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custody, and that others had withdrawn from the pursuit of justice, and left the Province.
That eight of those who were in custody (naming them) had acknowledged their participation in the high treason, and submitted themselves to the will of her Majesty.
That sixteen others (naming them), against whom warrants for high treason had issued, had absconded from the Province, and withdrawn from the pursuit of justice.
That it was her Majesty's pleasure that no further proceedings should be had or taken against any persons whomsoever, on account of such treason or treasonable offences, save and except as thereinafter was provided.
It was therefore ordained, that it should be lawful for her Majesty to transport to the islands of Bermuda, during her pleasure, the eight persons who had acknowledged and submitted as before mentioned, and to subject them to such restraints in the same islands, as might be needful to prevent their return to Lower Canada.
And if any of them, or any of the sixteen persons against whom warrants for high treason had issued, and who had withdrawn themselves from the pursuit of justice as aforesaid, should, at any time, except by permission of the Governor-General, or other person administering the Government of Lower Canada, be found at large, or come within the said Province, they should be deemed and taken to be guilty of high treason; and, on conviction of being so found at large, or coming within the said Province without such permission, should suffer death accordingly.
Such of those persons as should receive such permission to return, upon giving security for good behaviour, should not thenceforth be subject to any penalty or prosecution whatever for any treason, or treasonable or seditious practices, by him or them at any time committed prior to the date of the ordinance.
The proclamation, which accompanied the ordinance, declared and directed, that, with the exception of the persons named in the ordinance, and whose cases were thereby provided for, no further proceedings should be had or taken against any persons whatsoever for any high treason, or offences of a treasonable nature, wherewith they were either charged or chargeable; and that, with the exception aforesaid, all persons in custody, and charged with treason or treasonable offences, and all persons who had withdrawn themselves from the pursuit of justice beyond the limits of the Province, should, upon giving security for their good behaviour, to be approved of by the Governor, be at liberty to return to their homes; and should remain wholly unmolested by reason of any high treason, or offence of a treasonable nature, in which they might have been concerned.
To understand the motives which dictated this ordinance and proclamation, and the effect which was intended to be given to them, it is necessary to advert more particularly to the two ordinances of Sir John Colborne, which have been before mentioned.
By the ordinance, cap. 15, it was enacted, that upon the petition of any person charged with high treason, before his arraignment, it should be lawful for the Governor to grant him a pardon, under the great seal of the Province, upon such terms and conditions as might appear proper; which pardon should have the same effect as an attainder for high treason, so far as regarded the forfeiture of his estate and property, real and personal : provided that in case the pardon should not be granted, no evidence should be given on any trial of any statement in the petition. And that, in case any person should be so pardoned, upon condition of being transported, or of banishing himself from the Province for life, or for any term of
term of years, and such person should return to the Province, he should be deemed guilty of felony, and suffer death; and that
the ordinance should not extend to persons who had fled, or were still absent from the Province under a charge of high treason, and for whose apprehension a reward had been offered.
By the other ordinance, cap. 19, it was enacted, that in case any indictment should be found against any person for treason, or treasonable practices, and the sheriff should return that he was not to be found, a proclamation should be published for not less than six weeks in the Gazette, calling upon the person to surrender himself by a day, not to be less than three calendar months from the first proclamation ; and if the person should not surrender himself, he should stand attainted of the crime set forth in the indictment, and should suffer and forfeit, as a person attainted of such crime ought by law to suffer and forfeit: provided, that if any person against whoni any such judgment of attainder should be entered, should, within three calendar months after entry of the judgment, surrender himself, and establish, by the oath of two credible witnesses, that he was prevented from surrendering, according to the proclamation, by absence beyond seas, sickness, or inevitable necessity, it should be lawful for the Court of King's Bench to reverse the attainder, and the person should be tried for the offence charged in the indictment against him, as if the attainder had not taken place.
These ordinances plainly enough threatened, at the least, transportation or banishment for life, and forfeiture of their property against some of those who had been implicated in the recent revolt in Lower Canada; and when it is observed, that the intention of the Governor-General's ordinance was to open the prison-doors and deliver every gaol in the Province, granting a general amnesty and free pardon to all but twenty-four of the hundreds of culprits who were in and out of prison; and at once to deliver even those twenty-four from the penalties of corruption of
blood, death, and forfeiture of property, and merely to subject eight of them to a residence in the Bermudas during pleasure ; and the other sixteen to a prohibition, during pleasure, from entering Lower Canada, leaving them at liberty in the meanwhile to go to England, or any other part of the empire or of the world -- which provisions, it was clear, must be meant to be followed up at no distant period by a pardon for these twenty-four also -it certainly cannot be denied that his Lordship’s inclinations were lenient and compassionate, and that the insurgents of Lower Canada had, in the main, good reason to have been satisfied, even though this ordinance contained a threat, that if those who, for the present, were prohibited from returning into Lower Canada should do so without permission, they should be dealt with as traitors, and put to death.
But, conceding that it may have been right to act with this degree of leniency, and admitting fully that this was, at all events, a point which it was almost necessary to leave to the discretion of the Governor and Council, it was of the highest importance in the circumstances of Lower Canada, and in relation to the whole colonial system of the empire, that, whatever was to be done whether it was mercy or punishment which was to be extended to the insurgents- it should have been done in a legal and constitutional manner. The only means by which we can hold our colonies, is a system of law; a liberal system, but a system well understood and well supported. It has been the disregard and abandonment of law, and of the ordinary rules of government, which has set the affairs of the Canadas afloat, and thrown them into confusion. The object which is now to be accomplished, is the re-establishment of order : and there cannot be any order without law. Lord Durham himself, shortly after his appointment, said in the House of Lords * very
* Thursday, 18th January, 1838.
gracefully, and beyond all doubt sincerely, that it would be his duty to see “ that the law was carried into execu“ tion,—that it was not set aside in the remotest cabin,
or in the most distant settlement, — to restore the su
premacy of the law." Greatly, therefore, did it behove. him to set the example of obedience to the law; to proceed soberly; and, even though he might not think his powers sufficiently extensive, not at once to overleap their bounds. By resolution, however, and firmness, and a little patience, all that he intended might have been accomplished without exceeding his powers. If it was thought that Sir John Colborne's ordinances would operate too harshly, they should have been modified. There might then have been a free pardon from the Crown to all but the 'twenty-four ; a conditional pardon, in regular form, to the eight who were sent to the Bermudas; and a proclamation, announcing that if the sixteen others refrained from coming within the Province for a certain period, petitions from them for conditional pardons would be entertained and laid before her Majesty.
But in the ordinance which was passed by the Governor and Council there is, apparently, an oblivion of all other law; even of that which was most recent, and most closely applicable to the subject in haud. Sir John Colborne's two ordinances, which have been mentioned above, are not repealed by any express words, but they appear to be disregarded or overlooked ; one of the consequences of which is, that if the new ordinance had not been disallowed by her Majesty, it would have been now scarcely possible to say what would have been the joint result or operation of the three ordinances. For instance, would the new ordinance, as to the eight persons sent to Bermuda, have operated as a conditional pardon under the 15th ordinance of Sir John Colborne ? and, if so, would their property have been forfeited ? Again, when it is said in the proclamation,