Governor General Lord Aberdeen

Introduction  

On 8 July 1896, Governor General Lord Aberdeen forced Prime Minister Sir Charles Tupper from office by refusing to promulgate his constitutional advice and sign off on Orders-in-Council to summon senators and make other appointments. Tupper sought to fill up vacancies knowing full well that the Liberals had just won a parliamentary majority for the first time since 1874 in the general election held on 23 June 1896. When Aberdeen refused to sign the Orders-in-Council, Tupper wrote back that he had no choice but to resign the premiership, because the prime minister cannot remain in office after a governor general has rejected his constitutional advice and withdrawn his confidence from him. Lord Aberdeen then appointed Sir Wilfrid Laurier as Prime Minister, and Laurier would stand astride Canadian politics like a colossus for the next fifteen years. At Tupper’s insistence and at Aberdeen’s acquiescence, their written correspondence from July 1896 became part of the public record in the Sessional Papers of the House of Commons in the 1^st session of the 8^th Parliament that September. Tupper and Laurier then debated the propriety of Governor General Lord Aberdeen’s actions in a fascinating exchange which revealed competing narratives of parliamentary sovereignty versus popular sovereignty, what we would now call the Caretaker Convention versus the Spoils System, and the circumstances under which the Governor General can or should reject ministerial advice.

• Tupper’s Apology in the 8th Parliament

My article in The Dorchester Review focuses on the correspondence between Aberdeen and Tupper more so than the parliamentary debates, so this entry can serve as a companion piece or supplement to the article. Tupper re-stated and expanded upon most of what he wrote to Aberdeen, especially the precedents in the United Kingdom and Canada on the Spoils System and how governments are formed, and Laurier contributed a strong counter-argument against the Spoils System and for popular sovereignty in majority parliaments. Tupper comes across as a hectoring, self-promoting bully brimming full of wounded pride and haughtiness. He prevaricated at great length as only a sore loser could have done. The bloated and bitter old Tupper speaks above all in the first-person singular and glorifies his own achievements. In contrast, Laurier seems witty, refreshing, and charismatic as he cleverly demolishes Tupper’s sophistic egotism. He speaks in the first-person plural and third person, talking up his colleagues and supporters. I can see why his contemporaries admired him for his “Sunny Ways.” In the Fable of the Sun and the North Wind that Laurier so often fondly recalled in his campaigns, Tupper so perfectly represents the dour, spiteful, blustery – and, ultimately, feckless – North Wind who, for all his bloviating and huffing and puffing, succeeds only in emboldening his adversaries to stand fast against him and only makes the weary traveller cling more tightly to his jacket and brace against the storm. In contrast, Laurier gives off warmth, benevolently persuading his colleagues and supporters to his viewpoint rather than shaming and brow-beating them. Laurier’s optimistic mirth radiates through the Hansard even after a century and a quarter later, and he somehow seems like a quintessentially modern politician whom one would want to follow. I could barely stomach slogging through Tupper, but I greatly enjoyed reading Laurier.

Sir Charles Tupper

Tupper’s Last Stand: Defending the Spoils System Under the Auspices of Parliamentary Sovereignty 

As soon as Governor General Lord Aberdeen opened the 1^st session of the 8^th Parliament on 19 August 1896, Tupper began chomping at the bit to pontificate before the House of Commons on the great injustice that had befallen him that July. Tupper asked that Laurier obtain Lord Aberdeen’s permission to publish the correspondence. On 21 August, Laurier informed the House that His Excellency had agreed (presumably on Laurier’s advice), and the correspondence between Aberdeen and Tupper then officially became part of the public record as Sessional Paper no. 7.[1] Tupper later delivered a passionate soliloquy and apology (in the classical sense) for his defeated government on 21 September; this apologia, along with Laurier’s counter-argument, took up a staggering 48 columns in the Debates.[2]

Tupper argues that Responsible Government means that Ministers of the Crown, not the Governor General, take responsibility for all acts of the Crown and that the Governor General derives his information from his ministers rather than from outside sources. He also acknowledges that the Governor can dismiss one group of ministers and appoint another and that the new prime minister would then take responsibility for the dismissal of his predecessor; in this manner, Ministers of the Crown take responsibility for all acts of the Crown, and the Governor General maintains a personal non-responsibility and neutrality. Tupper re-stated his case from his correspondence with Aberdeen and expanded upon the list of precedents; he also more or less confirms – though he could not commit himself absolutely to this course –  that he had originally planned on remaining as prime minister for several more weeks until the new House of Commons defeated his government on the Address-in-Reply or budget. Tupper therefore believes that Aberdeen should have accepted all his post-writ appointments under the Spoils System and repudiated any notion of restraint, what we now call the Caretaker Convention, as an irrelevant contrivance.

He kicked off his quixotic and brazenly self-righteous defencespeech with a general outline of Canada’s system of government. He stated – correctly, as it turns out – that “Under the form of government that we possess, my hon. friend the First Minister and his colleagues, on assuming office, were necessarily and naturally obliged to assume responsibility for every act of His Excellency from the time of what I may call the crisis which ensued on the general election.”[3] Revealing himself as a man of the 1860s, he reviewed the entire history of the Dominion of Canada from the Quebec Conference of 1864 to the Confederation Debates in the Province of Canada from 1865. He quoted from Sir John A. Macdonald’s main speech in favour of federating British North America from 5 February 1865 on ministerial responsibility:. “[…] the representative of the Sovereign can act only on the advice of his Ministers, those Ministers being responsible to the people through Parliament.”[4] (Incidentally, Macdonald dated Responsible Government to 1841). Tupper reiterated to the House of Commons what he had written to Aberdeen: “[…] the Government did not possess the confidence of His Excellency” and that he therefore had to resign as prime minister.[5] Here Tupper interprets the conventions of Responsible Government accurately, though in a way which would seem either actively hostile or utterly alien to the ultra-democratic sensibilities of most of my contemporary Canadian political scientists: the prime minister (and thus the ministry as a whole, the tenure of which derives from that of the prime minister) must maintain not only the confidence of the House of Commons but also the confidence of the Crown as well. Canadian constitutional historians and political scientists readily understood this maxim well into the 20^th century.

Tupper then arrives at the crux of one his main arguments: that the Governor General must only act on the advice of his responsible ministers and must not keep his own counsel or take the initiative based on what he reads in the press. Tupper quotes from one of Aberdeen’s letters in their correspondence of July 1896 and offers his critique:

[Aberdeen’s letter to Tupper] After taking every means in my power to inform myself, it is impossible for me to ignore the probability that, in the event of your decision to meet Parliament the present Administration will fail to secure the confidence of the House of Commons.

[Tupper to the House of Commons] I contend that the position taken there is utterly unknown to the British constitution, to the English parliamentary system, and to the system that prevails in Canada. I say that there are no means by which His Excellency without violating of the constitution of the country could take to inform himself with reference to the position in which his Government stood. […] I contend that […] the Governor General […] had no means of informing himself except by his constitutional advisors and the voice of Parliament.[6]

Tupper here provides an accurate description of Responsible Government, but not the whole description – and he omits the last key component that undermines the rest of his argument. A Governor General can reject his Prime Minister’s constitutional advice if he can find and appoint another Prime Minister who will take responsibility for the whole thing. And, of course, Aberdeen did precisely this in forcing Tupper’s resignation and in appointing Laurier. But the last phrase in Tupper’s statement “and the voice of Parliament” undermines the argument that he tries to make (that the House of Commons of the 7^th Parliament, dissolved for the election, gave a majority to the Conservatives) and inadvertently supports Aberdeen’s original contention that Canadians returned a majority for the Liberals in the House of Commons in the 8^th Parliament – the one that ought to matter as a point of reference.

Most of the recent precedents from the United Kingdom, from 1868 onward throughout the Disreali-Gladstone and Gladstone-Salisbury Oscillations, also worked against Tupper and in favour of Aberdeen.[7] Benjamin Disraeli, the One-Nation Conservative, had established an important new precedent in 1868 by tendering his resignation to Her Majesty Queen Victoria shortly after the results of the general election demonstrated that Gladstone’s Liberals and their allies had won a parliamentary majority. Disraeli preferred not to go through the charade of remaining as prime minister, meeting the new parliament, suffering certain defeat on the Address-in-Reply or a supply bill, and only then resigning in disgrace. Gladstone replicated this precedent in 1874, as did Disreali again in 1880, Gladstone once more in 1885, and Salisbury in 1886. These precedents forced Tupper to argue in favour of parliamentary sovereignty and against popular sovereignty from a normative corner: Disreali, Gladstone, and Salisbury did resign before meeting those new parliaments, but they should not have done so. Tupper then praises Balfour for having, in 1892, reverted to the older method of meeting the new House of Commons and testing its confidence.[8] But here Tupper derives the wrong lesson, given that the new House of Commons immediately denied its confidence in Lord Salisbury’s incumbent government by rejecting the Address-in-Reply to the Queen’s Speech.

This normative counter-factual also relied upon Tupper’s immense ego-centric narcissism and the implication that he possessed better judgement that Disraeli, Gladstone, and Salisbury combined. Tupper made the same counter-factual assertion about Alexander Mackenzie, who, in his estimation, should not have resigned before meeting the new parliament after the Conservatives won a majority in the elections of 1878. Tupper deliberately misrepresents statements which Gladstone made to the British House of Commons and which Mackenzie wrote to Dufferin as “apologies” for having resigned before meeting and testing the confidence of their new Houses of Commons. In fact, Gladstone, in the Hansard which Tupper quoted, simply explained of his oscillation with Disraeli in Number 10 as follows: “although it is a course which was justified by the circumstances, it is one which ought not to be adopted in the absence of strong justifying circumstances.”[9] And who could disagree? Even today, the election of minority parliaments often allow the incumbent government to meet the new House of Commons or Legislative Assembly and test its confidence. But Gladstone did not, as Tupper absurdly claimed, “apologize for having established the precedent of resigning without meeting parliament, when beaten at the polls.”[10]

Tupper dissembled likewise on Alexander Mackenzie’s correspondence with Governor General Lord Dufferin in 1878. Mackenzie acknowledged to Dufferin in some bitterness that the “protectionist principle undoubtedly obtained a victory at the polls.” Therefore, he explained to Dufferin, “We felt, however, that it would be unpleasant to remain in office after ascertaining that there was no possibility of the policy of the Government being sustained by the new House.” Mackenzie also believed – and at this stage in Canadian history, correctly and reasonably – that he could choose whether to remain in office and meet the new parliament, and surely lose on the Address-in-Reply or a money bill or, alternatively, resign of his own accord beforehand. Mackenzie weighed the possibilities:

“The other course [meeting the new parliament] would doubtless by the one in accordance with English practice, but there are precedents of a recent date in favour of a resignation before the meeting of Parliament of both political parties in England. Feeling that we are justified in pursuing that course, I have resolved, with the concurrence of my colleagues, to close up all business in the departments at the earliest possible moment with a view on enabling our successors to meet Parliament at an early day, with measures for carrying into effect the policy to which they committed themselves at the election.”[11]

Tupper seized upon the last statement and peddles this fantasy that Mackenzie’s explanation to Dufferin somehow “apologizes for having surrendered his trust without meeting Parliament.” Mackenzie did no such thing. In reality, Mackenzie believed that he could, in 1878, have chosen between one of two options of equal constitutional validity. Responsible Government has always evolved to bow to practicalities. Mackenzie had set the first of two in a chain of precedents which would undermine by the Spoils System and the circumstances under which an incumbent ministry could remain in office and meet the new parliament. But because Mackenzie resolved upon the option with which Tupper disapproves, Tupper attempts to deprive Mackenzie of agency retroactively. Tupper lamented that “the [Mackenzie] Government had a legal right to hold office until the usual time for the legislature assembly, and to do all acts which a Ministry in possession of authority could do, and to disregard absolutely the popular manifestation at the late elections.”[12] Tupper could not have made his contempt for the Principle of Restraint and popular sovereignty any more clear. To hell with the electorate! So what if they give a parliamentary majority to another party?

Tupper triumphantly concludes:

“I have established beyond question the right that myself and my colleagues were in a position and fairly entitled to meet Parliament at the early day which it was called, if we so desired and wished. […] it would have been open to use to consider whether we might not promote the public business of the country in the condition it then was by meeting Parliament on the day for which it was summoned, and placing honourable gentlemen opposition, who would have had control of the House, in a position to elect a Speaker and to take a vote of credit from Parliament, previous even to the formation, if they desired it, of their government […].”[13]

At best, the federal Canadian precedent from 1878 also offers a mixed and contradictory precedent in relation to 1896. One the one hand, Prime Minister Alexander Mackenzie tendered his resignation to Governor General Lord Dufferin shortly after the returns from the general election made clear that Sir John A. Macdonald’s Liberal-Conservatives had won a resounding parliamentary majority; as a matter of practicality, Mackenzie grudgingly recognised that the protectionist National Policy had defeated his Liberals’ program of reciprocity and low tariffs. That would not have supported Tupper’s argument for remaining as prime minister, meeting the new parliament, and then suffering defeat on the Address-in-Reply or a money bill. On the other hand, however, Dufferin did accept Mackenzie’s outgoing appointments, including that of a justice to the Supreme Court, which lent some credibility to Tupper’s argument that Aberdeen should have done the same. As Tupper told the Commons, “every submission to Lord Dufferin by Mr. Mackenzie after his overwhelming defeat was approved by Lord Dufferin.”[14] But in his letter to Tupper, Aberdeen laid out a rationale for why the Dominion had evolved in the last quarter-century beyond the transparent and base corruption of the Spoils System, and he took the opportunity to force a sea change in constitutional conventions which thereafter became the norm in the 20^th century and laid the foundation for further expansions of the Caretaker Convention. Ultimately, Tupper dealt the deathblow to his own case: he acknowledged that the Governor General can dismiss one prime minister and appoint another who will take responsibility for the dismissal of his predecessor, and Sir Wilfrid Laurier heartily and openly accepted responsibility for Tupper’s dismissal, thus defending and vindicating Aberdeen and making Tupper’s argument moot.

But this did not stop Tupper’s excessive loquacity. He continued to lambast Governor General Lord Aberdeen’s correspondence and rationale in the House of Commons. Tupper repeated the charge that the impending dissolution by efflux of time combined with concerted opposition had prevented the House of Commons from passing supply:

But for that extraordinary circumstance of the life of Parliament terminating on a certain day, and placing the control of this Parliament in the hands of a few individuals who were ready to prevent supplies being voted; supplies would have been voted at the last session.[15]

I recall that at the Canadian Political Science Association Conference in 2013, Jean-Francois Godbout noted that the rules of the House of Commons before 1911 did not allow the government to invoke closure so readily. Yet even so, previous Canadian prime ministers had, with good reason, usually opted for a discretionary dissolution up to 12 months in advance of the inevitable dissolution by efflux of time precisely because continuing the full five years smacked of desperation. Tupper here inadvertently acknowledges that the Bowell government did not, for practical purposes, command the confidence of the House of Commons because it lacked a functional majority.

Tupper then quoted from the portion of Lord Aberdeen’s letter where His Excellency – quite reasonably, in my view – argued, “the acts of the present Administration [led by Tupper] are in an unusual degree provisional” because he did not commission Tupper as Prime Minister until after the dissolution of the 7^th Parliament during the writ. By definition, Tupper’s ministry never held the confidence of any parliament. This most extraordinary and unprecedented transition of power between ministries during the writ never happened again in Ottawa, and this unusual circumstance strengthened Aberdeen’s resolve to reject Tupper’s constitutional advice. Tupper lashed out at Aberdeen, absurdly declaring in a another round of sore loserdom that “There is no warrant for the statement of a provisional character in the formation of the Government to which His Excellency alludes.”[16] Once again, Tupper loses on a matter of fact. Tupper’s ravings soon after forced the Speaker of the House of Commons to intervene. Speaker James David Egan admonished Tupper for having accused Aberdeen of partisanship in the House of Commons – a cheap stunt that Tupper had also pulled in his correspondence with Aberdeen, too, as I showed in my main article – and noted the redundancy of Tupper’s charge, “especially when the leader of the Government [Prime Minister Sir Wilfrid Laurier] has frankly avowed entire responsibility for the acts of His Excellency the Governor General.”[17] Continuing his earlier argument and insisting that his having been appointed prime minister during the writ, when no parliament existed, did not render his ministry provisional in any way, Tupper concluded:

If His Excellency was not prepared to give me the fullest confidence until I ceased to be His Minister, he had no right to call upon me. Having been called upon, I maintain that I was entitled to the enjoyment of that confidence, and that a more fatal precedent cannot be established in this country than that the executive head of the country can go behind his Ministers and seek outside opinion.[18]

Strictly speaking, Tupper did enjoy Aberdeen’s “fullest confidence until [he] ceased to be His Minister”; the break simply came earlier than Tupper would have liked, and Tupper admitted as much when he offered his resignation in writing.

Of his 92 proposed appointments, Aberdeen agreed to 66 and refused 26. Tupper argued that Aberdeen’s actions had set a “fatal precedent” to Responsible Government because the Governor General could now “undertake to dictate to his constitutional advisors what they shall do and what they shall not do.”[19] While accepting the matter of fact that a Governor General can dismiss one set of advisors and appoint another, he cautioned that this practice could lead to arbitrary “personal rule” on the part of the Governor General: “If the Governor General is to make himself responsible, or to make the successors of his Ministry responsible for the action that he takes, where does he place himself?”[20] He continued:

“If the Governor General adopts the position that he is responsible for the acts to which he signs his name, instead of throwing that responsibility […] upon the shoulders of his constitutional advisors, […] he is driven to that which would render good government utterly impossible in Canada.”[21]   

Tupper even raised the spectre of the Civil Wars of the 1640s, the American Revolution, and Rebellions of 1837 – the latter of which he was old enough to remember – and alluded to the “great struggles not only in the mother country in times far gone by but in Canada down to a period within the recollection of persons within the sound of my voice.” Such a fate flows from putting the “influence of the Crown in opposition to the people and to the Parliament.” He contended that the Governor General can only obtain information from his constitutional advisors and that Responsible Government collapses if “persons holding no position of responsibility, secretly, unknown to the country, unknown to Parliament, unknown to the Government of the country, to obtain the ear of the Governor General.”[22]

Sir Wilfrid Laurier

Laurier Appeals to Popular Sovereignty 

Prime Minister Sir Wilfrid Laurier opened against former Prime Minister Sir Charles Tupper with a withering salvo:

He has drawn to the attention of the House largely upon principles which no one disputes., upon principles which have come to us from men whose names will ever be deer to all shades of Liberals and Reformers. But when it came to the application of these principles, the Hon. Gentlemen once more showed that when an ingrained Tory, if I may speak of him, or a Liberal-Conservative, as I suppose he would prefer to be called, undertakes to apply Liberal principles, he is always apt to fall into sad and lamentable error.[23]

Laurier criticised Tupper for refusing to resign the premiership even when the results of the general election became known and showed that the Liberals had won a parliamentary majority on the grounds that Tupper had defied popular sovereignty, “the people.” In his first column in Hansard, Laurier invokes “the people” four times:

When, on 9^th July, the telegraphic wires spread the news throughout the country that the Administration of the Hon. Gentlemen had surrendered the seals of office into the hands of His Excellency the Governor General, the impression was general throughout the country that he and his colleagues had at least loyally accepted their defeat, that they were loyally obeying the mandate that had received from the people, commanding them in no uncertain tones, to vacate their offices and to give them up to men in whom the people had declared their confidence. […] If they surrendered the seals of office, it was not in obedience to the mandate of the people, but it was because, although they still presumed to offer advice to His Excellency, His Excellency would no longer accept the advice of men whom the people had rejected. If His Excellency had accepted the advice of those hon. gentlemen defeated though they were, they would have remained to govern the country until, as the hon. gentlemen has said himself, they had been kicked once more by the representatives of the people.[24]  

Laurier denounced Tupper’s attempt to ask that the House of Commons censure Governor General Lord Aberdeen and proclaimed: “The Governor General has committed no wrong against the people of Canada.”[25] On the contrary, “he has made himself the champion of the rights of the people of Canada,” Laurier concluded.[26] Laurier argued that Aberdeen saved Responsible Government by forcing Tupper to resign and “to abide by the verdict of the people, which otherwise they [Tupper and his cabinet colleagues] would have disobeyed.”[27] Laurier also condemned Tupper’s enthusiastic embrace of the Spoils System and praised Aberdeen for having intervened. Laurier scorned Tupper’s opportunism:

[A]s soon as he found that that the Government had been defeated […], they set their hearts and hands at once to the task of filling the public service, from the Senate Chamber to every messengers’ room, filling every hole, every nook and corner, and crevice, with their appointments, so that the new Administration would have been forced to live […] in an atmosphere saturated with Toryism; and for years, perhaps, they would have been paralysed by conditions imposed upon them.”[28]

Laurier then rebutted Tupper’s claim that the Governor General can only know what his constitutional advisors tell him by demonstrating from newspaper articles that Tupper did know that the Conservatives had suffered defeat and that he had confided this knowledge in journalists rather than in His Excellency. If Tupper’s argument that the Governor General can only act upon information provided by his constitutional advisors means anything, it must surely mean that Ministers of the Crown must proactively inform the Governor General of what they know. The British well understand this principle; Her Majesty the Queen holds a weekly audience or telephone call with her Prime Minister and receives reams of briefing notes and state papers each week. Laurier cited an article from 25 June 1896 (two days after the election) in the Montreal Gazette, which reported that “Sir Charles attributes the disaster to the fatal mistake which had been made of refusing to dissolve Parliament after the adoption of the remedial order and the calling of a session to deal with the Remedial Bill when the life of Parliament expired on a fixed date.”[29] Officially, Tupper did not become Prime Minister until after the dissolution of the 7^th Parliament in May 1896, even though Tupper had unofficially taken over as “Leader of the Government in the House of Commons” in January 1896, so it would have fallen to Bowell to have advised Aberdeen to dissolve parliament earlier in the year. Perhaps this explains the passive voice in the “fatal mistake which had been made”, admittedly not by Tupper. But even to the Gazette, Tupper implicitly acknowledged that the rump of the Bowell government did not command the confidence of the House of Commons in the months leading to the constitutionally mandated dissolution by efflux of time.

Laurier demolished Tupper’s argument that Aberdeen did not know that Tupper regarded the election as a defeat. He asked Tupper, “Will the hon. Gentleman pretend here that he would not treat His Excellency with the same respect as he treated the correspondent of a newspaper?”[30] Laurier concluded:

So His Excellency in just two days after the elections learned that his Ministers had been defeated, and from that moment His Excellency was within his right – not only within his right but within his duty – when he kept the hon. Gentleman strictly to the advice he had given – that is to say, that he was prepared to resign after he had completed matters of routine, but he would not go beyond that.[31]

The disagreement between Tupper and Laurier therefore hinges upon what constitutes routine business and whether the incumbent government has a right to remain in office and test the confidence of the new House of Commons after losing its parliamentary majority. Laurier contends that when an election deprives the incumbent government of its majority and swings that majority to the other party, the incumbent government must resign long before the new parliament convenes. Tupper contends that the incumbent government can remain in office until the new House of Commons withdraws its confidence from it by rejecting, for instance, the Address-in-Reply, because the Ministry remains responsible only to the House of Commons. While Laurier acknowledges the constitutional merits of that viewpoint, he still rejects it on the grounds that the constitutional conventions of Responsible Government had evolved along a different trajectory by the dawn of the 20^th century. Laurier explains:

“I do not say that there is not something in that argument. But that is not the modern doctrine, which is, that the Government is not only responsible to Parliament but to the people in whose behalf Parliament speaks. The theory propounded by the hon. Gentleman is hundred years old. The hon. Gentleman knows that the British constitution is not a cut and dried instrument. If there is one characteristic which distinguishes the British constitution more than another it is its elasticity.”[32]

Laurier argued that the constitutional conventions of Responsible Government had evolved toward popular sovereignty in both the United Kingdom and Canada because the expansion of the franchise has brought the House of Commons in line with the people more closely. In the British case, Laurier cites the Great Reform Act of 1832 and alludes to the Second Reform Act of 1867 and the Third Reform Act of 1884, but he does not provide any Canadian examples. He says:

“In the early days, government was responsible to Parliament. But it could hardly be said that Parliament represented the people – it represented the privileged classes, but not the people; and the great Reform Bill of 1832, followed as it has been by successive instalments and extensions, brought the Parliament of Great Britain and the Parliament of Canada to be expressions of the direct voice of the people.”[33]   

Here Laurier inadvertently exposed his argument to a broadside fusillade by proponents of electoral reform – who were already advocating in favour of instant run-off voting and single transferable vote across the British Empire by the 1880s –considering that on 23 June 1896, the Liberals won a parliamentary majority with 41.37% of the popular vote even though the Conservatives won a plurality of the popular vote, at 48.17%. Proponents of electoral reform argued in the 1890s, contemporary to Laurier, that expanding the franchise had not “brought the Parliament of Canada to be an expression of the direct voice of the people.”

Laurier concluded that new constitutional conventions had emerged by the late 19^th century that the incumbent government should resign if the general election gave another party a parliamentary majority: “This is a new doctrine, which is new in operation – that as soon as the voice of the people bas been heard, immediately the Ministers of the Crown shall take advice as to whether they have been supported or not by the people.”[34] Laurier traces this new system back to the Disraeli-Gladstone Oscillation of the 1860s and 1870s. It started in 1868 when British Prime Minister Benjamin Disareli resigned after the results of the general election made clear that William Gladstone’s Liberals and their allies had won a parliamentary majority instead of limping on and losing the Address-in-Reply to the Queen’s Speech in the new parliament. Laurier characterises Disraeli’s precedent as “a novel step, a step not possible in the last century, but a step not only necessary but advisable under the new development of the British constitution.”[35] Laurier quotes Disraeli’s own rationale: “It is now clear that the present Administration cannot expect to command the confidence of the newly-elected House of Commons. Under the circumstances, Her Majesty’s Ministers have felt it due to their own honour, and to the policy they support, not to retain office unnecessarily for a single day.”[36] Gladstone followed and built upon Disraeli’s precedent in 1874, and Queen Victoria re-appointed Disraeli as Prime Minister before summoning the new parliament. In 1880, Disraeli’s Conservatives again suffered defeat in the general election, and Disraeli resigned the premiership for the last time, and Queen Victoria re-appointed Gladstone. And in 1886, Gladstone’s Liberals again lost, and Gladstone tendered his resignation before meeting the new parliament.

Laurier acknowledged that in 1892, Conservative Prime Minister Lord Salisbury opted for the old convention and did not resign because he faced a “heterogeneous combination of Radicals, Home Rulers, and labour representatives” – yet the House of Commons defeated Salisbury’s incumbent government on the Address-in-Reply anyway.[37] If anything, Salisbury’s decision to adhere to the old convention, which led to his defeat, showed why the new Disraeli-Gladstone Convention had developed in the first place. Both Tupper and Laurier cited Salisbury’s decision in 1892, but Laurier quite rightly pointed out that Salisbury decided to stay on and meet the new parliament for reasons which did not apply in Canada in 1896 (a potentially divided opposition) and that Tupper himself had admitted to the newspapers the Conservatives’ unequivocal loss to a united Liberal Party.

The Question of Senate Appointments 

The debate over appointments to the Senate also relates to my second article in this issue of The Dorchester Review on “The Founders’ Senate” and the proper balance between government and opposition in the Senate. Essentially, Tupper argued that the partisan imbalance in the Senate of Canada (at the time, the Conservatives held four-fifths of the seats versus one-fifth for the Liberals) mattered not, because the Senate acted as a house of review, not a confidence chamber that could topple a government. Tupper pressed his case by analogy to the House of Lords. He argued that Aberdeen should have accepted his proposed appointments to the Senate because Victoria had allowed outgoing prime ministers to make appointments to the House of Lords in various occasions throughout her reign. The Governor of New Zealand had likewise allowed an outgoing prime minister to swamp the Legislative Council. Laurier sided with his esteemed senatorial colleague and former premier of Ontario, Sir Oliver Mowat, who had warned about the gross partisan imbalance in the upper chamber.

More importantly, Laurier also pointed out the false analogy between appointing new peers to the House of Lords and appointing Senators. The House of Lords has no limit on its membership; its size depended upon prerogative authority alone. Liberal and Conservative prime ministers alike could alternatively advise the Sovereign to swamp the Lords with new appointments if, before the Parliament Act, 1911, the upper chambered threatened to block government legislation. In contrast, the British North America Act expressly limits the size of the Senate of Canada and ties representation to province; our constitutional statute only makes provision for expressly temporary increases in the number of Senators, under section 26 – and even then, the number of Senators temporarily increases by the same amount per regional grouping. The strictly regulated limits on the number of Senators makes the membership of the Senate more relevant and prevents swamping. The proceedings of the Quebec Conference of 1864 and London Conference of 1866 make clear that our framers – including Tupper himself, who attended both! – well understood this distinction between the House of Lords and Senate. That Tupper pretends throughout his insufferable speech not to understand this difference when he himself participated in the conferences of the 1860s that made Confederation possible – and even began his whinging tirade by reminding the House of that fact – shows the depths of his mendacity and desperation. Within the same speech, Tupper both invoked and talked up his attendance at the Confederation Conferences in order to bolster his authority and credibility and also deliberately ignored and overlooked the consequences of his attendance and the discussions which took place when feigning ignorance and forgetfulness suited his purposes.

In 1896, section 26 had never been used successfully, though Mackenzie had advised Governor General Lord Dufferin to recommend these appointments to the Colonial Secretary, Lord Kimberely, who rejected them in 1874. I described these processes – both its successful invocation by the Mulroney government in 1990 and the failed attempt by the Mackenzie government in 1874 – in detail in my other article in this issue of The Dorchester Review, “The Founders’ Senate.” In his introductory discussion on ministerial responsibility, Tupper highlights an incident from 1877 where Macdonald and Mackenzie faced off in the House of the Commons over Dufferin’s off-hand comments in British Columbia that the Colonial Secretary had over vetoed Mackenzie’s request for the appointment of additional senators under section 26. Macdonald conceded what British North Americans then well understood: the dual, and often contradictory, role of the Governor General up to the Statute of Westminster, 1931 as both an Imperial officer bound to act on instructions from the Colonial Secretary and British cabinet on Imperial matters on the one hand, and, on the other, the representative of the Sovereign in Canada who acts on the advice of his Canadian ministers on matters which the British North America Act, 1867 assigns to the Parliament of Canada. Macdonald, then Leader of Her Majesty’s Opposition, said: “…. he [Prime Minister Mackenzie] is, however, responsible for every utterance of the Governor General, except when that illustrious individual expressly states that what he states he says as an Imperial officer by Imperial command.”[38] (In 1877, Macdonald also argued that Responsible Government dated to Lord Syndenham’s governorship in 1841, rather than to Lord Elgin’s later in the decade).

However, I would argue that this example, if anything, highlights the very exemption of the Governor General’s Imperial instructions from the responsibility of Canadian ministers which Macdonald stressed rather the fact that Canadian Ministers of the Crown take responsibility for acts of the Governor General under Canadian jurisdiction. Until Dufferin’s rather indiscreet remarks, no one knew that Mackenzie had advised Dufferin to petition the Colonial Secretary that the British Privy Council appoint 6 additional Senators, and no one knew that Lord Kimberley had declined to present the matter for consideration of the British cabinet. In no sense was Mackenzie responsible for this chain of events, which the BNA Act and the letters and instructions of Dufferin’s appointment had classified as an Imperial matter. Surely, Macdonald in 1877 and Tupper in 1896 must have appreciated this distinction as well, though they both choose, rather mendaciously, to exploit the ignorance surrounding it.  

Conclusion 

By 1896, the political momentum in Canada had shifted away from the Conservatives and toward the Liberals. The Conservatives seemed bloated, old, and tired with their succession of elderly and ineffectual leaders, from 1891 onward. Sir John A. had led them to one last majority in 1891 before dying in office only six weeks later. A series of ineffectual and short-lived leaders (including, most ridiculously of all, two Senators) followed from June 1891 to July 1896. First came the forgettable Senator Sir John Abbott, who lasted only until 24 November 1892, resigning due to ill health and dying a year later. He meant only serve as a caretaker anyway. Next the parliamentary party settled on the Catholic Sir John Thompson, who died of cardiac arrest on 12 December 1894 while dining with the Royal Family at Windsor. That must have given Queen Victoria quite a shock. Lord Aberdeen might have appointed Sir Charles Tupper at this stage if he had been in Canada rather than in London serving as the Dominion of Canada’s trade envoy and precursor to a High Commissioner. Aberdeen then appointed instead the Presbyterian Senator Sir Mackenzie Bowell who only managed to serve as prime minister de facto until January 1896 when Sir Charles Tupper and his supporters orchestrated a cabinet coup and almost Thatchered him. By agreement between Tupper and Bowell, the latter would remain as prime minister de jure until the election, whereupon he resigned formally. Aberdeen then appointed Tupper as prime minister during the writ – a bad precedent which has never been repeated – on 1 May 1896.

These exchanges between Tupper and Aberdeen and Tupper and Laurier capture the moment where constitutional conventions shifted and the Caretaker Convention displaced the Spoils System. The Caretaker Convention has also steadily expanded in scope since the late 19^th century. At first, by replacing the Spoils System, it applied only to the post-writ in between majority parliaments: after the opposition party won a parliamentary majority, the incumbent prime minister would resign and allow his successor, the party of the leader which won the majority, to meet the new parliament. By the mid-20^th century, the Caretaker Convention had expanded to the writ itself and after the House of Commons had withdrawn its confidence from the government. And within the last five years or so in Canada, the Caretaker Convention has encroached upon and annexed a nebulous “pre-writ” (currently 90 days before dissolution) in addition to consolidating itself during the writ. Fixed-date election laws in majority parliaments have made this development possible, since, by definition, no clear pre-writ of any period can exist prior to the calling of a snap election that only the prime minister or premier could have possibly had in mind.

In 1896, Tupper argued from a valid, though pedantic and time-consuming, constitutional position. Strictly speaking, any incumbent ministry could stay in office after any election — even if another party wins a parliamentary majority — and could subsequently meet the new House of Commons, and, finally, need only resign after losing the vote of confidence on the Address in Reply to the Speech from the Throne. But even then, Tupper mostly relied upon this old tradition as a shield to protect his main goal: filling up vacancies in the Senate, civil service, and courts before his inevitable ouster from office. The overt and transparent cynicism of Tupper’s ploy in 1896, attempting to fill up vacancies under the auspices of a defence of parliamentary sovereignty against popular sovereignty, contributed to the demise of the Spoils System at the federal level. Being already by then an elderly Maritimer and man of the 1860s, Tupper had laid its faults bare and made its inherent hypocrisies too obvious. These two old conventions of staying in office until defeated at the beginning of the next parliament and filling up vacancies through the Spoils System died out in two phases in Canada, the first in 1878 and the second in 1896. Alexander Mackenzie had decided to resign after the elections of 1878 returned a majority to the Conservatives, making clear that Macdonald’s protectionist National Policy had trounced the free-trading Liberals, long before meeting the new parliament. But Mackenzie did insist of making appointments and filling up vacancies even after signalling his intention to resign. While Governor General Lord Dufferin had accepted Mackenzie’s outgoing appointments in 1878, Governor General Lord Aberdeen finally put an end to the Spoils System in 1896. The correspondence which I highlighted in my article in The Dorchester Review clearly shows that Aberdeen had warned Tupper that he would not promulgate such appointments, but Tupper refused to heed his last warning. That left Aberdeen no choice but to refuse the appointments formally and Tupper, in turn, no alternative but to resign immediately because his Governor General had rejected his constitutional advice.

These old conventions from the early days of Responsible Government (1840s to 1870s) – the Spoils System and prolonged incumbency into the next parliament – started to die out once the entrenchment of party discipline and a two-party system in the late 19^th century, which necessarily always resulted in majority parliaments, rendered them inefficient and impracticable. This same process unfolded in the United Kingdom from 1868 onward for precisely the same reasons. This convention took shape in the United Kingdom amidst oscillations between the Liberal Gladstone and the Conservative Disraeli in the 1860s, ’70s, and ’90s;[39] Her Majesty Queen Victoria approved of this development and regarded waiting for imminent defeat as “simply a waste of time.”[40] The same convention had taken hold in British North America by the 1870s as well, and Tupper’s rearguard action in 1896 succeeded only in putting the old conventions into abeyance. After Aberdeen’s dismissal of Tupper, it became universally accepted in Canada that the incumbent Prime Minister resigns within a few weeks after the election if another party wins a parliamentary majority, rather than staying on and testing the confidence of the new House of Commons.

In other words, the electorate, no longer the House of Commons, now in effect decides who governs in the case of majority parliaments, which majoritarian electoral systems encourage. Laurier made this same argument and was correct – up to a point. Canadians accepted a key premise of popular sovereignty 140 years ago, but this concession to popular sovereignty can only work properly under majoritarian electoral systems and a strong two-party system. If either or both of those underlying conditions change, then the convention and default option would also have to change in kind. Ironically, if Canada adopted proportional representation and thereby made minority parliaments the norm, then Tupper’s interpretation of government formation would become the default once more. However, the old Spoils System of the 19^th century will remain defunct under any circumstances.

And even under our majoritarian electoral system, the old 19^th century convention — the redoubt which Tupper sacrificed his premiership to defend — still exists in narrower form in minority parliaments where the incumbent government can remain in office and test the confidence of the new assembly. The government remains in office unless another force acts upon it: either the Prime Minister chooses to resign before meeting the elected assembly or the Prime Minister chooses to resign after the elected assembly defeats his government on the Address in Reply, or else the Governor General would have to dismiss the defeated incumbent Prime Minister. If the incumbent Prime Minister chooses to remain in office and test the confidence of the new minority parliament, then the House of Commons should first reject the ministry before the Governor General dismisses the Prime Minister from office. This order of events best maintains the democratic role of the elected assembly and the neutrality of the office of the Governor General.

If nothing else, the debate between Tupper and Laurier in 1896 demonstrates that the constitutional conventions of Responsible Government have long been subject to legitimate debate and valid differences of interpretation, each with precedents to support them, and that some cases can go either way when the Governor exercises discretionary authority. The Tupper-Laurier Debate puts the lie to the facile and foolish assertions which have cropped up especially since 2008, especially the more dismissive, dissembling, and pedantic reliance on the “We don’t elect governments” mantra – as if that little nostrum alone completely settled the debate over whether or under what circumstances minority parliaments should be dissolved early.

Similar Posts:

• Caretaker Convention
• Formation of Governments

Notes

[1] Parliament of Canada, House of Commons, Debates, 8^th Parliament, 1^st Session, 20 August 1896, column 6; 21 August 1896, column 10; Parliament of Canada, House of Commons, 8^th Parliament, 1^st Session, Sessional Papers (No. 7) (Ottawa: Queen’s Printer, 1896), 1-9.

[2] Parliament of Canada, House of Commons, Debates, 8^th Parliament, 1^st Session, 21 September 1896, columns 1623-1671.

[3] Parliament of Canada, House of Commons, Debates, 8^th Parliament, 1^st Session, 21 September 1896, column 1624.

[4] Ibid., column 1624.

[5] Ibid., column 1629.

[6] Ibid., column 1629.

[7] Ibid., columns 1630-1631.

[8] Ibid., column 1631.

[9] Ibid., column 1631.

[10] Ibid., column 1631.

[11] Ibid., column 1632.

[12] Ibid., column 1634.

[13] Ibid., column 1633.

[14] Ibid., column 1647.

[15] Ibid., column 1636.

[16] Ibid., column 1637.

[17] Ibid., column 1638.

[18] Ibid., column 1638.

[19] Column 1649

[20] Column 1650

[21] Column 1651

[22] Column 1655.

[23] Column 1660.

[24] Column 1660

[25] Column 1661.

[26] Column 1661.

[27] Column 1661.

[28] Column 1662.

[29] Column 1663.

[30] Column 1663.

[31] Column 1664.

[32] Column 1664.

[33] Column 1664.

[34] Column 1664.

[35] Column 1665.

[36] Column 1665.

[37] Column 1665

[38] Column 1625.

[39] Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 59.

[40] Forsey and Eglington 1985, 59.