moved the Order of the Day for going into Committee on the Canada Government Declaratory Bill.
§ Viscount Melbourne
said, before my noble and learned friend leaves the Woolsack, it may be as respectful and convenient to your Lordships, that I should state the course which I intend to pursue in reference to this bill. Your Lordships have determined, unquestionably very contrary to my feelings, to give a second reading to this bill, and it is impossible for me to express my deep concern and my great anxiety for the great and important interests which are now at stake in it. With respect to the objection taken to the ordinances recently promulgated by Lord Durham, that is a point which rests upon a broad principle of law which I do not pretend nor mean to deny—a principle of law very evident, clear, and distinct to lawyers, though not, perhaps, so clearly appre- 1128 hended by other persons. It is in favour of and an encouragement to a particular party in that colony, and that party is a party which has lately excited rebellion against this country, and which undoubtedly is bent upon the separation of the two countries. You may depend upon it, my Lords, that such will be the effect of the course which the noble and learned Lord is pursuing; that will be the effect of the course your Lordships have pursued—the practical effect: and the reason why I objected to your Lordships taking that course, and why I endeavoured to dissuade you from taking it was, that it was, impossible for me to conceal the apprehensions with which I look upon this course, and especially when it was taken at such a distance from the scene in which it is to operate, and when it is impossible for us to say in what state or condition of feeling those debates and this bill may find the people and the inhabitants of that colony. Unquestionably I am of opinion, that it would have been far better if your Lordships had not taken that course, that it would have been far more prudent if your Lordships had left that course to be pursued which should be decided upon by her Majesty's Ministers; but as your Lordships have decided otherwise, it is for me now, setting that aside, to state the course which I and my colleagues have considered it our duty to take in consequence of that decision. My Lords, I cannot but say, that looking at these ordinances, and being compelled to admit that one part of them is clearly without the bounds of the jurisdiction of the noble Earl, the Governor-general of Canada, I cannot but say, that I felt very much pressed by the argument that fell from my noble Friend opposite (the Earl of Ripon) on a former occasion, when he said, that he considered that one part of these ordinances was clearly and distinctly beyond the bounds of the authority that had undertaken to create them; and when he also said, that with respect to a colony of this nature, a chartered colony, the Crown had not the power of allowing one part and rejecting another, I felt strongly pressed by his argument to come to the conclusion, that her Majesty ought to be advised to disallow these ordinances. On the contrary, in disallowing an ordinance of so solemn a character, I could not avoid taking into consideration the effect which it would produce in enabling the 1129 persons it was directed against, to return to the seat of Government, if they thought proper; I cannot avoid saying, that the impression under which I addressed your Lordships last night was, that you were in effect striking at the root of all authority in the country. Grave objections were taken to that part of the ordinance which related to those persons not in custody, but who had fled from the country. Now, my Lords, I think it impossible to suppose but that everybody acquainted with the feeling of the present day, and with the temper and disposition of my noble Friend, the Governor-general, must feel certain that this was merely held out in terrorem, that it was intended to secure the colony against the return of those persons, which necessarily must have been felt to be dangerous. And I must say, that I should have been better contented if your Lordships had not interfered with that part of the ordinance, because from the particular omissions in it, as I argued last night, it is not possible to believe, that there must not have been some particular and sufficient reasons for those omissions. At the same time, feeling that I was pressed by the argument that had fallen from my noble Friend (the Earl of Ripon)—feeling strongly the cogency with which he urged that the Crown having disallowed one part of the ordinance, it being clearly unwarranted by law, it was very difficult to avoid exercising the power of the Crown and disallowing the whole ordinance. I, therefore, beg leave to say, that we have come to the decision of advising her Majesty to adopt that course, and to disallow the ordinance. I cannot but say, that it is with the deepest regret and alarm, that I have taken this course. I cannot but say, that it is not without very great apprehensions of the consequences that I have taken this course, and that it is not without feeling the greatest pain and regret, that I have come to the determination. It follows as a consequence that one part of the ordinance being illegal, that which was done in execution of that part of it is also illegal, and those who have acted in the execution of it are liable to proceedings in the civil and criminal courts. It is necessary, therefore, that some indemnity should be given to those persons; and seeing, as is perfectly well known, the guilt of the parties against whom the ordinance was 1130 directed, and seeing that those who may have detained those parties have acted in such a manner as would subject them to the penalty of the law, I certainly have felt, that the indemnity clause of the present bill, ought to be passed. With respect to the first clause of the bill, I think it goes too far. It deprives the government in Canada of a power which they may find it necessary to exercise; and it is, in my opinion, for that reason, objectionable; and, therefore, in the adoption of that clause, it is impossible for me to concur. A great deal has been said, in the course of these discussions, respecting a proviso in the bill which was passed in the beginning of the session upon the subject of Canada, and which prohibits the Governor of Canada in council from doing anything in contravention of any act of the Parliament of Great Britain, or of the Parliament of the United Kingdom, or certain acts passed by the legislature of Canada. Unquestionably, this proviso, considering the grounds upon which it certainly was introduced, it being stated, that it was intended to apply only to the Canada Act of 1791, and the other act relating to tenures, was very large, and I must say, I shall be very much surprised, if your Lordships permit it to stand in its present shape. It is impossible to deny, that which has been said, considering who the person was, that moved this particular clause, as to what was the intention of the act, and I hope your Lordships will consider what its effects would be, and what it was meant to be, and although, certainly, there is no ambiguity in the words, and they must be considered as co-extensive with what they express. I feel, at the same time, considering that it appears, that doubts are entertained on the subject, and that the proviso, as it stands, leaves the law evidently in a state of absurdity; if it disables the Governor in council, from altering or amending any act that was passed before the union with Scotland, or to deal with the common law in any way he pleases, if it disables him from dealing with the criminal law as he pleases, that certainly was not the intention of the act, and it cannot be the intention of your Lordships to tie up the Governor-general in Canada, and his council from taking measures which may be necessary for the safety of the country, even, although inconsistent with 1131 some of the acts mentioned in the proviso. Noble and learned Lords seem to me to push this matter to an absurdity in the arguments which they have held on the subject. As for instance, with respect to a police act, it was stated, that the government in Canada must adhere to all the forms of police acts in this country, and that the party must be taken, and examined before two magistrates, and not before one. If this proviso be adhered to, it would bind the Governor-general to observe all the regulations of any act of Parliament, even on the most minute subjects. I think, therefore, that your Lordships can have no objection to introduce into this bill an explanation of this proviso, stating, that it shall not interfere with any measure which may be absolutely necessary to be adopted in the circumstances which may occur in that country. When we come to that part of the bill, I shall move a clause to that effect.
said, but for the concluding part of the noble Viscount's speech, I should have felt unmixed satisfaction at the announcement he has just made of the course which he intends to pursue, I think most judiciously, most wisely, and most virtuously, and most in accordance with the principles of law and justice, which a government ought to administer. I think the course be is taking is worthy of those who have always defended the great principles of civil liberty—worthy of the men who feel, that the principle of public conduct is a regard to the interests of the mass of the community; and I think it consistent with those great principles with which he should regard, with which he does now regard, and with which your Lordships regarded this most outrageous violation of every principle of law, and every feeling of justice. But I differ from the noble Viscount on one or two points, and I think, I should not be discharging my duty, or showing a becoming respect for your Lordships, after the struggle which we made for right and justice, and for conciliation last night, if I abstained from remarking, which I shall do very shortly, upon the difference that separates me from the noble Viscount. The noble Viscount says, "he greatly laments the decision to which we came last night. He says, that he deems it his duty to declare, that he labours under serious apprehensions and alarm, as to the consequences of that 1132 decision, and that he will fling upon you, and upon me the responsibility of what may happen in consequence of that decision; and he tells your Lordships, that, though true it is, that here, as lawyers and statesmen, you submitted the broad principle upon which last night, you rested, it is only lawyers and statesmen who apprehend, and appreciate the principle, and that the people at large will only see in it the victory of a party." Gracious God! does it require men to be lawyers, or statesmen, or learned men, or even ever to have read a book upon any of thote subjects, to know, and feel, that it is an outrage upon all justice to condemn to death fifteen men who have never been tried; for that, in one sentence, is the effect of this unheard of ordinance, and that is the principle, and the whole principle which your Lordships have laid down. I do not believe, that in Canada, from one end to the other of her wastes of snow, and her forests of pines, her boundless lakes, and her rapid rivers, that one man dwells, who will be doubtful of the truth of the proposition, that under ignorance of what he was doing, or under a misapprehension of it, under an oblivion of the restraints upon his jurisdiction, under the influence of haste, or precipitation, or error, or neglect of some sort, from oversight, or mistake, well-meaning, but ill-judging, wishing to do good, but in effect, doing wrong, thinking that he was following the law, but in fact, breaking the law, the Governor-general of Canada has condemned these fifteen men to be punished capitally without notice, without trial, without a hearing, and that as soon as her Majesty's Government heard of it, with the advice and consent, and urged by the opinion, declared by your Lordships last night, they have not suffered a day to elapse without advising the recall of that illegal, though it may be well-meaning, ordinance. I think, I cannot put the proposition more fairly as regards the fact, more fairly towards the inference of law, and, at the same time, permit me to add, more fairly, more candidly, more temperately towards the authors of the mistake than in the sentence which I have just now spoken. I charge the government in Canada with no wilful error—I impute no tyrannical object as the cause of this wrongful act whatever—I acquit them of all blame except that of having committed a gross and manifest 1133 error; and upon the ground of that gross and manifest error I consider that your Lordships have done wisely, and well, and justly, and according to your duty in coming to last night's decision. Upon the same ground I venture to foretell, that the people of Canada will not make this conduct of ours, or of the Government, which is the result of the division, the pretext for further outrage. If they do, I will take my share, as your Lordships will take your share, of the responsibility; but I must add, in justice to you and to myself, that I should hold them as guilty of outrage, and of being wrong doers, not from mistake, but from wilful crime, if they make this conduct of ours a pretext for further outrage. Because it is as hollow, as shallow, as arrant, as flimsy a pretence as a man could rack his brain to invent. Because an illegal act is done, because an outrage is committed on law and justice through mistake, and because those who compose the highest court of judicature in the country, as well as the upper chamber of Parliament, because the Crown at their advice and suggestion loses not twenty-four hours to undo what was wrongly done, to repair what was mischievous, to prevent further mischief, and to lead to greater caution and circumspection in future, will any man living say, that this is to furnish a pretext for the people of Canada to suppose that we have altered the opinions that made us pass the bill, that we have shown a disposition to encourage outrage, and to stimulate the French party against the English party? Can any mortal derive the slightest shadow of a pretext to justify such conduct from the course we have pursued here? My Lords, be not discouraged—persist in the course to which you bound yourselves last night,—let it be called that of a jobbing oligarchy or a truculent democracy. I care not for it; so that you only show a jealousy not of your own privileges, but of the public rights, and so that you show that your truculency leads you to prevent innocent blood being shed by an unlawful ordinance, and to secure a trial for men who have not been heard, tried, or summoned, but who have been convicted unheard, untried, and unsummoned. I heartily rejoice, therefore, that Government has come to this virtuous and wise and politic resolution. If the course they had taken has produced an increase of disaffection towards them, and a distrust 1134 of their motives, I think I may say now that we have, for the first time, shed daylight on this obscure question; and that the course we have taken will lead to a conciliation of the affections and the respect of many even among the disaffected. And doubt not but that if the time and the interval be wisely used, and the measure of last night be wisely and consistently followed up, it will better lead to gain the hearts of the people of Canada than if they had made themselves parties, infatuated parties, to those ordinances which they have so wisely condemned. I must confess, that I have no objection to strike out the declaratory part of the act, and to leave the clause of indemnity. My noble and learned Friend (Lord Lyndhurst) suggested that course; but I must say, that I cannot consent to arm the government of Canada with powers which, under the bill as it stood, that Government did not possess. Has the conduct of the Government in Canada been such as to tempt your Lordships to enlarge its power? I certainly do not think so. I do not go along with the noble Viscount in saying that it was ever intended by the passing of the act to give any power to the Government of Canada, however strongly they might be armed in other respects, to pass bills of attainder, and bills of pains and penalties, against individuals. The noble Viscount said, that we ought to have done so. At first, the noble Viscount said, that we had done so; but now he says, that as we have not done so we ought, and he calls upon us to do so, that is, to give the power of passing bills of attainder, without hearing the party. The Government of Canada is not composed of men who are so little likely to underrate their powers, or to stand within the strict line of them, or to be governed by law and common sense, as to make it wholesome to enlarge the powers which they already possess. I do not ask to restrain those powers which they at present possess; I am willing to leave the law as it is, and as it was left when we passed the bill; for although I opposed the bill, I am not the man now to rise and attempt to repeal it; let it be as it is, and let there be an indemnity for those who have counteracted any part of it, or committed any offence against it, as far as regards Nelson and his associates, but I am not prepared to extend that indemnity to all cases that may have happened. The Government of Canada, may 1135 have caused to be put to death, unheard, untried and unnotified, those fifteen persons. They have included in this ordinance, Perrault, who has never absconded. If those persons have been imprisoned, and treated as felons, I am not prepared to say that they should be deprived of their right of action, that they should be deprived of their solatium of damages which a person has a right to have who has been illegally imprisoned. I am prepared, however, to grant the indemnity in the case of those nine persons who were willing to go to Bermuda; they have no right to complain if we take away this remedy, but I am not prepared to go further. It is, therefore, my intention, on bringing up the report, to move the addition of two or three words, to confine the indemnity to that extent. I am in the hands of the House. This is your Lordships' bill as well as mine, and whatever course to you shall seem fit to be pursued, with that I shall be entirely contented, completely satisfied, but I consider that I have only done my duty in stating the impression which the speech of the noble Viscount has made on my mind.
§ The Duke of Wellington
My Lords, I cannot help expressing the satisfaction with which I have heard the declaration of the noble Viscount; and I must add my sincere desire that the noble Viscount will be disappointed in his apprehensions that the course taken by this House may lead to inconveniences in the Government of Canada, and to evils such as he has described. I feel a sincere conviction that the people of Canada, as well as the people of this country, will do justice to your Lordships upon this subject, and that they will not be led to believe that it was the intention of your Lordships, or even that your Lordships could possibly imagine, that the course pursued last night, is calculated to lead to the evils which the noble Viscount apprehends. Having said thus much upon the course taken by the Government, I must say that I concur entirely in the proposition made by the noble Viscount, that in Committee we should proceed to amend the bill, so as to give indemnity as proposed in the second clause. With respect to the amendment proposed by the noble Viscount, and the alterations which he proposes to introduce, I must avoid giving any positive opinion on such a subject until I have seen what the amendments are which he 1136 intends to propose. But some circumstances have occurred to my mind, even when first hearing the noble Viscount's proposition, and afterwards on hearing the objections stated by the noble and learned Lord, which induce me to think that it would be highly inexpedient to adopt that proposition. We are now at the close of the Session of Parliament, which we commenced by adopting this bill, after full consideration in both Houses of Parliament. I contend that it was perfectly understood, in the other House at least, if not in this, that the proviso in the act did provide for those cases which I contended last night it provided for. Under these circumstances I should say, that it would be highly inexpedient in the Committee on another bill so far to alter an act of Parliament which was passed at the commencement of the Session with universal consent, universal in this House with the exception of the noble and learned Lord (Lord Brougham), and by a great majority in the other House, I think it would be highly inexpedient now to alter that measure. I must first beg leave to submit to the noble Viscount that the alteration proposed is by no means necessary. It is not necessary for carrying into execution the purpose of Government to punish rebellion and treason within those provinces. I believe, that the late Governor-general acted under the provisions of this very act, and he must have had the power to punish rebellion and treason, as the present Governor-general must have under the act of Parliament as it existed at present without the alteration proposed. Under these circumstances I should wish that this proposition should not be brought under the consideration of the House, having a sincere desire that this matter should be discussed and should terminate without any further division of opinion upon it, and really feeling that if it is now brought on no real service will be done to the State. I hope, therefore, that Government will adopt that suggestion.
§ Lord Wharncliffe
concurred entirely in the opinion that in the decision which their Lordships had come to last night, there was nothing to excite the apprehensions for the consequences in which the noble Viscount had indulged. He thought also, that after the manner in which the Government of Canada had exercised the powers confided to it, no blame could be 1137 imputed to their Lordships for the course which they had pursued.
§ The Earl of Ripon
said it was perfectly true that there might have been difficulty in obtaining a sufficient and competent council under almost any circumstances similar to those in which the Governor-general stood, but he thought it must be imputed to the peculiar position of the Government at home that such a council as now assisted Lord Durham should have been formed. Nothing less than the extraordinary condition in which the Cabinet at present was, could have led to the appointment of the council in Canada of men who were unacquainted with the condition of that country, and at the same time deficient in that knowledge of the law so necessary to the proper discharge of the difficult and delicate duty which had been intrusted to Lord Durham as Governor-general.
§ The Marquess of Lansdowne
said, they could not overlook the fact that the possible effect of what had taken place might be, to convince a party in Canada, however unjustifiable the conclusion, that the Governor-general and the government there had no longer the authority they had believed them to possess, but that they were stripped of that authority by the act of the Legislature. He believed, however, that the maintenance of the authority of the Canadian government was essential to the preservation of peace and tranquillity in the colony, and to the continuance of the connexion between the two countries, which it was the first object of their Lordships to consider. Were they not, then, bound to consider what would be the effect of this measure on the minds of persons in Canada, who were still disposed to give encouragement to the cause of rebellion in that country? In that view alone he should feel himself called on to support such an amendment as was suggested by his noble Friend; the effect of which would be to remove the doubts that had been raised as to the power of the Governor-general. But if it were true that the noble Lords opposite had acquiesced in the power which had been exercised by Sir J. Colborne, a power which went far beyond that which it was said they had assumed would have been exercised by the present Governor-general—if it were admitted that the power so exercised by Sir J. Colborne was conformable to the law, then the object of his noble Friend would 1138 be in a great measure gained. It was contended that the words of the act that had been so often quoted deprived the Governor-general of the power of attainder. That had not been considered the case heretofore; because if such were the proper construction noble Lords had been neglectful of their duty hitherto, inasmuch as they had allowed an act of Sir J. Colborne to lie upon their table uncondemned, unnoticed, for the last six weeks, that act being an act of attainder, and professedly founded on the authority of the act of this Session. Was it not clear that it was some new doubt, some new suggestion, that had occurred to them and inclined them to raise the question as to whether those powers had been legally exercised? He claimed for Lord Durham the power which had been exercised by Sir John Colborne; and he would say, that power to that extent was necessary to the peace of Canada, and, being so, he trusted that the noble Earl would continue undauntedly and fearlessly to exercise it when necessary to put down the efforts of those who were guilty of resistance to the lawful Government. Sir John Colborne acted on this principle, and, as he would maintain, most properly; but he desired to be told whether he was considered to have acted in conformity with the law or not. He was confident that he had; and if he heard a declaration to that effect from noble Lords, and Lord Durham was allowed the same power, he should be satisfied; and that much in behalf not of the Government, but of the public and of the interests of the people of Canada, he had a right to expect.
said, there could be no doubt, that whatever power Sir John Colborne possessed Lord Durham could legally exercise. As regarded the question asked by the noble Marquess, he did not know whether it was addressed to himself, to the noble Duke, the noble Baron, or the noble and learned Lord opposite; but if the noble Marquess intended to ask him to state his opinion as to whether Sir John Colborne had exceeded his powers under the act or not, he begged to say, that the noble Marquess put a question to him such as he did not feel himself at liberty to answer.
§ The Marquess of Lansdowne
It was on record, that Sir John Colborne had used these powers, and he believed the majority of their Lordships would say, 1139 that he had done no more than was right. But if there existed doubts as to the legality of these acts, however proper they were in any other respect—if by the exercise of those powers he had rendered himself liable to action or impeachment, that, surely, was not a state in which the House ought to leave the question, either as regarded Sir J. Colborne or any one that succeeded him.
God forbid he should say, that Sir John Colborne was liable to impeachment or action. Whatever opinion he gave, neither Sir John Colborne nor the Earl of Durham would be any the better for it, for still they must act on their own responsibility.
The Marquess of Clanricarde
could see nothing calling for animadversion in the conduct of the Earl of Durham, except the fact of his having sent the offending party to the island of Bermuda, an act which was admitted on all hands to have been inconsiderate. But if Lord Durham had done anything illegal in the other acts of attainder, he conceived, that Sir J. Colborne was equally liable to that imputation.
The Earl of Wicklow
observed, that it had been proved to demonstration in the course of last night's discussion, that these acts of attainder by Lord Durham had taken place in a manner totally at variance with the institutions of the country which he was sent to govern. He had to accuse the noble Viscount opposite of not doing that upon the previous night which, upon further consideration, the wisdom of his Cabinet had judged to be proper. The responsibility in this matter, therefore, rested entirely with that noble Viscount. He was of opinion, that the discussion of the previous evening would raise the character of their Lordships with the country, and prove that they were most careful guardians of the interests of the empire at large.
§ The Lord Chancellor
said, the construction put on the act by his noble and learned Friend was never put on it till now. And suppose that were a right construction, what would be the consequence? It would be this, that the noble Earl would not have it in his power to alter any act of Great Britain, or of the United Kingdom. Nay, an act of attainder was contrary to law. However necessary it might be considered to the peace of Canada, he could not issue an 1140 act of attainder, neither could he suspend the Habeas Corpus Act. He could do neither of these things, because he could not depart from the criminal law as administered in any county in England. All that was asked of the noble Lords was, that they would grant those powers which they thought the Governor-general ought to possess. If the limited construction now put on the act by his noble and learned Friend had been put upon it during its progress through their Lordships' House, would they not have objected to its passing in that shape. Those noble Lords who objected to the powers conferred by the act, of course would not favour a declaratory act to define what those powers were; but those who thought the powers which it was believed the act gave when it was under consideration, could not possibly object to any amendments that were necessary to remove all doubts. Whatever construction was put now upon the words introduced by Sir William Follett, there could be no doubt of this—that a very different construction was put upon them when the bill passed the Commons from that contended for by his noble and learned friend and others.
said, that he had retained, as singular historical documents, the Canada Government Bill, by which such extensive powers were conferred upon the Earl of Durham, in the shape in which it had originally passed the House of Commons, and in the shape in which it had afterwards received the Royal assent. These documents presented a most remarkable contrast to each other. He would not say, that the one exhibited the beauty of the god, and the other, the deformity of the satyr, but he was positive, that so striking a contrast had never before been witnessed. It was said, that the ordinances which had been issued by Sir John Colborne and the Earl of Durham were to the same effect. Now, he was of quite an opposite opinion. Sir John Colborne's ordinances contained nothing more than a mere warning; whereas Lord Durham's ordinances contained a proclamation ordering transportation, without previous notice or time given. To have withdrawn that illegal ordinance upon the previous evening would have been better both for the character of the Earl of Durham and of the head of her Majesty's Government.
§ Their Lordships went into Committee, and went through the bill.1141
§ The House resumed. On the bringing up the Report,
§ Viscount Melbourne
rose to propose an amendment to this effect:—Whereas it was provided by an act passed during this present Session of Parliament, that it should not be lawful for the Governor-general and Council of Lower Canada, by any law or ordinance, to repeal, suspend, or alter any provision of any act of the Parliament of Great Britain, or of the Parliament of the United Kingdom, or of any act of the Legislature of Lower Canada as now constituted, repealing or altering any such act of Parliament; and whereas doubts have arisen as to the meaning of the said proviso; be it, therefore, enacted that the said proviso shall not extend to prevent the Governor and Special Council of Lower Canada from passing such laws as may be necessary for the safety of the province, or from providing for the punishment of, or detaining in custody, persons who have been engaged in conspiracies against her Majesty's crown and dignity.
said, that these words gave a power to the full extent, as great as was conferred by the original bill in the House of Commons. In every stage, however, through which the bill passed, it received some modification; but by the amendment of the noble Viscount, it was proposed that the Governor should not be prohibited from taking such measures as should be necessary for the security of the province. That was in plain English exactly what was rendered by the Latin—caveat ne quid respublica detrimenti capiat, and it never was at any time the intention of Parliament that he should take that power. The original bill gave him power to do all acts that might be necessary to the good government of Canada, and the words now proposed by the noble Viscount, went beyond the original proposition of her Majesty's Government. He therefore trusted, that their Lordships would not agree to the amendment of the noble Viscount.
observed, that what his noble Friend opposite had said, in respect to this amendment was perfectly and literally true. It would enable the Governor of Lower Canada to do whatever he saw fit to do, and destroy a man behind his back by an act of attainder. All the Government wanted was to get something. [Lord Lyndhurst:—Why?] Oh, my noble and learned Friend knows why as well as I do. He knows what Governments are, and what governors are, and all they want is, while we are giving them 1142 a sort of rap, to get a plaster. They want to say to the Governor-general, "Although we have been obliged to disallow your ordinances, yet we have got you a great power."
The Earl of Mansfield
suggested a short act on the subject distinct from the present bill. The House could never agree to grant the Governor-general powers not given even by the original bill.
had never read of any such mode of proceeding in a bill for indemnity by way of letting the object of it down gently. When the illustrious ancestor of the noble Earl opposite (the Earl of Mansfield) drew up a bill of indemnity for Lord Chatham, Lord Chatham came down to the House and refused to accept the bill of indemnity, and said he would face his accusers. Lord Mansfield, however, told him, that if he did not accept the indemnity, he would immediately have a hundred actions brought against him, so Lord Chatham thought better of it and accepted the indemnity. The bill, however, did not contain anything but the provision for indemnity, and yet the wrath of Lord Chatham was quite as formidable as that of any other man either here or in Canada.
§ The Earl of Harrowby
was understood to say, that it appeared to him that the Government not having formed last night the determination which it had since taken of withdrawing these ordinances, it was impossible for the House, after the subject had been brought under their consideration, to avoid expressing an opinion upon it. The noble Viscount would have entirely blunted the dart which he supposed to have been launched at his Cabinet and Government, if he had taken the course which he had since adopted. Whatever, therefore, might be the results of the discussion which had ensued, they could not be laid at the door of those who had voted upon this question, but must be chargeable upon those who had forced them to vote. It appeared that if the bill passed as it was framed at present, the Governor-general of Canada would be left in a situation which would cramp his exercise of the powers with which he was invested to put down rebellion. He trusted, therefore, that some opportunity would be given 1143 before the bill passed, of pointing out what were the powers which he really possessed. Whether that should be done by a declaratory act or not, he could not pretend to say. He merely threw out the suggestion, whether there were not two powers which ought to be placed in the hands of the government of Canada, and whether the bill might not declare that the act of this Session was not intended to prevent the passing of such bills of attainder as were warranted by the ancient practice of the Parliament of England, or the suspension of the Habeas Corpus Act. This would, at the same time, avoid ambiguity, and the arbitrariness of the measure proposed by the noble Viscount.
thought that after the discussion which had taken place in that House, and the difference of opinion upon the construction of the act expressed by his noble and learned Friend opposite, by the noble and learned Lord on the woolsack, and the noble and learned Lord below him, their Lordships could not expect that any man fit to be a governor, would consent to govern Canada, unless the doubts which existed were cleared up. He could not do it if he had any respect for his own character, or any regard for the welfare of the persons whom he was to govern. He was, therefore, strongly in favour of an Act which should declare what the powers of the Governor-general and council really were. However, with the means which existed of applying to the Parliament of Great Britain, he did not think that any colonial Legislature ought to have the power of passing acts of attainder. The power of suspending the Habeas Corpus Act was of a different character, and one which the Government of Lower Canada certainly ought to possess at present. He understood, that it had been supposed, that the Government had not the power to suspend the Habeas Corpus Act, and therefore, they were obliged to have recourse to a stronger measure—the proclamation of martial law. What, therefore, he thought ought to satisfy the Government, was an explanation of the powers really vested in the Governor-general and Council of Lower Canada. He must, however, observe, that it was never intended that the Special Council should be illusory—a sort of sham. That, he repeated, was never intended by Parliament. It was the fault of her Majesty's Government, who ought to have selected a sufficient number 1144 of persons to form a proper and sufficient special council. But when they had united the Governor and the Council, and enabled him to absorb the Council, he must say with such a Governor-general, and such a Special Council, he would not give the Government of Lower Canada the power of suspending the Habeas Corpus Act without a provision was made that a real Special Council should be appointed.
§ The Duke of Wellington
said, that it was absolutely impossible to enter into this question without taking into consideration the act of the present Session, and considering it in all its parts, and reviewing the acts of the Governor-general of Canada, and making provision for them all. He therefore acquiesced in the withdrawal of the motion by the noble Viscount, which in his opinion was wise and proper. In the course of the discussion last night various opinions were given by high legal authorities on the construction of certain clauses of the Canada Government Bill. One opinion had been given by the noble and learned Lord opposite, and his noble and learned Friend behind him, and another by the noble and learned Lord on the woolsack. He would ask their Lordships, therefore, under these circumstances, and considering that there was nothing positive on the subject, excepting, that it was necessary to pass an Act of indemnity for those acts which were known to be illegal, to enter into a revision of the whole power and authority intrusted to the Governor-general of Canada, and to consider the acts of the Governor-general under the several provisions of the Act of this Session, and then to make a new law. Before he sat down, he earnestly recommended to the noble and learned Lord to print his bill after it had been amended in the report, and that the third reading should take place after the bill should have been printed.
§ The Marquess of Lansdowne
rose merely to say, that he thought the course proposed by the noble Duke was the most convenient that could be adopted; but it was very inconvenient that doubts had been thrown out at all. There had now been three days' discussion on this subject, during which doubts had been raised by high legal authorities in this House as to limitation of particular words introduced into the Act of the present Session by an hon. and learned Member of the other 1145 House of Parliament; and after those opinions had been expressed, was it not possible that doubts might arise in the mind of the Governor-general of Lower Canada, as to whether he and the Special Council had power to do that which had been done in Upper Canada, namely, the suspension by the legislature of that province of the habeas corpus? It was desirable that the noble Governor-general of Lower Canada should know the situation in which Sir John Colborne was placed, in reference to the course he had taken; and if he now acquiesced in the suggestion of the noble Duke opposite, of allowing this bill to pass in its present shape, it was because, although these general doubts had arisen, the attention of their Lordships had been particularly called to the proclamation issued, and the acts of attainder passed by Sir John Colborne, and yet no one noble and learned Lord had got up and suggested the expediency of an Act of Indemnity for Sir John Colborne. He therefore assumed that in those acts of Sir John Colborne there was nothing illegal, and therefore no noble Lord of any high authority had called upon Parliament to administer the remedy of a bill of indemnity. If Sir John Colborne's acts were contrary to law, their Lordships were doing an act of great injustice to that gallant officer by not including him in the bill of indemnity. He trusted, however, that this bill would go forth to Canada accompanied by the fact, that the attention of the House had been called to the acts of Sir John Colborne, and with that comment he thought it possible the measure would not be productive of that inconvenience which he had first anticipated.
repeated his objections to the noble Marquess who had just sat down, throwing hints to feel (as was said in the courts) the pulse of the House. The House had not had the acts of Sir John Colborne before it. Many noble Lords—his noble and learned Friend opposite (Lord Lyndhurst) for instance—had not seen a line of them, and what could mortal man, whether lawyer or layman, at present say more than that if Sir John Colborne's acts were lawful, he did not want a declaration of opinion upon them—if they were illegal, any declaration of opinion would not avail him a straw. At present the House was dealing with a bill of indemnity for acts done, of the illegality 1146 of which there existed no doubt. He heartily concurred with the noble Duke that nothing ought to be done by way of tack to the present bill. If the clause were added, this country and Canada would have a right to complain that new and most important powers, which ought to have been discussed on the second reading, were given in a late stage of the bill, and at a period of the Session when they could not be deliberately considered as they ought to be by either House of Parliament. The better course would be, therefore, to pass the bill of indemnity as it now stood, and if, on further consideration, the noble Viscount and his advisers thought it necessary to proceed further, let him to-morrow or Monday propose a separate measure for that purpose.
§ Clause withdrawn, bill to be read a third time on Monday next.