Although elected in opposition to responsible government, the legislature of 1843 at its first session took one important step in favour of Reform. The arrangement by which the executive and legislative councils were separated, which had come into force ten years before, although a decided improvement on the old state of affairs, did not produce universal satisfaction.[3] The constitution of the legislative council was complained of, and it was described as an obstructive body which disregarded the wishes of the people. Bills of the utmost importance, which had been passed by large majorities in the House of Assembly, and which were demanded by the people, were frequently rejected by the council without being even discussed. Most of its members were opposed to any change in the constitution of the province, and everything which seemed to be in the direction of giving power to the people was denounced as an innovation and condemned as an infringement of the vested rights of the council. One of the chief causes of complaint against the council was their rejection of every bill for the amendment of the charter of King's College. Wilmot had so frequently had his efforts in this direction nullified by the council that he introduced a resolution in the assembly condemning the conduct of that body for rejecting the college bill, and the council retaliated by unanimously voting this a breach of privilege.[4] The complaints of the House of Assembly against the legislative council were now embodied in an address to the queen. In this address it was stated that in the opinion of the House the legislative council should be composed of persons not only representing all the leading interests of the province, but so independent in respect to property and so free from official control as to form a constitutional check on the executive. Although, by the laws that existed then, members of the assembly were required to be possessed of real estate to the value of two hundred pounds, over and above all encumbrances, there was no property qualification whatever required for members of the legislative council. The address of the House expressed the opinion that members of the council should be required to possess a certain amount of real estate, and that their seats should be vacant on the loss of this qualification, or on their becoming bankrupt, or public defaulters, or from neglect to give their attendance for a given time without leave of the lieutenant-governor. The address also stated that the constitution of the legislative council was defective and objectionable in other respects, because, of the eighteen members who composed it, a great proportion held offices at the pleasure of the Crown, and the principal officers of the government usually formed a majority of the members present. It was also complained that members of the Church of England had too great a preponderance in the council, the only members not of that communion being one Presbyterian and one Baptist.

At the next session of the legislature, despatches from Lord Stanley were laid before the House of Assembly in which it was stated that the council would be increased in number to twenty-one, and four new members of the council were to be appointed. The new members then appointed were T. H. Peters, Admiral Owen, William Crane and George Minchin, while the Hon. Thomas Baillie, the surveyor-general, the Hon. Mr. Lee, the receiver-general, the Hon. James Allanshaw, of St. Andrews, and the Hon. Harry Peters, of Gagetown, retired. No doubt the retirement of two officials who received large salaries was some improvement, but the council required further remodelling before it could be said to be an efficient body, or one in sympathy with the inhabitants of the province.

The legislative council has now ceased to exist, and it may be said of it that it was never a very satisfactory body for legislative purposes. Perhaps the original composition of it created such a prejudice against legislative councils as to hamper its activities; and, from having been at first merely the echo of the wishes of the governor, it became latterly, to a large extent, the echo of the wishes of the government. Gradually it became relieved of its official members, and in its last years no head of a department ever occupied a seat in the legislative council; for it was thought, and rightly, that the power ought to be in the House, where the responsibility to the people was most felt, and that it was not wise to place an official whose department expended large sums of money in a body which properly had no control over the public expenditure. The legislative council had undoubtedly from time to time many able and useful members, and, at certain periods in the history of the province, particularly during the confederation discussions, it took a firm stand in favour of measures which seemed essential to the prosperity of the British North American provinces. No one can deny that at that time it exercised an authority fully equal to that of the Lower House, but it cannot be doubted that some of this work was done at the expense of the proper balance of the constitution. Such an exercise of unusual authority on the part of a body not elected by the people may serve a purpose at a particular crisis, but cannot be commended as an example, and if frequently repeated would end in the destruction of the constitution.

The legislative council lost a considerable proportion of its able men at the time of confederation by the removal of eleven of its members to the senate of Canada, although one or two remained with it who were not inferior to any of those who then took their departure. The new members who came in as their successors were naturally inferior to the old in practical experience and ability, and this had, no doubt, an influence on the future of the House. The example of Ontario, which was able to conduct its affairs with one House, showed that two independent branches of the legislature were by no means necessary, and that the council might be abolished with safety. No doubt it was difficult to bring this about among a people who had been trained to believe that there was something essential to legislation in the balance of king, lords, and commons, making up one legislative body. But in the course of time the electors began to think that the council was not exactly the proper equivalent of the House of Lords, and the lieutenant-governor very far from standing in the position of a king. Old prejudices in favour of a constitution framed after a particular model are difficult to remove, but, in the case of New Brunswick, these prejudices were at length overcome, and it is safe to say that in the course of time all the provincial legislatures of Canada will consist of but a single chamber. It is equally safe to assert that under the new system the work of legislation will be as well done as it was under the old.

The session of the legislature in 1843 came to an end on April 11th, and on the seventeenth of the same month Wilmot became a member of the government. His appointment had been preceded by the resignation of five members of the government—Messrs. Black, Shore, Robinson, Odell and Crane—and by the appointment of Messrs. E. B. Chandler, Hugh Johnston, John Montgomery and Robert L. Hazen, to fill the vacancies thus created. Of the retiring members two—Messrs. Black and Shore—were members of the legislative council; one of them, Mr. Crane, was a member of the House of Assembly, while the other two were officials who did not belong to either branch of the legislature. Of the new members of the executive council, Messrs. Chandler and Johnston were members of the legislative council, Messrs. Hazen and Wilmot were members of the House of Assembly, while Mr. Montgomery had no seat in either House. The executive council as made up at that time included four members of the legislative council, three members of the House of Assembly and Mr. Montgomery, who did not become a member of the House of Assembly until three years later. There is no doubt that the composition of the new executive council was more in accordance with correct principles than its predecessor; yet little could be expected from it in the way of Reform, for Wilmot was the only member who was in favour of responsible government.

Mr. Wilmot has been censured for entering a government composed of men who were opposed to the liberal views he held on public questions. It was thought by many that his conduct in this respect looked too much like a surrender of his principles for the sake of office or official position, and it certainly would have been better if he had continued in Opposition. Yet we can easily conceive that he may have thought at the time he could do more for the cause of Reform inside the government than out of it, and, although this proved to be an error, it was a natural one for which it is not difficult to find an excuse. Fortunately for the cause of Reform, Wilmot's connection with the government did not last long at that time. A storm was gathering in an unexpected quarter which was destined to wreck the government, and to cause some of its Conservative members to reconsider their opinions with reference to some questions which until then they had regarded as fixed and unchangeable.

It has been already stated that the governor of the province made such appointments to office as he pleased, usually without the advice of his council. He was supposed to have the power to do this as the representative of the sovereign and in the exercise of what was termed "the royal prerogative." In this way persons were frequently appointed to offices who were not residents of the province, and in all other cases appointments were given to the members of certain favoured families. In 1834, a vacancy was created on the supreme court bench by the death of Chief-Justice Saunders. Ward Chipman was appointed chief-justice in place of Mr. Saunders, and the vacant puisne judgeship was given to James Carter, who afterwards became chief-justice of the province. Carter was a young Englishman then living in London, and was certainly no better qualified to fill the position of judge than many natives of the province, so that it was regarded as a gross insult to the members of the New Brunswick bar, to give such an appointment to a stranger. Yet so slow was public opinion to make itself felt in regard to the evil of the appointing power being given to the governor without qualification, that ten years later the House of Assembly presented an address to Sir Charles Metcalfe, governor-general of Canada, expressing the high sense entertained by them, as representatives of the people of New Brunswick, of the "constitutional stand" taken by him in maintaining the prerogative of the Crown in the then recent memorable "conflict."[5] The city of St. John also, to show its loyalty, presented a similar address; and one signed by one thousand persons was sent from the county of York.

Yet nothing can be more clear than that the stand taken by Sir Charles Metcalfe in 1844 was wholly wrong, for it consisted in refusing to consult with his council in regard to appointments, and in making appointments contrary to their advice. What would the people of Canada say to-day to a governor-general who insisted on appointing men to office against the advice of his cabinet? Yet it was for doing this that the New Brunswick House of Assembly, the city and county of St. John and the county of York actually grovelled in the dust before this despotic governor, thus approving of all his acts. Such abasement and subserviency to an unconstitutional governor was certain to bring its own punishment, and it came much sooner than any one could have anticipated. On Christmas Day of the same year the Hon. William Franklin Odell, who had been provincial secretary for thirty-two years, died at Fredericton. Mr. Odell's father had been secretary before him from the foundation of the province, so that the Odell family had held that important and highly lucrative office for sixty years.

The governor at this time was Sir William Colebrooke, and on January 1st, 1845, just one week after the death of Mr. Odell, he appointed his son-in-law, Alfred Reade, who was a native of England and a stranger to the province, to the vacant office. The gentlemen who had been most prominent in shouting their approval of the "constitutional stand" taken by Sir Charles Metcalfe, now suddenly discovered that Sir William Colebrooke's conduct in making this appointment without consulting his council, was a fearful outrage, and their distress was pitiable to behold. Several members of the government, including such zealous upholders of the prerogative as the Hon. Robert L. Hazen, of St. John, at once resigned their positions. A communication from three of them—Hugh Johnston, E. B. Chandler and R. L. Hazen—addressed to His Excellency gave as their reasons for resigning that they could not justify the exercise of the prerogative of the Crown in respect to Mr. Reade's appointment, because they felt that "the elevation to the highest offices of trust and emolument of individuals whose character, services, and claims to preferment, however appreciated elsewhere, are entirely unknown to the country generally, is prejudicial to the best interests of the province." They did not, however, make it a ground of objection that the appointment of Mr. Reade was forwarded for the royal approbation without the advice or concurrence of the council. These gentlemen evidently thought it was too early for them to eat the words in regard to the prerogative of the Crown, of which they had been so free a few months before, but they showed their true characters by deserting the governor because he had been foolish enough to believe that their profuse expressions in favour of the royal prerogative were sincere.

Mr. Wilmot, who also resigned, sent a separate communication to the lieutenant-governor in which he stated what he considered to be the true constitutional doctrine which should govern such matters. He said:—

"In the first place, I consider it justly due to the people of this province, that all the offices of honour and emolument in the gift of the administration of the government should be bestowed upon inhabitants of the province who have made this country their home, and, in the cases of the principal offices, those persons should be preferred who have claims for public services rendered to the province, and who can command the respect and confidence of the country. With these views, which I hope I shall ever retain, I must necessarily disapprove of the appointment in question, as I can only look upon Mr. Reade as a comparative stranger and a transient person, while, at the same time, I am of opinion that he has no claim whatever on the ground of public services rendered to this province.

"It would be in vain for the parents of our youth to make every exertion in order to qualify their sons for the higher offices of the province, if the avenues to honourable and profitable preferment are to be thus closed against them; and I therefore cannot but view the appointment under consideration as an act of great injustice to the people of this country; and I can safely assure Your Excellency that it will be thus considered throughout the length and breadth of the province.

"Your Excellency is well aware that ever since I have had the honour of having a seat in the council, I have approved of, and advocated those principles of colonial government which are now in full operation in Canada, which have been distinctly enunciated by the present government in the House of Commons, and which require the administration to be conducted by heads of departments responsible to the legislature, and holding their offices contingently upon the approbation and confidence of the country as expressed through the representatives of the people. Still entertaining a strong attachment to those principles from a clear constitutionality, and, from a conscientious belief in their safe and practical adaptation to a British colony enjoying the privileges of a representative form of government, I can see no sufficient reason for withholding their salutary influence from the loyal and intelligent people of this province; and considering it more advisable that a gradual advancement should be made by the government itself towards those principles as opportunities may offer, than that a concession in gross should hereafter be made to the urgent demands of the country, I am of the opinion that the provincial secretary should now be brought into the executive government, and should hold a seat in one of the Houses of the legislature—his tenure of office being contingent upon the successful administration of the government; and therefore, as the appointment in question has been made irrespective of any of these conditions, I am bound to give it my opposition."

When the House met in the latter part of January, the Reade appointment immediately became the subject of discussion, and by the vote of twenty-four to six, an address was passed to Her Majesty the Queen, condemning the appointment, not, as the members said, because they questioned "in the remotest degree the prerogative in its undoubted right to make such appointments," but because they thought that the right of appointment had been improperly or unjustly exercised. In other words, the members of the House of Assembly surrendered the principle that appointments should be made by the governor, with the advice of his executive, and only objected to the Reade appointment because, in their opinion, some one else should have been chosen. It is easy to see that in subscribing to this address the members of the House stultified themselves; for if it was a part of the prerogative of the Crown to make appointments without the advice of the council, surely the exercise of the prerogative in the appointment of a particular individual could not be fairly questioned. The result of the difficulty, however, was the cancelling of Mr. Reade's appointment by the home government. This decision was communicated to the House of Assembly by message on February 3rd, 1846. The despatch from the colonial office, upon which the lieutenant-governor acted, was written on March 31st, 1845, and must have been received by him at Fredericton not later than the last of April. But notwithstanding this despatch Mr. Reade held office until July 17th, so it will be seen that Sir William Colebrooke was in no hurry to carry out the wishes of the home government. Lord Stanley, the writer of the despatch in question, expressed the opinion that public employment should be bestowed on the natives or settled inhabitants of the province, and he thought that Mr. Reade did not come under this description. He closed his despatch with the following singular statement:—

"I observe with satisfaction that the House of Assembly have not only abstained from complicating the subject with any abstract question of government, but have rejected every proposal for laying down formal principles upon such questions. The House has, I think, in this course done justice to the earnest desire of Her Majesty that the colonial administration generally should be conducted in harmony with the wishes of her people, whatever may be the variations arising out of local considerations and the state of society in various colonies, subject to which that principle may be carried into practice; and it is anxiously hoped that the same wise forbearance which has led the House of Assembly to decline the unnecessary discussion of subjects of so much delicacy, may lead them also to regard the practical decision now announced as the final close of the controversy, and to unite in the promotion, not of objects of party strife and rivalry, but of the more substantial and enduring interests of the colony which they represent." If these words have any meaning, they seem to show that at that date the British government believed the right of appointment to be in the Crown, without reference to the council, and that they were unwilling that any general principle should be laid down by the legislature of the province which conflicted with this view.