The Sun.
London, England, 1838-08-08 00:00:00

erson principallyconcerned in that affairh,zd absented birnself
from the country, he had nevertheless had his guilt proved;
witnesses were examined to convict him, but it was before Par-
liament instead of the Court. So much for the legality of those
ordinances ; but if such excessive powers were to be exercised
by a Governor, at least he should take careto pen the laws which
he did make with such clearness and precision as to render them
perfectly intelligible. But let their Lordships mark the absur-
dity of those ordinances. They did not begin by declaring, as a
Bill of attainder would. that A, B, and C were guilty of high
treason, but that they should be carried to the island of Ber-
muda, and if they came away from there they should be held
to be guilty of high treason ; that was high treason in sus-
pense—( A laugh)—and those persons would not be guilty of
high treason unless they left the island of Bermuda ; so that in
fact the crime of leaving the island of Bermuda, was high trea-
son. That, however, was contrary to the statute of 25 Ed.
111., which fortunately limited the number of crimes constitut-
ing high treason to very few. One word more. Here was
this monstrous ordinance directed against 12 or 14 persons who
were named as guilty of the murder of Lieutenant Weir, and
it was therein especially declared that nothing in any pro-
clamation of her Majesty should extend, or be construed to
extend to those people ; so that if the Queen was advised
to issue a proclamation, which undoubtedly she had a right
to do, unless the Governor-General were to be Viceroy
over the Queen, extending her indulgence to those persons,
this ordinance and of the Governor-General and his Council
made it law in Canada that these 12 or 14 persons should not
derive the benefit of any such proclamation ; there was no
doubt that they meant "in the proclamation which was about
to be issued."—(" Hear," from Lord Glenelg.) Yes, but
then that was very slovenly legislation—( Hear, hear.
for the ordinance said, " any proclamation of her Majesty."
Now, this had been done under colour of the Coercion Act,
which contained an express exception prohibiting the Go-
vernor from altering or repealing any British Act of Parlia-
ment : but suppose there were no such exception, did
the Coercion Act extend to the West Indies and to the island
of Bermuda? It did not give him the slightest power to do
any one thing with regard to the island of Bermuda; and yet
the Noble Earl the Governor-General said, " Upon consul-
tation with Sir Charles Paget"—not a lawyer, but a very re-
spectable officer—" I determined on sending them to the
island of Bermuda"—which he had no right to do—" where
they could be placed under strict controul and surveillance."
Let the Governor of Bermuda beware how he attempted to
put under restraint any one of those persons, because he would
render himself liable to an action for false imprisonment.
There was another Act of Parliament—comparatively
of a trifling nature—which had, however, been violated
by an ordinance of the Noble Earl's Government. The
Governor of Canada said that if any person were found
tippling after nine o'cicck in any tavern •it should be
in the power of any Justice, not only to issue search warrants
to search taverns and boardinghouses, but to sentence the
offender to imprisonment, with hard labour, for two months,
the punishment in England being only a penalty of from ss.
to 40s. The next was a measure of humanity, and he was
only sorry that it had been so ill framed as to render it ridicu-
lous. The ordinance was, that If any person should be found
overloading, overdriving, or otherwise ill-treating any horse,
dog, or other animal—( Laughter)—probably it meant domes-
tic animals—but it applied to a hare or a rabbit—it applied to
a sheep or a hog—( Laughter)--and he supposed it was ill-
treating a sheep to take away its life.—(Loud laughter.) That
appeared very absurd, but it was a serious matter to have such
powers—so monstrous, so unconstitutional—exercised in so
reckless a manner—( Hear, hear)—for was it not a proof of
the reckless manner in which these powers had been employed?
If such powers were to be exercised at all it was impossible to
exercise them too cautiously or too sparingly ; it was impossible
for a Government possessed of so wide an authority to draw its
ordinances too carefully or too consistently with existing
laws, with each other, and with common sense ; and if
such carelessness continued to be displayed, something ought
to be done by way of instruction or Bill to curb those powers.
It was no fault of his that he had called attention to the man-
ner in which those extraordinary powers had been so uncon-
stitutionally exercised. He would pass over several other ex-
traordinary circumstances—as that of twenty-four persons
having been sentenced in one morning—only reminding their
Lordships that fourteen persons, Papineau making a fifteenth,
had been condemned to suffer death as traitors who had never
confessed one syllable, and every one of whom by the genius
of English law he had a right to suppose not guilty.
Lord GLENELG did not rise for the purpose of entering
into a general discussion of the subjects alluded to by the
Noble and Learned Lord • but lie could not help remarking
on the tone in which he had animadverted on the conduct
of the Earl of Durham. As to the first ordinance, however,
it must be admitted that, as the authority of that Noble Earl
did not extend to the Bermudas, that part of the ordinance
could not be of any avail.—( Hear, hear.) But the main ob-
ject for the House to consider was, the great purpose for
which the Earl of Durham had been sent to Canada; and,
keeping that in view, he believed that in the rules and regu-
lations which he-had already established, the Earl of Durham
had consulted the best interests of the province, for the ob-
ject of his mission was pacification. The Noble Earl had
been called upon to consider the cases of persons supposed to
be guilty of very high crimes, and it was a difficult task to
decide whether he should put in force the extreme powers of
the law or whether he should exercise his right of lenity.
He chose, however, to deal leniently with them ; and he took
the best course which he thought most lenient for those who
had confessed themselves guilty. Continual accounts were
received from that country stating that the course which the
Earl of Durham did take had produced great satisfac-
tion. Before that time parties had been very much di-
vided in that country. Some were anxious for violence and
extremity of punishment, whilst others were in favour of
a complete amnesty ; but when the Earl of Durham's
decision was announced, those differences were reconciled, and
a general feeling of satisfaction prevailed. With regard to
the second ordinance, into the details of which he would not
follow the Noble and Learned Lord, he begged to say that it
was not to be supposed that every minute regulation of the
municipal law of this country was to be closely followed in the
ordinances of the Noble Earl. He admitted the incorrectness
of that part which related to the island of Bermuda, but, as to
the general illegality of those ordinances, he could not concur
in the opinion of the Noble and Learned Lord.
Lord BROUGHAM said that the Noble Lord had entirely
mistaken his arguments; what he had urged was this—that
all the Noble Earl (Durham) could do by this ordinance
he might
hadmi ghutublay pveudwoenretwuistbend
outthanuyseillegal exercise:of his power.
Ho
and that was all the ordinance copuledreeeeffseactviey from Canada,
~ But he might
have made a bargain with those persons that he would not
bring them to trial if they would agree to banish themselves
to Bermuda; that was frequently done in Scotland, and no
one would have complained of the impropriety of such a
course. He knew not the state of feeling in that country, but
he could well imagine that one party might be satisfied with
the lenity of this ordinance, and the other party contented
with getting rid of the men against whom it was directed.
He begged to say that be had never objected to the lenity of
the punishment ; on the contrary, he objected to its severity ;
lie complained that these men had been subjectettwoams otrrueeththane
the Government had any authority to impose.
words of the Coercion Act were large ; but if before the mea-
sure had passed he had asked what was meant by giving Lord
Durham power to'make rules and regulations ".for the peace
and rod government of the province," and had saaidwtelriatwbays
that provision lie would be empowered to sentence a man
to death without trial, they would have replied instantly
that it was monstrous to suppose that any such p
intent ed to be given, and that the provision applied only
to general laws. If any one of the fifteen Learned Judges
should hesitate one instant as to the construction of that
Act of Parliament, he should be greatly surprised; but if
any one of those Judges could be found to say that this ordi.
nance was legal, under the exception which he was about to
read, he would at once give up his opinion and admit that he
knew nothing of the matt T. He had consulted the best
lawyers in Westminster Hellen the subject ; and amongst them
he found not a shadow of doubt on the subject. Even if his
Noble and Learned Friend on the Woolsack would say flu.t
it was legal—he would not say that en the authority of a Minis-
ter of the Crown under the pressure of debate—on the autho-
rity of an equity Judge with respect to a point of •criminal
law—he would at once give up his opinion; but he should be
very much astonished, and he should humbly ask him for his
reasons.'The exception was this—" Provided always that it shall
not be fawful by any such law or ordinance to repeal, sus-
pend, or alter any Act of the British Parliament." Then,
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felt for the law—he felt for the interestsy of the colony itself—
he felt for the credit of the Government—and, above all, he
se cwh trhg e, whicha nd hh ee
felt for the peace and prosperity of the empire. For they
might depend upon it, if the wit of man had been taxed to
devise a scheme for frustrating all their hopes of the Noble
Earl's Administration and rendering fruitless all their endea-
vours to establish tranquillity, a more effectual—a more rapidly
and suddenly effectual way could not be devised than by
making ordinances which on the face of them bore the impress
of ignorance, of entire neglect of what was lawful, and of
every disposition to do that which had the appearanee of
power, without paying any regard to the real exissence of that
power.—( Hear, hear.)
Viscount MELBOURNE said that it must strike any one
that this subject could not be discussed without constant
regard to the circumstances which led to the Act regarding
Canada—the commission of Lord Durham, and to those great
powers—the whole powers ,if the Legislature—to be exer-
cised by him, in conjunction with the Council, of which he
had the nomination and appointment; and before they came to
the conclusion that those powers had been exceeded, he im-
plored their Lordships to consider the circumstances in which
the Noble Lord was placed, the difficulty of the charge with
which he had been entrusted, and that he, being on the spot,
must be better acquainted with all the circumstances,
and better able to judge of the measures that were ne-
cessary or expedient, than their Lordships. He must say.
therefore, that it was not right, that it was not prudent, that it
was not just—he did not mean just merely towards Lord
Durham, but it was not just to themselves—it was not just to
the measures they had passed—it was not just to the interests
of this great empire—to consider these measures in such a
manner as to suffer themselves to be too much struck by any
anomaly which might appear on the face of them, or by any
differences from the practices of this country, in a settled state
of society, enjoying perfect tranquillity, and free from all