passed, and in the clearest violation of its provisions, to set apart for the clergy in Upper Canada, a seventh of all the land, which is a quantity equal to a sixth of the land granted…. In Lower Canada the same violation of the law has taken place, with this difference—that upon every sale of Crown and clergy reserves, a fresh reserve for the clergy has been made, equal to a fifth of such reserves." In that way the public in both provinces was systematically robbed of a large quantity of land, which, Lord Durham estimated, was worth about £280,000 at the time he wrote. He acknowledges, however, that the clergy had no part in "this great misappropriation of the public property," but that it had arisen "entirely from heedless misconception, or some other error of the civil government of the province." All this, however, goes to show the maladministration of the public lands, and is one of the many reasons the people of the Canadas had for considering these reserves a public grievance.
When political parties were organized in Upper Canada some years after the war of 1812-14, which had for a while united all classes and creeds for the common defence, we see on one side a Tory compact for the maintenance of the old condition of things, the control of patronage, and the protection of the interests of the Church of England; on the other, a combination of Reformers, chiefly composed of Methodists, Presbyterians, and Baptists, who clamoured for reforms in government and above all for relief from the dominance of the Anglican Church, which, with respect to the clergy reserves and other matters, was seeking a quasi recognition as a state church. As the Puritans of New England at the commencement of the American Revolution inveighed against any attempt to establish an Anglican episcopate in the country as an insidious attack by the monarchy on their civil and religious liberty—most unjustly, as any impartial historian must now admit[17]—so in Upper Canada the dissenters made it one of their strongest grievances that favouritism was shown to the Anglican Church in the distribution of the public lands and the public patronage, to the detriment of all other religious bodies in the province. The bitterness that was evoked on this question had much to do with bringing about the rebellion of 1837. If the whole question could have been removed from the arena of political discussion, the Reformers would have been deprived of one of their most potent agencies to create a feeling against the "family compact" and the government at Toronto. But Bishop Strachan, who was a member of both the executive and legislative councils—in other words, the most influential member of the "family compact"—could not agree to any compromise which would conciliate the aggrieved dissenters and at the same time preserve a large part of the claim made by the Church of England. Such a compromise in the opinion of this sturdy, obstinate ecclesiastic, would be nothing else than a sop to his Satanic majesty. It was always with him a battle à l'outrance, and as we shall soon see, in the end he suffered the bitterness of defeat.
In these later days when we can review the whole question without any of the prejudice and passion which embittered the controversy while it was a burning issue, we can see that the Church of England had strong historical and legal arguments to justify its claim to the exclusive use of the clergy reserves. When the Constitutional Act of 1791 was passed, the only Protestant clergy recognized in British statutes were those of the Church of England, and, as we shall see later, those of the established Church of Scotland. The dissenting denominations had no more a legal status in the constitutional system of England than the Roman Catholics, and indeed it was very much the same thing in some respects in the provinces of Canada. So late as 1824 the legislative council, largely composed of Anglicans, rejected a bill allowing Methodist ministers to solemnize marriages, and it was not until 1831 that recognized ministers of all denominations were placed on an equality with the Anglican clergy in such matters. The employment of the words "Protestant Clergy" in the act, it was urged with force, was simply to distinguish the Church of England clergy from those of the Church of Rome, who, otherwise, would be legally entitled to participate in the grant.
The loyalists, who founded the province of Upper Canada, established formally by the Constitutional Act of 1791, were largely composed of adherents of the Church of England, and it was one of the dearest objects of Lieutenant-Governor Simcoe to place that body on a stable basis and give it all the influence possible in the state. A considerable number had also settled in Lower Canada, and received, as in other parts of British North America, the sympathy and aid of the parent state. It was the object of the British government to make the constitution of the Canadas "an image and transcript" as far as possible of the British system of government. In no better way could this be done, in the opinion of the framers of the Constitutional Act, than by creating a titled legislative council;[18] and though this effort came to naught, it is noteworthy as showing the tendency at that time of imperial legislation. If such a council could be established, then it was all important that there should be a religious body, supported by the state, to surround the political institutions of the country with the safeguards which a conservative and aristocratic church like that of England would give. The erection and endowment of rectories "according to the establishment of the Church of England"—words of the act to be construed in connection with the previous clauses—was obviously a part of the original scheme of 1791 to anglicize Upper Canada and make it as far as possible a reflex of Anglican England.
It does not appear that at any time there was any such feeling of dissatisfaction with respect to the reserves in French Canada as existed throughout Upper Canada, The Protestant clergy in the former province were relatively few in number, and the Roman Catholic Church, which dominated the whole country, was quite content with its own large endowments received from the bounty of the king or private individuals during the days of French occupation, and did not care to meddle in a question which in no sense affected it. On the other hand, in Upper Canada, the arguments used by the Anglican clergy in support of their claims to the exclusive administration of the reserves were constantly answered not only in the legislative bodies, but in the Liberal papers, and by appeals to the imperial government. It was contended that the phrase "Protestant clergy" used in the Constitutional Act, was simply intended to distinguish all Protestant denominations from the Roman Catholic Church, and that, had there been any intention to give exclusive rights to the Anglican Church, it would have been expressly so stated in the section reserving the lands, just as had been done in the sections specially providing for the erection and endowment of Anglican rectories.
The first successful blow against the claims of the English Church in Canada was struck by that branch of the Presbyterian Church known in law as the Established Church of Scotland. It obtained an opinion from the British law officers in 1819, entirely favourable to its own participation in the reserves on the ground that it had been fully recognized as a state church, not only in the act uniting the two kingdoms of England and Scotland, but in several British statutes passed later than the Constitutional Act whose doubtful phraseology had originated the whole controversy. While the law officers admitted that the provisions of this act might be "extended also to the Church of Scotland, if there are any such settled in Canada (as appears to have been admitted in the debate upon the passing of the act)," yet they expressed the opinion that the clauses in question did not apply to dissenting ministers, since they thought that "the term 'Protestant clergy' could apply only to Protestant clergy recognized and established by law." We shall see a little farther on the truth of the old adage that "lawyers will differ" and that in 1840, twenty-one years later than the expression of the opinion just cited, eminent British jurists appeared to be more favourable to the claims of denominations other than the Church of Scotland.
Until 1836—the year preceding the rebellion—the excitement with respect to the reserves had been intensified by the action of Sir John Colborne, lieutenant-governor of Upper Canada, who, on the eve of his departure for England, was induced by Bishop Strachan to sign patents creating and endowing forty-four rectories[19] in Upper Canada, representing more than 17,000 acres of land in the aggregate or about 486 for each of them. One can say advisedly that this action was most indiscreet at a time when a wise administrator would have attempted to allay rather than stimulate public irritation on so serious a question. Until this time, says Lord Durham, the Anglican clergy had no exclusive privileges, save such as might spring from their efficient discharge of their sacred duties, or from the energy, ability or influence of members of their body—notably Bishop Strachan, who practically controlled the government in religious and even secular matters. But, continued Lord Durham, the last public act of Sir John Colborne made it quite understood that every rector possessed "all the spiritual and other privileges enjoyed by an English rector," and that though he might "have no right to levy tithes" (for even this had been made a question), he was "in all other respects precisely in the same position as a clergyman of the established church in England." "This is regarded," added Lord Durham, "by all other teachers of religion in this country as having at once degraded them to a position of legal inferiority to the clergy of the Church of England; and it has been most warmly resented. In the opinion of many persons, this was the chief predisposing cause of the recent insurrection, and it is an abiding and unabated cause for discontent."
As soon as Sir John Colborne's action was known throughout the province, public indignation among the opponents of the clergy reserves and the Church of England took the forms of public meetings to denounce the issue of the patents, and of memorials to the imperial government calling into question their legality and praying for their immediate annulment. An opinion was obtained from the law officers of the Crown that the action taken by Sir John Colborne was "not valid and lawful," but it was given on a mere ex parte statement of the case prepared by the opponents of the rectories; and the same eminent lawyers subsequently expressed themselves favourably as to the legality of the patents when they were asked to reconsider the whole question, which was set forth in a very elaborate report prepared under the direction of Bishop Strachan. It is convenient to mention here that this phase of the clergy reserve question again came before able English counsel at the Equity Bar, when Hincks visited London in 1852. After they had given an opinion unfavourable to the Colborne patents on the case as submitted to them by the Canadian prime minister, it was deemed expedient to submit the whole legal question to the Court of Chancery in Upper Canada, which decided unanimously, after a full hearing of the case, that the patents were valid. But this decision was not given until 1856, when the whole matter of the reserves had been finally adjusted, and the validity of the creation of the rectories was no longer a burning question in Upper Canada.
When Poulett Thomson came to Canada in the autumn of 1839 as governor-general, he recognized the necessity of bringing about an immediate settlement of this very vexatious question, and of preventing its being made a matter of agitation after the union of the two provinces. The imperial authorities had already disallowed an act passed by the legislature of Upper Canada of 1838 to reinvest the clergy reserves in the Crown, and it became necessary for Lord Sydenham—to give the governor-general's later title—to propose a settlement in the shape of a compromise between the various Protestant bodies interested in the reserves. Lord Sydenham was opposed to the application of these lands to general education as proposed in several bills which had passed the assembly, but had been rejected by the legislative council owing to the dominant influence of Bishop Strachan. "To such a measure," says Lord Sydenham's biographer,[20] "he was opposed; first because it would have taken away the only fund exclusively devoted to purposes of religion, and secondly, because, even if carried in the provincial legislature, it would evidently not have obtained the sanction of the imperial parliament. He therefore entered into personal communication with the leading individuals among the principal religious communities, and after many interviews, succeeded in obtaining their support to a measure for the distribution of the reserves among the religious communities recognized by law, in proportion to their respective numbers."
Lord Sydenham's efforts to obtain the consent "of leading individuals among the principal religious communities" did not succeed in preventing a strong opposition to the measure after it had passed through the legislature. Dr. Ryerson, a power among the Methodists, denounced it, after he had at the outset shown an inclination to support it, and the Bishop of Toronto was also among its most determined opponents. Lord Sydenham's well-meaning attempt to settle the question was thwarted at the very outset by the reference of the bill to English judges, who reported adversely on the ground that the power "to vary or repeal" given in the Constitutional Act of 1791 was only prospective, and did not authorize the provincial legislature to divert the proceeds of the lands already sold from the purpose originally contemplated in the imperial statute. The judges also expressed the opinion on this occasion that the words "Protestant clergy" were large enough to include and did include "other clergy than those of the Church of Scotland." In their opinion these words appeared, "both in their natural force and meaning, and still more from the context of the clauses in which they are found, to be there used to designate and intend a clergy opposed in doctrine and discipline to the clergy of the Church of Rome, and rather to aim at the encouragement of the Protestant religion in opposition to the Romish Church, than to point exclusively to the clergy of the Church of England." But as they did not find on the statute book the acknowledgment by the legislature of any other clergy answering the description of the law, they could not specify any other except the Church of Scotland as falling within the imperial statute.
Under these circumstances the imperial government at once passed through parliament a bill (3 and 4 Vict., c. 78) which re-enacted the Canadian measure with the modifications rendered necessary by the judicial opinion just cited. This act put an end to future reservations, and at the same time recognized the claims of all the Protestant bodies to a share in the funds derived from the sales of the lands. It provided for the division of the reserves into two portions—those sold before the passing of the act and those sold at a later time. Of the previous sales, the Church of England was to receive two-thirds and the Church of Scotland one-third. Of future sales, the Church of England would receive one-third and the Church of Scotland one-sixth, while the residue could be applied by the governor-in-council "for purposes of public worship and religious instruction in Canada," in other words, that it should be divided among those other religious denominations that might make application at any time for a share in these particular funds.
This act, however, did not prove to be a settlement of this disturbing question. If Bishop Strachan had been content with the compromise made in this act, and had endeavoured to carry out its provisions as soon as it was passed, the Anglican Church would have obtained positive advantages which it failed to receive when the question was again brought into the arena of angry discussion. In 1844 when Henry Sherwood was solicitor-general in the Draper-Viger Conservative government he proposed an address to the Crown for the passing of a new imperial act, authorizing the division of the land itself instead of the income arising from its sales. His object was to place the lands, allotted to the Church of England, under the control of the church societies, which could lease them, or hold them for any length of time at such prices as they might deem expedient. In the course of the debate on this proposition, which failed to receive the assent of the House, Baldwin, Price, and other prominent men expressed regret that any attempt should be made to disturb the settlement made by the imperial statute of 1840, which, in their opinion, should be regarded as final.
A strong feeling now developed in Upper Canada in favour of a repeal of the imperial act, and the secularization of the reserves. The Presbyterians—apart from the Church of Scotland—were now influenced by the Scottish Free Church movement of 1843 and opposed to public provision for the support of religious denominations. The spirit which animated them spread to other bodies, and was stimulated by the uncompromising attitude still assumed by the Anglican bishop, who was anxious, as Sherwood's effort proved, to obtain advantages for his church beyond those given it by the act of 1840. When the LaFontaine-Baldwin ministry was formed, the movement for the secularization of the reserves among the Upper Canadian Liberals, or Reformers as many preferred to call their party, became so pronounced as to demand the serious consideration of the government; but there was no inclination shown by the French Canadians in the cabinet to disturb the settlement of 1840, and the serious phases of the Rebellion Losses Bill kept the whole question for some time in the background. After the appearance of the Clear Grits in Upper Canadian politics, with the secularization of the reserves as the principal plank in their platform, the LaFontaine-Baldwin cabinet felt the necessity of making a concession to the strong feeling which prevailed among Upper Canadian Reformers. As they were divided in opinion on the question and could not make it a part of the ministerial policy, Price, commissioner of Crown lands, was induced in the session of 1850 to introduce on his sole responsibility an address to the Crown, praying for the repeal of the imperial act of 1840, and the passage of another which would authorize the Canadian legislature to dispose of the reserves as it should deem most expedient, but with the distinct understanding that, while no particular sect should be considered as having a vested right in the property, the emoluments derived by existing incumbents should be guaranteed during their lives. Mr. Price—the same gentleman who had objected some years previously to the reopening of the question—showed in the course of his speech the importance which the reserves had now attained. The number of acres reserved to this time was 2,395,687, and of sales, under two statutes, 1,072,453. These sales had realized £720,756, of which £373,899 4s. 4d. had been paid, and £346,856 15s. 8d. remained still due. Counting the interest on the sum paid, a million of pounds represented the value of the lands already sold, and when they were all disposed of there would be realized more than two millions of pounds. Price also pointed out the fact that only a small number of persons had derived advantages from these reserves. Out of the total population of 723,000 souls in Upper Canada, the Church of England claimed 171,000 and the Church of Scotland 68,000, or a total of 239,000 persons who received the lion's share, and left comparatively little to the remaining population of 484,000 souls. Among the latter the Roman Catholics counted 123,707 communicants and received only £700 a year; the Wesleyans, with 90,363 adherents, received even a still more wretched pittance. Furthermore 269,000 persons were entirely excluded from any share whatever in the reserves. In the debate on the resolutions for the address LaFontaine did not consider the imperial act a finality, and was in favour of having the reserves brought under the control of the Canadian legislature, but he expressed the opinion most emphatically that all private rights and endowments conferred under the authority of imperial legislation should be held inviolate, and so far as possible, carried into effect. Baldwin's observations were remarkable for their vagueness. He did not object to endowment for religious purposes, although he was opposed to any union between church and state. While he did not consider the act of 1840 as a final settlement, inasmuch as it did not express the opinion of the Canadian people, he was not then prepared to commit himself as to the mode in which the property should he disposed of. Hincks affirmed that there was no desire on the part of members of the government to evade their responsibilities on the question, but they were not ready to adopt the absurd and unconstitutional course that was pressed on them by the Clear Grits, of attempting to repeal an imperial act by a Canadian statute.