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an obedient will and active desire to uphold them, and to give them an energetic operation.
At present there is such distraction both at home and in Canada, that there is a danger of our losing sight, not merely of those lines which mark the highways of summer life, but of the great marks and beacons which have been set up to guide us when the waters are abroad ; and it is with the single desire of pointing out “where we are,” and of tracing out some sound grounds for future proceedings, that the following suggestions and remarks are offered.
The best defence which can be made for the late Go.vernment of Lower Canada, is to admit that the Ordinance of the 28th June was a measure intended to produce the effect of a general amnesty to the French Canadians without offending the British party; and if the fault of the Canadian Government can be reduced to that of having disregarded what appeared to themselves to be mere forms of law, and of having mingled a little of the art of diplomacy with that of government, it were better that it should stand excused, and that the House of Lords should employ itself more worthily in the beginning of next session than in displaying to the world a distraction of councils, arising from the divisions of parties, and a confusion of ideas in the highest and most venerable body of the state, as to the law and constitution of the empire.
Whatever might have been, or ought to have been, the case, the late Government of Canada has produced the result of a general amnesty for treasonable offences committed prior to the 28th June. Let this, also, be unquestioned and ungrudged.
But that amnesty is the utmost that any who feel sympathy or compassion for the French Canadian party can reasonably expect to be extended to them as an indulgence, in consideration of the uncertain dealings with them since 1828, by which it may be felt that they were in some degree misled to the precipice down which they plunged.
They have had warning enough given to them, and sufficient room to escape, and opportunity for repentance. For treason or sedition, subsequent to June, the laws ought to be enforced.
Unhappily, occasion has already been given for the proclamation of martial law in the principal district of Lower Canada ; and, if newspapers could be supposed to report correctly the first proceedings of Sir John Colborne's Council, there might be reason to dread a disposition in it to make ordinances, as to the other districts of that province, as unconstitutional as that of the 28th June. It has been stated, that, by one Ordinance, the Council constituted by the Act of the 1st Victoria, c. 9, has attempted to delegate and transfer to Sir John Colborne alone the legislative power which, by the Imperial Parliament, has been vested in them conjointly with the Governor.
Such courses lead rapidly to universal anarchy; and it is scarcely to be supposed that there can be any other motive for resorting to them than the want of a general understanding of those rules of British law which, whenever they are understood, make such wild expedients as needless as they are pernicious.
There are three points on which it seems to be especially desirable, at this moment, that, instead of a general confusion of ideas, there should be a universal agreement : Martial Law; Habeas Corpus ; Trial by Jury.
1. The proclamation of martial law is nothing more than the announcement, from authority, that a certain portion of the dominions of the Crown is in a state of internal war, so that the military forces within it are obliged to conduct themselves according to the articles and usages of war, and according to those only. This necessarily supersedes the ordinary modes of conservation
of the peace, but does not suspend any other action of the municipal laws, except where they may interfere with military operations.
The predominance of martial law should end with the state of war: but must be publicly announced, and precisely fixed. No authority inferior to that of a competent Legislature can establish an intermediate or half-and-half state of things. It was in this respect, chiefly, that the Ordinance of the 28th July was of bad example. When martial law had been put an end to as a general measure, it was, in words, an unauthorised attempt to keep a portion of it in force against sixteen individuals. To many it may still appear to be unreasonable that, if a Governor or any higher executive authority has the power to proclaim martial law generally, the same power should not be able to apply it partially. But the whole liberties of the subject are dependent upon the rule of our Constitution, that it must be one thing or the other that in all parts of the dominions of the Crown, and at all times, every British subject should know whether he is living under martial or under municipal law. A Legislature, whether supreme or subordinate, but a Legislature alone, may, to the extent of its rightful powers, modify that municipal law: but nothing must be done or ordered to be done, by prerogative or executive power, in violation of the municipal law in a state of peace, or in any other state than such a state of war as may have made the proclamation of martial law necessary.
Thomas, Earl of Lancaster, being condemned at Pontefract, 15th Edward II. by martial law, his attain“ der was reversed 1st Edward III., because it was done “ in time of peace: and it is laid down that if a lieu"tenant or other that hath commission of martial author“ity, doth, in time of peace, hang or otherwise execute
any man by colour of martial law, this is murder : for “ it is against Magna Charta.”—1 Blackstone's Comm. 414. 2. It has been asserted, that the law in Lower Canada is in an inexplicable state; and the instance which has been most prominently adduced is, that whilst on the one hand it is now generally admitted that the act of the 1 Victoria, c. 9. did not justify the late Governor of Lower Canada in suspending as to sixteen persons the ordinary procedure of the penal laws, Sir John Colborne and his Council had suspended the law of Habeas Corpus before Lord Durham arrived in Canada, and have done so again since his departure.
There is nothing in this which is inexplicable.
The 1 Victoria, c. 9. says, that it shall not be lawful for the Governor in Council of Lower Canada to suspend any provision of any act of the Imperial Parliament; and the imperial statute of the 14 George III. c. 83, s. 11. enacted, that the criminal law of England should be observed as law in Canada, “ as well in the description “ and quality of the offence, as in the method of prosecu“ tion and trial, and the punishments and forfeitures thereby inflicted.”*
But these words, at the time, were held not to include the Habeas Corpus Act : and the right to have the benefit of that writ was imparted to the inhabitants of Lower Canada by a provincial ordinance, and was subsequently confirmed by a provincial statute.
Now the Governor and Council, under 1 Victoria, c. 9, are generally empowered to do whatever the provincial parliament could have done; and the provincial parliament, certainly, was competent to the repeal, alteration, or suspension, of a provincial act.
3. In consequence of the inflamed state of the province, and of the acquittal of the parties charged with the murder of Chartrand, there is a danger of the British party losing sight entirely of the trial by jury, and of renouncing it as utterly unfit, or even impracticable, in the present state of the country. This is a hasty and erroneous view of the matter.
* See Preamble, No. V. p. 163.
One of the least essential, though not unimportant parts of the trial by jury is, that the jurors are taken almost at haphazard from the mass of the people. But when circumstances are such as to require superior intelligence, it is a part of our institutions that a special jury should be formed; when local partiality is apprehended the venue is changed : and when it comes to a question, whether trial by jury shall exist at all, it would surely be better to have a special jury list formed, or to change the place of trial, than to discontinue the use of juries altogether. Nothing has yet occurred which ought to make us despair of its being possible to form lists of the educated and loyal inhabitants of Canada from which juries might be taken by lot, who, under the obligation of their oaths, would return verdicts according to the evidence.
The really essential principle of the trial by jury, and its chief, though it be only one of its many advantages, is, that it prevents fact and law from being huddled together, and, by dividing the judicial office, it doubles but separates the responsibility, leaving two distinct parties answerable: the one for a true verdict upon the facts according to the evidence, the other for an accurate application of the law to the proceedings and to the facts found : and if any where it should be impossible to have juries, it would be better even to have two judges, the one answerable for the facts, the other for the law,- than to commit to any one man or body of men the power
of judging both of law and fact in one undistinguishable