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and had not latterly taken the trouble even to read the documents relating to them, which had been laid upon the tables of the two Houses. Lord Brougham, who brought the question as to the Ordinance before the House of Lords, was surprised, in the latter stages of the debate, by a reference of the President of the Council to the Ordinances of Sir John Colborne, * and not only acknowledged he had never seen them nor known of their existence, but declared it was unreasonable to expect he should have done so, and that Lord Lyndhurst was as little aware of them as he himself was.
Other Lords who had seen and read these Ordinances, had been so much hurried in effecting this operation, that it was repeatedly asserted in the House that one of them, which is, in fact, a law for shortening the process of outlawry, was a bill of attainder; and Ministers of the Crown, even whilst they admitted that the Ordinance of Lord Durham was in one respect illegal, persuaded themselves that it was due to the absent Governor General that they should plead before that House, which is the highest tribunal of law and justice in the empire, in behalf of his illegal act, and should ask the House to pass it over and allow it to remain in force! When at last they were reluctantly obliged to promise that the Crown, in accordance with the sense of the House, would disallow the Ordinance, the concession was made, and an Act of the Legislature was framed upon an unimportant ground, and the substantial illegality of the Ordinance was left out of sight and scarcely made known.
The most constitutional course would have been to have said at once, that after the matter had been brought before the House, and that many Peers had expressed their opinions respecting the Ordinance, it would be disrespectful not to admit that it was at least questionable whether, after the period of martial law had closed, an edict for putting subjects of the crown to death, without the opportunity of trial, was not beyond the powers which had been given by the Parliament to Lord Durham : but that it was manifest he had only wished to keep the most dangerous of the French Canadian leaders out of the province for a time, and that this might perhaps be accomplished in a lawful manner if the Parliament would give to the Queen in Council powers (which ought to have been given at first) for amending the Ordinances of the Governor in Council. That the Ministers of the Crown would promise the House that the Ordinance in question should be referred to the Judicial Committee of the Privy Council, and that if it should be reported illegal, such amendments should be made as the Crown, under the new powers which might be given to it, should be enabled to make, for the purpose of bringing the Ordinance into harmony with the law and constitution.
* See Preamble, No. V. p.154.
It is morally certain that the Duke of Wellington would have been satisfied with such a promise; and Lord Brougham could scarcely have opposed a reference to the Judicial Committee, of which he is at once the founder and the most conspicuous member.
Time would thus have been obtained and leisure for consideration, and for making apt and judicious amendments in the Ordinance, which scarcely could have failed to impart firmness and stability to the Government in Canada.
But all was hurry and uncertainty, and nothing was publicly done or proposed by any party beyond allowing Lord Brougham's* scarcely-needed Indemnity Bill to pass into a law. What was done by way of private instruction to the Governor General is not yet fully known; but the last week has declared to Europe how the instructions, whatever they may have been, were received : and it is strikingly characteristic of the present times that Lord Durham himself, and the English newspapers of all parties, and the American papers also, admit that the Governor of Canada acted unlawfully, but are, many of them, incensed against the Ministers of the Queen, because, when the House of Lords said that was unlawful which is now acknowledged to be unlawful, they, the ministers, did not resolve to abandon the service of her Majesty, unless the Parliament would consent that what was unlawful should pass for lawful. One publication affirms, that although there are no words to that effect, yet it is monstrous to suppose that the British Parliament did not mean impliedly to confer on Lord Durham the Athenian power of ostracism. When it is pointed out that men might have been sent unheard to the gallows, it is answered that the study of the law cramps the understanding; the distinction between having an opportunity of trial and having none is called special pleading: and halters are designated as technical difficulties.
* See Preamble, No. V. p. 165.
Lord Durham is on his return; and the Proclamation which is here subjoined, is his Precursor.
It is well that he returns. Some difficulties, no doubt, may attend his presence in England if he does not become calmer on the road; but not so much difficulty as these documents make it manifest would have arisen out of his remaining in North America in his October mood of mind. For himself, too, it is well. Lord Durham, at his proper level, may still stand high. But had he persisted in governing Canada in the spirit of his Proclamation, he must have ruined Canada and ruined himself.
General censure, however, shall be no further applied : and as the fairest way in which it is possible to treat this record of Lord Durham's government of Canada and of himself, it is subjoined in its entire ungarbled form, and the remarks it calls forth are appended to it as notes. If any one should unjustly suppose that these are dictated by feelings of hostility to Lord Durham, let it be recollected what is at stake in Canada; and not only in Canada,
but in the United Kingdom: for Lord Durham not only claims to have been made a despot by act of Parliament, but insists that the application of a despot is your only cure for disorders, of which, unhappily, symptoms shew themselves occcasionally on this, as well as on the other side of the Atlantic.
DURHAM. By his Excellency the Right Honourable John George, “ Earl of Durham, Viscount Lambton, &c., &c., “ Knight Grand Cross of the Most Honourable Mili
tary Order of the Bath, one of her Majesty's Most “ Honourable Privy Council, and Governor General, “ Vice Admiral, and Captain General of all her Ma
jesty's Provinces within, and adjacent to, the Conti“nent of North America, &c.
“ In conformity with one of its provisions, I have this day proclaimed the Act 1 and 2 Victoria, chap. 112, en“ titled 'An Act for indemnifying those who have issued “ or acted under certain parts of a certain Ordinance made “ under colour of an Act passed in the present session of “ Parliament, intituled •An Act to make temporary provi“sion for the government of Lower Canada.”'
“I have also to notify the disallowance by her Majesty “ of the Ordinance 2d Victoria, chapter 1, entitled 'An “ Ordinance to provide for the security of the province or of Lower Canada.'
“ I cannot perform these official duties without at the “ same time informing you, the people of British America, “ of the course which the measures of the Imperial Go
vernment and Legislature make it incumbent on me to pursue. The mystery which has heretofore too often,
during the progress of the most important affairs, con“ concealed from the people of these colonies the inten“ tions, the motives, and the very actions of their rulers,
appears to me to have been one of the main causes of " the numerous errors of the government and the general “ dissatisfaction of the people. Undesirable at any time, “such concealment on the part of one intrusted with the “ supreme authority in the present crisis of your affairs, “ would be most culpable and pernicious. With a people “ from whom I have had so many and such gratifying proofs of warm and confiding attachment, I can have
And my implicit reliance on your loyalty “ and good sense will justify me in making you acquainted with what it most imports you to know.
“ It is the more necessary for me thus to act, because, “ when I first entered upon this government, I explained " to you, in a Proclamation issued immediately on my
arrival on these shores, the nature of the powers vested “ in me, and the principles on which it was my intention “ to exercise them. Now, therefore, that I am about to “ return to England, I feel it to be my bounden duty to
state to you, as fully and as frankly, the reasons which “ have induced me to lay down powers rendered in" adequate to the carrying into effect those or any other
principles of government.” (1)
(1) Can Lord Durham adduce any instance in English history of a similar appeal to any “people” against the Imperial Government and Legislature, by a High Officer of State, still intrusted with a Commission from the Crown ? What is the justification for this unprecedented Proclamation, which is said to be derived from his lordship’s implicit reliance on the loyalty and good sense of the people of British America, whilst he speaks in the same document of the disaffection of the French Canadians—who are three-fourths of the whole population of Lower Canada, and one third of the whole people of British America - declares that there has not existed for a long time in Lower Canada any confidence in the impartial administration of justice in any political case; and, within a