THE QUESTION OF CANADA RENEWED.
While parliament was sitting, Lord Durham sailed for his seat of government in Canada; and news arrived of his first acts in that province. Before his lordship had sailed, however, attacks were made upon him by the opposition, although they had exercised so much forbearance towards him at the outset of his mission.
The main attack on Lord Durham was opened in the house of lords on the 30th of July. Of the many important matters which Lord Durham found on his arrival in Canada unsettled, the disposal of the state prisoners was “by far the most delicate and dangerous.” This difficulty was increased by the restrictions which the home-government had thought it expedient to impose upon the governor-in-chief. These restrictions were contained in a letter written by Lord Glenelg, and were to this effect:—“From the very commencement of the late disturbances it has been, as your lordship is aware, the earnest desire of the government, that the utmost lenity compatible with the public safety should be exercised towards the insurgents. This is a principle inculcated in my various despatches to the authorities of Lower and Upper Canada, and it is a principle supported by considerations, not only of humanity, which cannot be in such cases admitted as the exclusive test of right conduct, but also of true policy, in reference to the well-being of the Canadas. You will, I am persuaded, enter into the views of the government on this subject; and in order to enable you to act with promptitude in this respect, you are relieved from the restrictions by which your predecessors were prevented, in case of treason, from giving an absolute pardon, or granting more than a respite, till the royal pleasure should be known. The power thus entrusted to you, of granting an amnesty or pardon in all cases, should, in the opinion of her majesty’s government, be exercised largely, but not entirely without exception. Independently of persons committed on charges of murder, to whose cases I have referred in my despatch of the 19th of March to Sir J. Colborne, as exceptions to the class of cases fit to be included in an amnesty, there must probably among the prisoners be some flagrant and prominent cases of delinquency, which it would not be just or advisable to comprehend in the general lenity. These cases it will be for you to select, in order that they may be brought to trial. In the constitution of the tribunals before which these prisoners are to be arraigned, and in the conduct of these trials, her majesty’s government are, after full deliberations, satisfied that there should be no further deviation from the established mode of legal procedure, than was sanctioned in my despatch to Sir J. Colborne. You will, therefore, bring them to trial in the usual manner before the courts of justice, as at present constituted for the trial of criminal offences. By the verdict of the ordinary juries, the fate of the prisoners must be decided.... Except in cases of murder, capital punishments should be avoided.” In dealing with this difficult subject Lord Durham availed himself of the assistance of his special council, the members of which were Vice-admiral Sir Charles Paget, Major-general Sir James Macdonnell, Colonel Couper, the governor’s military secretary, and principal aide-de-camp, Colonel Grey, and Mr. Charles Buller. The council met on the 18th of June; but it was not for the purposes of consultation that Lord Durham convened his board, for on the very day on which they were summoned to meet, appeared the celebrated ordinance, by which Lord Brougham not only accomplished his fall, but contrived that all the odium of the transaction should attach to the ministers themselves The nature of this ordinance will be clearly seen in the following debates which took place in both houses of parliament.
On the day before mentioned (30th July), when the attack was opened on Lord Durham in the upper house, Lord Brougham called the attention of the peers to the ordinance which had been passed by the noble governor of Canada, asserting that if carried into effect it would involve the crime of murder, the whole proceeding being at variance with law. Seven days after, Lord Brougham renewed the attack. No power, he said, to inflict pains and penalties upon individuals who had not been brought to trial, which that ordinance usurped, was conferred upon Lord Durham. He might make general laws for the good government of the colony, but subject to an exception which restrained him from altering any act of the British parliament. The ordinance in question contravened the provisions of the act 7th William III. “for the trial of treasonable offences;” and if Lord Durham had the power of dispensing with that act, he might condemn in every case as traitors men against whom no witnesses had been examined, and into whose alleged offences no inquiry had been made. Lord Glenelg remarked that Lord Durham had been placed in a situation of extreme difficulty: he had been solicited for extreme punishments on the one hand, and for a complete amnesty on the other; he had adopted a middle course, and when his decision was announced, it gave general satisfaction. Lord Brougham replied, that the noble earl might have accomplished all he was desirous of doing without a breach of the law. If he had said to parties accused or suspected, “I won’t bring you to trial, if you conduct yourselves properly,” he would have acted in a legal manner; but instead of doing this, he said, “I shall send you to Bermuda; and if you leave that island, I declare you guilty of high-treason.” Lord Melbourne deprecated such rigid criticism. He owned that the clause in the ordinance which related to Bermuda was an error on the part of Lord Durham, but he declared his belief that the whole of the remainder was perfectly legal, and warranted by the powers which parliament had committed to the noble governor of Canada. On the other hand Lord Ellenborough contended that all the penal provisions of the ordinance were illegal, and that the whole transaction was alien from the spirit of British jurisprudence. The Duke of Wellington said that he did not approve of the constant attacks on Lord Durham; but he really thought that steps should be taken to set the government of Canada right on proceedings which appeared to be illegal. Lord Brougham followed up the course he had taken on the following night by introducing a bill “for declaring the true intent and meaning of an act passed in the present session of parliament, intituled ‘An act to make temporary provisions for the government of Lower Canada,’ and for indemnifying those who have issued or acted under a certain ordinance made under colour of the said act.” This bill was read a first time in silence, but on the second reading on the 9th of August, Lord Brougham, by way of preface, propounded certain “canons of policy” by which the administration of the government of Lower Canada, during the suspension of the constitution ought, in his opinion, to have been directed. The bill introduced by Lord Brougham was so loosely framed that it afforded Lord Glenelg fair occasion for criticism. He availed himself of this opportunity of encountering his adversary with some effect. In conclusion, Lord Glenelg observed that the bill before the house was not a mere declaratory act, but a new law restricting the powers which the act of that session had already conferred upon the governor of Canada. It would be inexpedient and extraordinary, if, having invested Lord Durham with plenary authority, they were suddenly to abridge the powers which he had been led to suppose he possessed. A warm and acrimonious debate was maintained by the Earl of Ripon, the Duke of Wellington, and other opposition peers on the one hand, and Lord Melbourne and the lord chancellor on the other. The two ex-chancellors made themselves very remarkable on this occasion, Lord Brougham manifesting the utmost excitement, and the most bitter personal hostility to Lord Durham, to whose instrumentality he attributed his being overlooked by Lord Melbourne in his cabinet arrangements. Lord Lyndhurst did the excellent qualities of Lord Durham justice, and displayed a calmness in debate which contrasted strikingly with the irritability and personalities of Lord Brougham. The debate brought forcibly to light the disposition of Lord Durham to carry matters with a high hand in his new government, and his deficiency in that wariness and prudence so essential to a chief governor. After a few remarks from Lord Brougham, the bill was read a second time by a majority of fifty-four against thirty-six. On the following day Lord Melbourne informed the house that ministers had resolved to advise the queen to disallow of the whole ordinance. It was with the deepest regret and alarm that they had taken this course; nor was it without the greatest apprehension of the consequences that they had come to this determination. His lordship then intimated his approval of the indemnity bill, and that he should in a future stage of the proceedings move a clause explanatory of Sir William Follett’s proviso. Lord Brougham commended ministers for their “judicious, wise, politic, and most virtuous resolution.” The Duke of Wellington was by no means inclined to sanction Lord Melbourne’s proposed explanation of the proviso: Sir John Colborne had acted under the law as it stood, and must have found it sufficient for the purpose. The Marquis of Lansdowne remarked, that if the noble lords opposite acquiesced in the mode in which Sir John Colborne had exercised his authority; if they admitted that he had not exceeded the law, Lord Melbourne’s proposed clause would be unnecessary. That gentleman had been permitted to pass an act of attainder, which had lain unnoticed on the table for six weeks. Ministers only claimed for Lord Durham the power which was conceded to his predecessor: he desired to know whether Sir John Colborne had acted in conformity with the law. Lord Brougham replied, that Lord Durham’s powers were coextensive with those of Sir John Colborne; but as to whether or not that officer had exceeded the limits of his authority, he begged to say that he did not feel himself at liberty to answer. It is quite clear, indeed, that no noble lord could have answered this question satisfactorily; for if Lord Durham had been guilty in passing an act of attainder, the same guilt must have attached to Sir John Colborne; and if the one had been pronounced innocent, the other must have shared in his innocence. This question, which was one of the greatest importance, however, was allowed to pass over; and in the course of the evening Lord Melbourne moved the insertion of his explanatory clause, which, after reciting the proviso, proceeded to declare, that it should not extend to prevent the governor and council from passing such laws as might be necessary for the safety of the province, or from providing for the punishment or detention of persons engaged in conspiracies against the government. By the results of this clause, in fact, and the discussions which followed, Lord Brougham’s bill was stripped of its declaratory character, and reduced to a mere act of indemnity to the parties concerned in the transportation and detention of the Bermuda prisoners. In this mutilated condition Lord Brougham moved the third reading of the bill, which he did with evident reluctance, inasmuch as he rightly considered that its chief value lay in its declaratory character. “As I have been accidentally mixed up with this business,” said his lordship, “I have no hesitation in moving the third reading of the bill, as it now stands, although quite sensible that I am making that motion on the part of her majesty’s government.” On this occasion the lord-chief-justice Denman spoke on the question for the first time. His objections to the ordinance were directed to a gross violation of the constitution. As to the indemnity, he was entirely opposed to it; the passing of such bills was one of the most unjustifiable practices of parliament. Publie functionaries might be justified by their good intentions in overstepping the law; but parliament had no right to say to the parties who had suffered by such excess of authority, “You can have no redress against those persons who have wronged you, because it is our pleasure to indemnify them.” “If indeed,” he continued, “parliament are of opinion that individuals, actuated by a good and upright intention, and only zealous for the public service, have broken the laws, let them indemnify those individuals out of the public purse, against the consequences of the legal proceedings that may be instituted; but let them not leave the injured party without a remedy.” The bill was finally read a third time, and passed in the lords.
Lord Brougham’s bill was introduced into the house of commons on the 13th of August, and read a first and second time without any discussion. On the following day, however, Lord John Russell brought the subject before the house. His lordship said it was his intention to submit to the house of commons a proposal which he made with extreme reluctance; namely, that they should assent to the bill as it came down from the lords without any amendment. He presumed that no objection would be made to the indemnity which it was the object of the bill to provide; and he then explained in what sense he understood the act for governing Canada. The discussion which ensued was similar in argument and spirit to the debates in the house of lords. The house went into committee on the bill. No amendments were introduced; and on the 15th of August Lord John Russell moved the third reading, which, after a short debate, was carried without a division.