§ The order of the day for the House resolving itself into Committee on the Canada Government Act Declaratory and Indemnity Bill having been read,
§ Lord John Russell
said: In moving, Sir, that you do now leave the chair, I find it necessary to address the House, not only with respect to this bill but with respect to certain comments that have been made upon the subject out of which the bill has arisen. I cannot feel any surprise that the hon. Gentleman, the Member for Westminster (Mr. Leader) should have asked me yesterday whether I intended to propose any amendments in the present bill, or whether I meant to ask the House to adopt it without any amendment whatever. At the time, however, that the hon. Gentleman asked me that question I was not aware whether additional words might not have been introduced into the bill subsequently to the time when it was first ordered to be printed by the House of Lords. Having since seen the bill, I can now state to the hon. Gentleman that it is my intention to propose to the House of Commons—a proposal which I shall make very reluctantly—that it should assent to 1212 the bill as it came down from the other House without any amendment. I say that I make this proposition with reluctance, because, I feel that if we were at any other period of the Session, that if the House were not utterly exhausted by the labours of this protracted Session, that if the attendance of Members were not at present so much reduced in numbers as to render it impossible to expect such an expression of the opinion of the House as would carry due weight with respect to a large measure of, this importance, I certainly should have thought, after the comments that have been made—after the doubts that have been expressed—that it would have been proper to introduce into this bill some other and additional clause in order to make clear what were the intentions of the Legislature with regard to the affairs of Canada. It has been thought in the other House of Parliament that it is proper to propose a bill of indemnity with regard to certain parts of an ordinance passed by the Earl of Durham and the special council in Canada, indemnifying persons who may have acted under that ordinance with respect to sending certain prisoners to the Bermudas, or keeping them in restraint in that cluster of islands. It has likewise, as I understand, been the decision of the House of Lords that they would not proceed any further than to give that indemnity. Clauses were proposed in the original bill, and subsequently in the Committee, to make a declaration on the part of Parliament with respect to the meaning of the act; but it was thought better to pass that subject by altogether, and not to raise at the present period of the Session any of the new questions that might be mooted in consequence of a declaration either one way or the other in reference to certain parts of the bill which passed at the commencement of the Session with respect to Lower Canada. Such having been the decision of the House of Lords, and it being now submitted to the decision of this House, I feel that it would be fruitless in me to endeavour to obtain a declaration of opinion on the part of this House which would not be esteemed as a declaration carrying with it the authority which a discussion and decision at an earlier part of the Session would have been calculated to produce. I feel undoubtedly, especially after what has been said, that in declining to take that course, that in ab- 1213 staining from proposing any amendmen or any new clause, the responsibility of the Government at home, and of the Governor-general who is to administer affairs in Canada, whether it be the Earl of Durham or any one else, is exceedingly increased. I feel, however, weighing together the advantages and the disadvantages on the one side and on the other, that as far as we are concerned, it is better to incur the increased responsibility than to make any fruitless attempt at obtaining a more clear and decisive declaration of Parliamentary opinion. Therefore what I propose is, that the House of Lords having decided that in their opinion, and, as I understand, from my hon. and learned Friend the Attorney-General, in conformity with his opinion also, that so much of the ordinance of the Earl of Durham as related to keeping persons in restraint in the Bermudas could not be justified by law, and that, therefore, it was necessary if Parliament wished to avoid the evil consequences which might arise to the persons who had acted under that ordinance, that an indemnity should be granted by Parliament—such an opinion having been expressed, such bill having come from the House of Lords, and such being clearly the opinion of legal authorities generally, I will not say the opinion of every legal authority, but of the greater number of legal authorities who have pronounced any opinion upon the subject, I think this House can hardly hesitate, unless it be disposed to refuse any indemnity whatever, to give its assent to the passing of a bill of this nature. There is, however, another question to which I am obliged to call the attention of the House; and I do it not only in consequence of public comments which are notorious, but likewise in consequence of the few words which fell from the noble Lord the Member for Lancashire last evening. I am most unwilling to call the attention of this House in any way to the general nature of the proceedings which have been taken by the Earl of Durham since he assumed the government of Canada. I have asked the House more than once to forbear from expressing an opinion upon those proceedings until the case came fully before them, until the progress of Lord Durham's administration in Canada being more completely known, the House might act with a better knowledge of all the circumstances, and be 1214 enabled to come to a more sound and mature decision. If I repeat that opinion now it is not for the purpose, far from it, of implying that in this House there has been any disposition to refuse that which I thought a reasonable request. On the contrary, I have to express my grateful thanks to the House for the forbearance which it has shown upon this subject—a forbearance which I will not attribute either to any regard for the reputation of Lord Durham, or to any confidence which certain portions of the House did not profess to feel in her Majesty's present Government, but which I ascribe to the higher motive that forbearance would be more in accordance with the general interests of the empire than a precipitate or premature interference with the government of Canada. And when I say that such has been the forbearance of this House, I make no exception with respect to an observation made upon a question put by the right hon. and learned Member for Ripon (Sir E. Sugden). A doubt had occurred to his mind; he stated that doubt with perfect calmness and fairness, without anything like a charge or an imputation upon any one. Having conceived the doubt, it was only just and fair on his part that he should state it in the manner he did, and accompanied with the declaration which he made, and in which, I believe he was sincere, that he was most unwilling to menace in any way the authority of the Governor-general in Canada. But we cannot disguise from ourselves that there have of late been comments made, with which the public are well acquainted, with regard to the meaning of the act which was passed at the commencement of the Session—comments which affect not only those points of an ordinance issued by Lord Durham which relate to the Bermudas, a place out of his jurisdiction, but which affect his authority and the authority of any person who might be governing in the name of her Majesty in Lower Canada—comments which tend to deprive the representative of her Majesty of all means, of all civil means at least, of meeting conspiracy, and preparation for rebellion, which go to encourage those who may be preparing for fresh insurrections, and rebellions, and which are calculated to cast doubt and uncertainty upon the whole of those questions which the Government and I believe the great majority 1215 of the House, supposed had been positively settled during the discussions upon the Canada Bill at the commencement of the year. In saying, however, that we mean to undertake the responsibility of governing Canada under this Act of Parliament, I cannot refrain from declaring what is the sense which I place upon the bill which was, introduced and passed upon this subject in a former part of the Session. My noble Friend yesterday said, that there might be questions with regard to the whole of the ordinance, with regard to the power it would exercise, with respect to persons who either might confess themselves to be guilty, or be found to be guilty, and with regard to the interference it might make with the ordinary proceedings of the criminal law. I think that the interpretation which I understand some have put upon the Canada Act, namely, that by certain words introduced into a proviso it was intended by Parliament, that there should be no interference by suspension, alteration, or repeal of any part of the criminal law of this country in Canada, is an interpretation totally at variance with the fair scope and clear intention of the Act. From the first words of the title to the last words of the enactment, such an interpretation is, in my opinion, entirely contradictory of the whole meaning and purpose of the Act. The meaning of the enactment—I will not discuss particular words of it, because I would rather leave that part of the controversy to persons of legal authority, which I cannot pretend to—but the whole meaning of the Act as we proposed it was, that whereas it was impossible to call together any legislative assembly in Lower Canada, and whereas it was impossible without some legislative power, to provide for the exigencies which might arise, therefore an authority should be created by Parliament, competent to meet these difficulties, and to provide for these mischiefs. It might have been proposed, and no doubt it was a matter of deliberation, whether by suspending only part of the laws, which provide for the liberty of the subject, the danger of conspiracy and revolt, might not be guarded against; but it seemed a more complete, a more full, although undoubtedly a more arbitrary act, to propose to create an authority which should he able to provide laws in Canada necessary for the occasion. Accordingly the act provides with respect to certain monies that 1216 are to be issued, and establishes guards against any increase of taxes and against any unfit appropriation of a surplus; the whole of it evidently intending that with these guards the legislative authority of the province was to be exercised by the Governor-general and the Special Council which you constituted in Lower Canada. If, on the contrary, the act is to be interpreted by the few words which say that no act of the Parliament of Great Britain or of the United Kingdom is to be interfered with, it would be impossible for the Legislative Assembly in Lower Canada to be put a stop to, because the Act of 1791, which constituted the Legislative Assembly in that province, provided that the Assembly was to grant money and appropriate money for the service of the Crown. It would be impossible, therefore, to provide for the necessary wants of the province, if you were to say that these words were to be construed in the sense in which some persons say they were intended, namely, that there should be no interference whatever, by the legislative authority in Canada, in anything connected with an act of the Parliament of Great Britain. But I think it is still more extravagant to say, that, because by an act of 1774, the criminal law of this country, was transferred in a body to Canada, therefore every proceeding under the criminal law—every proceeding which may be observed in times of quiet in this country, but which are often suspended in times of disturbance—must be kept in exactly the same state, and without any alteration whatever during this period, when you have thought fit to establish an extraordinary authority in Canada. But although such an interpretation would be evidently contrary to the whole meaning and purpose of the act, I can conceive that it might be said that such, however contradictory it might appear, was the intention of Parliament, and that, in assenting to the Canada Act, it was clearly announced and generally understood that there was an exception made, by which it was impossible to suspend any part of the laws providing for the liberty of the subject, and for criminal trials in Canada. But was this the case? I have referred to that which was stated both by myself in bringing forward the bill, and by others in subsequent stages of the bill. I see on the first day, when I brought forward the address to the Crown, I 1217 stated that the meaning of the Special Council was, that the Governor-general, assisted by that body, should pass such acts as occasion might require for the government of the province; and the next day, when I moved for leave to bring in the bill, I stated, that the object of it was to enable the Governor-general in council—the council not being limited in number, but of which five should be sufficient to constitute a quorum—to pass any laws which might be considered necessary during the temporary suspension of the Legislative Assembly of the province. That was the general purport of the statement which I made, evidently meaning that the general legislative authority of the province, such as was possessed by the Legislative Assembly of Lower Canada, was for a time to be given to the Governor-general and the Special Council. Was any objection made to it? No. No objection was made to the bill, except by those who opposed it altogether as establishing a dictatorship. Yet the bill was very amply discussed during its progress through the House, and several amendments were proposed in the Committee. Amongst others, certain amendments, to which the attention of the House was very much called, were proposed by the right hon. Baronet, the Member for Tamworth. Those amendments, as I have said, attracted, and very naturally so, a great deal of attention. The right hon. Baronet gave notice of them several days before they were proposed in this House; and after very mature deliberation, they were finally adopted by the House in Committee. Those amendments, however, did not touch any of the points to which I have been alluding. There was one amendment, certainly, which the right hon. Baronet proposed, which would have made an alteration, not upon this point, but with regard to the authority of the Governor-general and the special council. The right hon. Baronet proposed to omit that part of the bill by which the Governor-general should be alone empowered to propose laws to the Special Council; but in consequence of the observations made by my right hon. Friend, the Member for Coventry (Mr. Edward Ellice), the right hon. Baronet abandoned that part of his proposition; thus leaving, as it were, to the Governor-general the sole power of proposing, or rather of originating, such laws as might be deemed necessary for the 1218 government of the province. But in the course of the debate, other statements were made with respect to certain laws, both by my noble Friend (Lord Stanley) and by the hon. and learned Gentleman, the Member for Exeter (Sir William Follett.) The observations made by each of them were very voluminous, and I shall therefore content myself upon the present occasion, by merely stating the substance of them. It was stated, that the Governor-general in council would have power with respect to certain permanent laws of the province, with respect to which the Legislative Assembly had a certain authority, but which were not necessary for the temporary purposes for which the Canada Act was introduced. Now, the language that was used by his noble Friend (Lord Stanley), with regard to the manner in which such laws would be propounded, was very remarkable. He said, it was all very well to talk of the council as a matter of courtesy, but that in reality everything rested with the governor, who was dictator. The noble Lord, who was a supporter of the bill, took this view of it, that the Governor in council was dictator, and that all laws would emanate from him. I dare say my noble Friend does not depart from that statement now; but it is rather inconsistent with the declaration now made, that it was supposed when the act passed, that the Special Council would be, in fact, an independant authority over which the Governor-general could exercise but a very limited influence. My noble Friend then mentioned some things over which he thought the Governor-general ought not to have authority—amongst these were the rights of the Roman Catholics, the protection of the Protestant Church, and the tenure of lands. The hon. and learned Member for Exeter, following the course of the noble Lord, stated likewise that he had a great objection to the Governor-general in Council having authority over these particular matters, and he mentioned, in addition, the Canada Tenures Act, and other subjects of local concern, stating very clearly why these, being matters of permanent interest, should not be brought within the scope of authority given, for temporary purposes only, to the Governor-general in Council. He then stated that the question was not a question of local police, or affecting the affairs of the local government. My hon. Friend, the Under Secre- 1219 tary of State for the Colonies replied upon that remark in something like these terms:—If this be your object, if you only want words to exclude the Governor-general in Council from interfering with such questions as the rights of Roman Catholics, the clergy reserves, the rights of tenure, and other local matters of that kind, I shall not object to them, because I do not conceive it essential to the restoration of subordination and obedience to the laws that the Governor-general should have authority over such matters.I am perfectly certain that the hon. and learned Gentleman (Sir W. Follett), with the eminence which he possesses in every way, could never have made the statement which came from him upon that occasion if he had entertained in his mind a wish to prevent the Governor-general from passing acts affecting the security of the province. If he had wished or intended to say that the whole course of the criminal law should be unaltered, and that the Governor-general should have no such power as that proposed to be conferred upon him by the bill, he would have stated his views distinctly and clearly to the House, and would have asked the House either to agree to his proposition, or to express a decided dissent from it. But the hon. and learned Gentleman could have meant no such thing—at all events, the Government never could have supposed that he meant any such thing. Our attention had been called to the hon. Member for Westminster, who opposed the bill altogether, and also to the amendments of the right hon. Baronet the Member for Tamworth, who agreed to the general purpose of the bill; but with respect to the amendment of the hon. and learned Gentleman it only appeared to us to provide against that for which it was not necessary to make any provision at all. It seemed to us, therefore, as far as principle went, not to be a material amendment, and consequently no objection was made to the introduction of the words proposed. But supposing that these words and the interpretation put upon them were totally contrary to the whole meaning of the act—supposing that they could not bear the interpretation which I put upon the whole act—was there any thing transpired in the Committee in this House that could induce us to say, that notwithstanding the general purport of the act, there was still this limitation reserved, 1220 depriving the act of all its force. And let it be remembered that, after this amendment was introduced, we were still reproached with being guilty of an act of despotism. We admitted that reproach. We did not say, that it was an act of peculiar mildness, intended to provide only for mere matters of local police, in conformity with the laws of England. On the contrary, we admitted that it was an act despotic in its form, but necessary for the safety and security of the province. I, therefore, cannot think that anything that passed in this House can induce any body to suppose that there is in the ordinance of the Earl of Durham, anything contrary to the powers intended by the Canada Act to be confided to him as Governor-general. The bill went into the other House, and in one of the debates which took place upon it there, I find my noble Friend the Secretary for the Colonies said, "It is, undoubtedly, my Lords, a measure of severity—it is an arbitrary measure; but I submit it is a measure which is absolutely necessary under the existing circumstances." Now, if it had been our intention to obtain a measure merely to deprive the local legislature of Lower Canada of the power enjoyed by the legislature of the upper province, would this have been the description—the disadvantageous description which the Secretary for the Colonies would have given of it? I can imagine a Minister saying that a measure which he proposed was a lenient and mild one, when in fact it was an arbitrary one; but that a Minister should come forward and say that his measure was an arbitrary and despotic one, when in fact it was neither despotic nor arbitrary, would have been to invite reproach without being liable to it, and could hardly have entered into the mind of any person holding authority under the Crown. But there were others who described this measure, after it had passed through the House of Lords, and after it had received the amendment of the hon. and learned Member for Exeter, in protests now upon the journals of the House of Lords. These are not mere fugitive words that escaped in the heat of debate, but words carefully selected by eminent persons in the House of Lords to express, in the clearest and most intelligible manner, their deliberate opinions of the nature of the measure which they were called upon to pass. This, then, is the description of the measure given by two noble Lords who entered 1221 protests against it upon the journals of the other House:—Because the events which have taken place on the frontier of the United States show the expediency of effecting, at the earliest period, a permanent, and therefore a conciliatory settlement of all questions relating to Lower Canada, and the bill interposes a long interval of despotism before any proposition for such settlement can be entertained.The 9th reason was—Because the bill thus postpones the calling of a new Parliament to a period necessarily more unfavourable than the present, and, occupying the interval by a coercive despotism, tends at once to alienate the affections of the people of Lower Canada, to engage the sympathy of the people of the United States in their favour, and to bring upon this country the accumulated evils of civil and of foreign war.That protest is signed with the names of Ellenborough and Brougham. There is another protest which contains this reason—"Because this measure deprives the people of Lower Canada, not only of the rights which were given them by the British Legislature, but of the rest of the constitution which they have previously enjoyed." That is signed by Fitzwilliam and Brougham. Now, with those reasons given, when the bill passed through the House of Lords, I am quite sure that if any one were to venture to say, that the bill preserved to the people of Canada the rights given to them by the British Legislature, Lord Brougham, who entered that protest, must be the first to set such person right in the fact, by telling him that the measure was in its nature coercive, that it was an act of despotism, and was one which deprived the people of Lower Canada of their constitutional rights. Such, then, was the character of the Act when it passed through both Houses of Parliament, such the nature and general purport of the Act, such the declared intentions of its proposers, and such was the character given to it by its opponents, after due deliberation. When the bill went out to Canada, the powers under it were in the first place intrusted to Sir John Colborne, and with respect to those powers a question was asked of me in this House whether it was intended to confer the powers of the bill upon Sir John Colborne, or to wait till the Earl of Durham arrived in the colony. I, foreseeing the necessity that 1222 there might be to provide for the safety of the province by measures of a rigorous and unconstitutional character against the dangers which might occur there, gave this answer:There might be many measures which it would be necessary to take at once, in order to secure the peace of the province, and which might render it inexpedient to delay the exercise by the Lieutenant-governor of the powers with which he would be invested till the arrival of Lord Durham.That answer again clearly shows that there was something more in the powers to be given to the Earl of Durham than was intrusted to Sir John Colborne. But the sense of this Act may likewise be gathered from the conduct pursued by Sir John Colborne, such conduct having been known to Parliament during many weeks, and having been acquiesced in by them. Sir John Colborne, in his dispatch of the 7th of May, 1838, sent home various ordinances, of which he merely gives a list. He does not give an account of what occurred in the Special Council, or how certain persons voted. Among those ordinances there was one—To enable the governor or person administering the government of the province of Lower Canada to extend a conditional pardon, in certain cases, to persons who had been concerned in the late insurrection.There was another ordinance—To provide for the more speedy attainder of persons indicted for high treason who had fled from the province, or remained concealed therein to escape from justice,There was also another ordinance—For preventing mischiefs arising from the printing and publishing newspapers, pamphlets, and papers of a like nature by persons not known, and for other purposes.Now, I think it can hardly be said by anybody, these ordinances having been sent from Canada, and presented some weeks afterwards to this House, that Parliament is not cognisant of the steps taken by Sir John Colborne in pursuance of the powers vested in him. It cannot be said, I think, that he was proceeding according to the ordinary mode of the criminal law of this country. It can hardly be maintained, that what he did did not affect in any way any Act published by the United Parliament. And yet, as a question of law, if that which I consider to be an absurd and extravagant meaning were to 1223 be attached to the Canadian Act of this Session, namely, that it was not to affect the criminal law in any respect, these Acts of Sir John Colborne ought to have been called in question, and, no doubt, we should have been told, that we had totally mistaken the meaning of that Act, and that Sir John Colborne had mistaken his authority in this particular. In the first of these ordinances Sir John Colborne says,It shall and may be lawful for the Governor or person administering the government of the said province to grant, if it shall seem fit, a pardon to such person who, before arraignment, shall have prayed pardon for his offence, upon such terms and conditions as may appear proper, which pardon shall have the same effect as an attainder of the person therein named for the crime of high treason.[Lord Stanley: "So far as regards his estate and property, real and personal."] Yes; it certainly does not mean so far as regards the forfeiture of his life; for it relates to persons who apply for pardon, that pardon, in the case of high treason, being of itself a sufficient declaration that a forfeiture of life was not intended. But it goes on further, and says,Be it further ordained and enacted, by the authority aforesaid, that in case any person shall be pardoned under this ordinance, upon condition of being transported, or of banishing himself from this province, either for life or for any terms of years, such person, if he shall afterwards voluntarily return to this province, without lawful excuse, contrary to the condition of his pardon, shall be deemed guilty of felony, and shall suffer death, as in cases of felony.Now, here is a special provision, no doubt exceedingly proper and necessary, considering the difficult circumstances in which Canada was placed, and as contrary to the usual mode of proceeding with respect to persons ordinarily charged with crime as anything can be. Then, in the ordinance providing for the more speedy attainder of persons indicted for high treason, who have fled from the province or remain concealed therein to escape from justice, it is said,That in case any indictment shall be found by a grand jury, at and before any court of competent jurisdiction in the said province, then proclamation shall be made for those persons to surrender,And that if they do not surrender within a certain day, 1224They shall stand and be adjudged attainted of the crime expressed and set forth in such indictment, and shall suffer and forfeit as a person attainted of such crime ought to suffer and forfeit by and according to the laws of this province.Now, Sir, I am not arguing the question, whether or not these ordinances of Sir John Colborne justify or do not justify the ordinance which is now in question issued by the Earl of Durham. The question that I am putting to this House is, whether it is conceivable—Sir John Colborne having thus used his authority, and these papers having been presented to Parliament—that any one entertained the supposition that these ordinances were totally contrary to the Act of Parliament passed this Session—that Sir John Colborne, in issuing those ordinances, had violated the law, and that he would either be liable to a prosecution or require an indemnity for publishing such ordinances? Such, at least, was not the opinion of Government. They conceived that Sir John Colborne was acting within the intention and spirit of that Act of Parliament; that he was providing for this extraordinary occasion in a manner in which he was justified; acting according to the best of his judgment, though acting with severity, perhaps, against persons who were suspected of high treason and who had fled the province; but, at the same time, acting with great mercy towards those who were already in prison, and who might afterwards confess themselves guilty. But this, at least, is apparent, that it is hardly possible that there should have been an Act of Parliament brought in with such a purpose; that there should have been words introduced to which no one paid much attention; that the Governor should have acted in conformity with the original intention and purport of the act, and yet that there should be a vice in that act which rendered null and illegal the whole of his proceedings; and that that vice never should have been discovered until the Earl of Durham issued this ordinance. I must say, that I believe that if such an opinion were given as to any vice in the act, and as to the time of making the discovery, the interpretation of it would be, that it was not because the Earl of Durham had acted illegally, but that because Sir John Colborne was a person not obnoxious to political animosity, and because he was 1225 not connected with any political party, whereas the Earl of Durham was so connected, that that vice which was so harmlessly existing while Sir John Colborne was acting in this manner was reserved to be directed against the head of the Earl of Durham. Such, then, have been the proceedings adopted by Sir John Colborne under this act. When the Earl of Durham arrived in Lower Canada, however, the difficulties in that colony still remained. He has issued a certain other ordinance, and I submit, that although that portion of his ordinance which regards the Bermudas cannot be justified by law, and therefore the whole of the ordinance cannot be justified by law, yet, if those ordinances of Sir John Colborne were according to the act, that what has been done by the Earl of Durham is within the meaning and intention of that act. I therefore say, that I am ready to maintain, at whatever risk we may incur of a determination by Parliament hereafter, that these were powers intended to be given by Parliament; that they were powers required by the necessity of the occasion; that they were powers, if you will, despotic and arbitrary, but that the necessity of the occasion justified them; that, after Parliament had enacted them, Sir John Colborne rightfully, and harmfully, put them in force; and that the same powers and the same law which justified Sir John Colborne in so acting, justified the Earl of Durham, so far as the law is concerned, with respect to these proceedings. I have entered into this argument because I think it necessary to declare what is our interpretation, what is our opinion of the law, and also because I think it necessary at this moment to let all those who may be concerned in Canadian affairs know, that at whatever peril, the Government will meet conspiracies and insurrections the which I fear may have received some encouragement from what has lately passed. But, Sir, nothing which has passed shall induce me, however unfavourable circumstances may be, to shrink from the duty which I think is imposed upon us. If there could have been at this time a full meeting of Parliament obtained, I should have thought it right to ask that all doubt should be cleared up as to the power—whether it be great or whether it be small, which is to be given to the legislature in Canada; and that that power should be clearly acknowledged by Parliament, in 1226 order that we might have some certain rule to go by, and that we might be sure we were acting according to the intentions and views of Parliament. But I find in the present state of the House, at the present late period of the Session, and with the little likelihood that the two Houses would agree, that it is necessary that we should undertake the risk of acting upon such interpretation as we can ourselves put upon the law. I feel no doubt that the responsibility is great; no doubt the Earl of Durham will feel that the responsibility is not only great but painful; but I do trust that, supported as I hope he will be, by the general concurrence of the province of Canada, that, supported as I think he may expect to be by Parliament, he will consider that he is bound to give to his country his services unmindful of the obloquy, and unmindful of the attacks which may attend his course. It is certainly different treatment from what he had a right to expect. He was sensible, no man could be more so, when he undertook this duty, of the risks with which he undertook it, and of the perilous nature of the difficulties attending the Government in Canada. He did not conceal from the Government nor from the public in general his opinions of the arduous nature of that duty. Why, I know full well that, in the presence of those who are politically opposed to him, he stated that he trusted to their generous forbearance when his conduct should come to be judged of in this country. I do, therefore, think that it would have been but fair for those persons to have said to him—if it was their intention not to act in the spirit of that appeal—"This is an act of despotism; this is an act giving extraordinary powers; it is incumbent upon Parliament to watch every step; to judge with jealousy, to judge with harshness, rather than allow a single syllable of the law to be infringed upon." I say, if such were the intention of any party, it would have been but just and fair for that party to have declared it. But such was not the conduct pursued, and I have no doubt that the Earl of Durham has framed this ordinance in the full confidence and belief that the difficulties he had to encounter would be appreciated, and that his measures would be indulgently viewed by those who might receive intelligence of them here. For my part, I have stated to you how far I think the Earl of Durham is justified by law. I will not 1227 enter into the subject whether that ordinance is different in principle—whether it does not go beyond an act of attainder and other acts of a severe kind which have been passed in this country, and which have been passed in Ireland, upon occasions of a like nature. I will not now discuss that topic. I do not discuss it chiefly because I am not fully aware of the reasons which influenced the Earl of Durham to issue that ordinance in the manner in which it has been issued. I am aware that the question was a most difficult one with regard both to those who were confined for treason and those who had fled from the province. With regard to those who were confined from the first moment in the time of Lord Gosford, and those who were afterwards confined in the time of Sir John Colborne, a question arose which was much considered both in Canada and in this country. It would have been possible to have acted with great severity, and yet to have kept within the letter of the law. It would have been possible to have defied the most casuistic lawyer to have found a blot in the proceedings of the Governor-general, and yet to have acted with great severity. I will state how that might have been done. The law with regard to juries, had undergone a change within the last few years; but that law expired a year or two ago. That law having expired, it would have been possible, according to the strict letter of the law, to have summoned a jury, which would have chiefly consisted, not of the general inhabitants of the province of Montreal, but of those who had been engaged in hostility against the insurgents, and who were most inflamed with feelings of revenge and animosity against them. It would have been possible to have summoned such a jury, and it can not be doubted, on one clear act of rebellion being proved against persons who had been seen in arms, that many of those persons would have been convicted. What, then, was to forbid a person of a sanguinary disposition from acting upon those verdicts, and executing a capital punishment upon those persons? And yet, I do say, that, although by such conduct, by summoning such a jury, which could not have been impugned, except upon those large grounds of general justice and equity, which ought always to be regarded, any persons had been condemned to death, and had lost their lives, 1228 that although no lawyer could have found a flaw, that although it would have been impossible to say, that the letter of the law did not bear out the Earl of Durham, still I should have felt less able at that moment to have defended the conduct of that noble Earl than I do now when I know that in spite of illegality, in spite of informality in spite of the violation of principle, if you will, he has taken a course which—while it has been looked upon by the British inhabitants in Lower Canada as one of a mistaken and of an over-generous lenity, and not as one, as I think, of a wise and statesmanlike policy—has reconciled the ways of mercy with that which was due to the safety of the province, and to the interests of her Majesty's faithful subjects there. With this impression on my mind, therefore, I ask you at once to pass this bill of indemnity, limited as it is; but telling you, at the same time, that when the time comes, I shall be prepared, not indeed to say, that the terms or words of the ordinances passed by the Earl of Durham, are altogether to be justified—and not that I think it a light matter, as the hon. Member for Westminster supposed, that persons not arraigned or summoned to answer for the offences of which they are charged, should he punished if found within the province—but I shall be prepared to say, that looking at the conduct of the Earl of Durham as a whole,—that believing him to be animated by the deepest zeal for the welfare of this country,—that believing him likewise to have wished to avoid anything which could be construed into an act of unnecessary severity,—that believing these things, I shall be ready to take part with him. I shall be ready to bear my share of any responsibility which is to be incurred in these difficult circumstances. And I do say, that if the province of Lower Canada is preserved to this country—that if, the insurrection being suppressed, the punishment of death can be altogether avoided in practice, and that if we shall be able to restore to that province the enjoyment of a free constitution, I do think that no invective—that no sophistry—that no accumulation of circumstances—that no bitterness of sarcasm, accompanied by professions of friendship, and thereby attempting to disguise, but not in fact disguising, the petty and personal feelings which are at the bottom of all these attacks, will in the least degree affect the noble 1229 Earl against whom they have been levelled, but that he will have deserved well of his country, well of his Sovereign, and well of posterity.
said, that he never addressed himself with more unwillingness to the consideration of any political question in his life than he did to the present question, not only because he felt all the difficulty of contending against that indifference and apathy which, at this period of the Session—exhausted as Members must be with their long-protracted attendance—which necessarily crept upon the House, even amidst discussions the most exciting, and upon principles the most important, but also because he could not feel that, treat this question as they might, deal with it as they pleased, its agitation, its discussion, must almost inevitably lead to consequences prejudicial to the maintenance of authority in Canada. The noble Lord, in the commencement of his speech, gave credit to the House for the forbearance, which throughout the long-protracted Session, they had exercised towards her Majesty's Ministers, and towards the Earl of Durham, upon the subject of Canadian affairs; but, towards the conclusion of the noble Lord's speech, he seemed to intimate that the Earl of Durham had a right to have expected more forbearance than he had met with. [Lord John Russell: Not in this House.] No; he was quite aware of that; it was difficult to mistake the person to whom the allusions made by the noble Lord, were directed. But when the House of Lords had sanctioned by their proceedings the declaration which was now forced upon them, it was but just, even though the noble Lord found fault with any individual whom he might think had put himself unnecessarily forward in this matter, that it should be clearly and distinctly understood, that against the great body of the noble Lord's political opponents, he brought no charge of a want of forbearance, or a want of conciliation. At the same time he did not pretend to say, that the person alluded to, was to be blamed who, from whatever motive, or upon whatever grounds, seeing as he believed a gross infraction of a constitutional principle—seeing an act arbitrary and despotic in its nature at best carried to an extent and pushed to a degree of confessed illegality beyond that which Parliament could ever intend, or which any branch of the Legis- 1230 ture could ever have contemplated—he would say, that that Member of Parliament, were he of the one House or the other, was not liable to the noble Lord's censure, at the close of the Session, because he interposed to give a legal effect to an illegal document, and to lay before them the difficulties and dangers into which the Government and the Earl of Durham had plunged. He regretted, that this discussion had been forced upon them, but forced upon them as it had been, and the noble Lord undertaking to vindicate this most extraordinary ordinance, and compelling them to discuss the merits of it in all its provisions, he would not hesitate or shrink from expressing his own sense and belief of the unconstitutional nature, if not the absolute illegality, of this ordinance in all its parts. That part of the ordinance which referred to the transportation of persons to the Bermudas, might be dismissed from all discussion, the noble Lord having admitted that it was illegal, and that an act of indemnity was required for all persons who had acted or should act under it. But what was the remainder of this extraordinary ordinance? Did he question the motives of the Earl of Durham? Not at all. He believed, that the Earl of Durham took the course which he believed to be most consistent with humanity and with the interests of the province, and that his desire was to save the effusion of blood, by preventing the possibility of those persons coming within the province. But, giving the Earl of Durham credit for these motives, he could not give his consent to the propriety or to the legality of the course pursued to carry those motives into effect. This ordinance applied to two classes of individuals—one class were those who had confessed their guilt, and had submitted themselves to the authority of the law; the other class were those who were not within the authority, nor within the reach of the law of the country, nor indeed within the limits that were under the authority, of the Earl of Durham. Upon both these classes, the Earl of Durham passed alike this sentence—upon the one class who confessed their guilt, that if they should venture to return, and upon the other class, who had not had their trial, and who could not take it because not within the province, that if they entered the province, even though for the purpose of obtaining a trial, they should be adjudged guilty, and be subject to the 1231 penalty of death. The noble Lord, in the latter part of his speech, most unnecessarily, as he thought, and most unwisely, as he was convinced, endeavoured to draw an invidious distinction between the conduct of Sir John Colborne and the Earl of Durham.—[Lord John Russell: Not at all.] The noble Lord made a comparison between the conduct pursued by Lord Durham and Sir John Colborne—["No, no!"] The noble Lord stated, that ordinances had been passed by Sir John Colborne, he being a person not obnoxious to any political animosities, and that if flaws there were, they were not discovered in those ordinances until the same course came to be pursued by the Earl of Durham. Now, he was not called upon to express an opinion, and he did not express any opinion—he was very incompetent to do so, and would therefore leave it to those who had more skill in legal questions—as to the legality or illegality of the ordinances of Sir John Colborne. But this he would say, that between the ordinances of Sir John Colborne and the ordinance of the Earl of Durham, there was a broad, plain, palpable, and manifest distinction. He should, by and by, venture to turn to the intention and effect of that portion of the act which restrained the Governor-general, were he Sir John Colborne or the Earl of Durham, from interfering with, altering, or suspending, any act of the Imperial Parliament, or any act that might have been passed by the colonial Legislature, repealing or amending any act of the Imperial Parliament. But he was not now dealing with the technical point, as to whether the colonial Legislature had the power, or the Governor-general had the power, either to pass an act of attainder, or alter in any respect the criminal law of the province. Without expressing any opinion as to the legality or illegality of either Sir John Colborne's or Lord Durham's ordinances, yet placed as the two had been by the noble Lord in juxta position, he must say, that being called upon to institute a comparison between the two ordinances, the whole course of Sir John Colborne's conduct in the administration of the same extensive and arbitrary powers, was entirely, and in all respects, very different from that of his successor. When Sir John Colborne undertook the administration of the colony under this act it was very difficult to form a council of persons pos- 1232 sessed of local knowledge and well acquainted with the interests of the colony, and who had not been implicated in dissensions which had so long disturbed the province, but Sir John Colborne had not found that difficulty wholly insurmountable; he was not content to keep the number of his council within the narrow limit, if not below the limit prescribed by the government act; he had not selected a body of five persons but of twenty-one persons. He did not confine himself o a council in which there was but one civilian, and not one previously conversant with the affairs of the colony; but he selected his council from the great body of the permanent residents in the colony, and nominated in it, a majority of the French Canadian inhabitants; he did much to reconcile the people of the province to the arbitrary powers confided to him by the selection which he made, and by showing that he was not jealous of selecting persons having an interest in the province. Lord Durham had pursued a different course, and he doubted whether he had adopted one equally wise; he doubted whether, if Lord Durham had been surrounded by persons more conversant with the Jaws and practice of the colony, instead of having in his council only one person with a knowledge of the law, he would have passed the ordinance which had brought the British House of Commons, and the British Parliament, as well as the people of Canada to their present situation. With regard to the ordinances which Sir John Colborne had passed, two had been adverted to by the noble Lord; one was in the nature of an act of attainder, and the other was, "to enable the governor, or person administering the government of the province, to extend a conditional pardon, in certain cases, to persons who had been concerned in the late insurrection;" and let him call the attention of the House to the great difference between the acts of the two governors, as they bore upon constitutional rights connected with the administration of criminal justice. It was a necessity of the criminal code of England and it was so interwoven with it that it was impossible to separate it from the criminal law, or the criminal law from it, that it was the right of every subject to be tried by a jury; this was a necessary incident to the English law, and it was introduced by a British Act of Parliament 1233 into Canada; and he for one, speaking as a layman, and not as a lawyer, had great doubts whether it was competent for the Legislature, in the exercise of its ordinary jurisdiction, so far to depart from the criminal law of England, as to abrogate in the colony, the trial by jury; and if the Canadian legislature had no such right, it followed a fortiori that Lord Durham had no such right; but independently of the provision introduced into the bill by his hon. and learned Friend (Sir William Follett) which debarred Lord Durham from making amendments in certain statutes in force in Canada, by the noble Lord's (Lord John Russell's) own restriction it was not competent for the Governor-general to pass any act of legislation which could not have been passed by the colonial legislature. Now, he thought that it would not be contended by any one that the ordinance of Lord Durham had not, so far as regarded some individuals, set aside their right to be tried by a jury. Did the ordinance of Sir John Colborne go that length? An act of attainder, was an act which was perfectly known, and was familiar to the criminal law. He did not debate the right to dispense with the trial by jury, so far as those who had submitted themselves without trial to the Governor on certain terms, were concerned. But as to an act of attainder of the others. On an attainder a bill was found against a person by the tribunal—which in the first instance, according to the criminal law of England, was to take a step—a bill was found by the grand jury, and if the party accused did not forthwith come and surrender himself, time was given for three or six months for him to do so; he was not called upon to appear before any new or extraordinary tribunal, he was not forced before any tribunal of which he might be jealous, but he had a right to look to the ordinary tribunal, and to appeal to a jury of his country; failing in this, if the party did not surrender and take his trial, the proceeding was something after the nature of an outlawry, judgment was allowed to go by default, and sentence was then passed against the defendant. Now, was that the course pursued by Lord Durham? No such thing. Was his course like that of Sir John Colborne in the two ordinances which had been referred to? In them it was only enacted, that "in case any person should be pardoned under the ordinance, upon condition of being 1234 transported, or of banishing himself from the province, such person, if he should afterwards voluntarily return to the province without lawful excuse, shall be deemed guilty of felony, and shall suffer death as a felon." Thus a person in one instance had confessed the guilt, and had accepted a pardon upon certain conditions, and as, till lately was the ordinary law of England, with respect to a returned convict, he might be liable to death. Such were the two previous ordinances of Sir John Colborne; and as to the eight persons transported to the Bermudas, it was true that the ordinance of Lord Durham bore some analogy to the previous one of Sir John Colborne; but as to the others, what analogy could they find there? What analogy was there to the attainder of Sir John Colborne and his conduct with respect to the pardon of persons who were assenting parties to the banishment? What analogy did they find between this, and the ordinance against persons who were not at the time in the colony, and who, if they did come home to demand a trial, would not have an opportunity of obtaining the same—who had not applied for a pardon on any condition, but who, if they did come back for the purpose of demanding a trial, that single act was to be construed into an act of treason? This was the creation of a new variety of treason which was against all constitutional acts, and the parties were to be deemed guilty of treason for no other act than that of claiming to be tried. He knew not whether this were a legal act or not, but that the noble Lord should stand up and attempt to defend the constitutional character and justice of such an ordinance he would not have believed if he had not heard it. He would pass by the restraints which were put upon the Governor-general by the act in its passage through that House, but he must recal the attention of the House to the steps which were taken on that measure. Early after the recess the noble Lord had come down to the House and said, that such was the actual state of Canada, and such was the actual revolt into which the province was plunged, that it was necessary by an address to her Majesty to support the majesty and dignity of the Crown. Did the noble Lord find on either side a reluctance to assent to this address? Was not the address carried, if not unanimously, at least nearly 1235 unanimously; and was it not supported by all parties of the most opposite principles who stated, that they would not then investigate the merits or the demerits of the Government, or cause any dissension in, but would combine to support, the Government? They did not then, for one moment, hesitate to support it. But the noble Lord said, that he had a further object in view, and that he required an act for the better government of Canada. But what were the grounds or the necessity for that measure which was stated? The noble Lord did not tell them that he intended to institute an absolute despotism; he did not say, that he intended, with the Legislature to suspend the constitutional rights of the Canadians—to supersede the ordinary tribunals; no such thing. The noble Lord only said, that the Legislature of Canada had abrogated its functions, and that it was necessary to provide some measures ad interim to prevent any confusion which might arise by the lapse from the expiration of laws, to obtain the annual supplies, and in fact to provide for the continuance of the ordinary course of legislation in consequence of the local Legislature having abandoned its functions. Did the noble Lord doubt, that such language was held? Why, his hon. Friend, the Under-secretary of State for the Colonies, in the debate on Monday, the 22nd of January, had expressly said,—By these acts, or rather this neglect, the Canadian constitution was practically suspended, although it would only be so in reality by the act which was then proposed; an act which, in fact, was only to supply the wants created by the refusal of the Assembly to pass those legislative measures, which the interest of the province demanded, and to provide for the wants of the colony, during the interval which must elapse before an Assembly could be called together.Good God! if the hon. Gentleman had meant to overthrow the constitution, to provide for the repeal of all laws, to abrogate the whole criminal law, and substitute ordinances for the usual tribunals, would he have come down and asked only for a bill to provide during the interval for the carrying on the Government? Yes, the hon. Gentleman had not only said this, but he continued:—The Government had placed confidence in the representations which had been made to them, that if the Canadians were intrusted with a control over their expenditure there 1236 would be but little difficulty in managing the affairs of the colony; but when the Assembly met they carried not one legislative act. They met to remonstrate, not to legislate; they saw all the acts which required to be reenacted expiring, and all this they allowed to pass without the slightest attempt to prevent the injustice which would accrue to the public and to individuals without any provision for the manifold interests which required their protection, and which were placed in their hands by the act of 1791; and the House was then called upon, after the greatest forbearance had been carried to the fullest extent by the bill then before them, to remedy these inconveniences.And, in a subsequent part of the same speech, the hon. Gentleman said,—The Government was bound to provide the means by which a temporary substitution could be made for the discharge of the functions which had been abrogated by the Legislative Assembly, and to provide for the necessities of a colony left without a legislature.And, if it had been the intention of the Government to have gone further, why did they not come down and state broadly and distinctly their desires? He could not say what course Parliament would have pursued, but if the necessity had been shown, he, for one, would have given all the assistance in his power for the purpose of having substantial justice administered. The noble Lord had said, that he had designated the Governor-general of Canada as a dictator; and so he had, for as the Council was to be composed of such persons as he pleased to select, although he (Lord Stanley) confessed, that be certainly had had no idea that it would have been constituted as it had been, yet so long as he enjoyed the whole power of nomination, and could remove any person who displeased him, his rule must of necessity be a dictatorship. The noble Lord had also said, that in framing the amendments they had not looked to their application to the criminal law. This was true; they did not look at that time to the case of the courts of justice; they did not look to legislative powers possessed by the local Legislature which they thought, that it was not safe for an individual to possess; they did require, that the Governor should not interfere with the religious property, whether Catholic or Protestant, nor with the act regulating the tenure of lands and other such objects; but undoubtedly they did not contemplate the restraining the Governor-general in his power over the ordinary courts of 1237 justice, because the noble Lord up to that period had never intimated any intention to interfere with the ordinary tribunals, because they could not believe that it was the intention of Lord Durham to do so, and because they could not believe, that if the temporary council should interfere with the ordinary administration of justice, the Crown would allow such an ordinance as this to be passed. The noble Lord said, that there was no necessity for such an interference. Was he prepared to say so now? He would ask him, was it necessary for Government to have greater powers conferred upon it? Let the noble Lord prove that; and let him come forward now, late as it was in the Session, he would say, that not one hour ought to be lost without their being given, and that the House ought not to be prorogued until they were conferred. But Lord Durham did not appear to have entertained any apprehension of the impossibility of carrying the law into effect in its ordinary course, even with regard to those persons who were to be tried for treasonable offences; because, in the first dispatch which he sent to this country, he expressed the very great satisfaction which he had experienced since he had appointed the special commission for the trial of the prisoners, and since he had sent the Attorney-general to Montreal for the purpose of conducting the prosecution. The noble Lord said, that Lord Durham must have kept within the rule of law, and must have permitted himself to be governed by the regular course to enable him safely to have prosecuted the prisoners to conviction. But this was a matter which he thought the noble Lord had pressed into his service in support of his arguments, and he did not think, that Lord Durham had really acted as it was supposed. When that noble Earl sent down the commission, was it his intention to act as it was alleged? Did he know that the conviction of the offenders at Montreal was impossible, and did the persons charged know it? So far from it, the persons who were so charged pleaded guilty, and submitted themselves to the mercy of the Crown, and he presumed to suppose, that if they had not done so they would have been liable to conviction at the hands of the jury. He doubted very much whether Lord Durham had not incorrectly expressed himself with regard to the real facts of the case in saying, that 1238 the parties had pleaded guilty at all, because, he believed, that not one of them had done so. But this did not affect his argument. Lord Durham sent the commission, and those who did not plead guilty formally threw themselves on the mercy of the Crown for fear of conviction. He must say, however, that it was singular that in the first dispatch sent by Lord Durham, that noble Lord said, that he had had great success, because he had induced the ringleaders to plead guilty, when that was not the fact. Then the noble Lord opposite said, that it never could be supposed that Parliament did not mean to confer this power of turning upside down the whole of the judicial system of the colony, and he said, that it never would have been doubted that such was their intention, and that, if such a power had not been conferred, no Member of either House of Parliament could have characterised this measure as arbitrary and despotic; and he quoted the two protests of noble Lords in the other House of Parliament in reference to the matter. Why, this was a strange avowal to be made by a liberal Minister of the Crown. That an Act might be passed affecting the whole system of the colony, giving the power to a council to pass new laws and amend old ones, to levy taxes without the consent of any one human being interested in the colony, and yet that that Act was not arbitrary, because the courts of justice were left the same as they formerly were; but even more, that although the constitution was put an end to, and destroyed, and trodden under foot, yet, if the law in that respect remained as before, the noble Lord said, that no Member of either House of Parliament could characterise the measure by which this change was procured as arbitrary or despotic. The noble Lord had expressed a conviction, that there would not be any opposition to the passing of this Act. He thought he might venture to assure him, that on that side of the House he would meet with none. He believed that Lord Durham, acting as he did, acted illegally, both in reference to the point to which allusion had already been made, and which the noble Lord opposite seemed to admit, and, with respect to the rest of the ordinances, which having been disallowed, it was not necessary to question now; but, at the same time, he must say, that he believed that his conduct proceeded from 1239 a sense of duty, and that if the steps which he recommended could have been taken legally, they would have tended much to the promotion of tranquillity in the province. He admitted this frankly and freely, and he was not one to refuse Lord Durham an Act of indemnity for having from humane motives transgressed the extensive powers given to him, but he did say, that it was a very serious question for the noble Lord and the Government to consider what would be the result of the passing of this bill disallowing the ordinances which Lord Durham had published. They could not place matters on that footing on which they would have stood if those ordinances had not passed. The evils had been done, but it was the duty of the Government to suffer no consideration to interfere between them and the passing of such a measure as would place the laws of Canada on a footing of certainty as to what was to be done. He would call the attention of the noble Lord to the cases of those persons who being subject to the provisions of these disallowed ordinances had been transported to the Bermudas, and of those who were absent from the colony. What was to be the condition in which they were to be placed? In the anticipation that these ordinances would not be disallowed, and that no difficulty would arise, Lord Durham had undertaken to issue a proclamation, by which he declared, that no steps would be taken against any persons for high treason or treasonable offences in the colony, and the proclamation granted a general amnesty to all except those who had been specified. Now, it was a very serious question for Government and for Parliament to consider what were the legal consequences arising from the disallowance of the ordinances? Were these persons to be altogether exempted from all further proceedings—were they to be free from all trial, or any question at law—were they not only to be free from the arbitrary sentence of immediate death without trial provided by Lord Durham in certain cases, or were they to be free from the ordinary proceedings in the common course of law? It was a subject too serious for him to offer any opinion upon; but if any doubt existed on the point whether these persons who were the ringleaders in the late revolt, who had on their heads the guilt which had been incurred, and the blood which had been shed, and the misery which had 1240 been produced to their unhappy countrymen—who, by their unlawful exertions, had plunged their country into misery and wretchedness, and had exposed themselves and their fellows to loss of property and bloodshed, and to danger of death—should escape; if by any neglect or informality on the part of the Governor, of any want of caution on the part of Lord Durham, it was rendered necessary to indemnify him, and also to disallow the ordinances which he had published, he said the result would be, that these persons would so escape from all punishment in respect of the atrocious crimes of which they had been guilty, that it was a case in which it was the duty of Parliament to interpose, and to give their own sanction to such a law as would place them in such a position as that in which they should properly stand. It was not only improper, that they should have any doubt as to whether the Governor had the power to suspend the Habeas Corpus Act, not only was it absolutely necessary, that nothing relating to this matter should be left in doubt, but it was absolutely necessary, that it should not be left in doubt whether these persons were or were not to escape scot free from the consequences of the rebellion of which they were the ringleaders. Now, notwithstanding the protracted length of the Session, at this time it was the duty of the House to pass such an Act as would remove all doubts upon the subject forthwith. He knew not what private means of information the noble Lord opposite might have as to what might be the fate of such a measure, in the event of its being taken into the other House of Parliament, or with what success a clause to this effect might be introduced into the present bill, but he was sure that the noble Lord had no ground for anticipating that if he came down to the House and said, that the ordinary powers of Government in Canada were insufficient, and that they required amendment, that even if that were stated now, and the Government were to ask for an Act declaring or confirming or extending any law if necessary, there would be any opposition offered to such a measure either here or in the House of Lords. He was convinced there would be no difficulty in procuring such a bill to be carried. Parliament had, on many occasions, been specially called together on measures of equal or even less importance. It was no answer in such a case, that Members were wearied with long attend- 1241 ance, and that many of them had left town. If it were necessary, let there be a call of the House, but let not the opportunity pass for relieving the Government of Canada of all doubt. Let not the noble Lord take any risk in respect to the certainty or uncertainty with regard to the present state of the law, and the present state of Canada. The noble Lord would of course exercise his discretion. They would give no opposition to him if he should pursue the course suggested, but he felt that he should not have discharged his duty as an independent Member of Parliament if he had not stated what he thought the Government ought to do, and he thought, that not one week ought to elapse, and Parliament ought not to be prorogued, until the law on this subject was rendered certain.
§ Lord John Russell
said, that there were two points alluded to by the noble Lord, on which he felt himself bound to explain what he had stated to the House. The first was in reference to the ordinances of Sir John Colborne as compared with those of Lord Durham. Now, he never made any comparison between them whatever. What he said was, that if there was any decided objection against the ordinances of Lord Durham, on the ground of their illegality, there must also be as decided an objection to the legality of the two ordinances of Sir John Colborne. With regard to the other point on which the noble Lord had just touched, he desired again to state his feelings upon it, because it was most important. No doubt the matter with regard to the Habeas Corpus Act should be cleared up. Such was his opinion and the opinion of every one of those individuals with whom he had the honour to act; but in a conversation which he had had with the noble Viscount at the head of the Administration, in reference to words being prepared to meet the views suggested by the noble Lord opposite, he had understood him to say, that on his attempting to procure their explanation in the sense in which he understood them, and in which Parliament understood them in the House of Lords, he was obliged to withdraw the proposition he had made in obedience to the general wish of the House; and it was thought best, therefore, that the matter should be left in its present state. Having heard from the noble Viscount, therefore, that he was obliged to withdraw the pro- 1242 position in the House of Lords, he felt that he should have no hope in the present state of Parliament to procure its final adoption. He had no doubt, that he should receive the assistance and support of the noble Lord opposite; but he felt convinced, that he would not be able to secure the doubts to be cleared up by any measure being passed through the other House of Parliament.
§ Mr. Leader
said, the speech of the noble Lord, the Secretary for the Home Department, had been principally directed to the noble Lord opposite; but there were some points to which he felt it necessary that he should refer. As to the present attacks made by the noble Lord on a noble and learned Lord in another place, it was not for him to defend the noble and learned Lord. He was quite able to defend himself, and he had no doubt that he would have no difficulty in doing so; and that his defence would make the noble Lord regret that he ever made any attack upon him. The noble Lord said, that the acts of Sir John Colborne were not questioned. It was only a few weeks ago, that he had put some questions to him relating to those acts, and they were almost all met with indifference; and the noble Lord, when he was spoken to in relation to the subject, said that it was not the intention of the Government to introduce any bill of indemnity as regarded him. The present question before the House was, whether this bill should be allowed to pass; and although he had some objections to it, and was supported in the opinions which he entertained by those of several noble and learned Lords in the other House of Parliament, yet, as this House seemed to be disposed to sanction its passing into a law, he should acquiesce in the course proposed to be adopted, and should not oppose it, much as he thought that it ought to be thrown out, and that in lieu of it a vote of censure should be carried. The House, however, must not think that this was the only act of the Governor of Canada which was illegal, and he would show that it was only one of a series of uncertainties and illegalities perpetrated by him since his appointment. In January last, in The London and Westminster Review, an able article was published on the subject of Canada; it was produced by a man of the very highest intellectual attainments, and when he named the author, he thought this would be allowed. It was 1243 written by Mr. John Mill, who was as illustrious as his father had been, for the numerous articles he had published. The publication was widely circulated here, and yet, on its being reprinted in Canada, M. La Rock, who published it, was apprehended and imprisoned, and his types were seized, and they still remained in the possession of the Government. He would ask them why, if there was any thing seditious in the work, it was not prosecuted in this country, and why, as it was not so prosecuted, it was permitted that the parties who were guilty only of publishing a reprint of the work, should be subjected to such severe penalties? This, however, was not all. There were domiciliary visits. Drawers were broken open, and papers seized, even mercantile papers, in order to ground complaints and prosecutions against persons supposed to have been engaged in the insurrection. Acts were passed, prohibiting the introduction of certain American papers into Canada, and in fact, the expression of liberal opinion was entirely suppressed by the arbitrary power of the Governor. He passed by the declaration of martial law, and other proceedings which some had characterised as unjust; and he would come to the last act of publishing these ordinances of the 29th of June last; and he would remind the House, that the Special Council was appointed only on the 28th of the same month. The council consisted of five members, three of whom were the dependents of Lord Durham, at least his secretaries, and one of them, he believed, was his relation. There was, however, only one civilian in the council. One of the duties of the council was to inquire into all cases of persons charged with treason, which should be brought before them, and there were at that time between 300 and 400 cases of that description. Every one of them, however, must have been discussed in one day, for although the council was appointed only on the 28th, on the 29th the ordinance was published. But was this to be tolerated—this mockery of justice? Was it possible, that all these cases could be inquired into and decided upon in one day? And yet this was one of the irregularities connected with the ordinances. As to the ordinances themselves, there were two parts of them to be considered. The first, as to the transportation of certain persons to the Bermudas, was allowed on all hands to be 1244 illegal; and he could not but remark, that it was most singular, that Lord Durham should have introduced this system of punishment for political offences into Canada. But then it was said, that the Bermudas was not a penal settlement; but he asserted, that felons were sent there, and were kept there imprisoned, the islands being second only to Norfolk Island as a penal settlement. But why were these men thus banished? What was the excuse for it? It was given in a letter, quoted in The Morning Chronicle, written by Mr. Charles Buller. He said,I enclose you our first great act—about the prisoners. It will appear to you horribly unconstitutional and despotic, but it is really mild. We put no one to death. Our transportation is, you will see, not to be penal, but merely accompanied by measures necessary for security. The rest are merely banished; we confiscate no property. We were obliged to include a great many in our provision, in conformity to a general rule laid down in each case, whom we do not wish and do not intend to treat so hardly. This is rather an advantage, as it will enable us immediately to bring the pardoning power into operation. We would not interfere with the ordinary tribunals or tamper with the juries. The legal guilt of these men was clear. From an ordinary jury, their certain acquittal was equally clear. These ignorant Canadians would have said either that their leaders in the revolt were right all along, or that the Government bed not dared to punish. The British party would have said, that our trial had been a mere mockery of justice, and that we had let their guilty enemies loose on them by a trick.Such language would scarcely be expected from any man in reference to such a subject, and least of all, from a man in an official situation; and he thought every hon. Member would think it monstrous to be believed, that such should be employed. With regard to the allegation, that the prisoners had pleaded guilty, he must beg to deny the truth of it; and he thought he could show this from a document which he had in his possession, and which was addressed to Lord Durham. It was from Wolfred Nelson, and he said,We have rebelled, my Lord, but do not let this expression frighten you, for it is not against the person of her Majesty, but against a bad colonial administration.Was this their pleading guilty to a charge of high treason? He went on to say,If the arrival of your Lordship had taken place sooner it would have been approved by 1245 all Canadians, and if their efforts had made your mission necessary, they would have been glad to have thus caused the happiness of their country." * * "They never had had recourse to arms for the purpose of attack, and if they had ever used them it was only in their own defence.This, then, was the only evidence which could be produced in support of the allegation that the prisoners had pleaded guilty. There was subsequently a passage introduced into the document in which some well-merited praise was bestowed on Lord Gosford for his conduct in the affair. He now came to their confession of guilt as it was called. It was to this effect—"We are anxious to avoid being brought before the tribunals of the country, as it is impossible for us to find an impartial tribunal, but from such we should have nothing to fear.It appeared this was the confession of guilt, but it appeared that these persons took a different view of the constitution of a jury from Mr. Charles Buller. They proceeded to state, that to tranquillise the feelings of a generous and confiding people they asked this, but for themselves they would not have insulted the noble Lord so much as to make such a request. They then proceeded to compliment Lord Durham, and said that they prayed God for the success of his mission, and for the restoration of peace, and that the example of his excellency might be followed in repudiating all distinctions of origin, and that they prayed that the efforts of his excellency might be crowned with success. Was there anything in these generous sentiments like an admission of guilt or pleading guilty? He contended that this was the only document that contained anything like an acknowledgment of guilt, and did it justify the language of Mr. C. Buller, or such a proceeding as banishing them to the Bermudas? There were, however, two parts of the ordinance infinitely worse than transporting these men to the Bermudas. The former was objectionable as a matter of law; but these were liable to the most serious objections both as matters of law and common justice. He had heard with surprise the Minister of the Crown declare that the only part of the ordinance which required consideration or amendment was that which related to sending these persons to the Bermudas. Then, according to this opinion, that part of it by which men were sentenced unheard and unseen to be transported was not open to objection. 1246 But take the case of M. Papineau, what could be proved against that gentleman? He defied them to bring any charge against him which could not be brought and substantiated against Mr. O'Connell every day in the week. M. Papineau all along condemned the resort to arms, and he was no more guilty of high treason than Mr. O'Connell. Again what was the case against Louis Perault, one of the fifteen persons sentenced to death if they should return to their native land? He had been sent to New York to buy types for the Vindicator newspaper. In this place he heard of the death of his brother and the bloodshed occasioned by the King's troops. Knowing well that he had not the chance of a fair trial if he returned, as there would be a prejudiced judge and a packed jury, for there the sheriff could easily pack a jury, as they had not the same jury law as now happily existed in this country, he remained at New York, and without being guilty of any offence, and without trial, he was sentenced to death if he ever returned to his native country. Was this justice or law, or was there even the pretence of a shadow of justice and law for these proceedings? He now came to another act of the Government, namely, a police ordinance for Quebec and Montreal, which was a most curious document. It was the strangest public paper that he had ever seen, by whom it was drawn he could not tell, but it was evidently by one who did not know anything of the law of England. The first part of it directed that, as regarded Quebec and Montreal, any justice of the peace might cause any person to be sentenced to prison for any period not exceeding two months for being disorderly in the street. This was not the strangest part of it. In the next part it enacted that any person found loitering in the streets, or on the footpaths, or pulling down papers posted up, or whistling or singing, or causing a disturbance in the streets by screaming or crying out, should be sent to prison for a period not exceeding two months. Was this a tolerant act or a regular system of proceeding? This might be very good law in Canada, but if such an order could be made to remain a part of the law of this country, the most gross acts of injustice and cruelty might be committed on an offending people. He supposed, however, that these orders were drawn up by the legal gentlemen belong- 1247 ing to the council, namely, Mr. Turton and Mr. Charles Buller, with the view of making the Canadians a more orderly people. The noble Lord the Secretary for the Home Department said that he did not intend to prosecute any party in Canada. But had not some parties been prosecuted without inquiry, and without the means of justifying themselves, and this directly in violation of the pledge given by the noble Lord the governor of Canada? Nearly every one of the persons who had taken a leading part in liberal politics in Canada had been sentenced to banishment to the Bermudas. Lord Durham said in reference to this part that the course that he had taken was not likely to favour their proceedings. And the secretary of this noble Lord stated he supposed that these acts with regard to the prisoners would appear horribly unconstitutional and despotic. This person, who was at once secretary to the Governor, alias Member of the Council, alias Chief Commissioner for the distribution of un-appropriated lands, alias Member for Liskeard appeared since his arrival in the colony to have had a communication with one of the most sanguinary men in Canada. This was a Mr. Thom: one of that name had already caused some trouble to the noble Lord, and he was not the only Mr. Thom of a sanguinary disposition who would give the noble Lord trouble. This person was the editor of a Tory paper in Canada—The Montreal Herald. That paper recommended, that if M. Papineau should presume to put his foot in Canada, that he should at once be put to death; and he expressed his regret, that the unfortunate prisoners who had been taken had not at once been hanged, instead (to use his own words) of being kept in gaol to be fattened for the gallows. [The hon. Member read an extract from The Montreal Herald, in which Mr. Thom spoke of having communication with Mr. Buller.] This was a specimen of the manner in which persons connected with the present Government of Canada kept themselves from party associations. This man stated, that he was an intimate friend of the secretary of the Governor, and was in constant communication with him. There was another appointment to which he should also call the attention of the House for a few minutes; and he did so because he should not have an opportunity for some time of entering on the matter. It 1248 would almost appear, that everything that had been done in Lower Canada was illegal and irregular, and that every appointment that had been made was calculated to cause dissatisfaction, and lead the people to believe, that they were not treated with proper respect. He found that Mr. Arthur Buller had been made judge of the Court of Appeal of the colony, which was the chief court in Canada. Now, Mr. Arthur Buller was a young barrister of four years' standing, and those hitherto appointed to this court had been the greatest and most able lawyers in the country; and this young lawyer had been passed over the heads of persons of the greatest learning and experience, and had been appointed to this high and important office. Would it be tolerated in England, that a young barrister of four years' standing, and without experience in his profession, should be made a judge of the Court of Appeal? It would almost appear, that anything might be done with impunity in the colonies, and that, no matter how illegal and irregular a proceeding might be at home, it must be borne in the colonies. But, setting aside the illegality of this appointment, it was, to say the least of it, highly inexpedient and impolitic. Lord Durham was sent out to Canada to supply the place of a provisional Legislature, and there was nothing which the former Legislature could do which could not be done by him. Supposing a former Governor had made such an appointment, would it have been rescinded or not by the Legislature? He was satisfied, that it would have been resisted to the utmost, and he was also convinced, when an independent Legislature was restored to this colony, that it would refuse the supplies if such an appointment was persisted in. Therefore, he contended, that it was highly inexpedient, unwise, and unconstitutional on the part of Lord Durham to pursue such a course as that which he had hitherto followed. He also thought that the conduct of the Government at home was such as to justify all parties in complaining of it as weak and fluctuating. What was the cause of the recent proceedings? On Thursday the Prime Minister of the Crown vindicated the ordinance that had been issued by Lord Durham as a right and proper one, and stated, that the success of this bill would be attended with the most disastrous results to the British connexion with Canada, 1249 but finding that a majority of the other House was against him, the noble Viscount came down on Friday, and yielded on every point, and admitted the illegality of the ordinance, and at once gave up all matter in dispute, and sacrificed Lord Durham. On that occasion he talked in a most extraordinary tone, and likened the majority opposed to him to a low and truculent democracy.
§ The Speaker
interrupted the hon. Member, and stated, that he could not be allowed to allude in that manner to the proceedings of the other House.
§ Mr. Leader
would readily bow to the Chair. He would, therefore, assume that in some former period a certain great Minister had called the majority of a great assembly of legislators a low and truculent democracy. What strange language this would be for a noble Viscount to use who came into power by the aid of the people, and who maintained himself in it only by the aid of the people, to complain of those opposed to him imitating the people. He knew not by what acts or means the noble Lord and his colleagues expected to maintain themselves in power. If the head of them denounced a democracy in this way, was it that he wished it to be understood that he relied on court favour? which, indeed, he might have in a high degree, but which support he would find to be weak in comparison with that which he formerly derived from the people. For his own part, he thought that the country had a right to complain of the conduct of the Government in denouncing that on Thursday as being attended with imminent danger to the country, and on Friday being prepared to adopt it when they found the majority of the other House determined to force it on them. On Thursday the noble Viscount at the head of the Government declared that the ordinance was good and legal and proper, and on Friday he came down and admitted that it was illegal and bad, that he was perfectly indifferent to it. Under these circumstances, he thought that Lord Durham had a good ground of complaint against his colleagues in the Government; for they had sacrificed him to the majority against him in the other House. He might say, that although there was an adverse majority in one branch of the Legislature, this was not the case with respect to the House of Commons, and Ministers could with advantage vindicate 1250 and defend their absent friend and colleague there, and prevent any measure passing which censured him to a certain extent. They, however, intended to let it pass through this House without opposition; the noble Earl might, therefore, fairly complain of the conduct of Ministers, as the people out of doors did, of their being weak and contradictory in their policy. He thought that it was a weak and immoral Act to pass a bill of indemnity, and, therefore, he objected to it. In conclusion, he knew not on what ground her Majesty's Ministers would defend the desertion of their friends any more than the desertion of the principles they professed; but, he believed, that they would require bills of indemnity for many more Acts besides the present.
§ Mr. Hawes
thought that any one anxious to promote peace in Canada would have been desirous to avoid everything that was likely to throw impediments in the way of the Government. He regretted that his hon. Friend who had spoken last should have concluded his speech with a general declaration of disapprobation at the conduct of the Government. He had never been an obsequious supporter of the Government, for whenever he had thought it to be his duty to oppose them, he had never hesitated to do so; but in a question like the present, involving the interest of a large and important mercantile class, and the peace and welfare of a most valuable colony, he should have thought that it would have been considered by all parties as most desirable to abstain from matters calculated to produce excitement. He was of opinion that such a bill of indemnity should not have been allowed to pass the other House; and if any one pressed the House to a division on the subject he would vote against it, as he thought that both the Governor of the colony as well as the Government should be made responsible for their conduct, and be was glad to find that the noble Lord and his colleagues were prepared to answer for the course that they had taken. He could not, however, agree with the hon. Member for Westminster in the view that he had taken of these proceedings, and that the proceedings in Canada should be described in the manner in which they had been. He repeated that if the Governor of Canada had acted irregularly he should be made responsible; but with regard to the Earl of Durham he did not ask for this 1251 bill, nor did he nor her Majesty's Ministers require it. No party that was responsible for the acts he had done called for it, and if it had been introduced and carried through the other House, it was against the wishes and inclinations of the Government; for if the wishes of the noble Lords connected with it in another place had been consulted, it would have been rejected altogether. He clearly understood the noble Lord below him, and a noble Viscount elsewhere, to declare that they abided by the general course pursued by Lord Durham, and that they were prepared to take upon themselves any share of the responsibility for his acts. If the course that that noble Earl had pursued was thought objectionable to the best interests of the country, the House should have been called upon to give a distinct expression of opinion on his conduct, and this should have been followed up by a vote of censure, and by a declaration of a want of confidence in the Government, instead of resorting to an indirect and cowardly attack on Lord Durham, for he could not help regarding the present bill as such. He could have understood such a course of proceeding; but when he looked to the preamble of the bill, he could not help feeling that the peace and security of the province might be sacrificed, which it was alleged the promoters of this bill had so much at heart; and under the pretence of the illegality of sending certain persons to the Bermudas, they had stepped in, and forced an indemnity on him and the executive Government, which they neither sought for nor required. If these improper or illegal acts had been committed, they should deal with the executive Government, and with the Governor of this distant province, and look to them for a defence and explanation of their conduct, but he protested against this insidious and indirect mode of proceeding. But it appeared that the conduct of the Earl of Durham—he did not look to any individual act, but to the general result of his conduct—had proved perfectly satisfactory to all persons connected with this colony. What was the case with the merchants connected with the trade of Canada? He had in the city asked this class of persons most deeply interested in the welfare of the colony, whether under Lord Durham's administration property was less secure?—whether the disturbances had increased?—whether there was a greater want of con- 1252 fidence in the Government of Lord Durham than was formerly the case as regarded other Administrations?—and whether the probability of the return of peace and tranquillity was less than had formerly been the case? and he uniformly found that the result of his inquiries was favourable to the policy of Lord Durham, and that the continuance of the same system was more likely than anything else to promote a permanent and satisfactory connection between the mother country and the province. The present measure purported in the preamble to be a bill of indemnity; but Lord Durham was not only willing, but anxious, to bear all the responsibility that he could be liable to for his conduct, and the Ministers were willing to share that responsibility; and he was sure if time were given for an explanation a most satisfactory vindication would be given for all the proceedings now complained of. He would ask, had Lord Durham shed a single drop of blood or confiscated a single estate since he had been in Lower Canada? The hon. Member for Westminster had moved for a return of the number of persons executed and of the estates confiscated in Upper Canada. Why had he not moved for such a return with respect to the lower province since the noble Earl had been there? The hon. Gentleman had not done so, because he presumed that the hon. Member was aware that no blood had been shed in Lower Canada since the arrival of the noble Earl, that no estates had been confiscated, and that no complaints had been made of the policy that had been pursued. He had conversed with a number of persons in the city who were connected with Canada, and he had questioned them as to the course pursued by Lord Durham, and he had uniformly found the answer to be the same, namely, that the province was more quiet, and that if the same policy was adhered to a state of most satisfactory and permanent tranquillity was likely to ensue. This was the result, while the whole indignation of Parliament was to be opened on Lord Durham for restoring peace. It appeared also that the persons who had been sentenced had pleaded guilty [Mr. Leader, no, no!] The hon, Member said no, and in the course of his speech had read a part of a document with the intention of supporting this assertion. Lord Durham, however, had declared that these persons had acknowledged their treasons, and had 1253 thrown themselves on the mercy of the Crown. The hon. Gentleman, therefore, must excuse him for relying rather on the authority of the noble Earl than on the inference of the hon. Member. It might appear in the eyes of some to be a very light affair to take up arms against their country, but those who countenanced such a proceeding entertained opinions to which he could never yield his approbation. He was glad to find that the noble Lord below him concurred in the opinions which he had expressed, and he was glad to find that the noble Lord was prepared to express himself as he had done respecting the preamble of the bill. It had been alleged that the groundwork of the bill was essential to the security of the province, but he thought that if such was the opinion of certain persons they should have endeavoured to induce Parliament to censure the executive government, for the noble Lord stated, that he and his colleagues were willing to take upon themselves, the responsibility of their proceedings. If therefore, the Government objected to this bill, and were prepared to answer for the conduct of the Governor of Canada, the hostility of hon. Gentlemen should not be directed against Lord Durham, who was not here to answer for himself. It appeared, however, that the party opposite could not wait, but appeared glad to avail themselves of the earliest opportunity of passing what might appear to be an indirect censure upon that noble Earl. The noble Lord opposite had dwelt on the conduct of the noble Earl, and had strongly supported the bill, which had been carried by the exertions of his friends elsewhere. No doubt the supporters of this bill were influenced a great deal by party spirit. Before he sat down, he felt called upon to say a few words in vindication of an absent friend, who he thought had been most unfairly attacked by the hon. Member for Westminster. He believed that the person to whom he alluded was also a friend of the hon. Member—he alluded to the hon. Member for Liskeard—[Mr. Leader: No; I disown him.] For his part he should be most unwilling to disown or cast off a friend in that way. He was satisfied that the abilities of his hon. Friend, as well as his general bearing and demeanour in that House, was such as to ensure to him the respect of most hon. Members, in spite of any distinction of party politics. With respect, however, to the publication of 1254 these letters, he would ask ought his hon. Friend to be made responsible for their publication? The fact was, that some extracts from some private letters of his hon. Friend had been inserted in a newspaper, and he had been dragged into a public discussion, and made responsible for certain expressions without his knowledge, and without his sanction. He did not envy the feelings nor the taste of those persons, who had thus dragged the name of Mr. Charles Buller before the House; but he was sure that when his hon. Friend read the debate of what had taken place, that he would readily furnish a most triumphant vindication of his conduct. He repeated that he did not think that they should pass this bill of indemnity; but if he were to go to a division to reject it, he might not, perhaps, find a seconder to his motion; he should therefore content himself with protesting against it. He thought that the executive government should be made responsible for their proceedings, and they had expressed their readiness to be so; all parties, however, seemed determined that the bill should pass. He exceedingly regretted this, as he thought that it would interfere with the government in Canada, in the most objectionable manner, and that it would be found necessary hereafter to retrace their steps, and they would also be setting a bad precedent in pursuing the course which they did. He could not help feeling that this bill was founded on the proceedings of one of those spirits, who were—Anything by turns, and nothing long.The hon. Member concluded by protesting against a bill for such a purpose as the present, and, above all, as it had not been brought in by the executive; and he trusted that it would not serve as a precedent.
§ Sir W. Follett
was anxious to offer a few observations to the House, more particularly after the allusion which had been made by the noble Lord opposite, as to the share which he took in the discussions on the Canada Government Bill. In making, these observations, he should endeavour to avoid the example of the hon. Gentleman who had just spoken, and should, as far as possible, abstain from adverting to the wisdom or policy which had dictated the ordinances in question. He quite agreed in what had fallen from the noble Lord opposite, that the Governor-general was placed in a situation of great delicacy and 1255 difficulty, and he admitted further, that Parliament was not in possession of sufficient information as to the facts and circumstances of the case, and the precise difficulties which surrounded Lord Durham, to enable it to come to any decided or just opinion as to the wisdom or policy of that noble Lord's proceedings; and, therefore, if the question was limited to the conduct of the noble Lord, within the scope of the authority given him, he should at once have said, that it would be the wiser and more proper course for Parliament not to direct its attention to the subject until it should be in full possession of every fact of the case. But the question was not limited to this point. In making the observations he felt it his duty to address to the House, he would distinctly say, that he was perfectly willing to give Lord Durham every credit for the integrity of his motives, and to admit his belief that the noble Lord's object in passing these ordinances, was the humane one of saving the lives of the parties who had violated the law; yet, at the same time, he (Sir William Follett) found it difficult to account for the extraordinary manner in which these edicts had been passed. The Parliament of this country had passed an act giving to the person to be appointed Governor-general of Canada, the power of passing certain laws during the suspension of the constitution in that country, with the advice and consent of a special council, not to consist of less than five persons. Now, no such special council was in existence until the 28th of June, the day on which the edict passed, but on that day, the whole of the five special councillors were appointed and sworn in. Now could it be supposed for an instant, that these gentlemen so appointed and so sworn in, on the 28th of June, could be in a situation, advisedly to concur in passing these ordinances on the very same day, to decide upon the propriety and justice of sentencing eight persons to transportation, of denouncing the punishment of death on fifteen other persons should they return to Canada, and of exempting other persons from any punishment at all? It was quite absurd under such circumstances to talk of the Governor-general having acted in this matter by and with the advice of his special council. It was quite impossible that these special councillors could have duly examined the circumstances or sifted the evidence 1256 in the case of these parties, or could have had time to form a sound judgment whether they were respectively worthy of pardon, or had merited transportation, or ought to be for ever excluded from the province on pain of death. But this was not the only point. The question which forced itself upon the attention of Parliament was this, and a most important one it was, considering what very serious consequences might arise from any doubts being raised as to the legality of these ordinances, and from the circumstance of their being disallowed by her Majesty's Ministers. The question was, whether Lord Durham had not exceeded the very large and ample, nay, the strong, the arbitrary, the coercive powers—for such they were undoubtedly—which had been given him. The question was, whether he had not passed ordinances which were not warranted by the powers vested in him. Let the House consider for a moment how enormous was the power which the noble Lord must be assumed to possess to make these ordinances legal. He himself had no doubt whatever as to their illegality. He had a perfect recollection of the discussions which took place in the House on the Canada Government Bill. He in particular clearly remembered all that was said by the introducer of the bill, and by other members of the Government, and his full conviction was, that it had never been the intention, at all events, of Parliament, to give the Governor-general of Canada any such powers as the competency to pass these ordinances must assume him to possess. If any such power was given him by the Canada Act, he (Sir William Follett) was quite sure that such was entirely contrary to the intention of at least the great body of those who sanctioned the measure. It was quite impossible that these ordinances could be legal, unless Lord Durham was held to be invested with absolute and uncontrolled power, not only over the property and liberty, but over the lives of every inhabitant of the province. He did not mean to say, that even if such immense power existed in Lord Durham, it would be abused; but of this he felt clear, that if these ordinances were legal, the power of the Governor-general of Canada, with his shadow of a council, was absolute and uncontrolled power over the lives and property and liberty of every person in the province, was a power against which no 1257 appeal could be made, and which was exempt from any interference on the part of the Crown. The question here was not whether the Governor-general had power to interfere with the criminal law, but whether he had power to set himself above all law, whether it was competent in him, by his own arbitrary fiat to declare certain persons to be guilty, and that they shall suffer transportation or death at his discretion and mere will. He would put it to the House, if such a proposition had been hazarded to invest the Governor-general of Canada with such monstrous power as this, whether such a proposition would not instantly and indignantly have been rejected by the House. No bill could ever have passed which gave any man whatever, how high soever his character, such powers as these. Reference having more than once been made to the proviso, which he (Sir W. Follett) was described as having introduced into the bill, he begged to say a few words as to the manner in which that proviso had been introduced, and the object for which it was framed. The noble Secretary of State, opposite, when he came down to propose to Parliament to suspend the Canadian constitution, said:—We are obliged to suspend the Legislative Assembly of Lower Canada; we cannot call them together; and in the absence of a Legislature there, it will be necessary to send out a Governor, for the purpose of collecting the opinions and sentiments of the inhabitants of both provinces, for the purpose of seeing whether we cannot introduce a new constitution, and a new form of Government there, which may remedy the evils and difficulties which now exist.The measure accordingly introduced, was arbitrary, was despotic in its provisions, but under the circumstances of the case, Parliament assented to it. But what passed in reference to the extent of the Governor's legislative power? It was represented, that as the existing Legislature of Lower Canada would be suspended for a time, it would be necessary to provide for the passing of such Acts as might be from day to day necessary for the local interests of the province. The explicit statement of the Colonial Secretary was, that he only asked for such limited power as should enable the Governor in Council to legislate on local matters. There was not one word said about criminal law—not one word about juries 1258 —not one word about the inadequacy of the existing means to the due administration of justice—not one word about the necessity for suspending the Habeas Corpus Act. But what occurred? When the hill was first introduced, it gave to the Governor of Canada and his Council—notwithstanding the statement that all that was wanted was a limited legislative power—it gave the Governor the power of making such laws and ordinances as might be for the good government of the province, without any restriction at all, except this, that he was not to interfere with any of the provisions of the Act of 1791 respecting the mode of electing members of the Legislative Assembly. It was considered that the effect of this would be to give the Governor the power of interfering with the Acts of the Imperial Parliament, and with the fundamental and constitutional institutions of the province. Upon this objection being made, an alteration was proposed by the Government for the purpose of restricting the legislative power of the Governor to that of passing such laws as the Colonial Legislature was empowered to make. It did not, however, appear to the Gentleman on his (Sir W. Follett's) side of the House, that this amendment went far enough; it excluded, certainly, the Governor, from suspending, altering, or repealing, the general statutes of the Imperial Parliament; but it so happened that the Imperial Parliament had given the Colonial Legislature, power to alter, suspend, and repeal certain of the Acts of the Imperial Parliament, and it was felt that though this might be a very proper power to give the Colonial Legislature, which was legislating permanently for the province, it was one which ought not to be given to a functionary, sent out for a temporary purpose. He (Sir William Follett), among others, had, therefore, insisted, that the Governor and council should not be empowered to interfere with any Acts of the Imperial Parliament, or any Colonial Acts, bearing upon these Acts. A proviso to this effect was adopted by the hon. and learned Gentleman opposite, and inserted in the bill. Throughout the discussion he had insisted upon the principle that the Governor-general should not have the power of interfering with any acts of the Imperial Parliament; and it had been as distinctly declared by Government and by hon. 1259 Gentlemen opposite, that the only object in view was, to empower the Governor to pass such laws as the common local interests of the province should from time to time require. No reference at all was made to the criminal law of the province or the mode of administering justice there. In suggesting the proviso in question he could assure the House, that he had no intention whatever of fettering the Governor with reference to the criminal law. He had not had the subject in his mind at all. To return to the ordinances, it appeared to him, that they were clearly illegal; the Colonial Legislature itself had never any power to pass such ordinances as these. Let the House consider what these ordinances were. First, the Governor and his Council said, "Here are eight men who have acknowledged themselves guilty of certain offences." Acknowledged themselves! Where, to whom, had they acknowledged themselves guilty? Not certainly before any constitutional tribunal. They had not been arraigned, they had not been called upon to plead, they had not pleaded guilty, yet here it was stated, that these eight persons had "acknowledged themselves guilty." Let him ask, if such an "acknowledgement" as these persons had made were attempted to be made use of here, what effect would it be of? It could only be used as evidence to be produced on their trial before a jury, and to which the jury would give only such weight as they thought proper. Yet in this case the accused persons, without trial, without a jury, without having an opportunity to call or examine witnesses, without being even called on to plead, were at once arbitrarily sentenced to transportation from the province. This was one ordinance; what said another? That fifteen persons, who stood barged with a certain crime—though it did not appear even that an indictment had been found against them—that fifteen persons who stood charged with certain crimes, and who were supposed not to be within the jurisdiction of the court, should suffer death if ever they came within that jurisdiction, no matter with what honest intentions they might so come, no matter though they came to plead their innocence and demand their trial by the laws of their country. No, the edict declared to these persons, "You shall not be tried, but if you come here to ask for trial you shall, without further ceremony, be held 1260 to stand convicted of high treason—your blood shall be attainted, your property confiscated, and you shall suffer death." Was such an ordinance as this one which the legislature of Lower Canada ever stood empowered to pass? Surely not. It was an ordinance totally contrary to every principle, not only of British law and of Canadian law, but of every law which he (Sir William Follett) had ever seen or read of as the law of a civilized country. By the act of 1774 the criminal law of Great Britain was declared to be the criminal law of Canada. There was no doubt, that by the act of 1774 express power was given to the legislature of Canada to make amendments and alterations in the criminal law. But he very much doubted whether the colonial legislature would have had the power to altogether abolish the criminal law and to have said, that the English criminal law should not prevail in the colony, but that the law should be the criminal law of France. He did not think they could pass such an ordinance as that. There was this extraordinary restriction by the fifteenth section of that act At that time the Imperial Legislature would not intrust the legislature of Lower Canada with the power of creating any new offence where the punishment was more than three months imprisonment; and by the fifteenth section it was declared, that no act of the colonial legislature creating any offence should be valid without the sanction of his Majesty in Council. By this act, therefore, the colonial legislature could have no power of passing an act of attainder, and, consequently, could not inflict the punishment of death. But he did not rely upon this mere distinction as to the degree of punishment that was to be inflicted; he relied upon the great principle that the colonial legislature could not pass an act that should be contrary altogether to the spirit of that statute of 1774 still less could they pass an act that was diametrically opposed to the principle, both of equity and of justice, of the criminal law of this country. That act continued in force and practice till the year 1791, when the colonial legislature was altered. An express power to do so was not given by the act of 1791, but he did not deny, that the colonial legislature had the power by the act of 1791 to make amendments in the criminal law in the province. But the act of 1791 did not 1261 give them any greater powers than the act of 1774. Therefore the colonial legislature might have the power of making alterations in the criminal law, and yet might not have the power of repealing the act of 1774, or of making any law entirely inconsistent with that act. That being the law the noble Lord (Lord J. Russell) might be perfectly right in saying that the ordinance of Sir John Colborne might be perfectly legal. It was said, that he had the right of suspending the Habeas Corpus Act. But what was that power? In this country the suspending of the Habeas Corpus Act was this:—an act was passed declaring, that certain persons might be arrested by the great officers of State without being bailed for a certain time. But an act of indemnity was always required after suspending the Habeas Corpus Act. But it appeared by the ordinance itself of Sir John Colborne, that what was called an act to suspend the Habeas Corpus Act, was a certain edict of the colonial government. He did not see any reason to doubt the power of Sir John Colborne to make that edict. He did not think it was quite prudent of the noble Lord, considering the effect which the discussion of these questions might have in Canada, to bring forward the ordinances of Sir John Colborne, as if a question were to be raised as to their legality, and as if they were to stand or fall according as the decision should either be in favour of the legality or illegality of the ordinance issued by the Earl of Durham. The ordinances of Sir John Colborne might be perfectly legal, and yet the ordinance of the Earl of Durham might be perfectly illegal. Therefore he could not conceive, when the noble Lord saw the mischief which was likely to arise from having the legality of Lord Durham's ordinance discussed, why the noble Lord should have raised the question as to the legality of the ordinances of Sir John Colborne. If the object of the noble Lord was to insinuate that any person on the Opposition side of the House was actuated, in the consideration of this question, by any thing like political party feeling, he must entirely deny the fact. He himself stated what was the impression on his own mind when the question was first brought before the House, and he would now repeat, that his impression was, that the Governor-general and his Special Council were not warranted 1262 to assume the powers of the colonial Legislature. That was also the opinion of a noble and learned Lord whose mind could not be suspected of being warped by any political bias. Lord Denman had stated, that he thought these ordinances were illegal, not in consequence of the proviso in the Act, but upon the general principle of law. He differed entirely from his hon. and learned Friend (the Attorney-general) if he supposed, that the noble and learned Lord had said, that these ordinances were unconstitutional but not illegal. He had understood the noble and learned Lord to say, that they were illegal. But, be that so or not, when it was said, that the ordinances were unconstitutional, what was the meaning of that? Unconstitutional when applied to these edicts was, he apprehended a description of the violation of what was known as the constitutional law of this country. Now, no one of the dependencies of the Crown could have the power of making a law which would so interfere with the constitutional rights of this country. Then what was the law? Why, the Act of 1774 declared, that all persons should be tried by a jury, and that the witnesses should be examined in open court. And what did this ordinance say? Why, in the face of the Act of 1774, it declared that these parties who were accused of high treason, should not be tried by a jury, that they should not have witnesses examined in open court, and that they should not have the option of a trial. Sir John Colborne in his edict said, to the parties—"If you do not come in and take your trial you shall suffer the consequences;" but this edict of the Earl of Durham said—"If you do come and take your trial you shall suffer death." It was for the reasons he had now stated, that he thought these ordinances were illegal. He did not speak of the wisdom or the policy of the proceeding taken by the Earl of Durham, though he could not help regarding it as extremely injudicious, because it was impossible not to see that whatever might have been the motive of the noble Lord in passing an edict of such apparent severity, the effect of passing a law or ordinance which was afterwards set aside by the Government at home, and which was denounced by Parliament must be prejudicial to the colony itself. There existed in Lower Canada the ordinary powers of the criminal courts of this country. If a person were indicted 1263 for a crime and absconded, the Government might by proclaiming him in the proper courts obtain a judgment of outlawry against him, the effect of which was as if the party were convicted of the offence. But what was a bill of attainder? Generally it was only to carry into more full effect the ordinary proceedings of the law. It was this:—If a person did not come in to take his trial at a certain time, then the bill of attainder declared, that punishment should follow as if the party had been outlawed or convicted. Fie was not aware, nor did he believe, that there was any instance, except where a person was actually in arms against the Crown, in which a bill of attainder had passed. The edict of Sir John Colborne was in the nature of a bill of attainder; but that of the Earl of Durham was not. The first said to the party, "If you do not come in and take your trial you shall be punished;" but the second said, "If you do come in you shall be punished." Therefore one of those edicts might be legal, although it was a bill of attainder, and yet the other might not, He wished to ask the noble Lord opposite one question as to the effect which the repeal of this ordinance of the Earl of Durham might have in Canada? If the noble Lord wished, on the part of the Government, to introduce any measure with regard to those persons who were mentioned in the ordinance to do away with the effect which might be produced by the bill now declaring its invalidity, he did not think, that on his side of the House there would be any objection to it. But the noble Lord had said, that he believed the other House of Parliament would not consent to it, because an amendment which was proposed by the noble Viscount at the head of the Government, was declared by the House of Lords to be objectionable. Why, he must say, that if an amendment couched in such terms as that was, were to be proposed now, he should feel it is duty most strenuously to oppose it; for what was the effect of that proposed amendment? Not to do away with the evil consequences of the illegal ordinance, but to vest powers in the Earl of Durham, which, would have far exceeded those he already possessed. He would venture to say, that the powers proposed to be conferred by that amendment, were powers before entirely unheard of. It was proposed to empower the Governor and Special Council to pass such laws and ordinances as might 1264 be deemed necessary for the safety of the province or for providing for the trial or punishment of persons engaged in treasonable practices. Who was to judge as to the necessity of making laws and ordinances for the safety of the province? Why, the persons in whom this power was to be invested. Now, without meaning any reflection on the Earl of Durham (of whom, indeed, he did not wish to say anything), he must observe, that if the Government wished to give new powers to the Governor and Special Council in Lower Canada, in the first place there ought to be a case of strong necessity made out for any new powers being given; and, in the next place, those powers ought to be clearly and strictly defined; and they ought not to give powers to persons who were to be the sole judges of the propriety of exercising them. He was therefore, not surprised that the House of Lords rejected Lord Melbourne's amendment. But if the noble Lord were to ask for powers enabling the Governor and Special Council to suspend the Habeas Corpus Act, he did not believe, the Legislature would refuse it; or that they would refuse their consent to make some provision to avoid the ill effect of the repeal of this ordinance as regarded the cases of those men who were mentioned in it. He begged the noble Lord, when he said he was willing to take upon himself the responsibility of annulling this ordinance, to consider maturely whether he ought to be, or could be, satisfied with the simple repeal of the ordinance, without any provision being made at all, either with respect to the men who had been transported, or with respect to those who were still at large, but who had been the ringleaders of the rebellion in Canada. He apologised to the House for having occupied their attention so long. He, for one, regretted very much that this discussion should have taken place at all; at the same time, he could not help thinking, that if the discussion had of necessity taken place, it was much more likely that a declaration by Parliament, and by the same Parliament that had consented to grant these coercive powers in the early part of the Session, that a declaration by them, that they would not sanction any violation of the law in the province of Lower Canada, no matter from what motive that violation was committed, and that they would uphold, according to its known and settled rules, the adminis- 1265 tration of criminal justice there. He could not help thinking, that such a declaration from such a body was likely to unite more closely to this country, all the loyal part of the inhabitants of the colony; and he should hope, would be the means of bringing back to a willing obedience to the law and government of this country, that portion of the people who had for a time been misled by the artful designs of wicked persons, and of binding the whole colony for the future in a firm allegiance to the British Crown.
§ The Attorney-General
had heard, with the greatest satisfaction, the declaration of the noble Lord, the Member for North Lancashire, and the declaration of his hon. and learned Friend, the Member for Exeter, that they regretted the agitation of these questions. His firm belief was, that the agitation of these questions was likely to be attended with the most disastrous consequences. It was not to be ascribed to the Government that this subject had been brought before Parliament. Neither was it to be ascribed to the noble Lord opposite, or to his learned Friend. He believed, that they would most religiously have abstained from bringing such a subject forward. The Earl of Durham had most successfully proceeded in pacifying the dissensions in Lower Canada. His measures were received with satisfaction by both parties in that country. In that country there was no complaint of this ordinance in any quarter; and his firm belief was, that if no objection had been made to it on this side of the water, all would have gone on smoothly and harmoniously. The object of the ordinance was clearly to prevent the entrance of the persons accused of taking part in the rebellion into Lower Canada, without the permission of the Governor, until the pacification of the province had taken place. Those individuals would not have thought of entering the province without the permission of the Governor, who might have granted that permission to particular individuals on particular conditions, without any complaint being made by any party; and his belief was, that in a short time the Earl of Durham, who had patriotically undertaken this arduous mission, would have returned to this country covered with complete success. He hoped, that that nobleman would still persevere in the glorious task in which he was engaged; and that he would set at defiance all those 1266 who were his detractors and his enemies. But it was impossible to disguise that there was great danger that his authority might be shaken by the attempts to attack the policy which he had pursued. With regard to the bill before the House, he regretted exceedingly that it should ever have been introduced. There existed no necessity for it, for no action ever would have been brought, nor prosecution ever instituted or thought of by the parties named in the ordinance, if it had not been for the ingenuity of certain lawyers in this country, who suggested the illegality of that ordinance. It had been stated by the hon. Member for Westminster, and by the hon. Member for Lambeth, that the Earl of Durham did not want this indemnity. He agreed with those hon. Members, that it never would have been required, and that the introduction of such a measure was both officious and insidious. But as it had been introduced, and as the subject had been discussed and the question agitated, and as it did appear to him, on just consideration, that that part of the ordinance which was to be executed beyond the territory of Lower Canada, was not justified by law, he had no hesitation in voting for the bill. A bill of indemnity in this case was not at all subject to the objections which had been made against it by the hon. Member for Lambeth, or by a noble and learned Lord elsewhere, because volenti non fit injuria. All those who could have brought actions against persons acting under the authority of this ordinance, had confessed their guilt. "Oh, but," said the hon. Member for Westminster, "they did not confess that they were guilty of high treason; they only confessed that they were found in arms against the Queen's Government, and as the Queen's Government was not legal, that act was not high treason." He was sorry that, in the House of Parliament, such doctrines should be laid down. When it was confessed by those persons that they had openly opposed, by force of arms, the authority of the State; and when they levied war against the Queen within her realms, was that or was it not confessedly high treason? Those persons, then, could have had no cause of complaint at the issuing of the ordinance; and if they had instituted a prosecution, they would not have been able to have obtained more than one shilling damages. It was quite clear; that this case was dis- 1267 tinguishable from the one which had been referred to, where a person was illegally arrested and detained in prison against his will, and where, after having languished for months or years in gaol, he was discharged, and then a bill of indemnity was passed to prevent him from bringing his action. Such a bill was stated to have been passed in 1818. To that bill he should have been strongly opposed, if he had been a Member of Parliament at that time. It was clearly an unconstitutional act; it was most unjust; but there was no resemblance between such a bill passed in 1818, and the bill now proposed in 1838, which only said, that those who had petitioned to be sent to the Bermudas, should not have an action against those who had complied with their request, and sent them. That was the sum and substance of this bill of indemnity. He would now come to the points of law which had been discussed during the present debate. One of those points had been respecting the legality of that part of the ordinance by which certain persons were to be sent to the Bermudas, and kept there under restraint. Some had said, that that part might be defended upon the ground, that the Governor of the Bermudas had the power, where a person had been judicially convicted and sentenced to transportation, to send him either to a penal colony, or to England, and that from England he might be sent to such parts beyond sea as her Majesty in council should command. He could not yield to that argument, because the individuals in question were not tried, and were not judicially convicted. This ordinance was a legislative act. Now, as a legislative act it could have no power or operation beyond the province of Lower Canada. The Earl of Durham was Governor of the whole of the British American colonies, but his legislative power was confined to Lower Canada. This being a legislative act it could have no operation beyond the limits of that province, therefore, he without hesitation, pronounced his humble opinion that that part of the ordinance exceeded the authority of the Governor and his council. His hon. and learned Friend had stated, and he could have wished that his hon. and Learned Friend had adhered more strictly to his own position—that this was not the time to canvass the policy of this ordinance. True, they were now only arguing the legality of that 1268 document. He, therefore, should give no opinion upon the policy of the course taken by the Earl of Durham. It was not necessary that he should give any opinion whether it was constitutional or unconstitutional, he should simply confine himself as to whether it was legal or illegal. He had no hesitation in saying, that without more information than he now possessed, that, if his advice had been asked, he should have counselled the ordinance to be framed in a different fashion. But he was wholly incompetent to give any opinion because he knew not the facts and circumstances under which this ordinance was framed. It might have been more expedient to have proceeded according to the common process of outlawry: or if there was to have been a bill of attainder to have proceeded according to the precedents, and have given the party a day to come in, and if he did not come in within that day, then that he should stand convicted. But there might have been, and he had no doubt there were very strong, cogent, and satisfactory reasons for following a different line of conduct. He had confidence in the Earl of Durham, and in those who had advised him. He would not condemn men in their absence. He wished, before he gave any opinion as to the policy of these proceedings, to hear what the Earl of Durham might say in his defence; he wished also to hear what the members of the council might say in their defence; and he had not the least doubt that they would show that they were individually justified in the course which they had recommended to be adopted. One part of the ordinance said, that the fifteen individuals mentioned in it were not to return to Lower Canada without the permission of the governor, and that if they did, they might be apprehended and tried for rebellion. That they should be tried not for the original offence certainly, but only for having returned to the province. That was the offence, undoubtedly. Now his humble opinion was, that that part of the ordinance was within the authority of the Earl of Durham and his Special Council. He begged the House to recollect that this ordinance was a legislative act. The hon. Member for Westminster said, that he would give them another instance in which the executive power of the Governor had been abused, the hon. Member not being able to make the distinction between the legislative 1269 power and the executive power. Others had fallen into the blinder of not distinguishing between what was judicial and what was legislative. They had represented that these persons had been condemned by a court of justice without being heard, and that there had been a gross violation of the mode in which justice ought to be administered. If this had been a judicial proceeding most unquestionably it would have been, but it was not judicial; it was an act of the Legislature, and they had, therefore to see whether this legislative body constituted by the act passed this Session had the power to pass such an act as this ordinance was. This question depended entirely upon the construction to be put upon the act of this Session. The powers conferred by that act upon the Governor and Special Council were, among others, these:—they were empowered to make laws for the good government of the province of Lower Canada, as the Legislative Council of Lower Canada, as constituted at the time of the passing of the act, was empowered to make; and all laws and ordinances so made, subject to the provision for the usual sanction by her Majesty, were to have the like force of the laws which had been passed (before the passing of the act of this Session) by the Legislative Council and Assembly of Lower Canada, and assented to by her Majesty, or in her Majesty's name, by the Governor of the province. There was an exception in this clause of the act, which he would by and by refer to. Here, then, was a Special Council constituted with all the powers belonging to the old Legislature of Canada, as constituted by the act of 1791. He would admit at once that if his hon. Friend could show that the Legislature of Lower Canada as constituted by the act of 1791 could not have passed such an ordinance as this, then that this ordinance was illegal. But he (the Attorney-general) felt that he should be able satisfactorily to shew that this ordinance might have been passed by the old Legislature, and if so, it might be passed by the new legislative body, unless it came within some of the exceptions subject to which that new legislative body had been made. Let them, then, see what was the power given to the old legislative body of Lower Canada. It was unnecessary for him to enter upon the general question whether the legislatures in every colony had this 1270 power, because the Legislatures of Upper Canada and of Lower Canada were established by an act of the Parliament of Great Britain; and with respect to those provinces, therefore, it was only necessary for them to see what Were the powers conferred on those Legislatures by such act. This act of Parliament, the 31st Geo. 3rd. abolished the Legislative Council which before existed in the Canadas, and then appointed a new Legislative Council, consisting of a Legislative Assembly and a Legislative Council in each of the two provinces, which were then for the first time divided. And what were the powers conferred by the Imperial Parliament on the Colonial Assemblies? They were to make laws for the peace, the welfare, and the good government of such provinces, provided only that such laws were not repugnant to that act; and it then went on to say, that all such acts passed by the Legislative Assembly, when assented to by his Majesty, or in his name, in the manner therein prescribed, should be, and were thereby declared to be, "valid and binding to all intents and purposes whatever, within the province where the same should be so passed." Here, then, was constituted a supreme Legislative Assembly, with power to do everything which was not forbidden by the act which constituted it; and the act then went on in the subsequent clauses to enact what should be the franchise, what should be the reserves of the clergy of the Establishment; and then, after making some enactments respecting religion, proceeded to say, that certain laws which might be passed should not be valid till they had been transmitted to England and had been laid before the two Houses of Parliament. Under these restrictions, therefore, the Legislature so established was possessed of supreme legislative powers. What doubt was there then, that the legislature of Lower Canada which existed before the passing of the act of the 1st Victoria, had the authority to pass such an ordinance as had been issued by Lord Durham and his Council? But Lord Durham and his Special Council had all the authority of the old Legislature, and they seemed therefore, to him to have clearly the right to alter the criminal law, and if so, they might alter the criminal law as it affected individuals, as much as they might alter it with respect to any class; and if there was a power to 1271 alter the criminal law, there was a power to suspend the Habeas Corpus Act; and not only had this been done, but acts of attainder had been passed, and indeed all these powers had been exercised by the Legislative Assembly of Upper Canada; now, Upper Canada possessed only the same power as Lower Canada, and could there be a doubt, when the first had exercised these powers, that the latter also possessed them? He would show, when he came to that part of the case, that there were acts of this kind passed by the Legislative Assembly of Upper Canada. The result would be, therefore, that the former legislature of Lower Canada could clearly have passed this law, and if so, the same power belonged to the Earl of Durham and his Special Council. Then let them look at the exceptions in the act of Parliament. Before he noticed this part of his subject, he would refer to a question of the noble Lord, the Member for North Lancashire, (Lord Stanley). The act of 7th and 8th of William 3rd, c. 23, declared, that any law passed in any of the plantations repugnant to the law of this country, was absolutely void, and that answered at once the noble Lord's question; for they had the power of departing from the law of England so far as to make a felony in the colony of what was only a trespass in England, or to make a trespass in the colony of that which was a felony here; but as to the laws of this country, which were made absolutely binding on the colony, the local Legislature had no power whatever, and as for the repeal of any act of the British Parliament, which was intended specially to apply to such colony, was absolutely void. The ordinances, however, of Lord Durham did not violate any British act of Parliament supposed to be applicable to Canada. But let them look to the exceptions—and he said, that there were no implied exceptions—the criminal law of England was not meant specially to apply to Canada or to any of the colonies. His noble and learned Friend had said, that the Habeas Corpus Act could not be introduced into, and could not be repealed in, the Colonies; but here he differed from his hon. and learned Friend, because if the criminal law were introduced into a colony, the Habeas Corpus Act which was the glory of this country would also have to be introduced. There were no implied exceptions in the old Legislature, and there were, 1272 therefore, no implied exceptions in the new. Let them turn, therefore, and see whether there were any express exceptions and if there were, they were in the last act of Parliament. And here let him remind the House of the circumstances under which that act was passed. Rebellion was raging in the province, the local legislature would no longer act, and it was necessary, that some new power should be constituted for the purpose of restoring peace and harmony. For this purpose the bill was introduced, and it recited, that the Legislative Assembly of Lower Canada could no longer be called together, and, that it was necessary, that some other legislature should be established in its place; and the bill, therefore, created a new Legislative Special Council to be presided over by the Governor, and was it likely, that this new Legislature would be confined to "doing the mere routine business?" Was it to be supposed, that it had not the power to suspend the Habeas Corpus Act, or of keeping in prison those persons accused of treason, which it would not be expedient to bring to immediate trial? Would that be mere routine business? Was there to be this peculiarity between the two, that the new Legislature was not to have all the powers of the old, to enact such laws as might be necessary for putting down the rebellion. But the exceptions themselves showed what was the opinion of that and the other House of Parliament, that without these restrictions this Legislative Assembly would have had complete power to alter every English Act of Parliament; the exception provided, that it should not be lawful,—By any law or ordinance to impose any tax, duty, rate, or impost, save only in so far as any tax, duty, rate, or impost, which at the passing of the act was payable within the said province might be thereby continued.And also,—That it should not be lawful by any such law or ordinance to alter in any respect the law then existing in the said province respecting the existing constitution of the Legislative Assembly, or the right of any person to vote at the election of any member of the Legislative Assembly, or respecting the qualifications of such voters, or respecting the division of the said province into counties, cities, and towns, for the purpose of such elections.Why it must have been thought, that without these express exceptions the new 1273 legislative body would have had power to alter the franchise, and entirely to alter the law of the country, and the exceptions were introduced in the belief, that there was power vested in the altered Legislature. Then came the proviso which was wholly relied upon for the argument elsewhere, but was thrown overboard by that House:—Nor shall it be lawful by any such law or ordinance to repeal, suspend, or alter, any provision of any act of the British Parliament, or of the Imperial Parliament of Great Britain or of any act of the Legislature of Lower Canada as then constituted repealing or altering the same.And if the second ordinance of Lord Durham had suspended or altered any British act of Parliament, such would have been illegal. Now, a noble Lord had elsewhere been supposed to have said but he believed, that he must have been misinformed, that the hon. and learned Member for Exeter, who had disclaimed any such idea, had intended to take away from the Governor and Special Council any power of altering, suspending, or interfering with any act whatsoever of the Parliament of Great Britain. Then his hon. and learned Friend must say that all Sir John Colborne's acts were illegal and that he had no power to declare it felony for a person to return to the colony after a pardon had been accepted; and if they adhered to the doctrine that the Governor in Council had no power to interfere with any British Act of Parliament, or to alter in any manner the criminal law, then they would reduce the power of Lord Durham to nothing, they would paralyse all his exertions and throw the whole province into confusion. What then was the history of the introduction of this last proviso, what was the real intention of introducing it, and what was the condition on which it was accepted? It was intended and accepted purely and exclusively to prevent the changing of the religion of the country, and preserve the tenures on which property was held, and to prevent all interference by the Council with the reserves for the clergy of the Established Church. These were the three points alone touched upon by the noble Lord the Member for North Lancashire, and by the hon. and learned Member for Exeter, who concluded his speech by showing that the new Legislative Council ought not to have the power 1274 of interfering with the religion, the tenures act, or the clergy reserves. Well, then, if it had been thought that the council under this act had no power of in erfering with any Act of Parliament, why did they introduce this proviso? but it was thought to be necessary to put this limitation upon the powers, and the hon. and learned Member for Exeter had said on the conclusion of his speech, having enumerated those points and the reasons, that on those grounds he proposed that in the proviso in the clause under consideration there should be introduced the words "nor to suspend, &c.," and then his hon. Friend, the Under-Secretary for the Colonies (Sir George Grey) answering his hon. and learned Friend, said, "that if the amendment only applied to the acts he had stated, there could be no objection to it; but it might apply to others in such a way as to render its adoption inexpedient;" and the answer of his hon. and learned Friend distinctly was, "that his only object was to exclude from the operation of the clause such laws as he had particularized" [Sir William Follett "Read the remainder."] He had read the whole passage, and would read it again; the part that came after did not qualify what had gone before. His hon. and learned Friend had done him the honour to refer to something that had fallen from him in the debate; but if his hon. and learned Friend would tax his recollection, or turn to the printed account of what had passed, although, as he had stated, that account was not very accurate, yet his hon. Friend would find that his remark was confined to a suggestion of his right hon. Friend the Member for Coventry, that the Special Council should have a power to make permanent laws relating to local matters in Canada, some of which, especially relating to railroads, were stated to be better than those in England. To that he had stated, that there might be an objection; and with reference to that subject only had he made the observation. But in another printed account, which he believed to be more accurate, his concluding words were, that "as to the amendment of his hon. and learned Friend, Sir W. Follett, there could be no objection to it, if it were properly limited." If, therefore, the proposal were properly limited, there could not in his opinion be any objection to it; but if the object had been to prevent any alteration of any English Act he would 1275 have objected to it, because such a clause would wholly paralyse the Government. In what respect, however did the ordnance alter any Act of the Parliament of the United Kingdom?—and to show what was intended, the words used were "the Parliament of Great Britain, or the Parliament of the United Kingdom." And why was this? Because the Act of 31 Geo. 3rd. was the Act of the Parliament of Great Britain, whilst the Act of Lord Ripon, passed in 1825, was an Act of the United Kingdom, and this was the reason why the clause was confined to the Acts of the Parliament of Great Britain and of the United Kingdom. All this showed the object of the introduction. He regretted that the proviso was not more precise; he should have been glad if the words had been any act "relating to the province of Lower Canada," but he said that it was implied that it referred only to Acts relating to that province. His hon. and learned Friend had talked much of the despotism of the Act; but although it was thought hard, yet it was deemed in the nature of the case necessary. The House and the country placing confidence in an individual had selected him to carry the Act into effect, and Parliament had been satisfied with trusting to the responsibility of that individual, and to Parliament calling him to account; and would his hon. and learned Friend, after the history of the manner in which this proviso had been introduced, and after the language of the Act itself, say that he introduced this proviso for the purpose of preventing the repeal or the alteration of any act of the Parliament of Great Britain? or that it should be confined to the province of Lower Canada? Now, it had been asserted over and over again that it applied not only to Lower Canada, but to all her Majesty's dominions. And if his hon. and learned Friend did put that limitation, did he say that it interfered with the Act of Lower Canada? Why, if he did, it would come to this, that there could be no alteration of the criminal law, either the statute or common law. The act of 14th George 3rd. had been specially referred to, but the eleventh section, which introduced the criminal law into the colony, expressly subjected it to such alteration as the Governor, &c., by and with the advice of the Legislative Council, should from time to time cause to be made therein; so that the very section introducing the 1276 criminal law provided for the power of alteration. It did not prevent any alteration, however great or fundamental such an alteration might be, but it provided only that this could not be done without the sanction of the sovereign. Therefore, under that act, when any ordinance making any alteration in the law, nay, if it abolished trial by jury altogether, and established any tribunal, however unconstitutional, met with the approbation of the Sovereign, it would take place under that Act. But the special council established by that Act was abolished by the 31st George 3rd.; the special council ceased after the passing of that Act, and all the powers passed from that time to the new Council. Then the criminal law, as it subsisted at that time, was to continue; but the Legislative Assembly had the full right to change such laws as the Assembly might from time to time think proper, not without the authority of the King; but after the passing of the 31st George 3rd. all the restrictions imposed under the Act of 14 George 3rd. were absolutely done away with, and the Assembly, subject to the King's assent, had the power of altering all the criminal laws as they liked. He had now dealt with the Act of Parliament, with the exception which had been introduced into it, and with the Act of 14th George 3rd., on which so much reliance had been placed, and he thought that those who looked at the Acts of Parliament, and would consider those matters attentively; setting apart all considerations of party, and only judicially deciding on the Acts of Parliament themselves, would come to the conclusion that the ordinance in point of law, so far as concerned the fifteen persons, if they should return to the province, was good and effectual; that it was a legislative Act; that it was the act of a legislative Assembly constituted without any restriction; for if there were no implied restriction, there were no express exception in the Act which had been passed. He had said, that he would confine himself strictly to the question of law, and he hoped that he had performed his promise better than his hon. and learned Friend, the Member for Exeter, who, in the course of his speech was constantly diverging to questions of policy and of expediency, anticipating the debate which would thereafter arise, when, having all the facts of the case before them, they 1277 should be called upon to say whether the powers given by this Act had been wisely executed, the only question now was, whether those powers had been exceeded. Beyond the limits of the province it was clearly inoperative; but with respect to those within the province, without giving any opinion as to the policy or the expediency of the ordinance, he had no hesitation in saying that he was clearly of opinion that it was legal; and when the time should come to consider its expediency and its policy, he had little doubt that it would be found to do credit to him who had devised it; it had been received with applause in the colony, its clemency had been admired in this country, and it had been condemned only by some persons who had minutely examined it with personal and political feelings. He regretted that those persons had had the indiscretion to introduce the subject to public discussion, being convinced that no benefit would be derived from this course. However, he regarded with satisfaction that due credit had been given to the motives and intentions of Lord Durham. The noble Lord the Member for North Lancashire had passed a just eulogium on Lord Durham's intentions, and the noble Lord had said, that the ordinance was so humane and so expedient, that if it were but legal, he would find no objection to it, and that his only doubt with respect to it, was, as to its legality; he (the Attorney-general) was not sanguine enough to hope that he had succeeded in making any impression upon the noble Lord; but it would indeed be a triumph if he should have been fortunate enough to have removed the single scruple from the noble Lord's mind. He trusted that he had shown the legality of the ordinance; and if it were humane and legal, it united within itself all the merits on which its expediency could be determined. He anticipated the most fatal consequences if it were doubted whether the Governor-general in council had the power to alter the criminal law. There was one point which he had omitted; he had promised to refer to some of the Acts of the province of Upper Canada bearing out his statements. Was it supposed that the Assembly of Upper Canada could alter any of the criminal laws, and was it intended that the same authority should not be possessed by the Assembly of Lower Canada? Would they say that in Lower Canada, where there was open rebellion, 1278 and of which the state was more alarming, the council should have less power. Then why had they suspended the Legislative Assembly of that province, and established a special council in its stead, except that more vigorous acts were required, and that more powers were necessary than in the assembly of Upper Canada? He would simply read the titles of some of these Acts as an argument to show that Lord Durham and his Special Council were not wholly incompetent to make the ordinance which had been the subject of debate. The first was an Act, the effect of which was, in fact, to suspend the Habeas Corpus Act, and to provide for the apprehension and detention of all persons suspected of treason. Chapter two was an Act to provide for the more effectual and impartial trial of persons charged with treason, and which altered the mode of trial, which had prevailed before it passed; and there was one Act which entirely abolished trial by jury, and substituted trial by a court-martial. Chapter three was an Act to protect the inhabitants of Upper Canada against lawless aggressions. The next statute to which he should refer, empowered the Government to try persons who were natives of a foreign country, and who should invade Upper Canada. Chapter nine was an Act to provide for the more effectual and speedy attainder of persons indicted for high treason, who should have fled from the colony. Did his hon. and learned Friend, the Member for Exeter, mean to say then—for the doctrines which he had laid down were of a most alarming nature—that he would question the legality of all these statutes, and of all Acts done under their authority? Another Act was, to enable the Government to extend a conditional pardon to offenders in certain cases, while there were a variety of others of the same character, and all of which had been passed by the Assembly of Upper Canada and had been copied by the Legislative Assembly of Lower Canada. He asked whether the Acts to which he had referred, could be distinguished from the ordinances of Lord Durham? The House might say that they were unconstitutional, but he defied them to draw any distinction in point of law between the ordinances of Sir John Colborne and those of Lord Durham. They could only find fault with the ordinances of the latter, because they altered the criminal law, which had been introduced into Canada; 1279 if they were illegal on that ground, then were the ordinances of Sir John Colborne also illegal. But there was no pretence for saying that they were illegal, and he was ready to take his share of the responsibility which might be incurred by Lord Durham on the subject of this Act, believing that he possessed the power which he had employed, and that he had exercised it wisely and discreetly, and, besides, that he had been fully justified in departing from the criminal law as it existed in Canada before he went there, and in making it vary from the criminal law of this country. He sincerely lamented the necessity which existed for resorting to unconstitutional measures at all, and he looked forward with impatience to the time when all such means should cease to be employed, and when the law might be restored to undivided dominion. He was afraid that the time for re-establishing the law might be delayed by the discussion, but on the whole he was sanguine enough to hope, that Canada would speedily be restored to peace and tranquillity, the people would return to obedience, and the law be replaced in vigour.
§ Sir E. Sugden
rose with great unwillingness to prolong the discussion on this question; but he should endeavour to do what he had done on all questions relating to Canada—go to its consideration without reference to personal or to party feeling. He would consider only the question as one of law. He owned that he was surprised at the course taken by the noble Lord (Lord J. Russell), and the hon. and learned Gentleman (the Attorney-General), in this question, in contending that the ordinance of Lord Durham was legal, except that which related to men out of the jurisdiction of the province. All the rest the noble Lord contended was legal, and that her Majesty's Government would act on it as such. How the noble Lord could make that declaration, and, at the same time, give his sanction to the bill then before the House, which declared, that the ordinance could not be justified by law—he quoted the words of the clause—he was at a loss to decide. How the noble Lord, as the representative of the Government in that House, could state, that he would uphold any part of an ordinance which an act of the Legislature would stigmatise as against law, was to him a matter of no little surprise. It was perfectly wild to discuss this question, unless the Govern- 1280 ment were prepared to say how they would proceed after the bill became law. These ordinances were accompanied by a proclamation, and, although the words were extremely ambiguous, its true construction, taken together, was, that everybody was pardoned; all offences for high treason, or for treasonable practices, except the persons named in those ordinances, who were to suffer for the crimes the punishments those ordinances affixed. Before the bill passed, the Government declared their intention to disclaim and disallow those ordinances. Those ordinances would, therefore, have no operation—they would have no continuing operation. The Governor-general had shown, by his most impotent acts, that he considered the operation of the ordinances to commence instanter; and here arose a difficulty which had not been provided for. The amendments, which had been adopted by the Government into their own bill, clearly showed, that it was not the intention of either branch of the Legislature to give those powers which had been exercised by the ordinances. The ordinances would cease to have operation, but, in the mean time, those persons would have undergone punishment; and the fifteen persons who, on putting their foot on their native land, would be found guilty of having done so, and executed for treason, without the slightest attempt at investigation or proof beyond the declaration of the ordinances. Then might come the declaration of her Majesty in Council, that the law should have no force, but that would not recall to life those who had been hanged before that declaration had been pronounced. It was certainly, therefore, rather important if they did intend such laws as these ordinances should be passed, to have provided that no ordinance which inflicted the penalty of death or transportation on any person contrary to law should be of any avail until it had received her Majesty's sanction. This afforded a very strong proof that there was no intention that the law, as construed by Lord Durham, should be put into execution. The Government must then address themselves to this question—the people of Canada and the people of this country must clearly understand it, and would expect an answer to it—how were they prepared to act in regard to those persons who were the subjects of the ordinances? It was considered neces- 1281 sary to the safety and well-being of Lower Canada, that these persons should he carried to Bermuda, and there detained during the pleasure of the Governor-general. The effect of disallowing the ordinances would be instantly to open the gates to them; they would be at liberty to depart from Bermuda, and to enter Canada the moment her Majesty's disallowance of the ordinance was transmitted to them through any source. What then did the noble Lord intend with respect to these persons? After what had passed they could not be taken before a jury with halters about their necks; no Government in existence dare have recourse to such a measure. By an illegal ordinance a penalty had been imposed on them which had been partly inflicted; but they must omit the remainder. Unless the Imperial Parliament interfered, they must be allowed to return, free of all apprehension, to Canada. The effect of the proclamation was, that every person was pardoned who was not suffering under the ordinances. There was to be no prosecution of any individual except under the ordinances; they could not, without the aid of the Imperial Parliament, prosecute any man out of the ordinances; in the ordinances they had disabled themselves from doing so. The fifteen persons, beyond all doubt or question, would be at liberty to re-enter Canada. Would the noble Lord be prepared, after what had passed, to try them by a jury? It would be a sort of judicial murder to take those persons before a jury after having convicted them of high treason and imposed on them only an inferior punishment to the immediate penalty of death. This was no case of amnesty or even leniency on the part of the Government. The Government were unable to carry the ordinances into complete execution, and the return of those persons to Lower Canada would take place in spite of the Government. They must look this difficulty firmly in the face, and say what steps should be taken, whether Government would enforce this particular part against those persons notwithstanding the ordinances had fallen to the ground. He had listened to the general tone of the debate on the other side of the House with some regret. He was sorry to hear such constant attacks upon somebody or other being actuated by personal and political motives. It was most difficult to conjecture to whom those observations 1282 alluded, but he thought it would be much more convenient if that noble and learned Lord's speeches were answered in another place, instead of reserving the reply for the leader of that House, to whom it seemed to be indeed "a labour of love." Undoubtedly it was contrary to the rules of that House to countenance such an irregular practice although it was covered so much by the noble Lord's intimate knowledge of their forms, as even to escape the notice of the Chair. With respect to the question immediately under consideration, he thought it absolutely necessary, that some measure should be adopted to meet the exigencies of the case. The noble Lord would take upon himself an awful responsibility if, short as the time was, he allowed Parliament to be prorogued without making some provision for the cases which must arise from pronouncing the ordinance to be illegal, and a still greater if he should write to Lord Durham to say, he had stated in the House, that he was prepared to justify carrying the remainder of the ordinance into effect. If Lord Durham had had a real council, as the House intended he should have, instead of a sham one, these evils would never have existed. There was no striking enormity in the ordinances of Sir John Colborne. They might possibly have been in some respects illegal, and he did not say that they were not, but in their illegality there was exhibited none of that outrageous violation of constitutional principles which characterized the ordinances of Lord Durham. The illegality was not so great as to strike at first sight, but the enormity of Lord Durham's ordinances was so great as immediately to strike the mind of every man, and suggest the idea of illegality. He had never attacked Lord Durham, and he did not mean to attack him. He believed, that in the issuing of these ordinances the noble Earl had been actuated by humane feelings, and that possibly he never intended, that they should be put in force. His intention was not to make them operative ordinances, but nothing could be more dangerous or liable to objection than the practice of taking steps upon the calculation that they would not be called for, and without any intention of acting upon them. As all these ordinances were disallowable by the Crown, it was the duty of the Colonial office to scrutinize them very narrowly, in order to see whether they were illegal. He was extremely unwilling 1283 to enter into the question of law, as whatever was said in that House upon points of law went absolutely for nothing. It was of no weight out of doors, but yet in distant places like Lower Canada it was likely to be productive of mischievous effects. The hon. and learned Gentleman opposite, her Majesty's Attorney-general, with an appearance of honest warmth, states that he would not condemn any man in his absence, and yet in the same breath he defended the legality of an ordinance which condemned fifteen men in their absence. He cheered when the hon. and learned Gentleman stated he would not condemn any man in his absence, at which no doubt the hon. and learned Gentleman was surprised. He also was surprised—but it was, to hear the hon. and learned Gentleman say the ordinance was perfectly legal, and yet, at the same time, express his willingness to have it rescinded. One word with regard to the manner in which the council was held at which this ordinance was passed. The forms prescribed by the Act had been neglected, although the noble Lord ought to know, that in many important cases, matter of form was also a matter of substance. How different from the manner in which Sir J. Colborne acted under the guidance of the same Act of Parliament. Sir J. Colborne mentioned even the minutest details. The number and names of those present, the business which was transacted, even the name of the chairman. He merely mentioned this to show, that there might be some pieces of information contained in documents which it might not be altogether convenient to communicate. None of Sir J. Colborne's ordinances were revoked. The House should recollect that Sir J. Colborne had a real council, consisting of twenty-one members. They should also not lose sight of this, that the council of five, on the very day of their appointment, met and sentenced eight men to transportation, and sentenced fifteen absent men to death. With reference to the rules and regulations, he should say they might be admirable for a real council, but a mere farce when applied to a domestic chamber like that which was appointed to advise Lord Durham.
§ Sir C. Grey
said, that he did not see the difficulties attaching to this question to which the hon. and learned Gentlemen had alluded. If the ordinance and the proclamation were annulled, the parties 1284 affected by them would be simply remitted to the situation in which they formerly stood. He thought there would be no difficulty in trying those parties now, after the qualified admission of their guilt which they had made; and if they should be found guilty, after the opinion expressed in the ordinance that transportation was a sufficient punishment, it was out of the question that a greater punishment should be inflicted. Having heard from the noble Lord the Secretary for the Home Department, that it was not the intention of Government to introduce any other measure this Session, the desire which he had to offer a few suggestions to the House was exceedingly diminished, and he would therefore occupy but very little of their time. He must say, that in his opinion the ordinance of the Earl of Durham could not be justified as legal. The hon. Member for Westminster said the motives and feelings of the noble Lord in issuing this ordinance were cruel. Now, he was confident, that the hon. Member for Westminster and the noble and learned Lord with whom the objection to the ordinance had originated, were both mistaken as to the view with which this ordinance was made. [Mr. Leader, I did not describe the ordinances as cruel.] He was glad to hear that the hon. Member did not intend to use the expression "cruel;" but he was sure that the hon. Member had used the expression. He was confident also, that the hon. Member for Westminster was mistaken as to the effect of the ordinance with reference to the parties more particularly affected by it. He did not think, that those parties had any very great right to feel aggrieved. The question had been brought forward in such a pointed manner that it was necessary for Parliament to express its opinion on the subject. He thought, that it would be productive of much mischief if they left the matter in a state of doubt and uncertainty; he therefore felt, that it was necessary to pass a declaratory Act. His own opinion was, and had ever been since he had seen these ordinances, that they could not be justified. The principle of legislation on which legal ordinances could be enacted in this province must be in conformity with the powers contained in the 14th Geo. 3rd, c. 8, in the 31st Geo. 3rd, c. 31, and in the 1st Vic., c. 9. All these acts related specially to Canada, and the present Governor of that 1285 province and council could not, as the present legislative body for the colony, enact any law to repeal, suspend, or alter, any provision of any of these acts of the Imperial Parliament. These ordinances were in some respects inconsistent with these acts, and with that protection which every British subject was entitled to claim under the provisions of these acts as well as other laws. His impression was, that the Governor in council in Canada had not the power of altering acts of Parliament applying to this colony. He might be told, that the noble Earl and council had the general power of making laws, but this was a different thing when any restrictions existed, such as had been imposed by the 31st of George 3rd, c. 31, or by the 1st of Victoria, c. 9. In the latter act, a proviso had been introduced by the hon. and learned Gentleman opposite, which materially affected the case. It never would do to allow an alteration of these laws to be made, as was done in the ordinance, as these laws were fundamental in their nature. Such laws, he contended, could not be altered in the colonies, even with the sanction of the Crown. For instance, it would not be lawful to transfer the allegiance of Canada from this country to France. This would not be legal, even if it were authorised by the legislative body in the colony, and sanctioned by the Crown. It would require a higher sanction to make it lawful and binding. This principle, also, existed with regard to other matters. For instance, it was always the case as regarded the rights of trading with the colonies; neither the legislative assemblies of Canada nor the Crown could exclude British subjects from trading at any port in the St. Lawrence belonging to that province. This principle also obtained, with regard to the right of a person charged with an offence to be tried. Was the right of trial by jury of less importance than the right of trading. Under these circumstances, therefore, he looked at the ordinance as being a most arbitrary edict. He did not doubt, that there were very good reasons for establishing in the mind of Lord Durham, a certainty that these persons were guilty of the offences with which they were charged, and that they had acknowledged their guilt; but, looking to their denial of the fact, it was as much an arbitrary edict as if the former or present legislative power in Canada should order a person to be put to death 1286 without trial. This would be a departure from the fundamental law creating the legislative power, and would be going beyond it. A similar principle restrained every legislature, and there was even, as regarded the Imperial Parliament, a power beyond which it could not go. In the present ordinance, there was a principle embodied somewhat like that which was to be met with in the proceedings of the British Parliament in the cases of bills of pains and penalties and bills of attainder. The Legislature of Canada had never been a judicial tribunal, and could not pass such a bill, and therefore the power could not be possessed by the present Legislature for that colony, namely, the Governor in council. The old legislative body in that colony never possessed the power of passing bills of attainder, and as the new body had not enlarged powers conferred upon it, but was restrained by the same Acts of Parliament that restricted the former body, it could not have that power. He therefore, without hesitation, contended that the former Legislature of Canada could not legally have passed these ordinances of Lord Durham, and therefore, that that noble Lord had not power to do so. In the whole history of the Imperial Parliament he had never found an instance which would serve as a precedent for this ordinance. He had heard a great legal authority, a man of profound learning and the greatest attainments declare, that the only ease that he could find, that would furnish anything like a precedent, was the 17th George 2nd, by which it was declared, that the sons of the Pretender should suffer death if they landed in any part of England. But it should be recollected, that in this case the sons of the Pretender were not British subjects, and were not recognized by the Parliament as having any right, power, or authority in this country. The birth of the Pretender was disputed, and his sons were considered as aliens, and, having set up an adverse claim to the throne, under the influence of France, then at war with England, they were declared traitors, and ordered to be dealt with accordingly. They having neither sovereign power, nor being British subjects, having endeavoured to subvert the peace of the kingdom, were by this Act declared liable to suffer death as traitors. It had even been considered a clear and undoubted right of a British subject to return to his native land, unless 1287 he had been legally tried and convicted, and was sentenced to be banished from it by the proper tribunal. In this case it was undisputed that no trial had taken place. It was alleged that the act of attainder of Sir John Colborne was a precedent for this ordinance; but he contended, that the proceeding of that gallant officer was not an act of attainder, but was merely an act for the more speedy trial of persons charged with treason. There were no names mentioned in this act, and who ever heard of an act of attainder which did not contain the names of the persons against whom it was directed. The law of Sir John Colborne was simply one for shortening the mode of indicting persons charged with treason. Suppose that Mr. Papineau was arrested in the province and brought before a tribunal under this ordinance, the first thing that he would say, would be to ask, whether it was not distinctly stated in the act under which their proceedings took place that no act of the Imperial Parliament should be suspended? He would be answered in the affirmative, and he would state, that under the 14th of George 3rd, c. 8, the form of trial was strictly enforced to be similar to that in England. The answer of the court might be, that that was suspended as far as regarded the fifteen persons named in the ordinance. He would then refer them to the proviso of the 1st of Victoria, c. 9. which would be a complete answer to this objection. It was therefore, clearly his opinion, that this ordinance should not be vindicated by the 1st Victoria c. 9. But although he considered it to be an excessive ordinance, and that in bad hands it might be abused, he was sure that it was far from the intention of the noble Lord who framed it, that it should be harshly administered, and he believed that the effect of it would have been found to be, that it would have had too much leniency towards the parties engaged in the insurrection. He should regret extremely, if this bill should have the effect of weakening the local government, but he trusted that such would not be the case. The evil in this case might be irretrievable, but after the majority of the other House had expressed an opinion on this subject, it was beyond the power of the Government to refrain from pressing this bill. At the same time he thought, that if Parliament were called upon to express an opinion as to the conduct and 1288 intentions of the noble Earl, the Governor of Canada, that it would prove extremely satisfactory to him. Before he sat down he felt called upon to say a few words as to the banishment to the Bermudas. He did not conceive, that there was much objection to the ordinance on this ground, or that it would be sufficient to set it aside. The two Acts that related to the punishment of transporting or banishing from the colonies were the 5th Geo. 4th, c. 63, and the 6th Geo. 4th, c. 59. Now it did not appear to him that it was necessary that parties should be arraigned to receive pardon. It had ever been the case that persons on acknowledging their guilt had received a conditional pardon. This was the case in the order of Sir John Colborne, who, in reference to certain parties, declared that they received this conditional pardon, namely, that they should consent to suffer transportation for a certain period. In this case the parties, as he understood, had confessed their guilt, and had accepted pardon on condition of banishment. He therefore thought, that under the stipulations and enactments of the 6th Geo. 4th c. 59, the governor of the colony was not restrained from transporting those persons. He contended, that it would be perfectly legal if the Bermudas were named in the order of council framed in uniformity with the act, and if they were not so named, these persons could remain in the custody of the Queen's officer under whose care they were until such order was issued. He did not rest his objection to the ordinance as it applied to the transportation to the Bermudas, but to that part of it which applied to the fifteen persons who were told that warrants were out against them for treason, and that if they returned to the colony they would be put to death under the provisions of that ordinance. The last part of the ordinance also appeared to him to be irregular and liable to the strongest objections, namely, where it was declared that no order or pardon of her Majesty could extend to any persons supposed to be engaged in the murder of Lieutenant Weir or Joseph Bertrand, nor shall any of them derive any benefit or advantage whatsoever from any proclamation of her most gracious Majesty, nor shall any amnesty thereby intended to be granted, be taken in any way to apply to such person or persons or any of them. He did not think, that the Governor of Canada could prohibit her Majesty from granting pardon, and 1289 therefore this perhaps was another reason for getting rid of the ordinance. He entertained the most serious respect for the noble Earl at the head of the Government of Canada, and he had no doubt, that it was the anxious desire of the noble Earl to rescue the people of Canada from the gulf of misery which must ensue from their continued insurrection, and that it was his most earnest wish to restore peace to the colony; but he felt on every ground, that it was both expedient and proper that they should get rid of the ordinance, and pass this bill.
§ Sir R. Inglis
said, that his object in rising was to call the attention of the House to the consequences that would result if the bill were left in its present state. If her Majesty, by an order in Council, were to rescind the ordinance without rescinding the proclamation, it would prevent the criminals from suffering the just punishment for their offences, as no one could doubt (not even the hon. Member for Westminster) that offences of a heinous nature had been committed; and he would, therefore, suggest, but he did not wish to influence the vote of any hon. Member, the expediency of introducing a clause into the bill, providing, That nothing in the ordinance issued in Canada, or in the Order in Council, disallowing that ordinance, shall be construed into a release of any person from the legal punishment attendant on his crimes, but that he should be equally accountable as before the passing of the ordinance. He did not agree with the noble Lord opposite, that the other House would reject such a clause, but he would recommend the noble Lord to remove the responsibility from himself. The noble Lord, the Member for North Lancashire, had urged a measure of this description upon the Government, and he was sure, that the course which he now recommended would be supported by that House and by the country. He had urged this on the Government before, and he again called on the noble Lord not to allow Parliament to be prorogued without some measure of this description being passed; for, without such a measure, he feared, that the security of one of the most valuable possessions of the Crown would be hazarded. He allowed that even the discussion of this subject was not unattended with danger, and that it might prove ruinous, but he could not avoid complaining of hon. 1290 Members on the opposite side of the House who had accused hon. Members on his side with being actuated by party motives in the course they had felt it their duty to adopt. It was impossible for him to move such a clause as he had suggested, but he again urged the noble Lord to adopt it, and to frame it to suit his own views; but he sincerely trusted, that Parliament would not be prorogued before some declaratory act was passed, so as to remove the doubts which existed in regard to the law in Canada.
§ The Solicitor-General
fully concurred in the opinion which had been expressed by his hon. and learned friend the Attorney-general, that so much of the ordinance as related to Bermuda was illegal, and that the rest was perfectly legal. He should not, however, discuss that point now, and should only offer some reply to an observation of the hon. and learned Member for Ripon. That hon. Member had said, that by the language of the Act, the Government admitted, that the whole ordinance was illegal. They admitted no such thing, and he believed nothing could be more prejudicial than that it should go forth, that the Government and that Parliament admitted the whole of the ordinance to be illegal. The Act stated nothing of the sort; and he was astonished that the hon. and learned Member for Ripon should have made such a statement. They allowed, that there was something illegal in the ordinance, but it did not follow that the whole of it was illegal. The hon. and learned Member for Exeter had said, that when the Parliament granted certain powers to Lord Durham they had not given him more than the ordinary powers of legislation. He granted that, but those ordinary powers were to be exercised under extraordinary circumstances, and sufficient allowance had not been made for the proceedings of Lord Durham when those circumstances were considered. The hon. and learned Member for Exeter had also said, that there was no precedent for such a penal enactment as had been issued against M. Papineau and others. But did the hon. and learned Member forget the case of the Bonaparte family in France, and that of the family of the Pretender in this country? Was the Act of the 13th and 14th of William 3rd passed after investigation and after mature deliberation? No; that Act passed both Houses in the course of ten days after its introduction, 1291 and he contended, that the shortness of the time which the Special Council had taken to investigate the conduct of those to whom the ordinance referred was no valid ground of objection against that measure. This part of the ordinance had been treated as something barbarous and inhuman; but what, after all, did it amount to? It amounted simply to this, that Lord Durham being in Canada, and surrounded with difficulties, had said, that those persons to whom the ordinance related should not come within the colony for the space of four years. That was the limit of the ordinance, for its effects extended to no more distant period than four years; but that fact had not been sufficiently kept in view. He thought it unfortunate that the present discussion had taken place, as he was afraid that it would tend to embarrass Lord Durham in the difficult duties he had to discharge.
§ Mr. Ellis
said, that the noble Lord, the Member for North Lancashire, towards the conclusion of his able speech, had strongly recommended the noble Lord, the Secretary for the Home Department, if the Government thought that either any doubt existed as to the Canada Act itself, or any idea that some measure should be adopted for superseding the ordinary tribunals of justice in that colony, not to lose an hour, much less to entertain the notion of proroguing Parliament until a bill had been introduced and passed upon those subjects. The Secretary of State for the Home Department had observed in reply, that himself and colleagues had given the matter their best attention, and that a noble Friend of his in another place had endeavoured to embody certain words in the present Indemnity Bill with that view, and that his noble Friend had subsequently assured him, that there was no hope of the other House of Parliament agreeing to such a course. On the import of those certain words the hon. and learned Member for Exeter had dwelt with considerable force, and he felt persuaded, that whether in an early or a late period of the Session—in a full or a thin attendance of Members—the noble Lord would never have succeeded in carrying such a clause in that House. But he felt quite certain, that if, after a Cabinet deliberation, the noble Lord had come down to that House without any formal notice, and, without any prefatory remark to make out the necessity of the case, had moved the in- 1292 sertion of such a clause, and immediately after moving it had almost as speedily withdrawn it, without dividing the House, without going through the form of having a simple negative given for the purpose of getting the same entered upon the journals, Parliament would not under such circumstances have considered the Government very anxious about the fate which would attend the result of their Cabinet Council. He, therefore, thought the noble Lord was not justified in alluding as he had done to the House of Lords, and he was sure, that upon a proper case of emergency being now made out by the Ministry, the Opposition in either branch of the Legislature would yield their ready support.
thought the country was much indebted to the noble Lord, the Member for North Lancashire, for the manly and able show-up which he had given the conduct of the Government, and was fully of opinion, that Parliament ought not to be prorogued till a declaratory bill had been passed. With all respect for the Earl of Durham, he considered, that noble Lord the most unfit person who could have been selected for such a situation as Governor-general of Canada.
§ Lord J. Russell
rose to give an answer to the suggestion which had been made by the hon. Baronet, the Member for the University of Oxford. It was after mature reflection, that he had come to the decision to pass the bill under consideration as it stood, and without adding any clause of the nature suggested by the hon. Baronet. He had been accused of having said something derogatory to the other House of Parliament, but in the decision he had come to on the point he had been strongly influenced by the opinion which had been expressed by a high authority in the other House, that under all the circumstances, and particularly at so advanced a period of the Session, it would be better not to adopt the course which the hon. Baronet had recommended.
§ The House went into Committee, and having gone through the clauses of the bill, the House resumed, The bill reported without amendments.