Lord Broughamwished to call the attention of their Lordships to the announcement of a proclamation of ordinance which he had seen in the public papers, and which was of the greatest importance to the people of Canada. It was a proclamation agreed to by the Earl of Durham in council, and which, if the noble Earl presumed to carry into effect, he would be guilty of no less a crime than murder. So outrageous, so abominable a violation of the law, ought not, if it did exist, to be suffered to continue for an hour. He hoped, however, that no such proclamation had been issued. But the American papers had stated the fact, and they had also given the names of the parties appointed to act on the Special Council. As was the case with the former selection, no Canadian was named. He saw that the military secretary, the aide-de camp, and the civil secretary, were enrolled, but no Canadian, Then Lord 756 Durham had issued a proclamation stating, that certain persons had declared themselves guilty, and, therefore, the Governor-general, without bringing them to trial, without having any regular examination, had sentenced them himself to transportation to Bermuda, and declared that they should be put to death if they left the place of their banishment and again appeared in Canada. This, if carried into effect, would be gross murder. Neither the Governor-general nor any one else had the least right to pass any sentence, much less a sentence of a nature so highly penal, unless the parties had been previously tried. But it appeared, that these individuals, if they returned from transportation, were to be put to death. Now, what was the course adopted in this country? Why, if the party returned (and it was every day's practice), he could not be summarily put to death under the mandate of any person. It was only when the court, which had legal jurisdiction, ordered him to be put to death that execution could be inflicted on him. It was made a capital felony, by Act of Parliament, to return prematurely from transportation, after a man had been regularly tried, convicted, and sentenced. But, in this instance, the moment a man confessed himself guilty, he was, without any legal form having been gone through, sentenced to transportation, and subjected to death if he returned from it. But this was not all. By this proclamation or ordinance, Mr. Papineau and others, who had not confessed themselves guilty, who had made no admission of the kind, were outlawed, and it was proclaimed, that if they entered the territory of Canada, Upper or Lower, they were also to be put to death. There had been already a most outrageous tampering with the law, when 1,000l. was offered for evidence; but this was nothing When they looked to a proclamation by which the Governor-general pronounced that he was prepared, should circumstances arise, to commit a capital felony. His commission only allowed the Governor-general in Council to frame general laws—not to make a sudden regulation under which men were to be hanged. The whole proceeding was utterly at variance with the known, and just, and established law of this country.
Lord Ellenboroughrose to move for a copy of the proclamation to which his noble and learned Friend had alluded. 757 Also, for the names of the persons appointed to act on the Special Council, and the day on which the proclamation or ordinance had passed. His noble Friend, the Secretary for the Colonies, would see the propriety of his calling for the date; because, he believed, connected with the date, he could show that three other grounds of illegality with reference to this proceeding existed, besides that which his noble and learned Friend had pointed out. Before Sir J. Colborne left the Special Council he sanctioned certain rules for the government of the proceedings of that council. One of these rules set forth, that every meeting of that council should be convened by proclamation twenty-one days before the meeting took place. Now, the council at which this ordinance was passed was summoned on the 28th of June, and proceeded to business on that day, which was manifestly against the regulation. Again, the 15th resolution directed, that when any new law was introduced, any Member might move, that it should be read a second time on the next day of meeting, and that it might then be read, unless some more distant day was proposed. In this case, however, the rule was wholly departed from; and the ordinance was read a first, second, and third time, and agreed to, on the same day—the day that he had already mentioned. This was contrary to the standing order. It was at least irregular, if not actually illegal. He now came to his last, but to his most important, objection. Five persons only had been appointed to the Special Council, and it had been ordered, that five should be present when any act was passed. The ordinance in question was discussed on the 28th of June; and he found that one of the five members of the Special Council did not arrive at Quebec till the 29th of June, the day after the ordinance was passed. Therefore, there could have been only four members in the council when the decision took place, which rendered the whole proceeding illegal. There was not anything, he must observe, that required more anxious deliberation than cases of that description to which the ordinance referred; because it was necessary to draw a line of distinction between persons who, on the first glimpse, might seem to be involved in the same degree of criminality; and it was a nice thing to declare, without serious deliberation, that some should be 758 transported, and others, on their recognizance, set free. Here he saw, after a very short consideration, that eight persons should be transported to Bermuda, and hanged if they dared to come back; and sixteen more were outlawed—banished from the colony, and subjected to capital punishment if they returned. Others, it appeared were to be pardoned on giving security. These, he repeated, were matters that required deep consideration; but here twenty-four cases of transportation and banishment, with the penalty, on returning, of death, were decided in one day. Great punishment was awarded against these persons, while pardon was extended to others. It was necessary that their Lordships should have these papers before them, in order, that they might investigate a proceeding which appeared to him to be disgraceful to the Government, and likely to bring into hatred the authority of this country.
§ Lord Glenelgwas quite ready to lay upon their Lordships' table any papers upon the subject in his possession. All that he now had were the ordinances, and some private letters, which he was not at liberty to produce. He had only to observe, that it was premature to condemn the conduct of Lord Durham, which had gained the confidence of both parties in Canada.
Lord Broughamsaid, that he did not absolutely condemn Lord Durham. He only condemned him, in the event of its being true, that he had issued such a proclamation. He appealed to any lawyer in the House whether murder would not be committed in hanging a man without first bringing him to trial.
§ Viscount Melbournesaid, that considering the difficulties of Lord Durham's position—considering the distracted state of the colonies over which he was sent to preside—considering the state of the empire, and how deeply the empire might be affected by what passed in that House, it was in the very highest degree imprudent, and he would add, unpatriotic—it was sacrificing the interests of the country to the interested party—it was sacrificing the highest objects to the desire of attacking an individual, to pass such a decided and determined condemnation upon an act which had been deemed necessary by the noble Lord who was upon the spot, and had the best means of judging what was fit to be done and what 759 was for the benefit of the State. He had no objection to the production of the papers, or to the fullest discussion in that House or elsewhere of what had been done in the province. He could not refrain from expressing the strong opinion which he felt upon the course which had been adopted in reference to Canadian affairs.
Lord Broughamdissented most strongly and peremptorily from the doctrines which had been laid down by the noble Viscount at the head of her Majesty's Government. He held it to be neither premature, nor imprudent, nor unpatriotic in that House to keep a watchful eye on the exercise of the dictatorial powers which had been intrusted to the Governor-general of Canada. They were told during the debates which preceded the passing of the bill that Parliament would be always at hand to superintend and control the exercise of those powers. "Don't fear," said the noble Viscount and his colleagues, "to give ample authority. It will be always under the control and supervision of Parliament, and if unduly exercised, Parliament can be called upon to interfere." Powers ample and extensive were accordingly given—powers hideous and portentous in their nature, and yet even these had been exceeded by the noble Lord to whom they were intrusted. This authority, however ample and tyrannical, was not considered sufficient by those upon the spot. They were exceeded to an extent, that if before they were given any one had predicted such a result, it would immediately have been pronounced to be impossible. The noble Viscount talked as if the powers given to Lord Durham had been exercised, but not exceeded. Was the issuing of such an ordinance an exercise of the powers of the act? Instead of confining himself to the powers of the act, the noble Earl was running in the teeth of the act, and of every known law and usage in England. The noble Viscount had talked of a person upon the spot knowing best what was necessary to be done for the good of the public; he would ask was it necessary to commit a felony for the good of the public? Was it necessary to hang a man before they brought him to trial? Could any difficulties of the noble Lord's position—could any state of the empire, justify the tolerating of such orders? The House, he thought, would fail in their duty to their country if they allowed a single day to 760 elapse without calling for an explanation of such proceedings. He denied, that he sought an occasion of attacking Lord Durham. These ordinances had been published in America, and were known to the world. But, says the noble Lord, Lord Durham has conciliated all parties in Canada. Did all parties in Canada, then, approve of illegal acts? When Lord Durham was given up by the noble Viscount, he had defended the noble Lord, and by doing so called down upon himself the censure of a right rev. Prelate for whom he had a great respect, because he always acted conscientiously, and also the censure of a noble Duke. Nothing could be more solemn than the denunciation upon that occasion by the noble Viscount of Lord Durham and Mr. Turton. In its generality there was wanted no charge, however odious. He never desired to be set-down more in his presence or in his absence—in public or in private—than to have it said of him by the one who had appointed him to a confidential situation, "I have seen with deep regret the acts which he has done, and am greatly surprised at them." With respect to the charges which had been made against him by the noble Viscount, of being influenced by factious motives, he regarded them as little as the noble Viscount used himself to regard similar charges when he was accused for bringing charges against the Government of that period, being influenced by factious motives.
§ Lord Glenelgrepeated, that he had no objection to lay the papers upon the Table.
§ Motion agreed to.