UK, HL, “Canada—Declatory and Indemnity Bill.”, vol 44 (1838), cols 1056-103 (9 August 1838)
By: UK (House of Lords)
Citation: UK, HL, “Canada—Declatory and Indemnity Bill.“, vol 44 (1838), cols 1056-103.
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CANADA—DECLARATORY AND INDEMNITY BILL.
HL Deb 09 August 1838 vol 44 cc1056-103
Lord Brougham rose to move the order of the day for the second
reading of the Canada Government Act Declaratory Bill. The noble Lord said, the incidental conversations which had taken place on the important subject to which this bill related, and the preliminary discussions to which it had given rise, sufficed to show the necessity of introducing a measure of this nature—for they proved the deep interest that was universally felt in that House with reference to the question, and which he believed excited elsewhere a still greater degree of interest and of attention. He had felt it to be his bounden, though painful, duty, to bring this deeply important matter before their Lordships’ House, in consequence of statements which had been made in that House. He had also felt it to be his imperative duty to resist in all its stages, the passing of the Canada Coercion Act. Now, although his opinion remained the same as it was before—although every thing that had happened since the passing of that bill—(and above all, the matters disclosed in the papers then before their Lordships)—had strengthened rather than weakened his original opinion—although his reflections, in the intermediate time which had been given for deliberate and sober reflection during the progress of that measure, had led him to entertain the same opinion—an opinion decidedly hostile to that measure—although his opinion was as strong as ever on that point—although he was now induced to desire even more earnestly than formerly, that no such measure should have been passed—yet he had no hesitation in saying that, entering simply his protest against entertaining and carrying that bill—his opinion not having suffered any change, except that of greater disapproval of the measure—he meant in this proceeding to dismiss from his mind hostility altogether, with reference to what had already been done by the Legislature. He took that course because he thought that he should best discharge his duty as a Member of Parliament, as a good subject, and as a patriotic citizen of this empire, in avoiding all retrospect whatever, with respect to those ample grounds of difference and dissent which, in the progress of the bill to which he had alluded, separated him from almost all the Members of that House. With that feeling and impression, he should only consult now (that measure having been made law) how its policy and intention could be best accomplished and effected. Parliament,
in its wisdom, said, that it was proper, for the interest and safety of all parties, that a very large measure should be acceded to; so coercive a measure could only be wrung from Parliament on the alleged necessity, the imperative necessity, of the case. It seemed, therefore, to Parliament in the peculiar circumstances in which this important province was placed, that an absolute necessity existed for suspending the constitution. Why? Because it was deemed there was so universally prevailing a discontent which had broken out into outrage and violation of the law—that the Legislative Assembly, representing the people, was so disturbed, and, partially, even so disaffected, that so long as the constitution of the country was kept in its original state, and the Legislative Assembly allowed to hold its sittings, there would be, as it were, a focus of sedition and disaffection in the colony, which would blow up the flames into open rebellion, and preclude all hope of allaying the prevailing discontent. In one short sentence that was the policy in which the bill took its rise; and it was to establish the purpose of that policy that the bill was passed. Ample powers of Government therefore must, no doubt, have been provided, the constitutional powers having been extinguished; and such powers had accordingly been intrusted to the Governor-general in Council of the province of Lower Canada. Now, he would venture to say there was no proposition on this or on any other subject, which could be stated by man, more self-evident than that which he was about to utter,—every one who assented to that measure, and all branches of the Legislature in passing it (deeming it to be, as it carried in its very title, a temporary measure—a measure for providing for the temporary government of the province of Lower Canada, being in its enactments temporary, giving powers of an extraordinary nature, but which were to expire in 1840), those who passed it, looked forward to the restoration of the constitution, to a renewal of the ordinary powers of Government, within their ordinary restrictions, as soon as quiet being happily restored, the year 1840, should arrive. All the bill did or could intend to do then was to provide for a temporary administration of the necessary powers of government, the supreme power in the State, during the interval before peace should be restored, and while the constitutional powers of the Legislature
of Canada was suspended. Did there not follow from this, one corollary as self-evident as the proposition itself? That it behaved the Government erected during that interval for the temporary purpose of replacing the constitution which the bill had suspended—that it behaved those in whose hands such extraordinary powers were for that purpose during that interval confided—always to look forward to the year 1840, when the temporary constitution of an arbitrary description should cease to exist there, and when the old constitution, not arbitrary, but free, should be restored; and so to govern themselves, and so to administer the arbitrary powers intrusted to them, as to afford a chance, a good chance, a great and eminent probability, and, as far as human precautions could go in any human affairs, an absolute certainty that the year 1840, which restored the old constitutional government should also see real, substantial heart felt reconcilement re-established between the province and the parent state. The first and most important thing which could be done with that precautionary view, always paving the way for the restoration of the power of the mother country, was manifestly to exercise as sparingly, as parsimoniously as it was possible, the extraordinary jurisdiction and authority conferred by the bill. It was intended to supply the absence of the suspended constitutional power, by, he would not call it, although it had been called, dictatorial power, but power of a very extraordinary nature, and that this power should have been exercised as sparingly as possible, only when absolutely necessary, was the manifest policy, the clear intention, of the act itself. The constitution was suspended; it was supplanted by another; the free constitution was, for the present, silent, with its laws, ordinances, usages, and practice; it was repealed by another; an arbitrary one was put in its room—why?—because a supreme power must exist somewhere, or the ordinary function of Government could not be administered; and the intention was, that only what was necessary, and no more, should be done to enable the Government to carry itself on and take all the means which prudence, temper, moderation could suggest for the purpose of conciliating the people, and preparing them, notwithstanding the extreme act, which they thought an act of arbitrary violence, of suspending their constitution, so to
recover their affections as to promote the restoration of peace to the province and give stability and duration to the colonial connexion. Upon this latter point his opinions were not changed; he did not think it would be of very long duration; but, adopting the policy of Parliament to strengthen the connexion, to continue and as far as human precaution could extend to perpetuate the colonial subjection of the Canadas, his paramount duty, as an honest Member of Parliament, as a good subject, and a patriotic citizen, was to consult how the empire might be best held together, which could only be by means and measures to reconcile the affections of their transatlantic brethren. It was clear that under these circumstances as little should have been done as possible merely to carry on the Government. All extraordinary, and needless, and superfluous acts of authority should have been avoided. A second proposition he took to embody a maxim just as clear—that the utmost, the most scrupulous, care should have been taken not to exceed the ample power conferred by the Act. There was yet a third maxim applicable to this subject, of the truth and soundness of which he was equally convinced, that even acting within the powers conferred, taking the most scrupulous care not to exceed the ample limits of the authority given (and the more ample the limits the more easy was it not to exceed them)—the uttermost anxiety should be taken to execute the high, and in many respects the unconstitutional, powers given by the bill, by which he meant powers alien to the whole spirit of the constitution of this country, in so moderate a manner, with so extreme a caution, with so great a regard to the actual circumstances in which they were exerted, and, so to speak, in as constitutional a spirit as it was possible to show in executing unconstitutional powers. One thing was perfectly clear—if such great power of legislation was to be given and to be exerted, no laws should be made in execution of that power which the necessity of the case did not require. Not only was it always safer and more prudent, in the perils which surrounded them, rather to do too little than too much, but in the laws passed, which necessity might compel them to promulgate, extreme care indeed should be taken to follow the spirit, even to the forms, of British legislation. The person to whom they intrusted those powers
ought to be bold and resolute; but he ought also to maturely consider the perils with which he had to grapple, and he ought moreover to be aware and to feel, that discretion and prudence, in meeting those perils and in the exercise of those powers were fully more, and certainly at least as necessary in accomplishing the object he had in view—plurium audaciœ quoad capienda pericula but also plurium consilii ipsa inter pericula—When he came to consider how far these maxims had been followed, how far these canons of policy had been obeyed, how far those sound and moderate principles of common justice had appeared in the conduct of the Canadian council, he was compelled to say, that he could find no evidence that they were known. If he had said to their Lordships at the time this Canadian Bill was passing, “Do you mean to suspend the constitution, and to arm a dictator with the power of confiscating any individual’s property, of seizing his person, of condemning him unheard, of passing bills of pains and penalties of his own mere motion, and, with the assistance of his council, of promulging against whom he chose, and for what he pleased, at any moment acts of attainder?” if he had said “Do you mean in this bill, not only to make the governor of Canada the supreme law-giver, with his council, but a judge civil and criminal in every man’s case, as to his property, his limb, his liberty, and his life, a supreme criminal judge without appeal; and that he, the same person, with the assistance of his council, should execute the criminal law as well as the civil in all cases which the prerogative of the crown, his master or mistress, whom he represents, has always and in all times delegated to the sworn judges?” should he not be told at once, and by every man who had supported the bill on the policy in which it had originated, whether sitting on that or on the other side of the House, that he was putting an extravagant gloss upon the bill, that he was arguing upon the letter against the spirit, and that no man living would ever have dreamt of conferring such powers? But to make it more clear, elsewhere, in the other House of Parliament, that no such unlimited power had been given, a great lawyer, the worthy successor in his mind, of the Romillys, the Pigots, the Erskines, the Gibbses, and the Ellenboroughs of past times, he meant the late Solicitor-General, his hon. and learned Friend Sir
William Follett, not being satisfied with what had satisfied them, inserted words to which their Lordships’ attention had more than once been called by him, a proviso expressly declaring that no law or ordinance of the Governor in council should be passed which should repeal or suspend or alter any act of the British Parliament. If then he had stated, supposing this clause formed parcel of the bill originally, or if his noble and learned Friend (Lord Lyndhurst) had stated, after the precaution that had been taken to exclude such measures, might not the Governor, notwithstanding they had tied him down from altering, suspending, or repealing acts of the British Parliament generally, might he not in a particular case pass by them, and issue an ordinance in the teeth of them, to enable a party to do what the Act of Parliament prohibited, and to compel a party to suffer that from which those Acts protected him, and which were so formed for the express purpose of protecting him, would not the answer have been that it was monstrous, outrageous, ridiculous to suppose such a thing? When they tied up the hands of the Governor in council from altering the law made for the protection of all, should they allow him to evade that protection, by making a law for the oppression of an individual? The law being to protect A, B, C, and all other subjects, and being framed for that protection, and the Governor being prevented from repealing that law, should the Governor be allowed to do exactly the very thing which the law prohibited? Should he be allowed to destroy A, B, and C, by removing them from the protection of the general law? He need not state what the answer would have been. But, supposing those who were hostile to the measure—and he himself was one—had said, Why, not only will the Governor be passing bills of attainder, notwithstanding all these precautions—not only will he be flying in the face of all the most sacred and best established laws that guard the purity and justice of the administration of the criminal jurisprudence by which the statute of the 14th George the 3rd, in express terms, was made parcel of the law of Lower Canada, both as regards treason and all other crimes—not only will he do that, but I am afraid, as you make him absolute, he will condemn people who have never been tried; not only will he pass bills of pains
and penalties, privilegium odiosum, as civilians call it; not only will he pass bills of attainder, acts which in any country are resorted to only in cases of absolute and overruling necessity, which justifies itself, however atrocious the matter it may compel you to do—not only will he have recourse to bills of pains and penalties and acts of attainder, but he will not even pursue the ordinary course in all bills of attainder—have the confession of the party, or enable the party to come and appear and oppose them, or appoint a certain day, if the party has absconded, before which, if he does not appear, he shall be taken to have confessed and be made subject to the penalty of the Act. Supposing I had said, he will pass a bill declaring a number of individuals, not in the country, who have never confessed, who were never tried, against whom no indictment has been laid, who were not within the country at all since the Act in question—that he will pass a bill condemning them all to death if they come within the country—persons who were never tried, having confessed nothing, there being no plea and no hearing, having no notice of such bill served upon them, or any copy of notice asking them whether they meant to come back, and giving them a day on which to appear and take their trial—supposing he had said that, what would be the answer? Why, that he was putting a case which nothing but the most disorderly imagination could suggest; that he was supposing a case to happen which nothing but a distortion of the understanding, arising from hostility to the measure, and incurable prejudice, could, for a moment, have made him harbour. That, he was sure, would be the answer which he should obtain; and he was now about to show to their Lordships, that every one of these impossibilities had actually happened. He would pass by the statement of the Earl of Durham in his letter, in which he stated, that the ringleaders had been induced to plead guilty, because whoever read the whole passage, would perceive, that he was using an ordinary loose form of expression; and he would refer to another point, which stood upon very different grounds. In the first place, the Earl of Durham said that these parties confessed. Now, he was bound in justice to say, that Wolfred Nelson and the other persons, by their friends in America, and in this country, peremptorily denied their pleading guilty or confessing;
they said, that a paper was handed to them for their signature, which contained a confession of their guilt, but they respectfully declined to sign the paper; that no objection was made to their confessing having been guilty of resistance to the Government, but they positively denied that they had traitorously, or even seditiously, or rebelliously resisted the Government. He admitted, that those persons were willing to go to the Bermudas, but there was a reason why he could understand this. The jury law which had been introduced into Canada by Sir Robert Peel, and which had been found to work admirably, was only a temporary Act; it was experimental, and it expired in 1834, when a new bill was introduced. Then came on the unfortunate dissensions between the two Houses of Assembly, when the Upper House flung out the Jury Bill, because the Lower House flung out the Taxes Bill. There was, therefore, now no jury trial according to Sir Robert Peel’s Bill, but they reverted to the old jury system, which gave the sheriff, who was removeable at the pleasure of the Governor, the power of selecting the jury, so that Nelson and the others—and here he must say, that he was informed that Nelson was a respectable man, and one who had the confidence of his fellow-countrymen (but, however, that might be so or not); but if he were ever so bad a man, and ever so guilty, his observations would apply just as much as if he was the most respectable man in the world; because it was always against men of less pure character that arbitrary acts were directed, thus entrenching themselves in the natural feelings of men when they wished to overstep the bounds of law—that was a reason why these persons should prefer going to Bermuda, they being aware, as they now admitted, that they could not be detained there a moment; that as soon as they were three miles from the shore, where the jurisdiction of the Admiral began, they might bring an action against the Captain for false imprisonment, if he kept them on board; that the first ship they hailed they had a right to go on board of, and go to this country, or back to Canada if they wished. But they did not plead guilty, or make any confession. If they were disposed to plead guilty, they would go before a court and jury, and plead the plea of guilty. They were not taken before any court; and here another question suggested
itself. It was said, that no twelve men in Canada could be found to convict these persons upon their own confession. Why, in such a case, the jury would have nothing to do. If they were of sound mind, they must convict them for pleading guilty; there would be no issue for the jury to try, and consequently they must have been convicted. If, therefore, those persons had been disposed to plead guilty, they would do what was done every day at the Old Bailey, they would take them before a jury, have their plea entered upon the record, and sentence passed as a matter of course, and Government might, by negotiation, commute that sentence to transportation, by making terms with the parties, for them to agree to go to the Bermudas, or any other colony. The Earl of Durham said, that he would not send them to a penal colony. Was it certain, that the Bermudas was not a penal colony? It was a penal colony; there was forced work there. But this was perfectly immaterial; for whether it was a penal colony or not, did not affect his argument. He had already stated, that it was his deliberate opinion, that the proceedings that had taken place were illegal, under the terms of the Act as it stood, and all that he had to do in this bill, was to state that there were doubts; for every lawyer must agree in saying, that to doubt whether a thing was right or wrong, was sufficient to induce them to pass a declaratory Act, unless, indeed, some one were to get up and say, that they were all of them clearly in the wrong, and that there was no doubt but they were wrong. What he had stated, referred to the first branch of the case; and that was by far the most inconsiderable. What would be said of that part of the ordinance which condemned all those men who were not in the province, who had not only never been tried, but with whom no communication had taken place, who did not know that the ordinance existed, who had no notice of the intention in order that they might oppose it—those men who had never confessed, but who positively denied, many of them, all participation in last winter’s revolt—men who did not confess, or even, like Nelson, admitted the fact, but denied the inference,—men who denied both the fact and the inference—what would be said of a proposition so monstrous, that the fact, and the only fact, necessary to pass an Act of attainder, was the setting foot across the
Canadian frontier, although the party was untried, unprosecuted, unheard, ignorant of the Act, and without notice of the Act; aye, and without a day being assigned on which they might appear and stand their trial even according to the bad jury law of Canada. But all this had been done. This was the case before their Lordships. In the highest Court of Judicature in the world, in the highest Court of British justice, where the hair of a man’s head could not be touched without full hearing, open investigation, and fair trial, he need not ask whether such proceedings ought to be condemned? But it was said, that the Earl of Durham and his Council, who were on the spot, knew better than their Lordships here could, what steps it was most fitting to take. True they were upon the spot, and for that reason he and his Council would best know how to execute the law, and for that they had given powers, but they had no power to pass bills of attainder against absent men; the noble Earl had no power to pass them at all, but it was clearly illegal to pass them against absent men without notice; it was a violation of the power given, admitting for a minute, although he altogether denied it, that the power was given to pass bills of attainder, as regarded M. Papineau and fourteen others. With respect to bills of attainder, although they were only justified by necessity, yet they had been so frequent, as to have established a kind of practice which was consistent with justice and common sense. Lord Chief Justice Comyn, in his excellent Treatise, said, that in bad times where a person was in the country, he might have been condemned without an appearance, but where a person was absent, the course was to fix a day, so as to enable him, if he chose, to make his defence. In the times of the Plantagenets, the Tudors, the Stuarts, and even in their own times, this was the uniform practice. This was the case in the time of Edward 2d. in 1322, in Despencer’s case; and, in the case of Sir John Fenwick, by the 8th of William 3rd. The very title of the bill, in the case of Fenwick and the other persons implicated in the assassination plot contained the words “unless they render themselves to justice upon a certain day, four months from the date of the passing of this Act.” Again, in the first of George 1, there was an Act to attaint James Duke of Ormond, union he rendered himself on
a certain day named, and that was six months from the date of the passing of the Act. And what said that illustrious and eminent lawyer, Lord Ellenborough, on a similar occasion, upon a celebrated case that was heard before him? Sir Vicary Gibbs, on that occasion, stated, that the law was, that that Court (the Court of King’s Bench) was bound by a foreign judgment, he produced the foreign judgment, showed the Seal of the Court, and proved the Seal to be genuine, and the handwriting of the judge. What was Lord Ellen-borough’s celebrated answer? He said, he did not deny that to be the law, but he said that all power must be exercised rationally—all laws had reference to right reason; and although he admitted what was stated to be the law, and that the power of a foreign Court was supreme in its own dominions, yet the law of England was binding upon him and the jury, and he could not traverse it. It appeared to him not only not to be consistent with reason and justice, but contrary to the first principles of reason and justice, that either in a civil or criminal proceeding, a man should be condemned without being heard. The question before the Court, was, whether in the absence of a person of the name of Buchanan, nailing a notice on the Court doors was sufficient. Mr. Buchanan was no more in the island of Tobago than M. Papineau and the other fourteen were in Lower Canada. But if it were so vicious, so contrary to all reason and justice, that any man should, in his absence, and unheard, and unnotified, be condemned even in a civil cause, how much more in a criminal Court, and upon a capital felony, was it contrary to all the principles of reason and justice. But again, had each of these cases been made the subject of deliberate and separate legislation? Were the circumstances of each inquired into? The answer would be, of course. He would show that the very reverse was the fact. In the first place there were two gross misnomers, than which there could be no greater evidence of the inconsiderate speed and the want of due deliberation with which those proceedings were accompanied. For instance, in the list of the adherents of M. Papineau, one person was called Edmund Burke O’Callaghan, his real name being Edmund Bailey O’Callaghan. Could there possibly be better evidence than this simple fact afforded,
that no sufficient inquiry into the charges made, had ever been instituted? This man might be the more guilty of the two, and yet he could not be tried under the ordinance. Another individual was denounced under the name of John Ryan the younger, when, in fact, his name was not John Ryan; when, instead of the common and ordinary appellation of John, he bore a most remarkable name, the name of one of the greatest of English lawyers—a man to whom the law of this country owed more than it did to any other individual; the name of the man thus denounced, was Jeremy Bentham Ryan. Surely, if there had been the least shadow of an inquiry, such a name could not have been passed over, because it was clear that the guilty man might escape, and the innocent be punished. Then Louis Perrault was denounced, as having absconded after the outbreak, and in consequence of the warrant issued for his apprehension. Now, what was the fact? He quitted Quebec long before the outbreak, and proceeded to the United States on the affairs of the house of business to which he belonged, and being there, he remained in the United States, on account of circumstances which happened to his brother. It was not true that Perrault had absconded after, or in consequence of, the issue of any warrant. He went to the United States on his lawful business, and as he did not return to Canada on his lawful business, it was taken for granted that he absconded because of a certain warrant, said to have been issued for his apprehension. The last and most important case to which he should refer, was that of the elder Ryan. The ground set forth in the ordinance for including the name of the elder Ryan, was, that a warrant had been issued against him for high treason. The real state of the case was, that no warrant had ever issued against him for high treason. There had been a warrant against him for sedition, but none for high treason; but their Lordships were aware that sedition was merely a misdemeanour, punishable by fine and imprisonment. That was all of which John Ryan, the elder, stood charged; he was not convicted, he was merely accused of sedition, and upon that accusation the Governor and Council thought proper to pronounce upon him sentence of death, a sentence which he hoped, had not been carried into effect. He had already said, that to him it was a perfect
matter of indifference whether the statements to which he had been calling their Lordships’ attention were in exact accordance with the facts, or otherwise; at least, it would not affect the grounds upon which he brought forward the bill, which he had yesterday laid upon the Table of their Lordships’ House. Whichever way the facts were, he felt himself entitled to proceed upon the law of the case. Great doubts existed as to what the law was, and it behoved their Lordships to settle it at once, and definitively. He put it to their Lordships with all respect, would they, if they had known, that under colour of this Act, these things would have been done—would they—he was confident they would not, for their consent to passing it was wrung from them by the representations made to them of the necessity of the case—would they have set their hands to the Act, if they had been told, that such enormities were to be committed under it, and were understood by its legal authors to be its true intent, and meaning? He answered for the Peers of England, and answered, No. [Cheers.] Their Lordships had now answered for themselves. They were incapable of sanctioning such an Act as this. They never would have consented to such a construction being put upon it. Those who were lawyers, knew it would not bear such an interpretation, and those who did not belong to the legal profession by the light of common sense were guided to the same conclusion. But he threw altogether out of view this consideration as immaterial to the passing of the Declaratory Bill. If the Act did not bear the construction he put upon it, if he was not right in his interpretation of the law, nor those legal persons whom he had consulted on the subject, and who entirely concurred with him, nevertheless they must pass this bill, to declare what the proper construction of the law was. If, on the other hand, for the dilemma was perfect—he was right in his law, if an improper construction had been put upon the Act by the Government of Canada, then, past all question, this bill must be passed, because doubts were entertained on the subject here. The only question was, whether they were in error on the other side of the water, as he said they were, or whether the error was here. He could not undertake in the bill he had drawn up, to indemnify for all that had been
done. There might have been other breaches of the law for which he should be very loth at once, and not knowing what they were, to give an indemnity. He thought, an indemnity ought to be given as regarded the nine persons said to be sent to the Bermudas; and he had framed this bill accordingly; but he doubted as to proposing an indemnity to those who had done so strange a thing as to condemn to death, persons who had not had the benefit of any form of trial whatever, nor in such an extraordinary case as the condemnation of a person for high treason, who had been guilt of only a misdemeanor. He could not, therefore, agree to an indemnity, as applied to the case of Louis Perrault, and the elder Regan. It was admitted by the Government, that illegal things had been done to a certain extent. He differed with them greatly as to the extent, and he also differed with them materially as to the construction to be put upon the Act. That a Declaratory Act, and an Indemnity Bill were necessary, was quite clear. How far the indemnity, and how far the declaration were to be carried, was another question. He had felt it his duty to search for precedents, and he had found one which completely met this case—he should be sorry to say, that this was any parallel to it in its features of gross and culpable error, but he was speaking of the principle. It was a bill drawn up by Lord Mansfield in the year 1767, which was the subject of great discussion. It related merely to an embargo, a matter of far less importance than the present case, but still the principle was the same, and the authority of the mover was such, as he was sure their Lordships would agree with him in treating with all the respect it deserved. In all the experience he had had of political affairs, he never remembered a misrepresentation more gross than that which affirmed that lenity had been shown to Dr. Nelson and his associates, and that lenity had likewise been shown to M. Papineau and his adherents. It certainly was not the lenity shown to Dr. W. Nelson and his late associates, that he complained of, but he did complain, that they were not sentenced according to law, and that they were sent to the Bermudas, when the law did not authorise their being sent beyond Canada. But what became of this talk of lenity, and mercy, and kindness,
and forbearance, with regard to M. Papineau, and his fourteen associates; and that was the gravamen of his charge. Was it mercy to them, was it lenity, kindness, or forbearance, to condemn them to death, without first giving them a hearing—to pass a bill of attainder against them, they being ignorant of the intention to pass it? Was it merely to allow them not one of those safeguards granted to traitors in the worst of times under the Plantagenets, the Stuarts, or the Tudors? Was it mercy, or kindness, or forbearance, to condemn them unheard, and even ignorant that their case was under consideration? A more extravagant, a more outrageous mis-statement of the whole question at issue, never was ventured in any argument by any persons, whatever the degree of heat occasioned by the conflict of controversy. Every one knew, that the law of England held men to be innocent, till they were pronounced to be guilty. He gave the benefit of that just maxim of jurisprudence to M. Papineau and his associates. Till they were tried, he had a right to assume, they were not guilty; and even if they proceeded by legislation instead of trying them—if they prosecuted by attainder instead of by trial by jury, it was in that case only right, that the privilege should be theirs of being considered not guilty, unless by that Act of attainder, they were afforded the opportunity of coming home, and on a certain day, surrendering themselves to be tried. Every one of these persons was absent from Canada at the time of these proceedings, and they were bound by the law of England to assume, that they would have returned, if a day had been fixed for their doing so, as by law there ought to have been. Such was the case he had to make out against these ordinances, and such was the case he had to submit to their Lordships in favour of this bill. Arbitrary power, said the noble and learned Lord in conclusion, has been temporarily placed in the hands of the Governor of this province, not, however, to exasperate the people, but to save them from the effects of their own violence, and to protect the innocent from the arts and practices of the designing and turbulent. It was to enable the Government, by having a strong hand, to protect the peace of the Canadians; “but, above all things, to enable you to look forward to that day, when with joy, you,
as well as they—and you who made the Act, ought to feel the joy more than themselves—it was with a view to that happy day, when, after the restoration of peace and security to the colony, you will be enabled to give back the Constitution, and cement more strongly than ever the connection between the two countries. Then I do implore your Lordships to act on the present occasion in the way best calculated to bring that happy restoration about, and to preserve and strengthen the connection between these provinces, and the parent State.”
Lord Glenelg entirely concurred with the closing words of his noble and learned Friend, that the powers of the late act were given to protect the innocent and peaceable inhabitants of the colony, and to save the guilty from the consequences of their own violence. He agreed with his noble Friend, also, as to the general principles on which he stated the act ought to be carried into effect. He fully admitted, that when such large powers were given they ought to be exercised with great discretion, and as sparingly as possible. The act itself provided, that the powers it conferred were not, in any degree, to be exercised beyond what the exigency of the case required. The whole question at issue turned on the propriety of the proceedings which had been the subject of so much animadversion, and on the exigency that gave rise to them. That was really the practical question before them. His noble and learned Friend argued against the ordinances of the Canadian government, that they were irregular, that they were illegal, that the Governor had no right to issue such ordinances; his noble Friend argued further, that in issuing them he contravened the intention of Parliament in passing the act, and that there were various circumstances connected with these measures which aggravated their injustice and illegality. His noble and learned Friend had stated much for which they had the authority of his noble Friend alone; to that authority he (Lord Glenelg) was disposed to pay due respect, but he could not allow it to be infallible or peremptory in a case like this which was now under discussion. In allusion to the first class of offences, his noble and learned Friend had said, that he did not believe the individuals had confessed themselves guilty. No doubt his noble and learned Friend was
persuaded, that such was the case, but he must be allowed to observe, that this was an assumption at variance with the ordinances, in which it was proclaimed, that they had acknowledged and confessed themselves guilty. His noble and learned Friend said, he had his information on authority, and doubtless he believed it correct; but he claimed for the government of Canada not to be condemned on an authority known to the noble Lord alone, and in complete contradiction to the words of the ordinance. With respect to another part of the ordinances, his noble and learned Friend had quoted several names in proof of the incorrect manner in which these documents were framed. His noble and learned Friend said, when last he touched on this question he was not able to express more than his belief, that a proper degree of care had not been exercised; but he could now supply the deficiency, having it in his power to state, that several of the names were not accurately given. He (Lord Glenelg) was not in a condition to contradict that declaration; but he felt himself called on to express his hope, that their Lordships would not allow a mere declaration of that description to weigh with them in estimating the merits of the government. His noble and learned Friend had denounced the ordinances with great force and eloquence, a violation of the law both of Canada and England; but what was the practical conclusion to which he arrived at the close of his violently condemnatory harangue? If the ordinances were, as his noble and learned Friend had described them, acts of gross injustice, what was the natural conclusion to which their Lordships would arrive? Was it to bring in a bill which distinctly stated, that they were for the service of the public? After hearing the severe denunciations in which his noble and learned Friend indulged in the course of his speech against the government of Canada for issuing such ordinances, might it not be expected, that the disposition of their Lordships would be so far from approving them as to say, “Let us not tolerate them for a moment; let them not disgrace British justice, British honour, and British law; let us declare, that they shall no longer offend—that they shall no longer insult the country?” What, however, said his noble Friend in this bill? In the second clause were these words,—
“which ordinances cannot be justified by law, but are so much for the service of the public, that they ought to be justified by an act of Parliament.”—Why what a declaration was that, after the strong denunciations which the noble and learned Lord had indulged in! The noble and learned Lord had said they might make what alterations they pleased in Committee, but was that the proper way of dealing with so important a matter? The great question was, whether these ordinances were justified or not by the exigency of the case, and having declared, that they were, before going into Committee, would they reverse their decision when they came there? Taking his noble and learned Friend’s view, that the law was doubtful let them look at the position of Lord Durham, who found himself called on to take some step on his own responsibility. What did he do? He took the course which the public service required, and those who most condemned his measures, felt themselves compelled to vote in Parliament, that those measures, so illegally adopted, were “measures taken for the service of the public, and though not justified by law were such as ought to be justified by Parliament.” He felt, that he might rest the necessity of the measures of his noble Friend on this very declaration in the bill of the noble and learned Lord; he felt, that he could not be called on to prove, that they were required by the exigency of the case, because they had the testimony of the noble and learned Lord himself to that important fact. He would now advert to the question of indemnity. It was not usual, he believed, to pass measures of indemnity till the matters to which they had referred had been brought to a close. It was not usual to grant an indemnity for a current transaction. But this bill contained what he must describe as an unexampled proposition; it provided indemnity for the continued exercise of an illegal act; and here was an act which was illegal, and the authors of which were liable to certain penalties, but it declared not only that they should be indemnified against those which they had already incurred, but also against those to which they would otherwise be liable hereafter. This was surely a new species of legislation. He believed it quite unexampled in the history of legislation to pass an indemnity Act which was to operate prospectively, The general purport and
scope of this bill were, that certain doubts were entertained as to the illegality of the proceedings of the Government of Canada. Those doubts having been entertained, it was proposed to pass a declaratory Act, clearing up those doubts; and, at the same time, to pass a measure of indemnity for the protection of the parties who had acted on the doubtful construction. Of course, the necessity of legislation on the subject turned on the weight that was to be attached to the doubts entertained as to the illegality of the proceeding of the Canadian Government. Now, with very great submission to the learned authorities that had been referred to, he could not agree to that proposition of his noble and learned Friend, contained in the first section of this bill, which stated those doubts to exist; and thereupon proceed to enact as did the subsequent clauses. He had already stated, with respect to one part of the ordinance, that he admitted its invalidity. He alluded to the extension of the operation of the Act to the Bermudas; there could be no doubt but that was an error. But, on that subject, he begged to say, that, in his opinion, the better course to pursue, would be for the Government to write to the Governor of the Bermudas, informing him, that the parties who had been sent there were free, that they were not then subject to the restrictions which the Act imposed. That he considered the preferable course. With reference to the legality of the other Acts of the Government, and the necessity for a measure of indemnity, he had some further observations to offer to their Lordships. By the Canadian Act, the Governor was invested with the same powers of legislation as the Legislature of Canada possessed previous to the passing of that Act, with certain exceptions, which he would then stop to advert to. The legislative powers of the Canadian Legislature were as ample as those of any of our Colonial Legislatures. His noble and learned Friend had argued, with reference to the Act of 1774, that, by that Act, the criminal law of this country was transferred to Canada, and consequently, it was not competent to the Colonial Legislature to make any change in that law; but he (Lord Glenelg) begged to say, in the first place, and without fear of contradiction, it was clear, that when they spoke of the transfer of the criminal law of England to a colony, it could not be meant that the law of England should
be applied to such colony in the exact state in which it existed in this country, no change being made in it to adapt it to the peculiarities, to the habits, feelings, and customs and institutions of a state of society differing materially from our own. In fact, when the criminal law of England had been transferred to our colonies, it had always been subject to certain modifications, such as the peculiar circumstances of those colonies required. He need not name the colonies; the rule had been observed in all; indeed, it was obvious, that no other principle could have been adopted, for, in some, very heavy punishments were considered necessary for offences, which, in others, people might be deterred from committing by punishments comparatively light. The Act of 1774, which transferred the criminal law of England to Canada, provided for changes that might be necessary at different times and under different circumstances. He contended, then, that the Colonial Legislature of Canada was empowered to make these ordinances by the Act of 1774, and the present Governor of Canada being invested with the power which previously belonged to the Colonial Legislature, the ordinances could not be considered illegal. The particular words of the Act to which he was referring, were “subject, nevertheless, to such alterations and amendments as the Governor, Lieutenant-governor, or Commander-in-chief for the time being, by and with the consent of the Legislative Council, shall, from time to time, determine and cause to be declared in the manner hereafter described.” This provision was confirmed by the Act of 1791. [The Earl of Devon read the 15th section.] The object of the 15th section was, to provide, that no punishment should be imposed by any ordinances of the existing local government beyond three months’ imprisonment and fine, without the consent of her Majesty in Council. It could not be denied, however, that the exigencies of the present occasion were such as to justify a departure from such a regulation as this. It was perfectly competent for the Governor-general of the Canadas in Council to exercise a discretion as to the measures which the necessity of the case appeared to require. The noble and learned Lord had referred to the proviso in the Canada Bill, which prohibited the Governor-general from “repealing, suspending, or altering, any provision of
any Act of the Imperial Parliament of Great Britain, or of any Act of the Legislature of Lower Canada, as now constituted, repealing, or altering any such Act of the Imperial Parliament.” He begged to state to their Lordships what the history of this proviso was, and what the intention of its author, Sir William Follett was, in introducing it into the bill, as far as he had been able, upon very good authority, to ascertain what that history and what that intention were. It originated in this way: During the discussion of this question in the other House Government was asked by some Members on the opposite benches whether they meant that the bill should authorise the Governor in Council to alter the act of 1791, or any act relating to tenures; to this question Government replied, that they had no such intention, but they thought that the period would be so short that the Governor and Council would not interfere with the subject at all. Upon which it was observed, that as there was no such intention, the clearest and best way would be to insert a proviso on the subject in the bill, so as to remove all possible doubts. It was clear, from the terms of the proviso, that it was intended to have a limited operation. The act of 1791 gave the local Legislature the power of varying or repealing the law respecting clergy reserves, There was an act of the Imperial Parliament, of 1824 or 1825, which gave the local Legislature the power to alter the Tenures Act, and there was an Act of the local Legislature which did alter the Tenures Act; and it appeared to him very apparent, from the terms of the provision itself, that it was simply intended that these Acts should not come within the power of the Governor in Council. The proviso evidently applied to the act passed by the Parliament of Great Britain in 1791, to the act passed by the Parliament of the United Kingdom in 1825, and to any act of the Canadian Legislature repealing or altering any such act of Parliament, so that this proviso was distinctly limited to these three points. It was clear that whatever use might be made of this proviso, or whatever conclusion might be drawn from it, it was restricted and limited to that purpose. He contended, therefore, that whatever doubts might be felt upon other parts of the act, there was no necessity for a declaratory act upon this part of it. No doubt, he contended, could arise out of this proviso with reference to
the legality of the ordinances. His noble and learned Friend denied, that by the tenour of any general law the Governor-general with his Council had power to pass what were called privilegia—laws affecting particular persons only. The Governor in Council might suspend or repeal any other laws than those to which he had referred; he might suspend the Habeas Corpus Act, create new offences and new forms of treason, and yet his noble and learned Friend argued that he could not pass laws affecting only particular individuals. His noble and learned Friend by changing the ground on which he stood had weakened his argument on this point. It was evident that this was not a Declaratory Act, but a new law restricting the powers which had been given by the Act of this Session to the Governor in Council, because his noble and learned Friend considered that that Act gave him larger powers than he ought to possess. It was, however, an extraordinary thing that after having given the Earl of Durham these large powers, and sending him out of the country under peculiar circumstances of delicacy and difficulty—it was an extraordinary thing, he repeated, to narrow his power, and place him in straits which must lead to the most dangerous consequences. This was a matter of serious importance to Canada. That province was, happily, at present, in a state of tranquillity; but it was not to be denied that there were persons who were desirous of poisoning the minds of the people, and of exciting them to insurrection. Whatever, therefore, their Lordships might feel about these ordinances, it must, he contended, be admitted, that if means had not been taken to exclude the return of the persons who had been banished from the province, the principal duty of the Government would not have been performed. It was upon this account, therefore, that he could not consent to limit the powers given to the Governor-general by the Act passed during the present Session, and he could only wish their Lordships to consider whether the presence of the persons to whom he had referred could be otherwise than injurious. On these grounds he should oppose the second reading of this bill.
Lord Brougham in explanation said, that the whole of the 2d section of the bill referred to acts done, and not to acts hereafter to be done. With regard to the indemnity, he was disposed to protect the
captain of the ship and other innocent persons acting in obedience to the ordinance of the Governor-general. But with respect to the ordinance which related to M. Papineau and fourteen others, who were banished without being heard, he meant not to extend the indemnity to that part of the ordinance, and he submitted that it would be proper to recall that ordinance immediately.
Lord Glenelg said, that the bill related to persons advising, or acting under and in obedience to any act, matter, or thing advised, or commanded to be done.
Lord Brougham observed, that he had taken the words of the clause word for word from an act drawn by Lord Mansfield.
The Earl of Ripon would not weaken the argument which had been put with so much force and precision by his noble and learned Friend. He confessed that he thought that his noble and learned Friend had stated a case which would justify the interference which his bill would effect, especially with regard to that part of the Act which was allowed by the noble Lords opposite to be inconsistent with the powers of the Governor-general, because he did not see under that admission bow the Governor-general and the persons who had acted in obedience to his orders could do without an indemnity. His noble Friend the Secretary of State for the Colonies, by way of repairing the error committed in sending the persons who had confessed their guilt to Bermuda, suggested the device of writing to the Governor of Bermuda, directing him to let them go as soon as they got there. Now, this was a most extraordinary way of meeting a case of this kind of which he had ever heard. Either the Governor-general was right in doing what he had done or he was not. If he was not, there was a power vested in the Crown of disallowing any Colonial law provided the dissent of the Crown was expressed within two years after the passing of the Act. Now here was a Colonial law which it was impossible to carry into effect. Was it then, he would ask, possible for the Crown to be silent in this matter? It appeared to him to be necessary, and indeed inevitable, that his noble Friend (Lord Glenelg) and the Privy Council must advise the Crown to disallow the whole Act. That, he thought, was the most effectual mode of getting rid of this difficulty. He should, as he had said before, weaken the
force of his noble and learned Friend’s argument if he attempted to enter upon it, but it appeared to him to be impossible to carry on any system of good government in Canada, unless some stop were put to the confused, unprecedented, and extravagant mode of proceeding which was involved in these unfortunate ordinances.
The Lord Chancellor said, there could be no doubt as to the fact, that these ordinances could not legally operate beyond the limits of the province. The point was, as to their legality within those limits. The bill now proposed proceeded on the supposition of a doubt as to whether the Act, as it stood, did not authorise the proceedings which had taken place in the province, and the acts of attainder which had been made. It seemed to him, that there could be no well-founded doubt on the matter. The proceedings which had been resorted to had precedents in all countries where occasions of similar necessity had arisen. Whether the nature of each case was such as to justify the course which had been adopted by the Governor-general—whether he had taken care to make sufficient inquiry in every instance prior to taking active measures against the parties, there was no information to enable their Lordships to decide, nor had Government at present any means of giving that information. He would, therefore, abstain from entering upon this topic, and proceed to that part of the subject which it was practicable to discuss. Whether or not the existing Government in Canada, appointed under the Act passed this Session, had exercised their legislative powers discreetly, it was perfectly clear, that under that Act they had full power to make occasional and temporary local Acts affecting individuals or classes of individuals. The noble and learned Lord had assumed, that this point was doubtful in the imperial Act of this Session. Now, that Act, in so many words, recited that— It shall be lawful, after proclamation made, for the governor of the lower province of Canada in council to make such laws or ordinances for the peace, welfare, and good government of the said province, as the legislature of Lower Canada, as now constituted, is empowered to make; and that all laws or ordinances so made, subject to the provisions hereinafter contained for disallowance thereof by her Majesty, and for receiving certain laws or ordinances for the signification of her Majesty’s pleasure therein, shall have the like
force and effect as laws passed before the passing of this act by the legislative council and assembly of the said province of Lower Canada, and assented to by her Majesty. This clause clearly gave to the new Governor in council the same powers which the legislature of the province formerly exercised, and there could be no doubt that this legislature had full power to pass any Acts it deemed fitting, under the Act of 1791, and had the clause stopped here there could not have been a moment’s question on the point. When the noble Lord cited the Act of 1774, reference was made to the fifteenth section of that Act, which directed that— None of the said ordinances shall have the power of imposing any punishment beyond three months’ imprisonment. But this had reference only to ordinances made by the Governor in council up to the period when a representative assembly was given to the province, which took place in 1791, after which time the legislature of the province had exercised full legislative power until the act passed which invested the present Governor-general with the powers formerly enjoyed by that legislature. Did the clause contain no other words than he (the Lord Chancellor) had recited, there would have been no grounds for even raising an argument upon the subject of the extent of the Governor-general’s power to make such laws as he thought fit. There was, however, this proviso:— That it shall not be lawful for any such law or ordinance to impose any new tax, duty, rate, or impost, or to alter the law in the province respecting the constitution or composition of the Legislative Assembly thereof, or respecting the right of any person to vote at elections of members of the said Assembly, or respecting the qualification of such members; nor shall it be lawful by any such law to repeal, suspend, or alter any provision of any Act of the Imperial Parliament of Great Britain, or of any Act of the Legislature of Lower Canada, as now constituted; repealing or altering any such Act of the Imperial Parliament. His noble Friend had already stated for what purpose this proviso had been introduced. The object for which these words were introduced, was obvious, and he could have hardly believed that they could be misconceived. If it were not as he had described, it would be giving the Government of Lower Canada power to alter any-
thing connected with the criminal law of that country, and by another part of the bill, it would be restraining the exercise of such power. The words referred to in the proviso had no such restraining power as was contended by his noble and learned Friend. The declaratory bill of his noble and learned Friend would leave, however, the whole difficulties of the case untouched, for he had proposed to enact, that they should not make any laws or ordinances, touching individuals, but at the same time proposed that the power should be continued as regarded the multitude. This bill left the doubts which it was alleged existed, exactly where they were. He concluded that there was no doubt as to the construction of the Act; and, therefore, that there was no necessity to pass a declaratory bill. The second clause of the bill of his noble and learned Friend, was of the most extraordinary nature, and after declaring that certain Acts of the Governor of Canada were illegal, it went on to make them legal, and to allow such proceedings to take place for the future. It would be most extraordinary for Parliament to declare that these Acts were illegal, and then to say, that the Governor of Canada or any person under him, might continue to act upon them. The proposed indemnity, therefore, was for what was clearly considered an excess of power, and it was proposed at the same time to continue this excess of power. He would then ask, did noble Lords really feel that there were serious doubts as to the construction of these Acts, and as to the power in the hands of the governor of Canada to pass acts of attainder. If this power was to be taken from that noble Earl, they would leave his government less power than was possessed by the government of the Upper Province, from which it was not thought necessary to take away the Legislative Assembly. The Governor of Canada, however, who was placed in the situation of the Legislature, was not to have this power, notwithstanding the difficulty of the situation in which he was placed and the dangers in which that colony was involved. He was sure, therefore, they would not take this power away from the noble Earl, which was essential to all government, and, above all, to one in the situation of Canada.
Lord Lyndhurst did not feel called upon to occupy any very considerable portion of the time of the House, but he
felt called upon to make some observations. He must first say, that it was his impression, that this was a question of very grave importance, and that it should be treated, as it had been during the present discussion, with great order and moderation. He was ready to admit that the noble Earl at the head of the government of Canada, whom he was proud to call his Friend, had acted from the best possible motives, and with the best intentions. They had intrusted him with extraordinary powers, and if there was anything illegal in his conduct and administration, it was the bounden duty of that House to interfere, as the guardians of the law and the country; and he called upon their Lordships, if they were satisfied that there was anything illegal in the proceedings that had been described, to interfere for the purpose of rectifying the evils that would otherwise arise. They had been told by the noble Lord, the Secretary for the Colonies, towards the close of his observations, that the question resolved itself into two parts, of very different construction. With respect to the first part, he admitted and confessed, that the Governor of Canada and his council had been guilty of an illegal act, as far as related to transporting the persons alluded to in the ordinance to the Bermudas; but that with respect to the second part, that the proceedings in the colony were not only perfectly justifiable, but that they were perfectly legal; and he begged it to be recollected against whom this judgment had been passed. In the first place, then, it was understood, that the illegality of these proceedings was entirely admitted, and that the noble Earl had assumed an authority which had not been conferred on him by the Act of Parliament, and under it these persons had been banished to the Bermudas, and would be restrained and imprisoned there against law. The transaction then was admitted to be illegal, and these persons had been punished in a way contrary to the law of the land; and as it was admitted that these proceedings were contrary to law, and as the government of the country held the power of disallowing an enactment or ordinance of the governor of Canada which was contrary to law, it was their duty to disallow this proceeding; and when it had been acknowledged that by the local authority this law had been passed, and that it was not a legal proceeding, and also that the government
possessed the power to disallow this ordinance, he could not believe, that it would not interfere for this purpose. Unless, therefore, it was distinctly stated by the noble Viscount, or by the noble Lord the Secretary for the Colonies, that the Government was prepared to disallow this law, he should feel it to be his duty to vote for the bill of his noble and learned Friend. With respect to this bill, it was meant to be a bill of indemnity for acts committed up to the present time by the Governor of Canada and his council; and this was intended as a protection if any illegal acts had crept into the administration of affairs in Canada. This bill also had been drawn up after one which was framed by one of the first lawyers in the country. If things were to be left in their present state, it would lead to endless litigation against all the parties concerned in carrying the ordinance into effect. He did not look to the noble Lord, who would be liable to suits both civil and criminal, for violating the law as regarded these persons, but to those individuals who held those persons in confinement contrary to law, and who removed them under restraint to the Bermudas: after suffering these restrictions contrary to law, they could immediately on their arrival succeed in obtaining a habeas corpus, and on the matter being argued they must instantly be enlarged, as the proceeding was obviously and notoriously illegal. The persons injured would also, no doubt, instantly commence proceedings for those illegal transactions against all who had any share in them, unless a bill of indemnity was at once passed. The noble Lord the Secretary for the Colonies had promised a measure of the kind next year, but the legal proceedings against those who were engaged in the illegal transactions he had described would be completed long before this bill of indemnity of the noble Lord could be passed next year. Therefore, when these individuals were acting under the authority which you declare to be illegal, and who were guiltless themselves of any wilful breach of the law, will you allow it to be said that you would not interfere or interpose to protect them? For instance, what would be the nature of the proceedings against Sir Charles Paget, who was a member of the council, and who had sent them under restraint on board the Vesta, with orders that they should be carried to the Bermu-
das? If Admiral Sir Charles Paget should happen to go to the Bermudas he would be liable to have both civil and criminal proceedings instituted against him for the part that he had taken in this illegal act. This was so clear and obvious not only as against the gallant Admiral, but against every person who had taken part in these proceedings, that he considered that they were bound to pass a bill of indemnity. He was convinced that he could satisfy the House in a few sentences not only that they were bound to pass this bill, but that the whole of the proceedings which rendered this measure necessary were illegal. At the same time he admitted he could trace all these proceedings of the noble Earl to the best possible feeling, and, no doubt in acting contrary to the Act of Parliament, he was influenced by humane considerations. It was intended by the Act of Parliament that the noble Earl should be guided and assisted by a council composed of not less than five members, that he might have a substantial council, and one well able to guide and advise him, and composed of able men, of discreet and prudent men, conversant with the law and constitution of the country. He would ask noble Lords whether they did not believe, that the noble Earl would be assisted by a council so constituted? But it now appeared, that he had appointed a council which was altogether illusory, and such a one as it never was contemplated by Parliament would be appointed. He had constituted it of the admiral, of two or three military officers, and of one person who, he believed, had belonged to the legal profession, but who had never had any very great or extensive practice. This council, it was intended, should advise and control and exercise strong influence over the Governor of the province. He did not believe, that the council, as appointed, would control or exercise any strong influence over the noble Earl, or that they would, in matters of constitutional law, form the advisers of the noble Earl. He would ask noble Lords, then, whether they were not satisfied, that the constitution of this council was illusory, and contrary to the Act of Parliament, and the wishes and intentions of both Houses of Parliament? It was to this cause, and to this cause alone, that he ascribed the violation of the law. If the council had been composed of men such as he had
described, and were desired by Parliament, it never would have suffered a violation of the law, such as the present, to have received its sanction. He agreed with his noble and learned Friend in entertaining very serious doubts as to the construction of the Act of Parliament alluded to, and these doubts were not cleared up or removed; on the contrary, they were rather confirmed by the previous Acts of Parliament relating to Canada. By the 14th of George 3rd the criminal law of this country was by Act of Parliament transferred to Canada; in that Act it was called a humane and lenient system, and a just and pure system of law; and it stated that it should be transferred and acted upon in Canada, not merely in spirit and principle, but also in its form of proceeding; and it added, that no other rule of law should be acted upon in Canada. Therefore, by Act of Parliament, the criminal law of England was declared to be the law of this colony, and by some of the clauses of this Act the then legislature of the country, namely, the legislative council and governor, could alter and modify the law to meet the particular circumstances of the colony. This was confirmed by the Act of Parliament of 1792, and the power for altering and modifying the law was transferred to the new legislative body. This was afterwards extended by the Act of 1831. Therefore, he was justified in stating, that the criminal law of this country, with all its enactments and forms, was to be transferred to the colony of Canada. Now, the law with respect to high treason was part of the criminal law; and by the 14th of George 3rd, and by the 31st of George 3rd, this was transferred to the colony with the other parts of the law; and no alteration had been made in the law of treason in that place, or had been acted upon. As long as the legislature of Canada had continued to exercise its functions it had the power of altering the law, and there never had been any alteration made in Canada of the law of treason; therefore, the law of treason stood on the same footing as it did in England. They had then to consider the state of things that grew out of the suspension of the legislature, and the suspension of certain of its functions. It was true, that Lord Durham was to have, in some respects, the same power as the legislative assembly, but then the act that conferred it was accompanied by the re-
strictions that had been alluded to and described by his noble and learned Friend. These restrictions had been introduced by a learned Friend of his, who had assured him, that he never intended, that the proviso should be restrained in such a manner as had been described by the noble Lord, the Secretary for the Colonies. He had introduced it because he thought, that it was essential, that a person holding such a situation, and possessing such power as the noble Earl, should be restricted from making such alterations in the criminal law. What, then would be the effect if the noble Earl were allowed to change the law of high treason? It had been clearly shown to the House by his noble and learned Friend what the law of treason at present was; but an attempt had been made to make a new treasonable offence. The ordinance by which this was intended declared, that certain individuals named had absconded and withdrawn themselves from the pursuit of justice beyond the limits of the province, and it afterwards went on to state, that if any of those persons should at any time hereafter, except with the permission of the governor of the province be found at large, or come within the said province, they or he, in such case, should not be tried for the offence with which they were charged—not with high treason according to the existing law—”but that they or he shall in such case be deemed or taken to be guilty of high treason, and shall, on conviction of being so found at large, or coming within the said province, without such permission as aforesaid, suffer death accordingly.” So that in point of fact, a new species of treason had been created by this ordinance which was wholly inconsistent with the letter and spirit of the criminal law, which it was the intention of the Legislature to confer on the colony by the 14th of Geo. 3d, and by the Act founded on it, namely, the 31st Geo. 3d. But supposing that the noble Earl had abolished the whole system of the existing law relating to high treason, would any man presume to tell him, that the noble Earl would not alter the whole Act of the 14th of George 3d.—the Act under which the English law of treason was introduced into that colony? There could be no doubt that such an abolition would be an alteration of the law, which would be contrary to the proviso in the late Canada Government Act: and he contended
that this was equally an alteration of the new law which could not be justified. Indeed he had reason to believe, that the hon. and learned individual to whom he had referred, intended, when he proposed his proviso, that such an alteration of the law as the present should not be confirmed. The Act contained very full powers, and went to a great extent, as regarded the suspension of trial by jury, and the suspension of the Habeas Corpus Act in the colony, but it did not allow the governor to alter the law, and make a new species of treason. But assuming it to be a doubtful matter, when they passed this bill, did that House suppose that it was giving the noble Earl and his council of five individuals the power of passing bills of attainder. He was sure that such was never intended to be the case by the majority of that House, and the answer which he believed he should receive from every noble Lord was, that it was not intended by any one that such should be the case. Did the Houses of Parliament intend to give to the noble Earl and his associates in the council of five, the power of banishing any persons from the colony for life, and that without trial, without any notice of trial, indeed without any notice whatever to the individuals in question to come in and be tried, and without the opportunity of being heard in their defence. By this ordinance not one of these persons was to be tried, not one was to be heard in his defence, not one was to have notice of the proceedings against him, not one was called upon, or indeed allowed to be beard in reply to the accusations or charges against him; but by the ordinance as it stood these persons were to be banished for their lives to the island of Bermuda, and if they returned to the province of Quebec, they were to be arraigned, and “shall in such case be deemed and taken to be guilty of high treason, and shall, on conviction of being so found at large, or coming within the said province, without such permission as aforesaid, suffer death accordingly.” Was not this contrary to the law of England, and opposed to the practice of criminal proceedings in this country? Here were persons who had never been arraigned for any crime—who had never been legally charged with treason—who had never been put on their trials—who had never been heard in their defence, these persons were subjected to the punishment of death
if they ever returned to this colony. Did noble Lords ever intend to give such power to act in this arbitrary manner to the Governor of Canada and his council? He was satisfied that this ordinance was at variance with the criminal law in all its parts, and was directly contrary to the Act of Parliament by which both in its form and its character the criminal law was transferred to Canada. Did noble Lords mean by this Act of Parliament to make a new description of treason, which was to be determined on and settled in all cases, without trial, by the Governor of Canada and his five associates? What was the nature of this treason—what description of crime was to be punished? This was the allegation:—”You were charged with treason, and you absconded: you shall not have an opportunity of returning and being tried for high treason, with which you are charged; we will suppose you to be guilty, and if you are found at large, and come within the province without our consent you shall be tried for returning; and shall be adjudged a traitor, and shall suffer death accordingly.” Was not this a new description of treason? Was this not directly contrary to the letter and spirit of all the acts of Parliament on this subject? By the statute the 17th of George 2nd, a new description of treason was enacted. It was enacted that the sons of the Pretender should be attainted of high treason in case they landed or attempted to land in England, and also those who corresponded with them, but this provision only existed during their lives. His noble and learned Friend on the woolsack asked if they would give more power to the government and legislature of Upper Canada where comparative quiet prevailed, than to that of the lower province, which was in such a disturbed state. He would reply that he believed, that this was intended to be the case by the Legislature. He fully concurred with his noble and learned Friend opposite in thinking that the object of the Legislature in sanctioning this act was to enable the noble Earl at the head of the government of Canada to make inquiries with reference to the future government of the colony. They gave the noble Earl extraordinary powers, and they sanctioned the suspension of the functions of the Legislature of Canada, because they thought that these inquiries could not be so efficiently carried on without extreme
provision of this kind being made. It was necessary that the noble Earl should have the power in case of necessity, to pass ordinances which should have the form of law; but it never was intended that these legislative functions should be the precise object of his mission, but, that on the contrary, it was intended that he should be sent out to prosecute inquiry there. It was not considered whether he was to have less power or more power than the Legislature of Upper Canada, but it was said let him direct his attention chiefly to other subjects—that was, that he should institute inquiries with a view to obtain information to enable them hereafter to legislate. It was said to be most objectionable to adopt motions of this kind in the present situation of Canada; but how had these affairs been caused in Lower Canada, and how had these persons been treated against whom these bills of attainder had passed? Was there a single instance in the history of this country, even in the most troublesome times, where such a bill had passed without allowing time to the party to come in and be tried for the offence with which he was charged? This was the case with Henry St. John Lord Bolingbroke. He was attainted of high treason, unless he surrendered and answered to the charge of high treason within a certain period. Ample opportunity was given to him to appear and answer the charge against him. His noble and learned Friend had also referred to the case of the Duke of Ormonde, where the proceeding was similar. Indeed a case had never occurred in which a party had not an opportunity of appearing and making his defence in answer to the charge in a case of attainder. Such a thing had never been known in the history of the legal proceedings of this country as an instance of an attainted party coming into the country and being seized and punished for some very different charge to that of which he was accused. Among the reasons assigned by those who objected to the bill of attainder against Lord Bolingbroke, that chiefly urged in the protest in that House, was, that he had not such a space of time allowed him to come in as the interests of justice required. But what was the charge against Lord Bolingbroke? A charge of high treason was preferred against him by the Commons of Great Britain, and he was attainted if he did not appear within a certain time. No such
thing as this enactment was in progress; no ordinance for his banishment for life was passed which inflicted the punishment of death if he returned, but in this case it was said if these persons appeared in the province again they should not be tried for their treason, but that they should be hung or put to death for returning to the colony and being found at large. If a man was indicted for felony and absconded nothing could be done otherwise than by the bill of indictment. If that was found, a capias was issued; and if he could not be taken, he might be outlawed by proclamation in all the county courts; but this was a proceeding which took up several months. [Lord Brougham: At least from nine to ten months.] He believed that it could not be done under this period, and he most strongly objected to the mode of proceeding proposed in the ordinance. He was convinced that no lawyer had any hand in framing this ordinance, nor any one who knew that it was a violation of the law and of the rules of justice. Every part of the ordinance appeared to him to be a violation of the rules of justice, and therefore, unless he heard a declaration from his noble Friend the Secretary for the Colonies that it was intended to advise the Crown to disallow the proceeding, he should consider himself bound both in honour and conscience to vote for the motion of his noble and learned Friend.
Viscount Melbourne entirely concurred with the noble and learned Lord, that this was a most important question, and required their most serious consideration. It had hitherto been discussed with great temper and moderation, and he trusted, that a similar course would be pursued through the remainder of it. He had no doubt whatever, that it was entirely with a regard to the interests of justice and the law, and for the preservation of its authority in the colonies, and for its maintenance in this country, in relation to this country, that induced the noble and learned Lord to bring forward this question, and to urge him to pursue it with the zeal and ability which he had displayed on the present occasion: but it was impossible not to feel, that it was of very great importance, that not only the legal and constitutional forms should be adhered to, but that also the administration of affairs in a country which was in such a doubtful state as Canada should be upheld and maintained, This subject did not
involve a matter of trivial importance, but it was of the deepest consequence to the empire, that as little hazard as possible should be run in this question, as the result involved nothing less than the continuance of the connection of one part of the empire with the other—nothing short of the integrity of the empire—and, he would add, nothing short of the peace of the world. The noble and learned Lord had remarked very severely on an observation of his, namely, that the very circumstances that induced the House to confirm that Act, and to depart from the constitution of the country, and to fix upon a single man, in the person of his noble Friend, to legislate and administer the affairs of this colony, necessarily implied, that his conduct should be regarded with some degree of confidence, and he urged that great care and caution should be used in observations on the conduct of a person who had been trusted to such an extent. He not only would repeat that sentiment, but he had no hesitation in saying, that he thought, that it was most ruinous to the interests of this great empire, and that it was a most erroneous policy for the immense majority of this and the other House, to place such extensive powers in the hands of an individual, with apparently the general approbation of all parties—for there was no censure, and he had heard no complaint of the appointment—and now to proceed to bring these matters into discussion, with such imperfect information before them, the only result of which could be to weaken and shake the authority those Acts might otherwise have. He had thought, that they had given their confidence to this individual, and if they did not give their confidence, they exercised something very like laying a trap for this individual, to whom they had intrusted the exercise of such important functions; and they were acting in a dangerous spirit, they were acting, not like a high-minded and generous nobility, but more like a low and truculent democracy, or, perhaps, more like one of those jealous aristocracies which formerly existed, in which the members, in their wish to weaken and overthrow the authority of their opponents, sacrificed and destroyed the interests of their country. Before making attacks of this kind they should well consider the extraordinary nature of the circumstances of the case, and they should be very careful and cautious in their proceedings, lest they pursued a
course which seriously affected the interests and welfare of the country. The noble and learned Lord in the observations which he had made on the manner in which the governor of Canada had constituted his council had dwelt on his not nominating on it any persons immediately connected with the colony, or with any parties in it. This course, he thought, was the best that could be pursued, considering the state of party feeling in that country, and the violence to which it was carried. His noble Friend the noble Earl probably, after mature consideration and observation on the spot, felt, that it was better not to have any persons on the council who were connected with either of the parties. He probably found, that it would be much more satisfactory to exclude all persons connected with the several parties in Canada, than to adopt some from one party and exclude the other. By pursuing the latter course he might have insured comparative weakness in the composition of his council, but as it was framed it probably would obtain the confidence of all classes. He had no doubt, that his noble Friend had acted wisely and prudently in this respect; and he had no doubt, that in this as in all other respects he had pursued such a course as would prove satisfactory to all classes in the colony. Was it likely, however, they could prove so satisfactory when it was found what severe censures had been cast upon those proceedings in that place? He could not help feeling, that the efficacy of his noble Friend’s Government would be shaken by these continued attacks, and his utility would be diminished by pursuing the course, that had lately been followed by noble Lords. He thought, that it would be much better to bring forward an address for the censure of his noble Friend, and for his recall at once, than to pursue steps the result of which could only be to weaken his authority and Government, and the end might be the loss of those colonies to this country. He had no doubt, that the tendency of those proceedings was such as he had stated. He considered the continuance of the present Government to be comparatively speaking, as nothing, but the integrity of the empire was something—the existence of this great empire in all her power and integrity was something. He regretted the language that had been used and the course that had been pursued; and
he was the more surprised at it after they had been told by the noble Duke to exert themselves, and to take care and be strong, and yet after all they had done, after all the efforts they had made, and all the exertions they could use, they were to see the whole marred and destroyed by such proceedings as noble Lords had been pleased to pursue with respect to this subject. What he said might be very unfitting—might be entirely without foundation; but his firm and sincere opinion was, that the course pursued by their Lordships upon that occasion, that the encouragement afforded by them to the motion then before the House, was in the highest degree perilous. It was not his intention to go into the legal point of the question. The object of the bill then before their Lordships was, to declare, that the Governor-general in council should not have the power to pass bills of pains and penalties, nor bills of attainder. Bills of pains and penalties were always very unfortunate measures to be compelled to resort to; but in times of such an unhappy nature as those which prevailed in Canada they were frequently indispensable. And considering the state of that country at the present moment, he certainly must say, that there appeared to him to be no power more necessary to those who were called upon to administer the government than the power of adopting these extraordinary measures. If ever resort to such powers was justifiable it was under such circumstances as those which at present prevailed in Canada. It was not a matter to declare openly, where everything that was uttered was spoken of again, not only in the metropolis, but throughout the whole world; but the noble and learned Lord must know, that when Lord Durham arrived in Canada, he found the prisons full—found many persons proscribed—and found the country a prey to the most violent animosities. Under these circumstances, with the view of satisfying the feelings of the whole community, and, unquestionably, with a feeling of amenity, not of pressing the utmost severity of the law against these persons, the noble Earl resorted to the measures he had adopted, and which were now made the subject matter of complaint. The account which the noble and learned Lord had given of the first class of persons mentioned in these ordinances was correct. He appre-
hended, that they did not technically plead guilty—that they were not formally put upon trial—but they furnished a confession, and upon that confession these measures were taken with respect to them, measures such as there were, unquestionably, precedents for, in times of a similar character. Those persons who had absconded from the province, and against whom warrants had been issued, certainly stood in a very different position. As far as they were concerned, he was not prepared to state, that there was any precedent for the course which had been adopted. He believed, there was no precedent in which a day had not been given for the parties to appear and surrender to trial. But it was impossible, that this course of proceeding on the part of Lord Durham and of his council could have been accidental—it was impossible, that it could have been adopted from ignorance—impossible, that it could have been adopted from not knowing the state of the law. Their Lordships might rest assured, that there was some strong reason for it, and he thought it would be wise before they condemned the conduct of the council to ascertain what that reason was. If their Lordships thought they were legislating for a country in a regular state—for a country in which what had taken place had not been attended with any evil consequence—then, indeed, they might proceed upon all the rules of law which had been so strongly insisted upon by the two noble and learned Lords. Then, if anything that was usual had been departed from, any formality omitted, the noble and learned Lords might come forward and announce it to be wrong and erroneous; but their Lordships were to consider, that they were legislating for a country in a very different state both with respect to this country and to other countries which bordered upon it. Legislating for a country in such peculiar circumstances as regarded itself, and so peculiarly situated as regarded other countries, he must say, that it required, that their Lordships should be cautious before they came to a decision which might involve much heavier consequences than they were aware of. He had a great respect for the profession of the law though noble Lords always said he was very ignorant of it. But this he must say, that let men be what they would, let them have of nature the greatest possible powers and the most enlarged understand-
ing, the profession of the law did little better than invariably fetter their understandings. He thought, that the House had suffered in no small degree from that fettering of the understanding in the discussion upon the present question; and when they had an insurrection in the colonies—when they had encouraged a feeling of disapprobation as to the course pursued to suppress that insurrection—when they had done their utmost (without the intention of so doing) to encourage those who were the enemies of the country, it would, he thought, be but a very poor consolation when the worst came to the worst, to know, that they had heard the very best special pleading upon the subject. That unquestionably was his feeling upon the matter; he thought they were a little too much cramped in the consideration of so extreme and so important a measure by the strict rules of law. It was needless for him to say, that he should oppose the second reading of this bill. He thought, that the second clause deprived the Governor-general of Canada of a power which he ought to possess, and as it was not yet exactly known how that power had been exercised with respect to the Bermudas, it did not appear to him to be necessary at that moment to pass a bill of indemnity. Certainly, when he considered the moral effect which such a law must have in Canada—when he saw, that it amounted in point of fact to nothing more nor less than a strong and direct condemnation of the policy pursued in that country—he could not either in his conscience, or from a regard to the interests and welfare of the empire, consent to become a party to it.
The Duke of Wellington said, after what had passed at the commencement of the Session, he hoped that their Lordships would allow him to address a few words to them on this subject; and he assured them, that they should be few indeed. The noble Viscount, as usual, taking advantage of the support given to him on former occasions, had thought proper to turn round on the noble Lords on that side of the House, and reproached them with the consequences of the measures produced by his own council, and brought forward by his own Administration. The noble Viscount told them, that they did not object to the appointment of Lord Durham to be the Governor-general of Canada; that they did not object to the powers confided to hm; that they urged
his Government by all the means in their power—referring particularly to him (the Duke of Wellington)—to send out large forces and take care to be strong in that part of the world; advice which he admitted, he did repeat over and over again, until he had fatigued them, and the House, and himself in giving it. But why did he not object to those powers being given to Lord Durham? Because, seeing the Government in difficulties, seeing the colony in a state of rebellion, and seeing that the Government had confidence in another place, he thought it was not his duty to excite opposition to measures which they thought it might be proper to adopt, and therefore he took them all upon their recommendation. Very possibly be was wrong in so doing; indeed it appeared that he was wrong. But he took the course which he considered it his duty to take. He had declared, that he would not follow the example of those who, being convinced of the certainty that the country would be involved in a war, thought proper to oppose all the measures that were necessary for carrying on that war. Neither would he deny assistance to those who were absent, and who were carrying on the government to the best of their ability; but he would give the Government a fair support, in order to pacify a country which might be in a state of war or rebellion. That was the course which he had followed on the occasion alluded to by the noble Viscount. With respect to the noble Earl at the head of the Government in Canada, he was personally unacquainted with him; and he considered, that the noble Viscount and her Majesty’s Government ought to have known best who was most qualified to act as Governor of Canada, and he had therefore raised no objection to the appointment of the noble Earl, or to the powers with which he was intrusted, except so far as he had made a few observations against the form of the convention which it was proposed to establish at Quebec, for the purpose of framing a constitution. Such was the course which he (the Duke of Wellington), and those who acted with him, had pursued on the occasion to which the noble Viscount had alluded; and let him ask their Lordships, what had followed that act of criminality, on the part of his side of the House, with which they had been charged by the noble Viscount? The noble Earl at the head of the Government in Canada, was appointed
under an act which gave the Queen the power of forming a special council; and what did the noble Viscount do in reference to that portion of the act? Had the noble Viscount performed his duty? Had he done what, under the act, he was required to do? Had he given instructions to the Governor of Canada, as to what persons he was to appoint as members of the Special Council? Had the noble Lord, the Secretary for the Colonies, as in the case of Lord Gosford’s instructions, which, he believed, were sent out after fifteen months’ preparations, informed the Governor of Canada what individuals he was to appoint to the council, or had he stated the class of persons from whom the members of that council were to be selected? The noble Baron ought to have been able to have pointed out the persons best qualified to act as members of the council; but had he told the Governor that he was to trust this person or to distrust that, or had he given the noble Earl any information whatever to guide him in the formation of the council? No; the noble Lord had done no such thing. The Government had not performed the duty which the act imposed upon them; they had given no instructions as to the persons to be appointed members of the council, and they had given to Lord Durham the full and sole power of nominating and appointing the members of that council. Without any instructions on this most important point, the noble Earl went out to Canada; and what did he do upon his arrival? Did the noble Earl appoint, as members of his council, persons intimately acquainted with the condition of Canada, and conversant with the laws and with the constitution of the country? No, the noble Earl had not done so; but, on the contrary, he had appointed his own secretary and his own aides-de-camp, as the members of the special council; and then the noble Viscount came forward and told their Lordships on the Opposition side of the House, that they were responsible for all the measures, and for the consequences of all the measures, which the Governor, with his council so appointed, might adopt. He would tell the noble Viscount, that he (the Duke of Wellington), was not responsible for those acts; and that it was the noble Viscount who was responsible for the appointment of the special council, and for its acts; and he would further tell the noble Viscount, that he considered the council which had been appointed, to have
been the cause of all that had passed since—of all those measures which were now complained of, and of all those illegal proceedings which their Lordships were then discussing. The noble Viscount had pointedly alluded to him; but he would remind the noble Viscount, that no man had made fewer observations in regard to the act which had been passed at the commencement of the Session than he had; and he had never made any remarks, unless when he had felt it to be absolutely necessary, in order to elucidate any point in dispute. But although he, and those who had acted with him, had supported the Government in a case of great emergency, and had given their sanction to a measure which they believed necessary for the purpose of restoring peace and tranquillity to Canada, yet was that measure to be carried into effect illegally, as the noble Viscount had allowed it had been, and was Parliament to see those illegal acts and take no notice of such proceedings? Was that the way he should have been treated by noble Lords opposite, had he been in office? Would they have requested Parliament to shut its eyes upon such proceedings, had he filled the office which was filled by the noble Viscount, and would not such acts, had they been done by him, or under his sanction, have been loudly and universally condemned? He came now to that part of the question which was undoubtedly the most important; and the noble Viscount, as in the former instance, threw upon noble Lords, on his side of the House, the consequences of the recent proceedings of the Governor of Canada and his council, which were now under discussion by their Lordships. The noble Viscount said, that one of the measures adopted by the Governor and his council, was illegal; and the noble Lord, the Secretary for the Colonies, and the noble and learned Lord on the Woolsack, had concurred in the illegality of that part of the ordinances which had relation to Bermuda. Now, that ordinance had been regularly brought under the consideration of the House, and noble Lords opposite having admitted its illegality, he would ask their Lordships whether he, or those on his side of the House, were responsible for that illegal proceeding? Not a bit. The noble Earl who had promulgated that ordinance, was responsible in the first instance; and the noble Viscount was responsible for the consequences of that act, and not those who had given the
Government a fair and steady support. The noble Viscount objected to the bill of the noble and learned Lord; but he would tell the noble Viscount, that it was impossible to do without that part of it which went to indemnify those who had carried the ordinance into execution to which he had alluded. Justice demanded such an act from them, and they could not refuse to indemnify those officers, whether in Canada, at sea, or in Bermuda, to whom the execution of the ordinance had been intrusted. With respect to the other part of the ordinance—namely, that which related to persons not yet in custody, that also the noble Viscount threw upon noble Lords on his (the Duke of Wellington’s) side of the House, as if they were the responsible party, in order that the noble Viscount might extricate himself from the difficult position in which he found himself placed. The noble Viscount said, he would vote against that part of the bill which had reference to this portion of the ordinance, and said, that it would be more fair to proceed directly by an address to the throne, for the recall of the noble Earl at the head of the government in Canada. With respect to the act which had been passed at the early part of the Session, he had no desire to pass a declaratory bill, but, on the contrary, he wished the Government to do something which would prevent the necessity for adopting such a course. A grossly illegal act had been committed—not a mere technical error, or one having reference to small or nice points of law—but, as had been laid down by the noble and learned Lord opposite, and by his noble and learned Friend near him (Lord Lyndhurst), an illegal act of great magnitude, and relating to points of the most grave importance—an act so clearly illegal that no man, capable of reading an act of Parliament, or of understanding the first principles of justice, could doubt of its illegality or of its impropriety. It was impossible that the people of this country could suffer any man to be driven into banishment without trial, or that they could allow him afterwards to be condemned to death without having been convicted of any crime beyond that of returning to his country, from which he had been illegally banished. But had it never occurred to noble Lords opposite, that the effect of this part of the ordinance would be to force all the discontented persons who were thus banished from Lower Canada into the Upper Province.
There was not a single word in the ordinance against their doing so, for they might all go into Upper Canada if they pleased. Was that desirable? Was it to be wished that those persons should be forced into a peaceful colony, where they might exert themselves to weaken the loyalty of the inhabitants? He would again repeat, that he had no wish to pass a declaratory act, and if the noble Viscount would say, that he would take steps to set the matter right, and to prevent such proceedings in future, then he might rest assured that a Committee of their Lordships’ House would not push the provisions of the bill further than was absolutely necessary, and than was required for the indemnification of those persons who had carried the ordinance into execution. He begged their Lordships’ pardon for having trespassed so long upon their time, but he really felt, that he had not been fairly treated on this subject by the noble Viscount, and that some explanation was necessary on his part. He had ever given her Majesty’s Government a fair and candid support, and that support had been given upon principle; because he was desirous to do all in his power to relieve the Government in a moment of difficulty, and to restore peace and tranquillity to Canada. How, then, the noble Viscount could say, that he had laid a trap for the Government, he was at a loss to comprehend, for the proceedings then under discussion had occurred as the consequence of noble Lords opposite having themselves neglected to perform the duty which the act imposed upon them, and which required them to superintend, with care and attention, the formation of the council and the proceedings of the Governor.
Viscount Melbourne said, the noble Duke was mistaken in supposing that he had alluded particularly to the noble Duke in the observations he had made. What he had meant to say was, that the Legislature having intrusted the Governor of Canada with large and important powers, they must also give confidence corresponding to the powers granted, and he did not mean to allude to the noble Duke personally, but to their Lordships generally.
Lord Brougham said, that after the powerful and eloquent speech which the noble Duke had delivered, and which had made so strong an impression upon their Lordships, it would not be necessary for him to take up much of the time of the House in replying. His noble and learned
Friend upon the woolsack had condemned the arguments he had used on moving this bill, but, although he was willing to put confidence in the legal judgments of the noble and learned Lord, yet, to his political opinions, when delivered in favour of his party, and when that party was hard pressed, he was unwilling to give an equal degree of confidence. The noble and learned Lord had argued, that there could be no doubt as to the proceedings of the Governor of Canada, and as to the meaning of the act which had been passed; but he contended that there were great doubts, and consequently that a declaratory bill was necessary. He called upon their Lordships to pass the bill, for he believed it would tend to save Lord Durham from much mischief; that it would serve as a warning to him, if not in respect of the choice of his advisers, at least in making him cautious in taking their advice, and in reminding him that his power was not absolute. He really thought that their Lordships ought not to separate for the long recess without counselling the Crown to revoke the illegal order in question.
Their Lordships divided: Content 54; Not content 36:—Majority 18.
List of the CONTENTS.
Abingdon St. Vincent
De Grey Calthorpe
De Lawarr Churchill
Eldon De Lisle
Rosslyn Stuart de Rothsay
List of the NOT CONTENTS.
Ilchester Say and Sele
Lismore De Mauley
Carlisle (Bishop of) Durham (Bishop of)
Morton Salisbury (Bishop of)
Mountcashel Ripon (Bishop of)
Mount Edgecumb Wellesley
Oxford (Bishop of) Hatherton
St. David’s (Bishop of) Derry (Bishop of)