« הקודםהמשך »
that, excepting the proceedings directed by the accompanying ordinance, there shall be no proceedings of any sort on account of treason or treasonable practices theretofore committed, it seems that the Governor of · Lower Canada could only have had that particular Province in contemplation; and that it must have been for the moment forgotten that in Upper Canada or New Brunswick, or on the borders, or further within the United States, or in Paris, there might have been treasonable practices, for which, if the Governor-General, previous to the institution of any criminal proceedings and without a general and regular pardon from the Crown, could forbid any prosecutions in Lower Canada, he certainly could not forbid them in all the tribunals of the empire. Not to instance Mr. Papineau, then, what might have been the situation of Cote, or Robert Nelson, or Ryan, or others who have been accused of actually invading both provinces of Canada, and of organising forces in the United States, and endeavouring to rouse the American people to war with England, if, relying on Lord Durham's proclamation, they had been found at Kingston, or Toronto, or Frederickton, or Halifax, or even in London ?
This regardlessness, however, and this conflict or want of harmony with other laws, might perhaps have been cured by subsequent ordinances, or with the aid of the prerogative of the Crown, or an act of the imperial parliament; but the one incurable illegality-that which it was impossible for the imperial parliament, when its attention was once called to it, either to pass over or by the exertion of its own authority to uphold - was the enactment that Papineau, and fifteen others, if found within the Province, should be indicted for being within the Province; and, upon proof of that fact alone, should be adjudged guilty of high treason, and suffer death.
It does not answer any good purpose to say, that this penalty of treason and death was intended merely to frighten the French Canadian refugees, and keep them out of the Province, or to reconcile the opposite party to an ordinance which, in its real effect, was an act of mercy and amnesty to their adversaries, but that it never was meant to be carried into execution. In every instance of a disregard of law by a constituted authority, it is the evil precedent rather than the present injury; it is the damage done to the law, still more than that which falls on any individual, which is to be deplored. It would be ruinous, not to Lord Durham's government only, but to British authority, to acknowledge in Canada that the denunciation of death was a sham penalty. The imperial parliament, at any rate, could not take any such view of the matter. It could not treat the ordinance as 'a hoax, but was bound to proceed to the consideration of it as if it had been made in earnest, and really meant what it spoke : and if this was to be the mood in which the subject was to be approached, what was it possible for the Parliament to do with the ordinance but to condemn it; and, if necessary, to call upon the Crown to disallow it?
The most decisive test to which the matter could be brought was this,-Supposing merely a doubt to have been raised, in the first instance, whether the GovernorGeneral and Council had or had not exceeded their
powers, and the parliament to have been so much inclined to regard with favor the general scope or intention of the measure, as to have desired, if possible, to uphold and confirm the questionable ordinance, could the imperial parliament itself, after examining it, have enacted that which the Governor-General and Council had attempted to enact ?
It is certain that it could not, without exceeding the most excessive assumptions of penal authority which the British parliament has ever made :-without departing from and going beyond the utmost limits of those usages and precedents, a violation of which, by the parliament, is analogous to a violation of the laws by an individual. The most discreditable page of all the annals of parliament does not present an instance in which, without any confession, or any evidence, or any opportunity given for defence, private persons, liege subjects of the British crown, have, by act of parliament, been banished from their native soil under penalty of death.
But the Governor-General and his Council have not the powers of the imperial parliament: all that the most latitudinarian interpreters of the 1st Victoria, cap. 9, can contend for is, that they may make any law which the suspended legislature of Lower Canada might have made. In this phase of the argument, it resolves itself into the question, Whether the colonial legislature could have made a decree for the execution of sixteen men, if they should be found upon the soil of their birth, without giving them any opportunity of being heard against the decree?
It may seem superfluous to argue this, especially after the assertion that it could not be done according to any precedent or usage, even by the imperial parliament itself : but so much confusion has spread over all parts of this question, that it may be useful to point out the unsoundness of more than one of the suppositions which have been put forward.
Upon all the subordinate legislatures of the empire there are restrictions. If, in any case, there are not express restrictions, it follows of necessity that there are implied ones: for without some restrictions it is, in the nature of things, impossible that the subordinate legislatures could coexist with that which is supreme. The Crown in a colonial parliament cannot oppose itself to the Crown in the imperial parliament. There are some universal rights and principles of law, which being acknowledged by the imperial parliament, and inplied in all its transactions, none who by their birth are entitled to the plenary state and condition of British subjects, can be deprived of them in any part of the dominions of the Crown by any other authority than an act of the imperial parliament itself; if, indeed, by that. The terms in which these restrictions on the colonial legislatures have been usually expressed, where they are expressed, are, that they shall not make any
laws which are either contrary to reason or repugnant to the laws of the realm ; but sometimes these restrictions are not set forth in this way, but are involved in the terms whereby a power is granted to make “ laws for the good government” of the dependent territory.
In this paper, it is not meant to go into any lengthened or nice consideration of these limits of the authority of colonial legislatures, but merely to point out that there are limits; because, if there is any thing which the colonial legislature of Lower Canada could not have done, it will require no argument to shew that it could not have banished sixteen Canadians from the country of their birth under penalty of death, without allowing them an opportunity of being heard. This is no law, it is a sentence; and a sentence without trial. It is not merely an usurpation of the judicial authority, it is also an outrageous mode of exercising it.
But, even if there had been an observance of judicial forms, it would still have been illegal. The high court of the imperial parliament had originally, and it still, to some extent, retains a regular judicial authority and penal jurisdiction; and not only impeachments, but bills of attainder, and bills of pains and penalties, are relics and memorials of a more ample pre-existing state of this authority. But colonial legislatures never had, nor were, meant to have judicial authority; they are created for the express and particular purpose of making laws, and for that only ; and it is, and must be, one primary rule of the colonial system to keep the legislative and judicial powers throughout the colonies distinct. In Lower Canada this point had been decided. In 1814, and for some time afterwards, there were attempts, on the part of the Assembly, to impeach some officers of the crown before the legislative council; but the opinion of the judges of Lower Canada was called for by the Crown, and was pronounced and acted upon, that there was nothing in the constitution of the legislative council on which any judicial power could be founded, or from which it could be derived. These proceedings are referred to, and stated in the report of the commissioners who were sent to Lower Canada in 1835.
In the case, however, which is under consideration, the Governor-General in Council, who has been temporarily substituted for the assembly and legislative council, by one dash of legislative power, impeaches, tries, and sentences to banishment, under penalty of death, sixteen supposed offenders, who are never to hear of this proceeding having commenced in the council until it is over.
The legislature of Lower Canada, which was incapable of entertaining any impeachment against any single person, certainly could not have done, in one morning, to sixteen persons, more than it would have been lawful for it to have done by sixteen impeachments after a regular and technical process on each of them : but the present Governor and Council have done this; and yet it may be further affirmed, had not only not more, but have clearly not so much power as the suspended legislature.
It is attempted, indeed, perpetually to raise the impression that a dictatorial power, something beyond the powers of the suspended legislature, was imparted by the imperial parliament to the Governor-General in Council. But that assertion is in contradiction, not only to the words, but to the spirit of the 1 Vic. c. 9.
By the first section of that act, it is recited that temporary provision for the government of the Province is to be made, in order that the imperial parliament may make