Dissatisfaction with the lack of accountability of the executive to the elected Assembly led to abortive rebellions in both Upper and Lower Canada in 1837.19The British authorities were sufficiently concerned over the rebellions that they appointed John George Lambton, the Earl of Durham, as the governor general of the British North American colonies with a mandate to recommend political changes that would respond to and remedy the underlying causes of unrest. Durham’s report, delivered in 1839, was one of the most significant and controversial documents in British colonial history.20He concluded that the colonial governments had become increasingly confused and incompetent. The local governors were the central figures in colonial government, but Durham reported that they tended to refer too many matters to London, which had little knowledge of or interest in Canadian affairs. Similar confusion prevailed with respect to the local Executive Council, since its members did not have clearly demarcated lines of responsibility but, instead, served as a single group of collective advisers who each took an equal part in all governmental matters. The Executive Councils also
served as the court of appeal for each colony, even though, as Durham pointed out, its members did not necessarily have any legal training or qualification. Finally, the executive was in no way responsible to the elected Legislative Assemblies, which meant that the government often failed to meet the most elementary political needs of the community.
Durham proposed a sweeping set of reforms, the chief among them being the implementation of responsible government. There are essentially two elements to the principle of responsible government. The first is that the Executive Council (the body responsible for advising the governor) must be composed of persons who command the confidence of the Legislative Assembly and who must resign if they lose that confidence. The second element is that governors are bound to follow the advice of the members of the Executive Council in executing their duties and responsibilities.
Durham believed that acceptance of the principle of responsible government would resolve most of the difficulties faced by the colonies. He proposed a division between matters of local concern, in which the principle of responsible government would operate, and matters of imperial concern, in which the governor would act as an agent of the British government to ensure that the local political authorities did nothing to compromise British interests. Durham identified the areas of continuing British interest as being limited to constitutional matters, foreign affairs, external trade, and management of public lands. In all other matters, the implementation of the principle of responsible government would mean that the governor would be bound to act on the advice of persons who commanded the confidence of the Legislative Assembly. This arrangement would have the effect of granting internal self-rule to the colony, since the Legislative Assembly would be in a position to control the policies of the government in matters of strictly local concern.
The second major recommendation of Lord Durham was the union of Upper and Lower Canada into a single province.21In a famous passage, Durham reported that the conflict between French- and English-speaking colonists was such that he had found "two nations warring in the bosom of a single state." Durham stated that this "deadly animosity that now separates the inhabitants of Lower Canada into the hostile divisions of French and English" could only be overcome by
forcing the assimilation of French Canadians into an English-speaking mainstream.22He saw the union of Lower and Upper Canada as a means to bring about this integration and assimilation. Durham also raised the possibility of an even wider union involving all the British North American colonies, which would thereby further submerge the French-Canadian presence within a wider political union. However, he regarded the idea as impractical at the time.
Many of Durham’s recommendations were accepted and acted upon in the Union Act, 1840,23which was passed by the British Parliament. This Act united Upper and Lower Canada into a single province called Canada, with a governor, a Legislative Council appointed for life by the governor, and an elected Legislative Assembly with forty-two members from each of Canada East and Canada West.24English was made the sole official language of both the Legislative Council and Assembly, reflecting Durham’s hope and expectation that the new political structure would lead to the assimilation of the French-speaking community. The Legislative Assembly was given power to make laws for the "Peace, Welfare and good Government of the Province of Canada," provided that any such laws were not repugnant to the Union Act, 1840 itself or to any other British law "which does or shall, by express Enactment or by necessary Intendment, extend to the Provinces."
This provision clarified the relationship between British law and colonial law. Before this time, it was unclear whether a local colonial legislature could enact laws that were inconsistent with British statutes on the same subject - even though those statutes were not expressly applicable to the colony - as well as whether the colonial legislature could amend English common law in its local application. The Union Act, 1840 resolved these doubts in favour of the colonial legislatures. It made clear that only those British statutes that were intended to apply to the colony - as opposed to British statutes on the same subject matter - would take priority over colonial statutes and confirmed the
jurisdiction of the local legislature to amend the common law of England.25Other innovations of the Union Act, 1840 included the creation of a Consolidated Revenue (CR) Fund, and the surrender by the Crown of all of its independent revenue from Crown lands and other sources of income into the CR Fund. In return, the Act guaranteed payment of necessary moneys from the CR Fund to carry on the operation of the executive branch, including salaries for the governor, the civil servants, and the judiciary, and for the expenses of various governmental offices. All bills providing for expenditures from the CR Fund had to originate in the Legislative Assembly (as opposed to the Legislative Council), and could only be introduced in the Assembly if accompanied by a recommendation from the governor. This important innovation had been recommended by Lord Durham and was carried forward into section 54 of the Constitution Act, 1867; it remains in effect today, and it represents one of the means whereby the executive maintains its control over the legislative process.26While Durham’s report had provided the blueprint for much of the Union Act, 1840, his proposal to implement responsible government for the colony was not accepted. The Act itself made no reference to the principle of responsible government. This omission was not surprising in itself. As Durham had pointed out, responsible government could have been implemented simply by modifying the imperial instructions to require that local governors appoint to the Executive Council persons who enjoyed the confidence of the Legislative Assembly. However, the Colonial Office was not entirely persuaded of the merits of responsible government for the colony. For example...