Upper Canada. Executive Council Office : The Executive Council was among the first institutions established in each colony of British North America. Designed to advise and assist the governor in his executive, legislative and judicial functions, the Executive Council was formed pursuant to the Royal Instructions which partnered the governor's commission. Members of the Executive Council were appointed on instruction from the Crown, conveyed by a Royal Warrant, or at the governor's discretion. The initial appointees to the Executive Council in Upper Canada were named in the Instructions provided to Dorchester as Governor in Chief, dated 16 September 1791, and to Simcoe as Lieutenant Governor. Lieutenant Governor Simcoe met with his Executive Council for the first time on 8 July 1792.
A number of the clauses in the Instructions dealt specifically with aspects of the Executive Council's composition and activities, including such things as method of replacement, suspension or removal of Councillors; the quorum required for the transaction of business; and the situations in which the Governor was required to seek the advice and/or consent of Council. In the event that the governor was absent or died, the senior member of the Executive Council assumed his powers as Administrator of the province. The title President of Council was also used, where the senior member had been Chairman or President of the Council.
The membership of the Executive Council changed over the years with the death or dismissal of incumbents and replacement appointments. Until Lord John Russell's despatch of 16 October 1839 regarding tenure of office, most Executive Councillors held their appointments for life. However, attendance at Council was irregular, and in some cases most infrequent. Indeed, in response to the need to ensure that government business was not hindered by absenteeism, a system was put in place for the appointment of "honorary" Councillors who attended only when specially summoned. A list of the members of the Executive Council of Upper Canada, with dates upon which they took the oath of office, is provided in Appendix I of the publication Public Archives of Canada, Manuscript Division: Preliminary Inventory, Record Group 1, Executive Council, Canada, 1764-1867 (Ottawa: Queen's Printer, 1953).
Subjects referred to the Executive Council were classified either as "state" or "land" business and the records relating to each category were kept separately. Under the heading of "state" business the Executive Council advised the Governor both on the matters he was required to lay before it and on any additional references he chose to make. Business was brought before the Governor in Council by means of submissions. The Governor gave effect to his decisions, made with the advice of Council, through orders-in-council. The deliberations and decisions of the Governor and Council were recorded as minutes in books maintained by the Clerk of the Council.
Committees and sub-committees of the Executive Council were formed to deal with various questions. Given the volume of business presented to the Executive Council, committees were nominated from among the Council members to investigate individual issues, and their findings were presented to Council and entered as reports into the minutes. The committee structure evolved over the period 1791-1841, with the system including both temporary and permanent bodies according to the circumstances of the business under consideration. Some committees were of a temporary nature and were appointed to deal with specific business as it arose. Others took on a more long-term status. A committee of the whole Council, for example, handled land business in Upper Canada and separate series of minutes, submissions and related records were developed. In 1827 the general policy of making gratuitous land grants was terminated and a Commissioner of Crown Lands was appointed to supervise the orderly disposal of Crown lands by sale at public auction. Both the lands selected by the Commissioner and his suggested upset price had to be approved by the Governor in council before the sale could take place. The Executive Council's land duties were expected to become less onerous as a result of the new system, but in 1829 gratuitous grants were offered to the officers and men of the "late embodied militia", and the Council was called upon to consider petitions submitted in this connection.
The judicial functions of the Executive Council were varied. In addition to serving as members of the Court of Appeals, the councillors considered criminal cases and advised the Governor on appeals for clemency. The Council also, together with the Governor, possessed the power to punish state offences with prison terms.
Secretarial duties for both the Council and its committees were performed by the Clerk of the Executive Council and his assistants, ensuring a degree of consistency for the record-keeping associated with those bodies. In the conduct of his duties, the Clerk of the Executive Council prepared and preserved certain records on behalf of the Council - notably the Land and State Minute Books and the submissions on which they were based - and others on his own behalf. The inventories of records preserved and the daily or weekly logs of work performed and information gathered demonstrate the range of responsibilities assumed by the Clerk over time and the nature of assistance provided by his staff in performing those duties.
A useful summary of the roles and responsibilities of the Executive Council of Upper Canada, as that body existed just prior to the Union of the Canadas, along with a brief historical discussion of the evolution of the role of the Council, is provided in the Report of the Commissioners appointed in 1839 to investigate the business, conduct and organization of the several public departments. Committee No. 3 was charged with the task of reporting on the Executive Council. In its Report, it characterized the business of the Council under three broad headings - "consultive"; "judicial"; and "fiscal". The Report states the role of the Executive Council in the first of these three spheres as "consideration of reporting and advising upon" references from the Governor upon state affairs; petitions and other applications respecting grants and location of lands; and the affairs of the Canada Company. The "judicial" sphere embraced the Council's role as the Court of Appeal for the Province; the consideration of criminal cases and advising upon the exercise of the Royal clemency; the decision of claims under the Heir and Devisee Commission (of which the Councillors were ex-officio members); and commitments for state offences (this last an authority arising from Provincial Statute passed in the wake of the rebellion). The auditing of the public accounts constituted the "fiscal" business of the Executive Council.
