House, but as it appeared from the discus- | of the practice it sanctioned. As Governsion in another place that it might excitement must be convinced of the pernicious great jealousy amongst the curates origi- consequences of the practice, and as two nally appointed, he should support its

omission.

The House divided, on Mr. Hawes' motion, Ayes 26; Noes 46;-Majority 20 List of the AYES.

years' warning had been given, with a clear understanding that no further indulgence would be granted, there was no reason for this Bill. He moved, that it be committed that day three months.

Mr. O'Connell supported the bill. There had been ten or eleven divisions on the bill already; and he thought the House ought not to countenance the system of opposition pursued by the right hon. Gentleman in regard to this bill. A ComM.mittee of that House had reported in favour

of the grocers, and when it was proposed to take from them the privilege of selling spirits, a deputation from that body had satisfied the Government of the injustice of such a proceeding. The grocers in Dublin might be prepared for terminating their retail trade in spirits, but in the country towns an immediate prohibition would be productive of ruin to many, as they were not aware that such a measure All they wanted was even contemplated.

was one year more, to enable them to take their capital out of this branch of their trade, and to dispose of the stock on hand. He might mention to the House, that not a single grocer had lost his licence for misconduct, and he did therefore hope, that they would consent to allow the bill to proceed.

Mr. Lucas would give his most determined opposition to the measure, as he believed the mischiefs of the system of permitting grocers to sell spirits could not be got rid of in any other way than by throwing out the bill. The hon. and learned Member for Dublin had stated, that no grocer had lost his licence for misconduct, but it was impossible to find the grocers guilty of improper conduct, because they had not the same power over them as over the keepers of public-houses.

Sir W. Somerville would give his vote in favour of going into Committee upon the bill, because he wished the grocers to have an opportunity of disposing of their stock; but he thought the system of permitting grocers to sell spirits ought to be put an end to.

The House divided. Ayes 35; Noes 25; -Majority 10.

Howard, P. H.
Lushington, C.
Lynch, A. H.

Macleod, R.

Maule, W. H.
Morpeth, Lord
Morris, D.

Somerville, Sir W. M. make general laws for the good goven

Stock, Dr.
Thornely, T.
Townly, R. G.
Vigors, N. A.
Wallace, R.

Wyse, T.

Muskett, G. A.

O'Connell, D.

O'Connell, J.

O'Connell, M.

Yates, J. A.

TELLERS.

O'Connell, M, J.
Pryme, G.

List of the NOES.

ment and welfare of the colony; but, from the beginning to the end of the bill by which he was intrusted with this power, there was a grand exception-which exception tied up the Governor of Canada from altering any act of the British Parliament. Now, in the very outset he found, that one of the recently-issued ordinances contravened the provisions of the 7th of William 3rd, " for the trial of all treasonable offences." If Lord Durham had a right to dispense with that act

-if he had a right under the powers which had been granted to him, to condemn in every case as traitors, men against whom no witness had been examined, into whose alleged offence no inquiry had been made-if he could do this, setting at nought all those prudent and salutary safeguards which the law had provided for accused parties, then there was nothing to prevent him from inter fering with any other law or enactment of the Parliament of England. It might be

Bill went through a Committee. The alleged, that the parties thus proclaimed

House resumed.

HOUSE OF LORDS,

Tuesday, August 7, 1838.

MINUTES.] Petitions presented. By the Archbishop of
CANTERBURY, from Weymouth, Lewes, and other places,

by the Duke of RICHMOND, from the Wesleyan Metho

dists of Edinburgh, Dalkeith, and Duke-street Chapel, Leeds, and by the Earl of CARLISLE, from Whitby,

Newark-on-Trent, and other places, against the Encouragement of Idolatrous Ceremonies in India.-By the the county of Buckingham, in favour of the Poor-law

Duke of RICHMOND, from the Guardians of a Union in

Amendment Act.

in

had absconded. But what was the course adopted by Parliament in the rebellion of 1715? What was the course pursued by Parliament with respect to the parties connected with the projected assassination of King William? The accused persons were absent, and Parliament passed a bill of attainder against them. But witnesses were examined to convict them, a solemo inquiry took place, and all the difference between that and a regular trial was, that they were convicted before Parliament, and not before the ordinary court. If the Governor of Canada in Council was THE EARL OF DURHAM'S ORDI-trusted with the power to make laws, they NANCES.] Lord Brougham said, that ought to be drawn up in a manner as pre having looked over the papers relative to cise, clear, definite, and intelligible, as if Canadian Affairs, which had been laid on they were the work of the Legislature the Table, he must reiterate what he had itself. But let their Lordships mark the before asserted, that the ordinances issued whole course of this marvellous proceed by the Earl of Durham were wholly illegal. ing. Lord Durham's ordinance did not He had on a former occasion declared, begin, as in the case of a bill of attainder, that to be his opinion, and he was now by declaring, "that A, B, and C, had perfectly convinced, that his opinion was been guilty of high treason;" but without It was quite clear, that any such allegation, it directed, that such though the power given to Lord Durham and such persons should be carried to was very great, yet, that no power had Bermuda, and if they left their place been bestowed on him by act of Parlia- | banishment, then they should be consi

a correct one.

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Canada, if they escaped from Bermuda; it was to attach to them if they were found at large anywhere. Even if they came to London they were held to be liable to punishment. He contended, that no state necessity could be shown for such an ordinance. It was a mere wanton display of power. It was melancholy to think, that the monstrous powers granted to the Governor of Canada should be used in such a manner. But what he had stated, sufficiently proved the recklessness of the way in which the noble Lord and his Council had exercised them. It was not possible, when such extensive powers were granted, to use them with too much care, and caution, and circumspection. But these ordinances manifested in the noble Earl no feeling of that description. It was no fault of his, that he felt it necessary to call their Lordships' attention to these matters. They were told, when it was proposed to grant extraordidinary powers to the Governor-general of Canada, and when the danger of granting such extraordinary powers pointed out and insisted on, that no mischief could result from such a measure, because all the proceedings of the Governor-general would be subjected to the observation and superintendence of Parliament. That such observation, scrutiny, and superintendence were most necessary, and were most clearly called for was now perfectly apparent. He should say nothing of twenty-four sentences having been passed on individuals contrary to a regulation of council in one day, but he must advert to the appalling fact of fourteen persons, and M. Papineau, making fifteen, being adjudged to suffer death, if they appeared in Canada, not one of those individuals having been previously tried. Such a proceeding was contrary to every principle of justice, and was opposed to the genius and spirit of English law, which humanely supposed every accused party to be innocent until he was proved to be guilty.

dered guilty of high treason. This was
prospective high treason-high treason,
not for any act committed in Canada, but
simply for leaving Bermuda. Such a
proceeding was opposed to the statute of
the 25th of Edward 3rd, which defined
what should be considered as high treason,
and limited the offence to very few cases
indeed. Again, there was another part
of the ordinance which called for especial
notice. Twelve or fourteen persons were
named as the murderers of lieutenant
Weir, and it was expressly stated in this
official document that nothing contained
in any proclamation of her Majesty should
be held to extend to the cases of those
persons. So, that if her Majesty issued a
proclamation of pardon (which she had a
right to do, unless the Governor of Canada
was viceroy over her Majesty and could
control her)-if she issued such a procla-
mation (which might be, for aught he
knew, the most wise and salutary course),
yet was it declared by the ordinance, that
nothing contained in any proclamation
issued by her Majesty should extend to
this particular offence. All this was
done, he supposed, under colour of the
coercion act. But what right did the
coercion act give to adopt such proceed-
ings as these. The coercion act did not
extend to Bermuda. But the Governor
of Canada assumed the power of transport-
ing to Bermuda, and of visiting with the
penalty of treason those who escaped from
their place of banishment. Lord Durham
he knew was not a lawyer, neither was
Sir C. Paget, who was, no doubt, a very
meritorious officer, and, therefore, they
ought to have been cautious in the fra-
ming and promulgating of ordinances.
But Lord Durham said, "Under all the
circumstances, I determined on sending
those persons to Bermuda" (" which,"
his Lordship might have added "I had
no power to do"), "where they could be
placed under a strict and severe surveil-
lance." Now, he would advise the Go-
vernor of Bermuda not to attempt to place
any of these people under a strict and
severe surveillance; for if he did, he would
render himself liable to an action for false
imprisonment. The Governor-general
might just as well have passed a law for
the exercise of this system of surveillance
towards those parties in the county of
Middlesex, or the city of Westminster.
The penalty, be it observed, was not con-
fined to the appearance of these people in

Lord Glenelg said, that with respect to the first ordinance to which the noble and learned Lord had alluded, and which had reference to transportation to Bermuda, if, as the noble and learned Lord asserted, it was illegal, it could not be of any avail. In looking at the whole of this question, the object for the House to consider was, the purpose for which this enlarged power was granted to the Earl of Durham, and

was

the effect which had been produced by the
mode in which it had been exercised.
That purpose unquestionably was to secure
the peace and tranquillity of Canada, and
to effect that object, regulations had been
passed to prevent the return of certain per-
sons to Canada, unless they gave security
for their future good conduct. There was
nothing in this incompatible with the ob-
ject to effect which Lord Durham went
out to Canada. His Lordship went out for
the pacification of that colony, and for the
purpose of closing as soon as possible
those scenes of distress, of strife, and of
contention, which had been so long ex-
hibited there. It was for that purpose that
Lord Durham proceeded to Canada; and
if he had issued ordinances which tended
to effect that purpose, he deserved praise,
and not censure. He repeated, that the
great point to be considered was, the ob-
ject to effect which Lord Durham was
armed with those powers; and he would
confidently assert, that in Canada, public
opinion was decidedly in favour of the
course which Lord Durham had adopted.
That noble Lord had to consider the situa-
tion of the prisoners in Lower Canada,
men who were guilty, or were supposed to
be guilty, of very high crimes. It was a
very delicate and difficult task for his
Lordship. He had to decide whether the
parties should be visited with the extremity
of a severe law, or be treated with cle-
mency and forbearance. He chose the
latter course, and gave to those who
pleaded guilty a sentence as lenient as the
circumstances warranted. This, he had
reason to know, from persons who came
from that country, had afforded the utmost
satisfaction to all parties. The difficulty
of the situation in which Lord Durham
was placed must be obvious to every per-
son who considered the state of Canada.
On one side parties were calling for severe
measures were demanding extreme pun-
ishment against the offenders, while, on
the other, many individuals were anxious
for an entire amnesty. Lord Durham
adopted a middle course, and when his
decision was announced, it gave general
satisfaction throughout the colony. With
respect to those persons who had absconded
from the province, whatever might be al-
leged on that point, there was no doubt
on his mind that acting on the principle of
prudence, the course which had been taken
He thought
that the course adopted by Lord Durham

was the wisest and the best.

was calculated to restore and to secure the peace and tranquillity of Canada. As to the second ordinance to which the noble and learned Lord had adverted, as contrary to the law of England, he supposed that every minute municipal regulation was not expected to be strictly and to the letter in accordance with that law, espe cially when such a state of things prevailed as that which Lord Durham had to encounter. He believed, that the proceed ings taken by Lord Durham were approved of by every reasonable, unbiassed, and dispassionate man in the colony; and he could not agree with the noble and learned Lord, great as his authority might be, when he declared that those proceedings were illegal.

and

Lord Brougham said, that all which the Earl of Durham wished to do he might have effected without breaking the law. If Lord Durham had said to parties accused or suspected, "I won't bring you to trial if you conduct yourselves properly," then he would have done legally for the peace and tranquillity of the colony, all which he was said to have done, but which he had done illegally. Lord Durham did not declare these to be traitors, but he said, "I shall send you to Bermuda, if you leave that island, you shall be adjudged guilty of high treason? But how could his lordship declare them guilty of high treason? What legal or justifiable right could he plead for doing so, when they never had been arraigned, when they never had been tried, when they never had been found guilty of that offence? Such a proceeding was never known even in the worst times of this country. Even then individuals were served with notice; they were informed of what they were accused; but the people designated in Lord Durham's ordinance were to be declared guilty of high treason, not for what they did in Canada-no, no, but for coming from Bermuda, where the Gover nor-general had no right to send them, and appearing in Canada. The noble Lord (Glenelg) asked, "Was it to be supposed, that Lord Durham and his council were not to have all the powers of the Legisla ture of Canada?" He denied, that Lord Durham had any such power. At all events he was clearly forbidden to alter any statute of the Parliament of England. If it were said, that the words of the Act enabled the noble Earl so to proceed, he must regard such an assertion as a mere

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quibble. Was he to be told, because the Was that consistent with the principles of words of the Act were so wide and com- English law? If her Majesty's Ministers prehensive with respect to the power of supposed so, he wished them joy of their issuing ordinances "for the peace, welfare, legal knowledge. Lord Durham was not, and good government of the province," he knew, a professional man; but he had that therefore Lord Durham was authorised a council, and he did complain that that to proceed as he had done? Would any council should have sanctioned those ordiman say, that this provision gave Lord nances. Lord Durham had appointed a Durham the right to hang individuals, or Special Council: the Secretary to the to visit them with pains and penalties, Government was a lawyer; he was the they not having been brought to trial? legal adviser of the Special Council; and He should like to have the opinion of the he blamed that Council, who might have learned judges as to the construction availed themselves of legal assistance, that was to be placed on this Act. If more than he did the Earl of Durham, for one of them, even one of them, was the promulgation of those ordinances. He of opinion that Lord Durham's construc- knew perfectly well, that Lord Durham tion was a correct one, he should be was in a very peculiar situation; and he exceedingly surprised. He was quite con- felt for the difficulties in which the noble fident, that their Lordships never intended Earl was placed, as much as the noble to grant any such power. They had, Lord. But other and greater considerations however, to deal not with what their Lord- impelled him to bring this subject under the ships intended to do, but with what they consideration of their Lordships. He was actually did, by this act. And, if any one anxious for the best interests of that coof the judges who were in the habit of lony; he was anxious for the credit of the construing acts of Parliament, declared government of that colony; he was anxious that the Act in question authorised the for the peace and tranquillity of that colony; steps taken by the Governor-general of and he would say, that if any man were to Canada, then he would at once acknow-rack his brain for the purpose of disconledge that he was wrong, and would, of course, give up his argument. He had consulted some of the best lawyers in Westminster-hall on this point, and they did not express the shadow of a doubt on the subject. If the noble and learned Lord on the Woolsack declared, after the exception which he had pointed out, that these proceedings were legal, he would be ready to reconsider his opinion. But he must say, that he would not be ready on the authority of a Minister of the Crown, speaking under the pressure of debate, or on the authority of an equity lawyer, whose attention had not been turned to the consideration of questions of this nature, to forego or give up his deliberately- Viscount Melbourne admitted, that the formed opinion. What did the Act say, power to be exercised by the Earl of Durwith respect to the laws which Lord Dur-ham, in conjunction with his council, that ham and his council were empowered to council to be appointed by him, was of an make? It expressly set forth, "Nor shall extraordinary and most extensive nature. it be lawful by any such law or ordinance But their Lordships would consider, in to repeal, suspend, or alter, any provision examining this subject, that the circumany act of the Parliament of England." stances which called for that power, and Now, though the Earl of Durham and his under which it was granted, were also of council could not repeal the Act of Ed- a very extraordinary character. He asked ward the 3rd, or the Act of William the 1st, them, to consider the situation and ciryet they seemed to think, that they might cumstances of the colony; he called upon arrive at the same end by a different road them to reflect on the difficulties with -namely, by making in each particular which Lord Durham had to contend, and man's case a law contrary to those statutes. to recollect what he had stated on a forVOL, XLIV. { {Neries} 2 L

declar

of

tenting, and not contenting, a colony, for the purpose of undoing all which Lord Durham had been commissioned to do, he could not have hit upon a more effectual scheme, or a more certain plan for accomplishing that purpose, and for prostrating all those hopes and expectations which had been held out of tranquillizing Canada, than by making and publishing those most obnoxious ordinances which bore the impress of ignorance, of haste, of a total neglect of what was lawful, and of an anxious disposition to do that, for the doing of which not one particle of law, or of justice, or of equity, could be pleaded.