Lords Sitting of 13 July 1840

MINUTES.
Bills. Read a first time:—Infant Education.— Read a third time:—Timber Ships; Arms (Ireland); Borough Watch Rates.
Petitions presented. By Lord Brougham, from places in Cheshire, against the Weaver Churches Bill.

ROYAL MESSAGE—REGENCY.
Viscount Melbourneannounced a message from her Majesty, which was read by the Lord Chancellor as follows: —
"VICTORIA R.
"The uncertainty of human life, and a deep sense of My duty to My people, render

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it incumbent upon Me to recommend to you to consider contingencies which may hereafter take place, and to make such provision as will, in any event, secure the exercise of the Royal authority.
"I shall be prepared to concur with you in those measures which may appear best calculated to maintain unimpaired the power and dignity of the Crown, and thereby to strengthen the securities which protect the rights and liberties of My people.
"V. R."
Message ordered to be taken into consideration on the following day.

ADMINISTRATION OF JUSTICE— EQUITY.
The report of the Administration of Justice Bill having been brought up,
Lord Broughamexpressed a hope that, at no distant time, some large and comprehensive measure would be introduced for expediting and simplifying equity business, not by taking away the judicial functions of that House, but by rendering them more efficient. He was of opinion that some improvement might be made in the judicial Committee of the privy council, which, however, had operated beneficially since the plan was devised in 1833. He thought, also, that it would be beneficial if a power were vested in the Court of Chancery, and the equity courts connected with it, to frame rules for the especial regulation of those courts, as to the time of meeting, the mode of pleading generally, and the mode of taking evidence. Such a power, properly exercised, would be of great benefit to the profession, and to the respective suitors also.
The Lord Chancellorapproved of the suggestions of his noble and learned Friend, which were well worthy of consideration.
Lord Ellenboroughwas of opinion, that the bill as it now stood, was a much better bill than it was before it was submitted to the Select Committee, and he, for one, would not object to the bill, because it did not contain all those provisions which theoretical reasoners might wish.
Report agreed to.

GOVERNMENT OF CANADA.
On the Order of the Day for the third reading of the Canada Government Bill (with amendments) being read,
The Duke of Wellingtonmerely rose to State to their Lordships that he still enter-
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tained the same opinion to which he had given expression upon the second reading of this bill, and that nothing that had passed since that occasion, had in the slightest degree tended to alter that opinion, notwithstanding the amendments which their Lordships had made in Committee. He honestly recommended their Lordships to allow this bill to go down for further consideration to the other House of Parliament. He thought it would be safe to have the opinion of the other House upon this measure, and he believed it would be prudent for her Majesty's servants to adopt that course. With respect to the Canadas themselves, he thought he could see much that ought to be found fault with in relation to the question of local responsible governments. Their Lordships, if they could not have the opinion of the Legislature of Lower Canada, ought to have had the unbiassed opinion of the Legislature of Upper Canada, which assisted her Majesty in maintaining her government in that country, and in driving out what he might call the foreign enemy. They ought to have had that opinion, unbiassed by any influence or opposition; and measures ought fairly to have been taken to make known the real opinion of her Majesty's Government. A circumstance had come to his knowledge with respect to that transaction which was of a very curious nature. It appeared that some public officers of the Canadian Government had retired from Toronto upon the appearance of the despatch of the 14th of October, 1839, and had resigned their offices, because they could not support this measure of the Government. One of those persons was the Solicitor-general. But here it should be remarked that the despatch, though dated on the 14th of October, 1839, was not published until the 13th of March, 1840, and in the mean time there was a prospect of a general election. The new Solicitor-general notified his intention of standing for Toronto itself, and declared openly that he came forward upon the principle of "local responsible governments." That same person still remained Solicitor-general, notwithstanding his declaration, and the publication of the despatch of the 14th of October, 1839, which declared that those who differed from the Government must expect to lose their offices. What, then, must the public expect either in Canada or in this country

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under these circumstances? If a Solicitor-general, after making such declarations, neither retired nor was dismissed from his office, was it far From the truth to say that the question of "local responsible government" was secretly encouraged by the Government of the mother country, notwithstanding the declarations of Parliament, and the still more forcible announcements made in the public despatch to the Governor? Under these circumstances he must say not content to the third reading of this bill, at the same time recommending their Lordships to refer it to the other House for further consideration.
Lord Ellenboroughsaid, that his opinion upon this measure remained unaltered, and that all the consideration he had given to the subject, and all the discussions that had taken place upon it, had considerably strengthened and confirmed that opinion. He should, in a protest, place a permanent record of his disapproval of the measure upon the journals of their Lordships' House. He feared it was more calculated to lead to a separation between the mother country and the colonies than to bind them closer together. In the paper last printed for the consideration of their Lordships, and which ought to have been printed at the very commencement of these proceedings, it was stated that the opinion of her Majesty's Ministers had not been so decidedly expressed as to have had any material effect in setting the question of responsible government at rest. The despatch of the 14th of October, 1839, sent out by Lord J. Russell, which would have set that question at rest, had never been published; Mr. P. Thomson did not even acknowledge the receipt of it, although he acknowledged the receipt of a letter of the date of two days afterwards.
Viscount Melbourneregretted that the noble Duke and the noble Baron had taken their present course. The noble Duke had repeated his animadversions on his noble Friend for not publishing the despatch of the 16th of October, 1839, earlier than March last. His noble Friend had acted to the best of his judgment, and as he believed from sound policy, thinking that to be the safer course for the service and benefit of the state. He had often felt it extremely difficult to know what to do in similar cases. When an erroneous opinion took possession of the public mind, it was by no means an easy
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task to say what should be done. Sometimes it would be prudent to meet it With explanations and corrections; at other times it might be equally wise to let it pass over, to give it its way, and not to meet it with any violent opposition. It very much depended upon the strength of public feeling with regard to an erroneous opinion, whether it was dying away or increasing, what course should betaken. He thought that his noble Friend had acted upon that line of policy: having taken into view the state of Upper and Lower Canada, he had thought it best and most wise not to publish that despatch, or to state to the people of that country the full opinion of Government upon the subject, with which, allow him to say, they were fully and entirely acquainted, because it was perfectly well known there that the opinion of this country and this Government was entirely opposed to "independent responsible Government." He was sure that not only lately, but more than once during the last Session of Parliament, his noble Friend had stated his decided adherence to the opinions he had before expressed, and it could not be for the purpose of concealing those opinions from those who were the advocates of what was termed "responsible government," that his noble Friend did not think it fitting to have that despatch published, but that he thought, upon the fair exercise of his judgment and discretion, it would be better for the public welfare that it should not be published. He had been told by the noble Duke that a Solicitor-General had left Toronto, and given up his office, because he disapproved of the measures which at that time, were just brought forward by the Government. The fact was, that the Attorney-general resigned, and the Solicitor-general was offered the situation which had thus become vacant, and the offer of that office was accompanied by the communication of that letter of Lord J. Russell upon "responsible government," and that he concurred in the opinions contained in that despatch, and said that all he required was, that the Government should be administered according to the explanation of Lord J. Russell, and more in accordance with the general views and wishes of the community. He greatly lamented that the noble Duke should again express his disapprobation of the bill, and his distrust of its effects; and he only hoped and trusted that the anticipations and prophecies of the

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noble Duke would not be found hereafter to be characterized by the usual sagacity and foresight of the noble Duke.
The Duke of Wellingtonrepeated, that the person whom he had mentioned had declared himself in favour of responsible government in his electioneering speech. What he insisted upon was, that a full declaration, an authoritative declaration, should have been made, that the question of "independent responsible government" was totally inadmissible.
Lord Ellenborouyhsaid, the noble Viscount had now stated that the positive opinion of the Government had been conveyed to Canada by the despatch of the 14th of October, 1839. Mr. Thomson, however, although he was aware of the opinions of the Government, placed in the situation of Solicitor-general Mr. Baldwin, who was the advocate of responsible government.
The Earl of Riponsaid, that if this bill was to pass, their Lordships must all wish that its provisions should be carried into effect, and that the objects of it should be attained. He must say, however, that if the Government were to employ persons in high and responsible situations, who on great fundamental principles of government entertained opinions diametrically opposite to those which the Government had in the most public and solemn manner avowed, it was absolutely impossible that this measure should succeed. Did the Government mean, if Mr. Baldwin avowed that he held the opinions which had been attributed to him, to remove that gentleman, or call upon him to resign? If they did not, he would say that they betrayed their trust, and were the real authors of the separation of the colonies from this country.
Lord Broughamneed hardly state to their Lordships that he retained the opinions which he had already expressed upon the subject, and that his objections to the measure had not been removed. These objections chiefly referred to the want of consent on the part of the colonies, and he thought that this bill must lead to a separation between the colonies and the mother country. With the opinions which their Lordships knew he entertained, he should not lament this if he did not fear that when this event did take place it was most likely to be in ill blood. He could not help saying that, having attended to the different arguments and evidence relating
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to the controversy which had arisen oh the withholding of the despatch of the 14th of October, his opinion was, that if the province was led into error it was not much to be wondered at.
Viscount Melbournehad been most distinctly given to understand, that Mr. Baldwin had declared, previously to his accepting office, that he adopted the idea conveyed by the words "responsible government" precisely in the sense used by the noble Lord, the Secretary for the Colonies, and that he did not wish for responsible government in the sense employed by the noble Duke. As to the conduct of his right hon. Friend, the Governor-general, in not putting forward the despatch of the 14th of October, and whether he had acted wisely, and for the service of the country, much difference of opinion might exist on that point. It had always been a question which led to much difference of opinion between his noble and learned Friend and himself, when an erroneous impression had taken possession of the popular mind, as to the best course which could be pursued. His noble and learned Friend, with the high and commanding energy which distinguished his character, was always for stemming and facing popular opinion; he, on the other hand, leaning to the course of policy for which his talents fitted him, was rather inclined to let it slip by. In fact, he did not know any question more difficult to decide than this—whether it was the wiser plan to meet popular error in the front, or to let it flow on and spend its force. It appeared to him, that the Governor-general must be in a better position to judge of the propriety of the course which he had to take than their Lordships could be, and the result had been favourable, for, as he understood from Sir G. Arthur, the feeling in favour of responsible government had, in a great measure, passed away.
Bill read a third time and passed.
The following protests were entered:
Protest of the Duke of Wellington against the third reading.
Dissentient;
1. Because the union of the two provinces of Upper and Lower Canada into one province, to be governed by one administration and legislature, is inconsistent with sound policy.
2. Because the territory contained in the two provinces is too extensive to be so governed with convenience.
3. Because the communications from one

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part of the country to others are very long and difficult; the difficulties whereof vary, not only in different localities and parts of the country, but in the same locality at different seasons of the year.
4. Because the expense which might be incurred to remedy the inconveniences and to overcome the difficulties of the communications at one season would not only be useless, but might be prejudicial, and render the communications impracticable at other seasons.
5. Because, even in the hypothesis that a central place is fixed upon as the metropolis and seat of Government of the United Province, and for the Assembly of the Legislature, still the communication with the distant parts of the United Province would require a journey of from 500 to 1,000 miles by land or by water, and in most cases by both.
6. Because the inhabitants of these provinces, having originally emigrated from different parts of the world, talk different languages, and have been governed, and have held their lands and possessions under laws and usages various in their principle and regulations, as are the countries from which they originally emigrated, and as are their respective languages.
7. Because portions of this mixed population profess to believe in not less than fifteen different systems or sections of Christian belief or opinion; the clergy of some of these being maintained by establishments, those of others not, the Roman Catholic clergy of French origin being maintained by an establishment, while the Roman Catholic clergy attached to the Roman Catholic population of British origin have no established maintenance, and the system of provision for the clergy of the churches of England and Scotland is still under discussion in Parliament.
8. Because these inhabitants of the two provinces, divided as they are in religious opinions, have no common interest, excepting the navigation of the river St. Lawrence, in the exclusive enjoyment of which they cannot protect themselves whether internally, within their own territory, or externally, but they must look for protection in the enjoyment of the same to the political influence and naval and military power of the British empire.
9. Because the legislative union of these provinces is not necessary in order to render them the source of great influence and power to the mother country.
10. Because the operations of the late war, terminated in the year 1815, by the treaty of Ghent, which were carried on with but little assistance from the mother country in regular troops, have demonstrated that these provinces are capable of defending themselves against all the efforts of their powerful neighbours, the United States.
11. Because the military operations in the recent insurrection and rebellion have tended to show that the military resources and qualities of the inhabitants of Upper Canada have
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not deteriorated since the late war in North America.
12. Because the late Lieutenant-governor of Upper Canada, Sir Francis Head, having, upon the breaking out of the rebellion in Lower Canada, in the year 1837, detached from Upper Canada all the regular forces therein stationed, relied upon the loyalty, gallantry, and exertions of the local troops, militia, and volunteers of the province of Upper Canada.
13. Because, with the aid of those under the command of the Speaker of the Legislative Assembly of Upper Canada, Colonel Sir Allan M'Nab, he first defeated the rebels in Upper Canada, and then aided in putting down the rebellion in Lower Canada, at the same time that he was carrying on operations in resistance to the invasion of the province under his Government by plunderers, marauders, and robbers from the United States, under the name of sympathisers in the supposed grievances of the inhabitants of the provinces of Upper and Lower Canada.
14. Because the Legislative union of the two provinces, although the subject of much literary and other discussion, had never been considered by the Legislature of Upper Canada, excepting on terms which could not be proposed, or by any competent authority in the Lower Province, excepting in the report of a late Governor-general.
15. Because the bill introduced into Parliament in the year 1839, having in view a legislative union of the two provinces of Upper and Lower Canada, was withdrawn before it was completed.
16. Because the Legislature of the province of Upper Canada which had co-operated with the Government under Sir Francis Head, and had enabled him, after getting the better of the insurrection in Upper Canada, to assist the Commander-in-chief of her Majesty's Forces in 1837 to put down the rebellion in the province of Lower Canada, was not fairly consulted upon the proposed measures for the legislative union of the two provinces.
17. Because a despatch, dated the 16th of October, 1839, having for its object the introduction into Upper Canada of new rules for the future administration of the patronage of the Government, and for the tenure of office, was made public at Toronto on some days previous to the assembly of the Legislature of Upper Canada, for the purpose of taking into consideration the proposed law for the legislative union of the two provinces, and the members of the two Chambers of the provincial Parliament of Upper Canada must have had reason to believe that Her Majesty's Government were anxious to carry through that particular measure; and that they would be exposed to all the consequences of opposition to the views of Her Majesty's Government, as communicated in the said despatch, if they should object to the bill proposed to them.
18. Because it is well known that there is

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in Upper Canada a large body of persons eager to obtain the establishment in Her Majesty's colonies in North America of local responsible Government, to which they had been encouraged to look by the report of the late Governor-general, the Earl of Durham, recently published.
19. Because these persons considered that the despatch of the 16th of October, 1839, then published, held out a prospect of the establishment of a local responsible government under the Government of the united provinces,
20. Because another despatch, dated 14th October, 1839, appears to have been sent to the Governor-general at the same time with that of the 16th October, 1339, in which despatch of the 14th October, 1839, Her Majesty's Secretary of State clearly explains the views of Her Majesty's Government upon the subject of, and against the concession of, local responsible government in the colonies.
21. Because this despatch was not published, nor its contents made known in Upper Canada during the session of the Legislature, for the consideration of the measure of the legislative union, although called for by the provincial Parliament, upon which call the Governor-general answered by the expression of "his regret that it was not in his power to communicate to the House of Assembly any despatches upon the subject referred to."
22. Because the Legislature of Upper Canada must have voted in favour of the measure proposed to them while under the influence of a sense of the intentions of Government, declared to be erroneous, in relation to the despatch of the 16th of October; and in total ignorance of the intentions of Her Majesty's Government, in respect to local responsible government in the colonies, as declared in the despatch from the Secretary of Slate to the Governor general, dated the 14th of October, which it appears that his Excellency had in his possession, during the discussions in the provincial Parliament of Upper Canada, on the measure of the legislative union of the two provinces.
23. Because it appears the French population of Lower Canada have generally declared against the legislative union of the two provinces.
24. Because the bill cannot be considered by any as giving facility to the administration of the government of the province of Canada by Her Majesty's officers, when united by virtue of its provisions; and security in the dominion to the Crown of the United Kingdom.
25. Because the difficulties existing in the government of the two provinces of Upper and Lower Canada under the provisions of the act of the 31st George III., which led to insurrection and rebellion, were the result of party spirit, excited and fomented by leaders in the Legislative Assembly in each province, acting in later times, in communication, concert, and
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co-operation with citizens of the bordering provinces of the United States.
26. Because the union into one Legislature of the discontented spirits heretofore existing in two separate Legislatures will not diminish, but will tend to augment, the difficulties attending the administration of the Government; particularly under the circumstances of the encouragement given to expect the establishment in the united province of a local responsible administration of Government.
27. Because a spirit had still been manifested in the adjoining provinces of the United States in recent acts of outrage upon the lives and property of Her Majesty's subjects on the frontier, and even within Her Majesty's dominions, which must tend to show in what light the spirit of opposition to Her Majesty's administration in the legislature of the united province will be viewed in the United States.
WELLINGTON.
Protest against the Rejection of the Amendment moved in Clause 12, to leave out the words "An equal number of."
1. Because it is the duty of Parliament, when it enacts the union of the Legislatures of Upper and Lower Canada, during the suspension of the Legislature of the latter province, to provide that such union shall take place on principles strictly just, to which it might be presumed that the Legislature of Lower Canada, if they acquiesced in the measure of union, would not unwillingly accede, and it could not be presumed that that Legislature would consent to the provision that Lower Canada having 700,000 inhabitants, and comprising the cities of Quebec and Montreal, should have no larger number of representatives in the united Legislature than Upper Canada, which has 400,000 inhabitants.
2. Because the measure affixing an equal number of representatives to two provinces so unequal, for the temporary end of outnumbering the French, tends to defeat the purpose of union, and to perpetuate the idea of disunion, while, if emigration should largely increase the English population in Upper Canada, it will tend to give the same undue weight to the French which it now gives to the English inhabitants of the united province.
ELLENBOROUGH.
Protest against the Rejection of the Amendments to Clause 18, and the two following Clauses.
1. Because the House having decided giving an equal number of representatives to Upper and Lower Canada, a measure which in itself appears to be unjust to Lower Canada, it is the more necessary to provide that the representation of that province shall be settled in a manner unexceptionable, and calculated to give satisfaction to the great majority of its inhabitants.
2. Because the act now regulating the representation of Lower Canada was only passed

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in 1829, and in the opinion of the Canada commissioners, "cannot justly be charged with unfairness;" and the proposed amendments would have left the representation of Lower Canada as it was then settled, with no other alteration than that which the necessary reduction of the total number of members for that province renders unavoidable.
3. Because the alterations in the representation of Lower Canada, contained in the bill, are partial in their character, having for their object still further indirectly to increase that disproportion between the representation of the English and French population of the provinces to be united, which is directly effected by the previous provision that the two provinces shall be represented by an equal number of members.
4. Because, if the French Canadians are to be deprived of representative government, it would be better to do it in a straightforward way than to attempt to establish a permanent system of government on the basis of what all mankind would regard as electoral frauds. It is not in North America that men can be cheated by an unreal semblance of representative government, or persuaded that they are outvoted, when, in fact, they are disfranchised.
ELLENBOROUGH.
Protest against the Third Reading.
1. Because the vast extent of the provinces to be united, the peculiar difficulty of communication between the several parts of those provinces, the dissimilar state of society in them requiring dissimilar laws, and the great amount of local and private, as well as of public business to be transacted by a legislature small in number, during a session necessarily short, combine to render it impossible that, under any circumstances, the provisions of the bill should afford a good government to the people of Canada.
2. Because the great majority of the inhabitants of Upper Canada, being sincerely loyal, that province, under a separate Legislature, and an honest executive government, discountenancing the disaffected and encouraging the loyal, might be expected to remain permanently connected with this country, and by its position and its resources, would afford the means of retaining possession of the other provinces, which, if Upper Canada be lost, it would be impracticable to preserve.
3. Because the bill, framed in a spirit of distrust of the French inhabitants of Lower Canada, yet gives very considerable power to their representatives, and while it tends to confirm their alleged disloyalty by the distrust it manifests, and by the bad government it creates, affords at the same time the means of constituting, by their coalition with the representatives of the disaffected in Upper Canada, a permanent majority in the Assembly hostile to the connexion with this country.
4. Because the bill, founded on a double
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error—that of undue distrust of the whole French population, and that of undue confidence in the whole population of British origin —while it gives to the former a representation inadequate to its number and to its wealth, has for its object to transfer in effect to the latter the whole legislative authority.
5. Because such legislative authority, exercised in the spirit in which it is bestowed, must permanently subject the whole French population to a rule practically worse, because partially and less enlightened, than that, which in consequence of recent events has been temporarily imposed upon it by Parliament.
6. Because it is unwise to show distrust, and yet to give power to the distrusted—to commit an injustice, and yet to afford the means of revenge; and while Parliament would be justified in taking all reasonable temporary security against suspected disloyalty, it should be its policy, as it is its duty, to extend its paternal care even to a disaffected people, and instead of confirming temporary alienation by permanent wrong, to endeavour to restore ancient loyalty by just and beneficent government.
7. Because an union between two vast and dissimilar provinces, imposed upon one in distrust of its loyalty, without its consent, and on conditions which it must deem unjust, and acquiesced in by the other from views of fiscal advantage and legislative ascendancy, contains within itself the elements of its own dissolution; and there is but too much reason to apprehend that, at no distant period, both provinces will seek a refuge from their incongruous connexion, and from the grievance of an impracticable government, in a separation from this country, to be effected only, under such circumstances, through the violent means of civil and of foreign war.
8. Because it is inconsistent with prudence to take a step which cannot be recalled under the temporary pressure of difficulties, and hastily to adopt a measure of which the proposers do not pretend to foresee the working, and which its opponents deem to tend directly to the loss of the Canadas, only because it is considered necessary "to do something" with respect to them.
9. Because it is not by such legislative union, but by institutions carefully adapted to local circumstances and social distinctions—above all, by the conferring of practical benefits, that the peaceful possession of those provinces is to be secured, by the establishment in Lower Canada of a pure administration of justice, by the grant of aid to Upper Canada for the completion of a ship canal which may connect the most remote parts of that province with the navigable portion of the St. Lawrence, and by enacting an equitable arrangement for the collection by both provinces of separate duties of customs on that river—measures essential to the well being and contentment of the Canadas, and calculated, in conjunction with the commercial favours they already enjoy, to place

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their connexion with this country upon the only solid foundation—a deep conviction that they derive advantages from that connexion which would be uattainable under any form of independent or of federal government.
ELLENBOROUGH.