Dividing Power in the First and Second British Empires: Revisiting Durham's Imperial Constitution

Forthcoming in Review of Constitutional Studies

20 Pages Posted: 10 Feb 2016

See all articles by David Schneiderman

David Schneiderman

University of Toronto - Faculty of Law

Date Written: February 8, 2016

Abstract

In his Report on the Affairs of British North America, Lord Durham proposed that “internal” government be placed in the hands of the colonists themselves and that a short list of subjects be reserved for Imperial control. Janet Ajzenstat maintains that Durham did not intend to formally restrict the authority of the new colonial legislature by dividing power. This paper argues otherwise: that Durham’s recommendation fell squarely within a tradition of distinguishing between the internal and external affairs of the colony. This was the imprecise but pragmatic distinction that American colonists invoked during the Stamp Act crisis as a means of curtailing imperial authority over internal taxation while maintaining their allegiance to the British Crown. It also was a division that Charles Buller relied upon in a constitution for New South Wales that he proposed prior to sailing to Canada as Durham’s principal secretary. Durham likely was drawing upon this tradition when he made his recommendation, a distinction that began to crumble away almost immediately. In the result, Canadians inherited a robust semblance of self-government, just as colonists during the Stamp Act crisis had desired, but without the need for revolution.

Keywords: imperial constitutional history, comparative constitutional law, Canada, United States

Suggested Citation

Schneiderman, David, Dividing Power in the First and Second British Empires: Revisiting Durham's Imperial Constitution (February 8, 2016). Forthcoming in Review of Constitutional Studies, Available at SSRN: https://ssrn.com/abstract=2729391

David Schneiderman (Contact Author)

University of Toronto - Faculty of Law ( email )

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