The Constitutional Crisis of 1889 in Newfoundland

The Constitutional Crisis of 1889 in NewfoundlandAuthor(s): Harvey MitchellSource: The Canadian Journal of Economics and Political Science / Revue canadienned'Economique et de Science politique, Vol. 24, No. 3 (Aug., 1958), pp. 323-331Published by: Wiley on behalf of Canadian Economics AssociationStable URL: http://www.jstor.org/stable/138620 .

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THE CONSTITUTIONAL CRISIS OF 1889 IN NEWFOUNDLAND

HARVEY MITCHELL Memorial University of Newfoundland

THE constitutional crisis of 1889 in Newfoundland offers an excellent example of what may occur when a governor, in the full belief that he is adhering to the strict observance of his constitutional position, yet manages to defy its limits, bring it into disrepute, and earn the opprobrium of nearly all concerned. That the Governor of Newfoundland did so, as the unsuspecting instrument of a political struggle, points up the dangers of appointing to high office men with little or no appreciation of the duties and responsibilities they are called upon to assume. The crisis of 1889 proves above all the importance that must be attached to the choice of men of good intelligence, even temper, and flexibility. When to insist on the exercise of his prerogatives and when to desist are

questions that a governor can only solve by considering as far as possible the results of the choice he makes. A very difficult decision, admittedly, but one which will primarily depend on the governor's tact, influence, articulation, the vital features of his official personality. There is no need to stress the

importance of the problem discussed below; the list of constitutional authori- ties who have studied similar questions is an impressive and well-known one.

The Governor in question was Sir Terence O'Brien, a military man who had qualified as an engineer and surveyor in India, had for some years been Inspector General of Police in Mauritius, and, immediately before coming to Newfoundland in 1889, had served as Governor of Heligoland. His im- mediate concern in Newfoundland was, as befits a man with military experience, the fortification of St. John's against attack in the event of a global conflict which he saw as imminent; but this project was fated to suffer the indifference of a government that did not share his views. In November, 1889, the Governor's attention was abruptly diverted from his scheme of defence to a situation that appeared quite normal and might have remained so but for a combination of events that he grasped only imperfectly.

The election results of November, 1889, were a complete shock to Sir Robert Thorburn's Government which had held power since 1885. Defeated at the hands of Sir William Whiteway, who headed the so-called Liberal party, Thorburn's party, popularly designated as the merchants' group by its opponents, was reduced to five, three seats being taken by an Independent group, and twenty-eight being captured by Whiteway's followers. The entire Thorburn

ministry also suffered defeat, and this after it was confidently expected that the Government would be returned with a reduced majority. The campaign had been a field-day for vituperation on both sides. Whiteway, returning from retirement to form a party with a nucleus of four members in the Assem- bly, gained his support from the mass of the fishermen to whom he promised higher wages, employment on the railway, and "liberation" from the "truck-

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Canadian Journal of Economics and Political Science

system." In rebuttal Thorburn accused Whiteway of planning to sacrifice Newfoundland's future by adopting too conciliatory an attitude towards French

treaty rights in the colony. The voters apparently were more impressed by Whiteway's promises than by Thorburn's concern for the colony's territorial

inviolability. The Governor interpreted the result as a "revolution" and the

"dawning of a new era in the liberties of the people of Newfoundland."' The autumn of 1889 was, like so many previous autumns in Newfoundland

when the fishery had been unsuccessful, a time of distress. The promise of

employment had been a feature of the campaign, and soon after the results were made known, large groups of unemployed converged on St. John's in search of work. At a special meeting called by the Thorburn Government, the

Railway Commissioners, the Government Engineer, the President of the St.

John's Municipal Council, and the Municipal Engineer estimated that at least six weeks would elapse before work could be found for all applicants, but that railway employment for 1,000 men could be provided in half that time.2 There was, therefore, so far as the Government was concerned, no real emer-

gency. On the other hand, Whiteway, who had been as lavish in his promises as his opponents, alleged that he was being called upon as leader of the

majority party to make them good; indeed he charged that Thorburn, instead of alleviating the situation, preferred sending gangs of men to solicit work from him.3

Meanwhile, on November 18, at a meeting of the Executive Council, the Governor had accepted the advice of his ministers that they remain in office until the end of the year, on the assumption that their abrupt resignation would be detrimental to the public service; they pointed out that the Newfoundland civil service had no deputy ministers or permanent under-secretaries so that the ministers were the only men qualified to carry on the work of government. In acceding to the wishes of his ministers, the Governor, however, warned them, first, that he could not permit them to sanction any government expenditures, and, secondly, that he could not allow them to make any appointments but those whose services were indispensable to the carrying on of government. To these conditions, the Governor added another which he had not pressed at the Council, but inserted in a memorandum that he sent to Thorburn on November 20-that the Railway Commission, the body which customarily issued railway-employment tickets, be suspended for the time being and

superseded by a new body composed of one person nominated by Whiteway, one member of the Railway Commission, and the Government Engineer. The Governor insisted on this point, quite obviously an afterthought, because he wished to avoid the contingency of admitting "as valid any promises made to

any particular member or members of the former or existing House for pros- pective expenditure."4 The imputation was clear: the Governor felt that if he

lNewfoundland Archives, Governor's Office (G.O.), Letter Book of Governor's Secret and Confidential Despatches to Colonial Office, 1884-90, O'Brien to Knutsford, Nov. 14, 1889. All manuscripts cited, unless otherwise stated, are from the Newfoundland Archives.

2Ibid., O'Brien to Knutsford, Dec. 10, 1889; Public Record Office, Colonial Office (C.O.) 194/213, Thorburn to O'Brien, Dec. 10, 1889.

sC.0.194/213, Whiteway to O'Brien, Nov. 19, 1889. 4Ibid., O'Brien to Thorburn, Nov. 20, 1889.

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Crisis of 1889 in Newfoundland

did not intervene, his advisers would instruct the Railway Commission, three of whose members were in Thorburn's cabinet, to reward their supporters to the prejudice of those who had voted for Whiteway's party.

Though Thorburn had not expressed opposition to the qualifications of the Government's powers which the Governor had laid down at the meeting of the Executive Council, he did so in reply to Sir Terence's memorandum. Thorburn informed the Governor that, although he recognized the need for a large modification of the Government's responsibilities, he could not agree that any modification was needed in matters for which there was legislative authority; railway employment, for which the Railway Commission was responsible under the Railway Act, clearly fitted into that category.5 Thus while the Governor wanted to set up a non-partisan organization for the purpose of by-passing the Railway Commission, which he was certain would indulge in political patronage, Thorburn claimed that the Commission was the only proper agency through which employment could be provided.

A meeting of the Executive Council on November 28 did nothing to remove the acrimony that had developed between the Governor and his advisers. It proved to be a lecture in which the Governor admonished them that he would not retreat from the position he had previously taken. By that time, moreover, he had armed himself with Todd, the leading authority on constitutional government in the colonies, and proceded to interpret him along the following lines: ministers were responsible to the legislature, but such responsibility did not exist in the present Executive Council, as not one of its members had been elected and therefore could not answer to the Legislative Assembly. It was this, the Governor asserted, that had led him to write his memorandum of November 20: he felt that any action of the Government to which he gave his approval could not be defended under the existing circumstances. Accordingly he declined to approve the appointment of Thorburn and Ayre to the Legis- lative Council, the upper chamber of the legislature.6

Only one meaning can be attached to Governor O'Brien's statement-that he was not bound to accept the advice of his ministers. The stand he took was in general accordance with the Letters Patent and Instructions of 1876, in which the Governor was authorized "to act in the exercise of the power committed to him by Our said Letters-Patent, in opposition to the advice which may ... be given to him by the members of the . . . Executive Council," whenever he felt called upon to do so.7 But if he was not bound to accept the Council's advice, why did he agree to retain his ministers? Why did he not ask for their resignation at once? The answer must be found in a further examination of the evidence.

The Governor was, in fact, seeking other advice. He had not done so at the outset but, in not making his position clear, he encouraged Whiteway, who had taken the initiative in the matter, to volunteer advice. Instead of politely acknowledging Whiteway's first note in the usual non-committal

5Ibid., Thorburn to O'Brien, Nov. 22, 1889. 6G.O., Governor's Miscellaneous Papers and Despatches, 1888-9, Governor's precis of

remarks addressed to Executive Council, Nov. 28, 1889. 7Journal of the Assembly of Newfoundland, 3rd Session of 12th General Assembly, x.

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326 Canadian Journal of Economics and Political Science

manner, the Governor actually began a correspondence, and, without fully comprehending the unconstitutionality of his action, proceeded to act on the advice that Whiteway gave him. Whiteway's first note of November 18

appealed to the Governor's wish to avoid a demonstration, which was made to seem imminent if work were not immediately provided.8 This note was followed by another on the next day, in which Whiteway asked for the Governor's "firm and determined action" to avert trouble.9 As we have seen, the Governor's "firm and determined action" took the form of advising the establishment of a non-partisan committee to look into the problem of unemployment, from which course his ministers only with difficulty succeeded in

dissuading him, though he persisted in sending directions to the Railway Commission.

That the ministers were indeed being forced into an untenable position became even more obvious within a week of the Council meeting. On Decem- ber 4 Whiteway protested to the Governor that the work tickets on the railway were not being issued impartially and that he disapproved of the way in which contracts for railway construction had been made.10 Embodying these observations in a note to Thorbur, the Governor virtually capitulated to Whiteway's demands by requesting that the distribution of tickets be put into the hands of members elect of the Assembly for the purpose of avoiding the certainty of disturbances.1l To this Thorburn replied within a few hours that, though he would not "presume to question on whose authority" the Governor had been led to believe that disturbances were on the verge of erupting, he was

quite confident of the Railway Commission's competence to perform its duties.12

Whiteway was aware of the unconstitutionality of the proceedings to which he was contributing and of the false position which he was assisting the Governor to assume. Sir Terence, complaining to Whiteway of the ministry's intransigence,13 gave him the opportunity which he was quick to seize of

denigrating the Government, while at the same time protesting his innocence as an elected member for Trinity with no official position.14 Whiteway continued his attack on the Government with added vehemence two days later, when he informed the Governor that the crisis had been due to "the teachings, corrupt practices, recklessness, and incompetency of the men whom you have as your Executive Council, who for years have scattered broadcast the revenue of the Colony and monies borrowed upon its credit and created a condition of demoralization to be deplored." To these remarks, which would have been more appropriate on the hustings, Whiteway added for the first time his

opinion that the Government could have avoided all tension by tendering its

resignation immediately after the elections.15 All barriers were down soon

8C.0.194/213, Whiteway to O'Brien, Nov. 18, 1889. I9bid., Whiteway to O'Brien, Nov. 19, 1889.

10G.O., Governor's Miscellaneous Papers and Despatches, 1888-9, Whiteway to O'Brien, Dec. 4, 1889. lllbid., O'Brien to Thorburn, Dec. 4, 1889.

12Ibid., Thorburn to O'Brien, Dec. 4, 1889 (my italics). 13C.0.194/213, O'Brien to Whiteway, Dec. 4, 1889. 14G.O., Governor's Miscellaneous Papers and Despatches, 1888-9, Whiteway to O'Brien,

Dec. 5, 1889. 'sIbid., Whiteway to O'Brien, Dec. 7, 1889.




after: on the receipt of Whiteway's note of December 7, the Governor asked Thorburn to let him know when he could give up the seals of office;16 on December 10, Thorburn, having the previous day agreed to resign on Decem- ber 12,17 repeated that his confidence in the Railway Commission remained unshaken and explicitly took exception for the first time to Whiteway's inter- ference: "I can hardly understand how a person of Sir William Whiteway's experience could have entered on the irregular course of addressing Your Excellency... .,18

Both the Governor and Thorburn felt constrained to justify their positions to Lord Knutsford, the Colonial Secretary. As it would be instructive to examine the evidence each presented, let us take note in the first instance of Governor O'Brien's dispatches of December 10 and 19, and then of Thorburn's private note of December 24 to Knutsford, and the latter's observations of January 30, 1890.

The Governor wrote that, although the Government had been defeated at the polls, there was, his ministers had informed him, a precedent for retaining them in office. But he had been confronted with an unprecedented situation: the existence of mass unemployment, which, in the light of the election results, he had felt it best to overcome by appointing a non-partisan committee. The election results had also been the reason for his refusing the Government leave to exercise any but the most routine administrative functions, on the grounds that, not having expected defeat, they had neglected to fill several vacancies and make contracts and would have done so without his inter- vention. This arrangement had unfortunately proved unworkable, first, because of the Government's refusal to accede to his wishes, and, secondly, because of the insistent appeals in the press and from Whiteway to have him revise his decision: hence his request for the Government's resignation before the end of the agreed period. Under the impression that the decision had been prompted by a mutual concern for the public welfare, he had been amazed to find that the Government wished, on resigning, formally to register in the minutes of the Executive Council its disapproval of his actions; but he had refused to admit the validity of their complaints, since by so doing he would have become a party to an ex-parte statement reflecting on his administration. The Governor attributed the ill feeling, of which he said he had possessed no inkling, to "one of those informal meetings in which they [the ministers] persisted, notwithstanding my predecessor's directions19 . . . and my having steadily since I came here set my face against such irregular proceedings, which tended to completely ignore the Governor."20

In his note to Knutsford, Thorburn made the following points. In the first

16C.O.194/218, O'Brien to Thorburn, Dec. 7, 1889. 17The resignation actually occurred on Dec. 16, 1889. 18G.O., Governor's Miscellaneous Papers and Despatches, 1888-9, Thorburn to O'Brien, Dec. 10, 1889. 19G.O., Letter Book of Governor's Miscellaneous Despatches, 1888-95, Blake to Thorburn,

April 2, 1888. Governor Blake had remonstrated with Thorburn for having made decisions without bringing them to his attention at the Council meetings.

20G.O., Letter Book of Governor's Secret and Confidential Despatches to Colonial Office, 1884-90, O'Brien to Knutsford, Dec. 10, 19, 1889.

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place hei had, despite the verdict of the polls, thought it best to remain in office till the end of the year, which was also the end of the fiscal year, for a sudden departure from office would have disrupted the work of the depart- ments which did not have permanent deputy heads as in the other colonies. The Governor had given his full approval. The administration of the public service at the end of the year was of a routine nature and involved no new responsibilities; in any case there had been no intention to exercise extra-

ordinary powers because the election results had made it abundantly clear that the ministry's previous mandate had been reversed. The Governor, however, had overstepped his constitutional powers when he had entered into a correspondence both with Whiteway and the Railway Commissioners, accepting the former's advice and charging the latter with abuse of their office. He had done so in complete independence of the advice of his ministers. Lastly his constant reminders to his ministers of the need to restrict their activities implied that he had reason for supposing that they would have asked him to assent to unlawful expenditures-a wholly unwarranted suppo- sition.21

Knutsford's dispatch of January 30 to the Governor is perhaps one of the clearest expositions of the duties and prerogatives of a colonial governor, and extracts from it are worthy of being quoted in extenso:

In general terms it may be laid down that with regard to matters in which no Imperial interests are involved the Governor may properly make suggestions and offer advice22 to his Ministers, but that he cannot initiate, and carry through any measure except on the advice of his responsible Ministers for the time being. They and they alone are responsible to the Legislature for such measures, and in no case can a Governor be called in question by the Legislature for acting on their advice.

If they offer him advice which he cannot accept, or if they refuse to act on suggestions which he may offer, and they resign or are dismissed in consequence, the Governor can only seek other Ministers who will be prepared to endorse his actions and become responsible for it [sic] to Parliament; and, while it is the duty of a Governor to refuse to act upon advice which he regards as seriously detrimental to the general welfare and opposed to public opinion as represented in the Legis- lature and the Colony, it is obvious that in maintaining his own views against Ministers for the time being, he incurs the risk of placing himself in a serious difficulty, should it prove that he has misunderstood the public sentiment and fail to find Ministers prepared to accept responsibility for his action and able to .defend it successfully in Parliament.

In the case of Ministers who may, as in the present instance have lately been defeated at a general election, when all leading questions of public policy have been fully discussed before the Electors, the Governor should be in no doubt as to whether in any given circumstances he can consent to follow the advice tendered to him by his Ministers until they have been replaced by new advisers; and it is convenient that he should, as you did at the meetings of the Executive Council, explain the general limits within which he would be prepared to act on their advice.

Knutsford then went on to remark that the Governor's peremptory tone and unfortunate language had naturally alienated his ministers; his lecture from

21C.O.194/213, Thorburn to Knutsford, Dec. 24, 1889. 220f course the Governor had the duty to suggest and advise on all matters of Imperial

interest.

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Todd was a confession of his uncertainty and an admission of the false position into which he had stumbled. The Colonial Secretary closed his dispatch with a reference to the practice of holding informal meetings of the cabinet:

... Though in view of the many questions of Imperial interest which have to come before your Ministers, I think it desirable that the Governor should continue to be present and take part in the deliberations, in order that he may be able to represent effectively the views of Her Majesty's Government, it is not the usual practice in Colonies possessing Responsible Government for the Governor to be present at any but merely formal meetings of the Council, and if therefore your Ministers continue to hold informal discussions in your absence, you would not be constitutionally justified in insisting on your objection to it.23

Knutsford's remarks elicited from the Governor a mixture of impassioned self-defence and an admission of error.24 He now admitted that he would have been far wiser if he had demanded the resignation of his ministers at the outset, but that he had been precluded from so doing, because he had wished to spare their feelings which had been humiliated by their crushing defeat. To this singular consideration, he added that his ministers had, for the purpose of retaining office and rewarding their supporters, created a flimsy distinction between titular permanent under-secretaries, of whom there were none in the

colony, and permanent head clerks who, in fact, did the work of the depart- ments and were capable of carrying on the administration. As for his con- nections with Whiteway, he denied that he had ever consulted him, "though being at the head of so strong a party, I had to give his representations my full consideration; and as he knew the state of public opinion better than I did, I called on him for a statement of the position of affairs." He also denied that he had acted independently of his ministers in directing the Railway Commissioners, but "I certainly directed my private secretary to send several gangs of men, that were at my door, with notes to the Chairman he would do something." Both statements are those of a man who genuinely and in- genuously believed that he had not departed from constitutional practice. His objection to the holding of informal meetings of the Council stemmed from his having learned that important decisions had been taken without his knowledge. Again the Governor seemed to be unaware that cabinet decisions made in this way were quite in order; and that, whereas his predecessor, Governor Blake, could on the strength of his personality win the confidence of his ministers, he himself was unable to do so precisely because of the defects of his character, all too apparent to his advisers.

The Governor cited two precedents in justification of his actions. It is quite apparent that he had burned the midnight oil in his search for them, for his previous explanations had not been quite the same. He referred to Grey's dispatch of November 3, 1846, to Sir John Harvey, Lieutenant-Governor of Nova Scotia, who had been advised to "follow a perfectly neutral course, and to refuse to assent to any measure which may be proposed by your Council, that may appear to involve an improper exercise of the authority of the Crown

23G.O., Secret and Confidential Despatches to Governor from Colonial Office, 1890, Knutsford to O'Brien, Jan. 30, 1890.

24C.O.194/214, O'Brien to Knutsford, Feb. 24, 26, 1890.

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for party, rather than public objects."25 This counsel was one of the factors that lay behind Governor O'Brien's refusal to sanction the appointment of Thorburn and one of his supporters to the Legislative Council.26 The other rested on the refusal in 1877 of Lord Normanby, Governor of New Zealand, to make an appointment to the Legislative Council while a vote of want of confidence was pending, a decision that was subsequently endorsed by Hicks- Beach, the Colonial Secretary.

Perhaps the most revealing reflections on the imbroglio were those minuted

by the permanent officials of the Colonial Office. The analysis of John Anderson, who had been in the service since 1879 and was himself to occupy a governor- ship-in Ceylon-is by far the most interesting. He regarded Sir Terence's

dispatches as not being "a very dignified production. He seems to have lost his temper and his head too...." The Governor, he observed, had made the

following blunders: first, he had been dictatorial in his dealings with the Thorburn ministry; secondly, the ministry had cause for complaint in the

way in which the Governor had allowed himself to be influenced by Whiteway, whose advice had undeniably been the cause of the resignation; thirdly, em-

ployment, which was the most pressing problem, could hardly have been provided if the Governor refused his ministry permission to award contracts for railway construction; fourthly, the Governor had committed the double error of writing direct to the subordinates of his ministers on official business, and in charging bad conduct on the part of the responsible heads of the

department; and lastly, the only point upon which the Governor had proceeded correctly had been in refusing his approval to Thorburn's elevation to the Legislative Council, though Thorburn could be pardoned for pressing his claim.27

John Bramston, the Assistant Under-Secretary, was equally critical of the Governor's conduct, but, while regretting O'Brien's folly in having permitted himself to become a buffer between Thorburn and Whiteway, felt that the Governor had intervened with the best of intentions. This unfortunately was not enough, for a constitutional governor should have kept himself clear of such entanglements: "The ways of the Thorburn Ministry may have been crooked, but that was a matter for the local Parliament, not for the Governor, unless the offence was really glaring. So long as they were in office he should not have interfered."28

Sir Robert Herbert, Permanent Under-Secretary, believed that to express any public blame of the Governor would serve no purpose; it was sufficient to let Thorburn know that the Governor had been actuated by a sincere desire for Newfoundland's welfare and not from any motives of personal hostility to his ministers. Herbert's sympathies for the Governor, who had unfortunately and suddenly "and without any previous political experience to deal with

25For a consideration of Grey's dispatch see H. V. Evatt, The King and His Dominion Governors (London, 1936), 25-7.

26If the Governor had accepted Thorburn's advice, the Legislative Council would have been composed of nine Thorburn men as against six Whiteway men.

27C.0.194/214, minute of May 3, 1890. 28Ibid., minute of May 17, 1890.

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Crisis of 1889 in Newfoundland 331

two unscrupulous sets of party leaders," sounds very much as if he had had

many occasions to regret similar experiences in other colonies.29 The conclusion must be that the Colonial Office, in framing vague in-

structions which were in many cases interpreted and applied by men of little

experience, could only hope for calm and good manners, qualities frequently, if not entirely absent from politics. Of course the Colonial Office did not minimize the importance of the Governor's prerogatives; their exercise was valid and quite necessary on certain occasions. The problem, however, remained an insoluble one so long as injudicious men were appointed to positions of great responsibility.

29Ibid., minute of May 19, 1890.



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The Constitutional Crisis of 1889 in Newfoundland

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