HC Deb 30 July 1838 vol 44 cc819-28

The sum of 500,000l. being proposed to defray the expenses (in addition to the ordinary amount) incurred by the insurrection in Canada.

Mr. Warburton

said, that looking altogether to the expenses in which the retention of the Canadas had involved this country, he submitted it to the House whether it were worth while to retain a colony which had proved so expensive and unprofitable an acquisition. They had only to look to the vast sums which had been sunk fruitlessly in canals, and to the folly of enforcing a trade in timber with that country when a much better quality could be obtained in European ports, to feel the force of this observation. He was convinced that the annual expense of this Colony to England was not less than 2,500,000l. How much better would it be to apply this sum to a reduction of the general taxation of this country. In his mind they should seek the earliest opportunity, consistently with the claims of individuals, to effect a peaceable separation.

Sir E. Sugden

rose to direct the attention of the House to the present state of Canada with reference to the constitution of the Special Council. That council, as appeared by a document which had been recently laid upon their table, consisted of five persons. Now, in one of the earliest clauses of the act of Parliament which passed this Session, it was stated, that the Governor-general should have authority to appoint such special councillors as he might think proper, without specifying any particular number; and the noble Lord opposite, in introducing the bill, said that no particular number of special councillors should be appointed by the bill, but that five should constitute a quorum; and in a subsequent clause it was enacted that no act should be valid unless it was introduced by the Governor-general himself in the presence of five at least of the Special Council. In the instructions sent out to the Governor-general, he was authorized to appoint such individuals as he pleased to select for the post of Special Councillors, the number not being less than five. The Governor-general had done exactly what he (Sir E. Sugden) had anticipated, for, although the act of Parliament did not say, that there should be more than five of these Councillors appointed, yet the inference was irresistible that there should be more than that number; because, if there were to be five at least present when the Governor in order to make their proceedings valid, surely this supposed that the body itself should be composed of more than five. He had taken the opportunity of stating his opinion on this point to a member of the Government. If his opinion were a correct one, there could be no doubt that the acts of the Council would be void, on the ground of irregularity in the formation of that body, contrary to the terms of the act, and it was certain that advantage would be taken of this objection by persons in the Colony who might be affected by the acts of the Council. As he was on his legs, he could not avoid saying a word or two with respect to the parties appointed by Lord Durham as his council. When the House heard of the authority given by the act relating to Canada to the Governor-general to appoint a Special and Executive Council, no member doubted that the object was, and indeed the whole context of the act bore out that meaning, that these bodies might exercise some control over the acts of the Governor-general himself. In the Executive Council the Governor-general was to have the initiative of every measure, But was it not a mockery to talk of any control being exercised over the Governor-general by a body selected from his own military staff, or by members chosen from his own household? When the noble Lord dissolved the Special Council appointed by Sir John Colborne, he assigned as his reason that his object was to take the whole responsibility on himself of all the measures which he might deem it necessary to originate. Sir John Colborne construed the act differently, for besides his Executive Council he appointed a Special Council, consisting of twenty-one, eleven of whom were Canadians. This body exercised a power analogous to that of a Legislative body, and passed several important measures. When the Earl of Durham thought fit to dissolve that body, he appointed the Executive Council, consisting of only five members, selected as he had already described; Mr. Buller was one of the five so named. He had been one of the Special Council, but was afterwards named as one of the Executive. Now, what control could he be likely to exercise over the acts of the Governor-general? Did any one doubt that if he ventured to assert an opinion of his own at variance with that of the Governor-general, he would not be allowed to continue a member of the Council. He had no wish to allude to the acts of my Lord Durham by anything like severity of comment, as he was aware that any doubt as to the legality of his conduct there would tend to weaken his authority; but he thought that Parliament having suspended the whole constitution of Canada, to place the whole power in the hands of one individual, they ought to look with a vigilant eye on his acts, and of all things take care that the Council to assist him should be legally constituted. He had not heard that any opposition had been made in Canada to any of the parties appointed to the Council, but he felt that objections might be made to the constitution of the Council by parties who might be affected by its acts. It was not his intention to submit any motion on the subject. He threw it out as a matter for the consideration of the Government. If they concurred with him in his view of the point, it would be for them to decide whether they should not pass a short hill to cure the defect. If they differed from him in the construction of the act, he would reserve to himself the right of introducing the subject on a future occasion.

Lord John Russell

thought if the right hon. Gentleman had been strongly impressed with a sense of the inexpediency of weakening the authority of the Governor-general at this time, he would have spared some of the observations he addressed to the House. The right hon. Gentleman had again stated his opinion as to the illegality of the way in which the Special Council had been constituted by Lord Durham; and said, that it was not legally constituted because it did not consist of more than five members. Of course, any observation of the right hon. Gentleman, if it had much weight in it, would not have failed to have had weight on the minds of others; but he must say, he had not heard that opinion supported by any other person than the right hon. Gentleman himself. It appeared to him (Lord John Russell) that the fact of five members only being appointed could not well affect the legality of the proceeding, because the act only said, that not less than five should be present at any council. [Sir E. Sugden: Five at least.] Yes, that five at least should be present. The course which Lord Durham had taken, was one at which five persons had been present. Others, indeed, might think that Lord Durham ought to have appointed more than five; but supposing five to have been appointed, and five to have been present at the special council that had been held, he could not conceive how it could be a point of objection to the constitution of that council, that there had not also been two or more absent members appointed, but who had never attended or taken any part in the council. He could not well understand how a man could say, "It is very true the Governor-general was present, and the five Members required by the Act were present; but then I object to the legality of the council, because there were not two or three useless absent members belonging to it who had never taken any share in their proceedings." It did not appear to him, in point of reason, that that objection could be entertained. The right hon. Gentleman next found fault with the composition of the Special Council. He had told the right hon. Gen- tleman before, that he thought it probable, that the persons who would be appointed members would not be Canadians, but persons connected by office or military appointments with Lord Durham. That had been the case. The persons appointed were persons so connected with the Governor-general. The right hon. Gentleman, however, was not right in inferring that because that was not the case with Sir John Colborne's administration, and was the case with Lord Durham's administration, therefore either one or the other must be wrong in the course he had taken. Because it was quite competent for Sir John Colborne to call together any number of Canadians, and for the purpose which he had in view, yet it might be quite as proper and wise of Lord Durham to call other persons to his council for different purposes, and to be effected in a different manner. It was expressly understood, when orders were sent to the Colony for Sir John Colborne to appoint a council, that it was by no means incumbent on Lord Durham to appoint the same persons to the Special Council. An inference might be drawn from what had fallen from the right hon. Gentleman that he supposed a wide difference of opinion had existed between Sir John Colborne and Lord Durham. [Sir E. Sugden: I had no intention to imply any such thing.] He was glad to hear the right hon. Gentleman say so. He begged to state, that no difference of opinion had existed between those two parties. During the short time Lord Durham had yet acted in Canada, Sir John Colborne had given him the utmost assistance and counsel that he was capable of rendering, and Lord Durham had derived the greatest advantage from the representations he had received from Sir John Colborne; and, indeed, the intercourse between the Governor-general and the very distinguished officer whom he succeeded had been of the most satisfactory kind both to Lord Durham himself and to the Government at home. With respect to the larger question of the policy of those appointments, it was one which might be debated on another occasion. But he could not exclude from his consideration, whenever that question should come to be debated, the manner in which those appointments had been looked upon in the province of Canada itself. The right hon. Gentleman did not seem to think that the opinion of the Canadians was much to be attended to in this country. Now, the opinion of Lord Durham, expressed before he left this country, was that which he thought, any man of sense and decision would be expected to entertain, namely, that, the success of his mission would depend very much on the manner in which the Special Council might be received in Canada. "Because (said Lord Durham) if these dissensions, which have been carried on so long and with so much animosity, have made every person in Canada either of one party or the other, I shall not be able to find any person who is not suspected by those of the opposite party, unless it be those who are called the 'moderates,' and who not being attached to either party makes them disliked by both. In that case, therefore, I should think it more expedient to appoint persons who are not connected with Canada at all, than to expose my Government to suspicion and to hatred, either by one party or the other in Canada." The inspiring confidence in his Government among the people of Canada of different origin and denomination was in itself a very considerable point in the matter which he was to carry on. It should be recollected, that the commission on which Lord Durham went out, was in the first place to preserve an important province to the empire of the mother country, and in the second place to lay the foundation of lasting peace and harmony among the various inhabitants of that Colony. Was it not important, then, in order to take away all ground of distrust, or apprehension of failure, that the measures of his Government should be attended with the assent, approbation, and confidence of both the British and French Canadians? He should, therefore, whenever the question came to be decided in estimating whether Lord Durham was or was not right in the appointment of persons totally unconnected with Canada, consider that it was a very great element in the decision to which Parliament might come in respect to that question, whether or not Lord Durham's measures had been favourably viewed by those among whom he was sent to administer public affairs. He must say, that it was at least very satisfactory to the Government at home to find from the various letters and accounts received, that both the British inhabitants and the French Canadians were disposed to receive with favour, and to look with confidence to the administration of the nobleman who had been sent by her Majesty to restore peace and harmony among them. With regard to the rest, the right hon. Gentleman would consider it a want of courtesy towards him if he again repeated, that though receiving dispatches from time to time from the Government of Canada, it was quite impossible for the Government at home to enter into an explanation of the reasons for each particular measure and a justification of each particular step, until that Administration had gone considerably further, and until those measures had been prepared and carried into effect, which, he confidently believed, would result in retaining that Colony to the British Crown, and in restoring peace among its inhabitants. Those were the great objects to be obtained; and although there might be persons in this country who did not look to those objects, he must say, that those in Canada who were attached to the British Crown were the persons most interested in this matter, and, therefore, most to be regarded. They felt, that it was a vital question to them, in the first place, not to be exposed to civil war, and, in the second place, not to have those harassing and vexatious dissensions continued which had so very long distracted that province. It was to them a question of vital interest; while to us it was rather a matter of mere speculation; though even in this country, he thought, it ought rather to be an object of desire that Lord Durham should succeed, than that we should oppose, by any hostility, impediments to his success.

The Attorney-General

thought it right to say something about the doubt expressed by Sir E. Sugden respecting the formation of the Special Council. He could not participate in that doubt. It seemed to him, that there being five members of the Special Council, and all being present, no reasonable doubt could exist of the validity of the acts of that Council. By the second clause of the act such and so many special councillors were to be appointed as her Majesty and the Governor-general should please. No number was specified. When they came to the following section then it was said, that five at least should be present when any act was done. What was the meaning of that? Why, that at least there should be five councillors appointed, Five were appointed in the manner specified by the act; the condition, therefore, was performed, and, in his humble opinion, there was no reasonable doubt, that the acts of that council were valid.

Mr. O'Connell

deplored the crimes, that had been committed against the Canadians. A greater crime never was perpetrated than when the British Legislature took away from the House of Representatives in Canada the command of the purse of the Canadian people. The right hon. and learned Gentleman (Sir E. Sugden) had talked a great deal of constitutional principle, but where was his love of constitutional principle when the House of Commons was robbing the Canadians of the first principle of the Constitution, planted by the British Legislature in Canada—namely, the right over the public purse? The friends of liberty in Canada had, at first, everything in their own power, and might have insured success if they had managed well. But for their own folly, wickedness, and crime, they would have decidedly prevailed. The moment, however, that Papineau and the rest shed blood, and broke out into rebellion by forming military companies, in spite of the executive power, at that instant they lost the support of every man who looked to obtaining the freedom of any people by constitutional means, and they deserved the greatest misfortune, that could fall upon them; they deserved the greatest of all misfortunes—that of putting their country into the power of despotism. It was a despotism; Lord Durham was a despot. The question then remained, how had Lord Durham conducted himself with such despotic power? He acknowledged, that having a high esteem for that nobleman's character, he was afraid he would have sacrificed it in the vain attempt to conciliate parties in Canada. His delight, however, could hardly be expressed at that noble Lord's success, hitherto, for that noble Lord had conciliated all parties there. Every letter that arrived expressed the satisfaction of the people of Canada at his proceedings. The noble Lord had acted with a degree of perfect impartiality between the French-born, and the British-born, Canadians, and between all sects of Christians; and they were all unanimous in their expressions of regard for him. One of the first things, that made the noble Lord popular was, the abolition of that very council of which the right hon. and learned Gentleman had spoken. The last of his acts was signally admirable for its humanity. Governor Arthur had been gorging himself with the blood of those poor wretches, who—[Oh! Oh!]. Yes! he did gorge himself with the blood of his victims, and there were many people in this country, who would have encouraged him in going on with that blood-shedding system. But Lord Durham most properly interfered. He put out of the country all those men who had taken a guilty part in carrying on the insurrection, and he had kept in banishment those who, having taken a less active part in the rebellion, had fled. That act had been followed up exceedingly well, and the whole conduct which Lord Durham's government had hitherto adopted was an earnest of his desire to establish permanent peace in that country without depriving the people of any portion of their rights longer than was absolutely necessary to enable him to restore harmony among them. He trusted, that the noble Lord would speedily accomplish his object, and would then return to this country with a higher character than even that with which he left it. The noble Lord seemed to have been attacked not only here, but elsewhere, with a determination of purpose most extraordinary. First impressions had been taken up against him with the greatest avidity, and there appeared to be a disposition to run him down. The right hon. and learned Gentleman opposite complained, that in the selection of his council the noble Earl had acted illegally. First, he said, the persons chosen were the noble Lord's dependents. Now, what could be the mighty independence of any council in the appointment of the Crown, and removable by the Crown at pleasure? Then, forsooth, there must be five councillors at least, and, therefore, it was argued, that there must be more than five; that five was not five, but must be six or seven. That was legal arithmetic. It was a compliment to be paid to one of great legal knowledge to find out a mare's nest like that. For his part, he could not compliment the right hon. and learned Gentleman upon his arithmetical discovery especially as from that very doubt might arise another insurrection? for those who were striving for freedom in Canada might say, "Oh! we will not obey these new laws, for the late Lord Chancellor of Ire- land has said, that all the acts of Lord Durham are perfectly illegal, and that five is not five." He had felt it necessary to say thus much, for he perceived, that there was a perpetual running fire opened against Lord Durham, and that he was attacked by all species of political adversaries; but, he believed, that the gratification which that noble Lord would feel at having pacified Canada and preserved his own reputation would abundantly recompense him for all these attacks.

Sir Charles Grey

, having paid considerable attention not only to the particular act referred to, but to many other acts of Parliament relating to Canada, could not agree with the right hon. and learned Gentleman, that the proceedings of the Special Council would be at all invalidated in consequence of five members only constituting that council. There was one observation which fell from the hon. and learned Member for Dublin to which he wished to advert. The hon. and learned Gentleman had said, that the act of Parliament had conferred on Lord Durham powers of despotism. Now, if such an opinion were to go forth in Canada it would be calculated to do immense mischief. There were parties in that province who would be most ready to persuade Lord Durham, that he did possess those powers. But he begged to express his decided opinion, that the act did not confer any despotic power on the Governor-general. The utmost it conferred was a legislative power to the Governor-general in Council, which was previously possessed by the Legislative Council and the House of Assembly. It would be ruinous to have it supposed, that the power it conferred was despotic.

Lord J. Russell

, in consequence of a word which had dropped from the hon. and learned Member for Dublin respecting the conduct of Governor Arthur, wished to make one observation. He should be sorry, that it should be understood, that Sir George Arthur had at all been anxious in any case to enforce the extreme execution of the law where circumstances did not make it, not only justifiable, but absolutely necessary.

Vote agreed to.

The House resumed.