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permanent arrangements : and the Governor and Council are empowered to make such laws for the peace, welfare, and good government of Lower Canada, as the former legislature of Lower Canada, which is suspended by the act, might have made; but with these provisoes, or exceptions, amongst others, that they shall not impose any tax, nor alter any law respecting the constitution of the legislative council, or assembly; nor repeal, suspend, or alter any provision of any act of the parliament of Great Britain, or of the United Kingdom. The powers, therefore, of the new Governor and Council were manifestly and designedly made less than those of the suspended legislature, in more than one respect; and the last restriction bears forcibly upon the question which is under discussion.
The act of 14th Geo. III. C. 83, s. 11, is in these words: “. And, whereas, the certainty and lenity of the “o criminal law of England, and the benefits and advan"tages resulting from the use of it, have been sensibly "• felt by the inhabitants, from an experience of more “• than nine years, during which it has been uniformly “ administered ;' be it, therefore, further enacted, by the “ authority aforesaid, That the same shall continue to be “ administered, and shall be observed as law in the pro“ vince of Quebec, as well in the description and quality “ of the offence, as in the method of prosecution and trial ; " and the punishments and forfeitures thereby inflicted to “ the exclusion of every other rule of criminal law, or “ mode of proceeding thereon, which did or might prevail “ in the said Province before the year of our Lord one “ thousand seven hundred and sixty-four; any thing in " this act to the contrary thereof, in any respect, notwith“ standing; subject, nevertheless, to such alterations and “ amendments as the Governor, Lieutenant-Governor, or “ Commander-in-Chief for the time being, by and with “ the advice and consent of the legislative council of the “ said Province, hereafter to be appointed, shall, from time “ to time, cause to be made therein, in manner herein“ after directed.”
Now, whatever may have been the powers of the legislature of Lower Canada, as it stood before the 1 Vict. c. 9, in relation to acts of the imperial parliament, it is quite certain that the Governor and Council, which have been substituted for it, are, by the last proviso in the third section of the act which created them, restricted from suspending the provision which has been quoted above from 14 Geo. III. c. 83, s. 11. An amendment of any part of the English criminal law, or an alteration of it for the better adaptation of it to the circumstances of Lower Canada, would not be a repeal, or suspension, or unlawful alteration of the 14 Geo. III. c. 83, s. 11, because the whole section must be construed together, and the latter part of it contemplates and licenses such amendments and alterations as these. But a summary sentence of banishment against certain individuals, though it be made by a legislative body, cannot, without mockery, be called a law : it is a decree for the suspension of the law, and of that provision of the 14 Geo. III. c. 83, s. 11, by which, subject only to legislative amendments, the English criminal law was assured to the inhabitants of Lower Canada. But such a suspension is forbidden by the provision in the 1st Vict. c. 9, s. 111, and is therefore illegal.
The illegality of the ordinance, then, as to Papineau and the fifteen others who are associated with him in it, was manifest in three different ways. It was an enactment such as could not have been made even by the imperial parliament itself, without a violation of all the usages of parliament. It was an enactment such as the legislature of Lower Canada never did make, and a decree such as it had been held by the King in Council to be incapable of making. It was a suspension of a provision of an act of parliament which the Governor and Council of Lower Canada are prohibited from suspending, by an express proviso in the act by which they were created.
Fortunate it is, both for Lord Durham himself and for her Majesty's Ministers, that by proceedings in the British parliament, howsoever marked with confusion and error, the illegality of the ordinance has been declared, and that it has been disallowed by the Crown. It would have been better, no doubt, if there had never been any transgression of the limits of power ; but the utmost mischief which can now be consequent upon this, is as nothing compared with what would have followed from a determination to act upon the ordinance,* or from a successful assertion of its being lawful for our colonial legislatures to assume to themselves the judicial power, and to exercise it by bills of pains and penalties and attainder, with a disregard of all judicial forms and principles. Lord Melbourne, in more instances than one, has experienced that sort of good luck which attaches itself to honest purposes ; and it never happened to him more signally than when Lord Brougham, not moved, perhaps, by any eager desire to do the Prime Minister a kindness, and even in spite of his reluctance and remonstrances, cut away from the vessel of which he stands at the helm, the weight of this ordinance.
* The transportation to Bermuda, for which an indemnity has been provided, may, for any thing which appears to the contrary, have been a regular conditional pardon. See the 15th ordinance of Sir J. Colborne, quoted above, and the 6 Geo. IV. c. 69, s. 4.
MONDAY, 1 OCTOBER, 1838.
I. IRELAND. P. 169.
“A mighty maze, but not without a plan.”
No. VII. will be published on the First Monday in November.
W. H. DALTON, 23 COCKSPUR STREET;
JEFFERY AND SON, 4 PALL MALL;
RIDGWAY, 169 PICCADILLY.