UK, HL, “The Earl of Durham’s Ordinances”, vol 44 (1838), cols 1019-35 (7 August 1838)
By: UK (House of Lords)
Citation: UK, HL, “Affairs of Canada“, vol 40 (1838), cols 7-93.
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THE EARL OF DURHAM’S ORDINANCES.
HL Deb 07 August 1838 vol 44 cc1019-351019
Lord Brougham said, that having looked over the papers relative to Canadian Affairs, which had been laid on the Table, he must reiterate what he had before asserted, that the ordinances issued by the Earl of Durham were wholly illegal. He had on a former occasion declared, that to be his opinion, and he was now perfectly convinced, that his opinion was a correct one. It was quite clear, that though the power given to Lord Durham was very great, yet, that no power had been bestowed on him by act of Parlia-
ment to inflict pains and penalties on individuals who had not previously been brought to trial. The noble Earl was empowered to issue ordinances for the good government of the province—to make general laws for the good government and welfare of the colony; but, from the beginning to the end of the bill by which he was intrusted with this power, there was a grand exception—which exception tied up the Governor of Canada from altering any act of the British Parliament. Now, in the very outset he found, that one of the recently-issued ordinances contravened the provisions of the 7th of William 3rd, “for the trial of all treasonable offences.” if Lord Durham had a right to dispense with that act—if he had a right under the powers which had been granted to him, to condemn in every case as traitors, men against whom no witness had been examined, into whose alleged offence no inquiry had been made—if he could do this, setting at nought all those prudent and salutary safeguards which the law had provided for accused parties, then there was nothing to prevent him from interfering with any other law or enactment of the Parliament of England. It might be alleged, that the parties thus proclaimed had absconded. But what was the course adopted by Parliament in the rebellion of 1715? What was the course pursued by Parliament with respect to the parties connected with the projected assassination of King William? The accused persons were absent, and Parliament passed a bill of attainder against them. But witnesses were examined to convict them, a solemn inquiry took place, and all the difference between that and a regular trial was, that they were convicted before Parliament, and not before the ordinary court. If the Governor of Canada in Council was intrusted with the power to make laws, they ought to be drawn up in a manner as precise, clear, definite, and intelligible, as if they were the work of the Legislature itself. But let their Lordships mark the whole course of this marvellous proceeding. Lord Durham’s ordinance did not begin, as in the case of a bill of attainder, by declaring, “that A, B, and C, had been guilty of high treason;” but without any such allegation, it directed, that such and such persons should be carried to Bermuda, and if they left their place of banishment, then they should be consi-
dered guilty of high treason. This was prospective high treason—high treason, not for any act committed in Canada, but simply for leaving Bermuda. Such a proceeding was opposed to the statute of the 25th of Edward 3rd, which defined what should be considered as high treason, and limited the offence to very few cases indeed. Again, there was another part of the ordinance which called for especial notice. Twelve or fourteen persons were named as the murderers of lieutenant Weir, and it was expressly stated in this official document that nothing contained in any proclamation of her Majesty should be held to extend to the cases of those persons. So, that if her Majesty issued a proclamation of pardon (which she had a right to do, unless the Governor of Canada was viceroy over her Majesty and could control her)—if she issued such a proclamation (which might be, for aught he knew, the most wise and salutary course), yet was it declared by the ordinance, that nothing contained in any proclamation issued by her Majesty should extend to this particular offence. All this was done, he supposed, under colour of the coercion act. But what right did the coercion act give to adopt such proceedings as these. The coercion act did not extend to Bermuda. But the Governor of Canada assumed the power of transporting to Bermuda, and of visiting with the penalty of treason those who escaped from their place of banishment. Lord Durham he knew was not a lawyer, neither was Sir C. Paget, who was, no doubt, a very meritorious officer, and, therefore, they ought to have been cautious in the framing and promulgating of ordinances. But Lord Durham said, “Under all the circumstances, I determined on sending those persons to Bermuda” (“which,” his Lordship might have added “I had no power to do”), “where they could be placed under a strict and severe surveillance.” Now, he would advise the Governor of Bermuda not to attempt to place any of these people under a strict and severe surveillance; for if he did, he would render himself liable to an action for false imprisonment. The Governor-general might just as well have passed a law for the exercise of this system of surveillance towards those parties in the county of Middlesex, or the city of Westminster. The penalty, be it observed, was not confined to the appearance of these people in
Canada, if they escaped from Bermuda; it was to attach to them if they were found at large anywhere. Even if they came to London they were held to be liable to punishment. He contended, that no state necessity could be shown for such an ordinance. It was a mere wanton display of power. It was melancholy to think, that the monstrous powers granted to the Governor of Canada should be used in such a manner. But what he had stated, sufficiently proved the recklessness of the way in which the noble Lord and his Council had exercised them. It was not possible, when such extensive powers were granted, to use them with too much care, and caution, and circumspection. But these ordinances manifested in the noble Earl no feeling of that description. It was no fault of his, that he felt it necessary to call their Lordships’ attention to these matters. They were told, when it was proposed to grant extraordidinary powers to the Governor-general of Canada, and when the danger of granting such extraordinary powers was pointed out and insisted on, that no mischief could result from such a measure, because all the proceedings of the Governor-general would be subjected to the observation and superintendence of Parliament. That such observation, scrutiny, and superintendence were most necessary, and were most clearly called for was now perfectly apparent. He should say nothing of twenty-four sentences having been passed on individuals contrary to a regulation of council in one day, but he must advert to the appalling fact of fourteen persons, and M. Papineau, making fifteen, being adjudged to suffer death, if they appeared in Canada, not one of those individuals having been previously tried. Such a proceeding was contrary to every principle of justice, and was opposed to the genius and spirit of English law, which humanely supposed every accused party to be innocent until he was proved to be guilty.
Lord Glenelg said, that with respect to the first ordinance to which the noble and learned Lord had alluded, and which had reference to transportation to Bermuda, if, as the noble and learned Lord asserted, it was illegal, it could not be of any avail. In looking at the whole of this question, the object for the House to consider was, the purpose for which this enlarged power was granted to the Earl of Durham, and
the effect which had been produced by the mode in which it had been exercised. That purpose unquestionably was to secure the peace and tranquillity of Canada, and to effect that object, regulations had been passed to prevent the return of certain persons to Canada, unless they gave security for their future good conduct. There was nothing in this incompatible with the object to effect which Lord Durham went out to Canada. His Lordship went out for the pacification of that colony, and for the purpose of closing as soon as possible those scenes of distress, of strife, and of contention, which had been so long exhibited there. It was for that purpose that Lord Durham proceeded to Canada; and if he had issued ordinances which tended to effect that purpose, he deserved praise, and not censure. He repeated, that the great point to be considered was, the object to effect which Lord Durham was armed with those powers; and he would confidently assert, that in Canada, public opinion was decidedly in favour of the course which Lord Durham had adopted. That noble Lord had to consider the situation of the prisoners in Lower Canada, men who were guilty, or were supposed to be guilty, of very high crimes. It was a very delicate and difficult task for his Lordship. He had to decide whether the parties should be visited with the extremity of a severe law, or be treated with clemency and forbearance. He chose the latter course, and gave to those who pleaded guilty a sentence as lenient as the circumstances warranted. This, he had reason to know, from persons who came from that country, had afforded the utmost satisfaction to all parties. The difficulty of the situation in which Lord Durham was placed must be obvious to every person who considered the state of Canada. On one side parties were calling for severe measures—were demanding extreme punishment against the offenders, while, on the other, many individuals were anxious for an entire amnesty. Lord Durham adopted a middle course, and when his decision was announced, it gave general satisfaction throughout the colony. With respect to those persons who had absconded from the province, whatever might be alleged on that point, there was no doubt on his mind that acting on the principle of prudence, the course which had been taken was the wisest and the best. He thought that the course adopted by Lord Durham
was calculated to restore and to secure the peace and tranquillity of Canada. As to the second ordinance to which the noble and learned Lord had adverted, as contrary to the law of England, he supposed that every minute municipal regulation was not expected to be strictly and to the letter in accordance with that law, especially when such a state of things prevailed as that which Lord Durham had to encounter. He believed, that the proceedings taken by Lord Durham were approved of by every reasonable, unbiassed, and dispassionate man in the colony; and he could not agree with the noble and learned Lord, great as his authority might be, when he declared that those proceedings were illegal.
Lord Brougham said, that all which the Earl of Durham wished to do he might have effected without breaking the law. If Lord Durham had said to parties accused or suspected, “I won’t bring you to trial if you conduct yourselves properly,” then he would have done legally for the peace and tranquillity of the colony, all which he was said to have done, but which he had done illegally. Lord Durham did not declare these to be traitors, but he said, “I shall send you to Bermuda, and if you leave that island, you shall be adjudged guilty of high treason? But how could his lordship declare them guilty of high treason? What legal or justifiable right could he plead for doing so, when they never had been arraigned, when they never had been tried, when they never had been found guilty of that offence? Such a proceeding was never known even in the worst times of this country. Even then individuals were served with notice; they were informed of what they were accused; but the people designated in Lord Durham’s ordinance were to be declared guilty of high treason, not for what they did in Canada—no, no, but for coming from Bermuda, where the Governor-general had no right to send them, and appearing in Canada. The noble Lord (Glenelg) asked, “Was it to be supposed, that Lord Durham and his council were not to have all the powers of the Legislature of Canada?” He denied, that Lord Durham had any such power. At all events he was clearly forbidden to alter any statute of the Parliament of England. If it were said, that the words of the Act enabled the noble Earl so to proceed, he must regard such an assertion as a mere
quibble. Was he to be told, because the words of the Act were so wide and comprehensive with respect to the power of issuing ordinances “for the peace, welfare, and good government of the province,” that therefore Lord Durham was authorised to proceed as he had done? Would any man say, that this provision gave Lord Durham the right to hang individuals, or to visit them with pains and penalties, they not having been brought to trial? He should like to have the opinion of the learned judges as to the construction that was to be placed on this Act. If one of them, even one of them, was of opinion that Lord Durham’s construction was a correct one, he should be exceedingly surprised. He was quite confident, that their Lordships never intended to grant any such power. They had, however, to deal not with what their Lordships intended to do, but with what they actually did, by this act. And, if any one of the judges who were in the habit of construing acts of Parliament, declared that the Act in question authorised the steps taken by the Governor-general of Canada, then he would at once acknowledge that he was wrong, and would, of course, give up his argument. He had consulted some of the best lawyers in Westminster-hall on this point, and they did not express the shadow of a doubt on the subject. If the noble and learned Lord on the Woolsack declared, after the exception which he had pointed out, that these proceedings were legal, he would be ready to reconsider his opinion. But he must say, that he would not be ready on the authority of a Minister of the Crown, speaking under the pressure of debate, or on the authority of an equity lawyer, whose attention had not been turned to the consideration of questions of this nature, to forego or give up his deliberately-formed opinion. What did the Act say, with respect to the laws which Lord Durham and his council were empowered to make? It expressly set forth, “Nor shall it be lawful by any such law or ordinance to repeal, suspend, or alter, any provision of any act of the Parliament of England.” Now, though the Earl of Durham and his council could not repeal the Act of Edward the 3rd, or the Act of William the 1st, yet they seemed to think, that they might arrive at the same end by a different road—namely, by making in each particular man’s case a law contrary to those statutes.
Was that consistent with the principles of English law? If her Majesty’s Ministers supposed so, he wished them joy of their legal knowledge. Lord Durham was not, he knew, a professional man; but he had a council, and he did complain that that council should have sanctioned those ordinances. Lord Durham had appointed a Special Council: the Secretary to the Government was a lawyer; he was the legal adviser of the Special Council; and he blamed that Council, who might have availed themselves of legal assistance, more than he did the Earl of Durham, for the promulgation of those ordinances. He knew perfectly well, that Lord Durham was in a very peculiar situation; and he felt for the difficulties in which the noble Earl was placed, as much as the noble Lord. But other and greater considerations impelled him to bring this subject under the consideration of their Lordships. He was anxious for the best interests of that colony; he was anxious for the credit of the government of that colony; he was anxious for the peace and tranquillity of that colony; and he would say, that if any man were to rack his brain for the purpose of discontenting, and not contenting, a colony, for the purpose of undoing all which Lord Durham had been commissioned to do, he could not have hit upon a more effectual scheme, or a more certain plan for accomplishing that purpose, and for prostrating all those hopes and expectations which had been held out of tranquillizing Canada, than by making and publishing those most obnoxious ordinances which bore the impress of ignorance, of haste, of a total neglect of what was lawful, and of an anxious disposition to do that, for the doing of which not one particle of law, or of justice, or of equity, could be pleaded.
Viscount Melbourne admitted, that the power to be exercised by the Earl of Durham, in conjunction with his council, that council to be appointed by him, was of an extraordinary and most extensive nature. But their Lordships would consider, in examining this subject, that the circumstances which called for that power, and under which it was granted, were also of a very extraordinary character. He asked them, to consider the situation and circumstances of the colony; he called upon them to reflect on the difficulties with which Lord Durham had to contend, and to recollect what he had stated on a for-
mer occasion, that, being on the spot, his noble Friend must be much better acquainted with the whole of the circumstances, and more aware of the measures which it might be necessary or expedient to adopt, than any of their Lordships could be expected to be. He must say, it was not convenient; it was not expedient; it was not fair; it was not just—he did not mean to Lord Durham—it was not just to themselves; it was not fair to the steps they had already taken—it was not just to the interests of this great empire, to consider these measures in such a manner as to suffer themselves to be too much struck by any anomaly which might appear on the face of them, or by any disparity which might exist between the practice in Canada and in this country in a settled state of society, in times of perfect tranquillity, without peril and without danger. If they considered, that those powers had been imprudently, unjustly, and improperly exercised—if they thought they had been exercised in such a manner as to hazard the interests of this country in that part of the world, it would, unquestionably, be wiser for their Lordships to interfere decisively, in order to prevent such a course being persevered in. He did not understand the noble and learned Lord to propose that mode of proceeding; but if their Lordships did not see ground for interfering in that manner, then, he said, there was but one other course—to exercise some confidence, to place some reliance, instead of constantly interrupting proceedings by perpetual comments on them, weakening their own authority and the authority of Government, by condemnations which they did not mean to follow up. All Governments, it was most true, had their faults and their errors, their ingenita vitia; and in consequence of party strife, in consequence of political attacks one upon another, in consequence of personal dislikes and animosities, the enemies of the country, whether foreign or domestic, always found their greatest assistance and encouragement in the bosom of the legislative assemblies of the country. That had always been the case; and certainly it was a very great misfortune. The noble and learned Lord who sat on his right hand, was always twitting and reproaching him for his ignorance of the law; he would not, therefore, venture to say anything on the law of the case upon the present occasion. Indeed, it
was perfectly useless that he should do so; because, undoubtedly, his opinion could carry with their Lordships no authority or weight whatsoever. But he begged leave to assure their Lordships, that with the exception of that part of the ordinances which related to the island of Bermuda, where there was an evident mistake in the Governor-general and council, erroneously supposing that their power extended beyond the given bounds of their own jurisdiction, he believed the whole of the remainder of the ordinances were perfectly legal, and warranted by the powers which Parliament had committed to Lord Durham.
Lord Ellenborough was glad it had been admitted by the noble Viscount, that part of the ordinances relating to the transportation of the eight persons to the island of Bermuda was altogether unlawful; it appeared however to him that the latter part of those ordinances, with respect to those persons who were to be punished on their return to Canada, was also contrary to act of Parliament, contrary to the law of England, contrary to the 7th of William III., to the 14th of George III., and to the provisions of the act passed at the commencement of the present session. It was quite true that very great powers were delegated by that act to the Governor General in conjunction with his council, and it was likewise quite true that they could not in all cases judge of the expediency of the measures which the Governor-general in council might adopt; but the objection taken by his noble and learned Friend, in which he altogether concurred was not merely that those acts were inexpedient, unjust, and calculated to do a great deal of harm instead of good, but that they were unlawful. This objection was by far the most important; because, whatever popularity a measure might enjoy at any particular moment in that or in any country, if in itself unlawful, it must ultimately produce resistance on the part of the people. He felt perfectly confident, if it were the desire, as it must be, of Lord Durham and his council to govern Canada with advantage, they would act within the Parliamentary provisions under which they derived their powers in the most constitutional manner. The further they departed from the true principles of the constitution the more the danger was increased. He was confident that in this instance, as in any other, it would be ap-
parent that the smallest deviation from constitutional principles on the part of a constitutional Government was fraught with danger. Governments having another origin might venture on courses consistent with despotism, but a constitutional government never could do so without injury to its subjects and great danger to itself. With this conviction he had joined his noble and learned Friend in pressing on their Lordships’ attention what had recently been done in Canada; he should continue to do so, because he was convinced it was their duty to supply by their Parliamentary vigilance, as far as they could, the want of that constitutional government which they had been induced to take away. The more their observations and arguments led the Government of Canada to take that course which was most consistent with the constitutional principles of this country, from which it derived its origin, the more would they in fact, be contributing to the benefit of England and the tranquillity of Canada. And he really hoped he did not understand the noble Baron at the head of the Colonial Department in one argument he put forth, as if he were disposed to justify measures admitted to be in some material points contrary to law, on the ground of their expediency and necessity under the circumstances, in which Canada was placed. That was the argument which justified all tyranny—an argument which had been repudiated at all times in this country, and which he trusted there was spirit enough left still to repudiate, notwithstanding the grave and solemn tone of the remonstrances uttered by the noble Viscount at the head of the Administration, deprecating all observation of his government in Canada, because that observation could not be made without the greatest injury to a Government which had violated the constitutional principles on which it should have acted.
Lord Brougham—I have been told by the noble Viscount that lawyers have been found to say that these acts are legal; I beg therefore to give notice that I shall, when this House next meets, move for a copy of their opinion; and I now move for the date at which Sir Charles Paget first attended the Council, inasmuch as he was not on the spot when it was formed and it may turn out that only four instead of five were present when those ordinances were passed. I never till this night heard,
and I did expect that in this ouse, the highest court of justice in the kingdom, in this Parliament, the temple of English liberty, I never should have heard the ears of your Lordships outraged and insulted by the principles which the noble Viscount has promulgated—that the more extreme the powers are which you have felt it necessary and deemed it your duty to confide to a governor, the more extravagant the authority which your coercion bills have reposed in his hands, the less watchful it becomes you, the senate of England, to be, how he exercises those extraordinary powers; that if an ordinary privilege is conferred on him, if an everyday authority is communicated to him—if he goes out with the law of England, common and statute, to administer by the powers known to that law—then, indeed, you may scrutinize—then you may watch, and if he should overstep the ordinary restricted limits of that common authority, then it is the duty and the province of Parliament to interpose; but that when you arm him with dictatorial power—when you say all law shall be silent except that which you enable him to make—when you tell him he shall have legislative powers with a very slight restriction and within the amplest conceivable limits (but still not without some restriction, not without some limits, as the very act under which he derives his authority plainly attests)—the more extreme the powers, the more extravagant the privileges with which you arm him, the more it becomes you to shut your eyes and fold your arms, and sit quiescent, while he exceeds those excessive powers. I should humbly have thought, the more power was given the more vigilance was required as to the manner in which it is exercised; and I have always hitherto been taught to believe, that the larger the powers conferred on any officer, the less excuse has he for taking more than is given him, and exceeding the ample authority already placed in his hands. Then came another general observation on the evils of a popular government, from the head, too, of a liberal Administration, from the representative of Whig principles in this country. A popular government, like all others, has its evils; who denies it? But I was not prepared to expect, that that should be set down among the mischiefs which I reckon the greatest duty, the highest benefit, the
most ample advantage, the consummate glory of a popular constitution—namely, that it abhors arbitrary power, that it courts publicity and investigation, that it challenges inquiry, that it defies opposition, that it stands on its own merits, and above all, never seeks to skulk in the recesses of arbitrary power, to escape from scrutiny—above all, to overrule the principles of justice and of known law, by planting in the place of known defined law, that wretched substitute which consists in law vague and unknown; and if anything yet more alien to the principles of a free constitution can be imagined, it is, that expediency should be pleaded as an extenuation for what cannot be defended, namely, illegal acts, and above all, that the expediency should be most pressed upon us, the ampler, the more extravagant the powers with which the wrongdoers were, for the time, invested. The noble and learned Lord then alluded to the charge which had been brought against him of being actuated in his references to this subject by personal animosity and a factious spirit. He had resisted the passing of the late Act from the very first; he had solemnly protested against its being made law; and to show, that he had no personal feelings of vindictiveness to gratify by attacking the conduct of Lord Durham in his absence, he had, on the contrary, stood forward on a previous occasion, to defend him, even when deserted by the noble Viscount in the case of the appointment of Mr. Turton. Under these circumstances, he defied all the charges which might be levelled at him, that he had allowed party feeling or personal influences to guide his conduct with respect to this question. He deemed it a question of high interest, of vast importance to the peace of Canada, to the credit of the law, to the credit of that House, to the credit of the Government itself. The noble Viscount justly assumed, that he did not mean to move an address for the recall of the Governor, and to stop his administration in the outset, which might give rise to very great evils, of which he would not undertake the responsibility; there was a great difference between that and saying, they must shut their eyes and fold their arms, and do nothing. He was neither prepared to remove Lord Durham, nor to create him absolute in Canada, to put him above all law, and allow him to supersede the very authority which sent
him there. So far from being against Lord Durham, so far from being hurtful to him, these discussions, which the noble Viscount said, had been prematurely, but he maintained necessarily, indispensably, unavoidably entered upon, by calling his attention to the fact of his not having vested in him absolute discretionary powers, would be the best thing, the most wholesome thing, the safest thing, which could be desired for Lord Durham himself.
The Duke of Wellington believed, that there was no question before the House at present. The noble and learned Lord had given notice of a motion for tomorrow.
Lord Brougham I have moved for the date of Sir Charles Paget’s attendance at the council.
The Duke of Wellington certainly could not but agree with the noble and learned Lord, that those parts of the ordinance which the noble Viscount himself admitted to be illegal, were fit subjects for inquiry in that and in the other House of Parliament, and not only fit subjects for inquiry, but it was absolutely necessary, that Parliament should inquire into them, and apply a remedy. It was impossible to say what the consequences might be. He must say, that until he entered that House that evening, and had received from his noble Friend near him (Lord Ellenborough) a paper which he held in his hand, he was not aware, that the noble Earl, the Governor of Canada, had stated in his dispatch, that he had adopted transportation to Bermuda, because he did not think it right to transport them to a convict colony. It appeared to him, that the noble Earl was not at all aware of what he was doing. It really appeared to him, that some steps ought to be taken in this country to set the Government there right upon transactions which appeared to be totally and entirely illegal. He agreed with the noble Viscount, that it was not right to come there night after night, to attack the Earl of Durham; but when there was a case of this description, in which the conduct of the Government in Canada was positively illegal, it was absolutely necessary that this House and the other House of Parliament should take the subject up, with a view of adopting some means to set the Government there right upon this subject, and to apply a remedy. He saw it stated by his Excellency, in a paper laid on their Lordships’ table, that the measures which ho had taken had met
with the entire approbation of Sir John Colborne, and the leaders of what was called the British party in Canada. Now, he thought it extremely improper, that a person to whom the public were so much indebted for the state of things as they were found in that country by the Governor-general should be charged, in connection with the leaders of a party, with approving of the measures taken by his Excellency. Sir J. Colborne had filled a high situation in that country with credit to himself, and advantage to his Sovereign, and his name ought not to be dragged in on such an occasion, in the way in which it had been used. He hoped and trusted, that the noble and learned Lord would bring forward this question, with a view to apply a remedy, as that was the object for which they ought to look; and when once that was done, there would be no necessity for attacking the Earl of Durham day after day, and these discussions would be at an end.
Lord Glenelg said, that with regard to the noble Duke’s observation about Sir J. Colborne, he must say, that he had not the slightest conception that it was intended, in what the noble Duke had read, that they should apply to Sir J. Colborne as connected with the leaders of the British party. He had never understood it so, and until the noble Duke had suggested the idea, he had never heard any allusion of the kind, nor did he conceive it possible that it could be so understood. What he understood was this, that the measures of his Excellency had been approved of by Sir J. Colborne, and also by the leaders of what was called the British party, and he firmly believed, that that was the sole intention of his Excellency. He conceived it impossible to imagine that these expressions could be taken as connecting Sir J. Colborne, with the leaders of the British party, because it was well known, that Sir J. Colborne kept aloof from all parties. His loyalty and attachment to this country were well known both in Upper and Lower Canada, where, in the most critical and difficult circumstances, when party spirit raged on both sides—the one party calling itself the liberal party and the anti-British party, the other the British party—in the midst of their struggles he said, distinctly, that Sir J. Colborne, standing at the head of the Government, kept aloof from all interference, or even the suspicion of taking a party view of these transactions.
This was only a tribute that was due to that excellent and gallant Officer; it was a tribute from his own strong feelings, so strong, that he never could have consented to produce the paper in question if it could have been considered as connecting Sir J. Colborne with any party of whatever description; and he was persuaded further, that the noble Earl who wrote the letter had never had any such intention when he expressed himself in those terms. It was contrary to the whole course of his correspondence which related to Sir J. Colborne; it was contrary to the impression uniformly conveyed of his feelings in that respect, as it was contrary to the real character and conduct of Sir J. Colborne himself.
Lord Lyndhurst said, that it was not his intention to enter into the discussion of the legality or illegality of the conduct of the Earl of Durham upon this occasion, inasmuch as his noble and learned Friend had given notice of a motion, when the whole subject would be submitted to the consideration of their Lordships. But he rose for the purpose of impressing upon their Lordships the absolute necessity of coming to a decision, and a speedy decision, upon the legality of this matter. This ordinance might have been acted upon. It might have been already acted upon. A party might have been found at large, he might have been seized, brought within the jurisdiction of the courts in Canada, already tried, and he might already have suffered punishment. It, therefore, became necessary for them, without delay, to come to a distinct and precise understanding upon the legality or illegality of this measure, and to guard against the consequences of mistake. He, therefore, trusted, that his noble and learned. Friend would bring forward his motion at the earliest possible period at which the subject could be submitted to the consideration of their Lordships, in order that they might have an opportunity of pronouncing, not merely with respect to the legality or illegality of that part of the ordinance to which the noble Baron (Lord Glenelg) had referred, and the illegality of which had been admitted, but also with respect to the point to which the noble Viscount (Viscount Melbourne) had referred, and which he stated distinctly, that he considered to be legal upon the highest legal authority in this country. He would impress upon their Lordships,
therefore, without delay, to take this subject into consideration, to guard against the mischievous consequences that might result from these ordinances being acted upon, and afterwards pronounced illegal.
Lord Brougham said, he would take the earliest possible opportunity to bring this subject before the House. There was another reason why it was impossible but that some step should be taken, as this act gave judicial power of punishment without trial—of passing, privilegio, private and personal laws, acts of attainder, and bills of pains and penalties, as well as mere rules and regulations. If this had been stated at the time the bill was before their lordships, they would have said, that they never meant to do such a thing, and would not give any such power. His opinion was, that the act did not give that power. That was also the opinion of those whom he had consulted of higher authority and weight in Westminster-hall. He thought that the best course would be to introduce a declaratory act, which he would do on the earliest convenient day, to explain, define, and limit the power. He would now move for a return of the date at which Sir Charles Paget, Colonel Cooper, and Sir James Macdonnell first attended the council of his Excellency, the Governor-general of Canada; also which of the councillors were present on the 28th of July, when the ordinance was made.
Motion agreed to.