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Les diagrammes suivants illustront la m6thode. 1 2 3 1 2 3 4 5 6 I 'mmm ^wpP""""iiPI I'i (j^*-^^~ LETTER TO VISCOUNT MELBOURNE ON THE ORDINANCE OF THE EARL OF DURHAM. By a commoner. fi LONDON : HENRY HOOPER. 13, PALL-MALL EAST, 1839. PI E $00 TO '§ SEP ^, LONDON: I'riiited by W. Clowes and Sons, 14, Charing Cross. LETTER. JMy Lord, The proceedings in the House of Lords at the close of the last Session, and the Act of your Lord- ship's Government in which those proceedings ended, have not ceased to be matter of importance, though other events have succeeded, and other questions arisen, to divert the feelings of the public, and for a time, perhaps, to engross its attention. Having watched those proceedings fiom the be- ginning, and having a distinct recollection of all that took place, I have chosen the opening of the present Session as a fit opportunity for recalling your Lord- ship's attention to the subject ; and 1 do so, because I find that a question which so materially affects the character of your Lordship's administration is still very imperfectly understood. Only a few months before the debate upon the Ordinance, the Earl of Durham had been invested with nnwrprs Tsrlii/»k t»rrk 'Ur.»r^ Ur.^,.^! J :i < • r~ Tiii^xj rrt- iiavc ixcaiu UCOCilUCU III : 6 the House of Lords as " enormous, despotic, and even hideous and portentous in their nature." **The extraordinary jurisdiction and authority con- ferred by the Bill," said Lord Brougham, "was intended to supply the absence of the suspended con- stitutional power by — I will not call it — although it has been called — dictatorial power, but power of a very extraordinary nature." In fact, the legislative and executive powers of the Province were for a time concentrated in the Governor -General. Objections were urged in both Houses to the crea- tion of such a power, and those objections were answered, and the creation of the power justified, by the distracted state of the colony, and the dangers which still threatened. At the same time the sup- porters of your Lordship's Government, who viewed with jealousy the suspension of all constitutional power, were reconciled to a temporary dictatorship by the personal confidence which they felt in Lord Durham. Invested, then, with this extraordinary power, the Governor-General proceeded to Canada, and the first difficulty he had to encounter upon his arrival in the Colony, was the disposal of the state prisoners. This was a prelinnnary step to the attainment of the objects for which his powers had been created ; a matter quite foreign to his mission, but left on his hands by his predecessor in the government. Some of the rebels hud fled, others were in custody ; the former had placed themselves beyond the reach of tlie law ; the latter, to avoid a trial, had consented to leave the country under sentence of transporta- tion. Against those who had fled, he passed an Act of temporary Banishment ; as to those who had con- sented to leave the country without trial or arraign- ment, he named Bermuda as the place to which they were to be conveyed. In this way Lord Durham endeavoured to accom- plish the first object he had in view of securing the peace and tranquillity of the Province, against the leaders of the late rebellion — " to provide," as he himself said, " for the present security of the Province by removing the most dangerc is disturbers of its peace." Not a drop of blood was shed, but the rebel chiefs were banished : and it was made a treasonable act to be at large within the Province without the per- mission of the Government. Such was the Ordinance of the Earl of Durham. And what, my Lord, was the success of this mea- sure in the Colony? Why, general acquiescence and approval ; it was approved even by those who had most suffered in their i)ersons and ])roperty during the recent troubles ; and Lord Glenelg might well say, in the debate upon this Ordinance, " that it had given universal satisfaction to all the parties con- cerned." The policy and justice of this exercise of "the extraordinary jurisdiction and authority conferred by the Bill," have been so fully and ably shown by a i J. § writer in the London and Westminster Review, that I sliall abstain from adding a word upon the s\d)ject. The success, then, corresponding with the sj)irit in which it was conceived, the Ordinance was trans- mitted for the approbation of the Queen's Govern- ment at home ; but even before it reaches tliis country, a violent outcry is raised in your Lordship's House against the " monstrous injustice and illegality " of this proceeding. It was described l^y Lord Brougham in the House of Lords " as an act which proved the desire to make a most wanton display of power.'' And having done this justice to the motives of Lord Durham, the noble Baron proceeded thus ; — " It is a Proclamation which if the Noble Earl pre- sumes to carry into effect he will be guilty of no less a crime than murder. So outrageous a violation of the law, — so abominable a violation of the laia^ — ought not to be suffered to continue for an hour ; I cannot conceive anything more monstrous than this, — a Proclamation by which the Governor-General pronounces that he is, under certain circumstances, prepared to commit a capitiil felony ; — the whole pro- ceeding is utterly at variance with the established law of this country. — The Noble Lord is running in the very teeth of the Act, and of every known law and usage in England."* * Mirror of Parliament, Sess. 1838, p. 6121. This report of the Debates is re'erred to throughout. 9 nv'iew, that e subject. tlie 8j)irit was truiis- s Ctovera- is country, ip's House gality " of the House »•,11 whether an English Court of Justice would set aside the execution of a power for mere excess ! Ask the lawyers in the House of Lords what they would do in such a case ? Would Lord Lyndliurst— nay, would Lord Brougham, sitting as y-iMmmmx •mm ^( g tll 'i i riril; i ln« r f 16 Chancellor, have set aside the execution on account of the excess, where that excess was clearly dis- tinguishable ? Let me refer your Lordship to an authority whicJi those Learned Lords will not dispute. " The execution of a power may be good in part and bad in part, and even in law an irregular eccecu- timi of a power will be supported, and not amount to no execution at all, and in many cases only the excess of a power will be void, the residue good. " The grounds and principle of all this is, that where there is a complete execution of a power, and something eoc abundanti added, which is improper, theie the execution shall be good, and only the ea^cess void ; but where not a complete execution of a power, where the boundaries between the excess and execu- tion are not distinguishable, it will be void. " If the Court can see the boundaries, it will be good for the execution of the power, and void as to the excess."* This, my Lord, is the law of England, as it was laid down by a Master of the Rolls in the reign of Queen Anne. He was sitting at the time for Lord Hard wick; and the judgment he then delivered has been considered a ruling authority ever since. * Alexander v. Alexander, ii. Ves. p. 640. — In arguing this case, that of Lord Conway was referred to, who had a power to make certain grants by one instrument, and he made several, some of which were not within the power; and though all were within the same instrument, they were treated as distinct, and separated by the Court. 17 jords will not i as distinct, and That learned Judge, with reference to the case before him, instead of setting aside the instrument by which the power had been executed, proceeded to consider if there was no other way to make it good, *' because the Court," he observed, "will strongly lean in favour of that side, if it can." What the Master of the Rolls in the reign of our present Gracious Queen might do, I will not venture to predict. His Lordship, while a Commoner, was wont to discourse much on state questions and the duties of Legislation. As a Peer, with hereditary privileges, his Lordship I observe, is silent; and he maintained his usual silence when this Ordinance was under discussion. His friends regret that, having now an opportunity of speaking with more authority, and therefore with more effect, he should be so ab- sorbed in the business of his Court, as to find no leisure for attending to his Parliamentary duties. Let us hope that, in his judicial capacity, he makes amends for this apparent neglect of duties which he knew so well how to describe. So uniform in its application is the maxim of English law to which I have referred, that there is no act, public or private, which it cannot reach, however tainted such act may be with illegality. Whether it be the execution of a power, or the grant of property ;* * " Where a good thing and a void thing are put together in tie same grant, the Common Law makes such a construction that the grant shall be good for that which is cood. smd void fnr that which is void."— Ley's Rep. p. 79. B i 18 the act of a subject or the act of the Sovereign; the order of a Justice of the Peace, or a judgment of the Queen's Bench — the maxim is equally applicable, and the law the same ; and while with a careful hand the law separates and rejects all that is added eoe abundantly it confirms and gives full effect to all that is legal. Strange indeed would it be, if a different prmciple prevailed where a power is conferred for public pur- poses, under the authority of the State. Suppose a Magistrate in issuing an order exceeds the limits of his jurisdiction, — a case tliat has frequently occurred, — how is the order treated by those who have power to review it on appeal ? Is it set aside altogether as illegal, or is it enforced so far as it is legal ? Ask the Chief Justice of the Queen's Bench ; and the same learned Judge will tell you, that if a judgment of his own Court were found erroneous for an excess of jurisdiction, and carried before a Court of Error, it would be treated on the same principle ; and in no case would a judgment be wholly set aside, where the Court of Error had the means of separating the excess. Upon this principle the House of Lords must have acted, if they had been sitting as a judicial assembly, to review the acts of the fifteen Judges ; but, sitting as a deliberative assembly, to review the acts of Lord Durham, with much talk of justice and law, neither law nor justice prevailed. If your Lordship should desire any further illustra- e excess. rtlier illustra- 19 tions of the legal principles which ought to have guided you on this occasion, and which \^'ould have averted all the mischief you predicted, I refer you to those books of constitutional law which treat of the Prero- gative of the Crown. There you may see what is the legal operation of the Prerogative, where the Sove- reign exceeds the limits of his powers: and should the Queen be ever advised, in the exercise of her Pre- rogative, to go beyond the strict confines of Consti- tutional Law, your Lordship will learn that the Courts of Law will do that which the Minister omitted to do ; and, setting aside the excess, will enforce all that is legal. What, then, are the reflections which naturally suggest themselves on recalling these proceedings in Parliament ? In what light do they present the Peers of England — whether we consider them collectively as a deliberative assembly, or individually as public men ? In what light must the leaders of the two great parties in the State appear to the country ? And what judgment will the country pass upon your Lordship as a Minister ? Whether your Lordship was justified in comparing the Peers to " a low and truculent Democracy," may be doubtful ; but certainly 'the worst enemies of our aristocratic institutions could scarcely desire a stronger argument against their utility than may be found in the history of these proceedings. The only institution of the country which unites legishitive and judicial b2 . ■ 20 functions is unable, on a great occasion, to distin- guish between a legislative and a judicial power ; and, throughout a long deliberation, confounds a legislative Act with a judicial proceeding. The highest Court of Appeal in the country is unable to understand a law which, in its legislative capacity, it passed but a few months before. In this unhappy state of ignorance as to the mean- ing of the law they had so recently passed, they proceed to investigate an alleged act of tyranny, perpetrated under the authority of that law, of which nobody but themselves complain. I repeat — an act of which nobody but themselves complain. After many dis- cussions, in which the illegality of the act is pre- judged, and the exercise of the authority is designated as a wanton display of power, without a particle of law, justice, or equity, and one which could not be carried into effect without " being guilty of no less a crime than murder," — they record, as their own deli- berate opinion, that the act in question, '* though it cannot be justified by law, is so much for the service of the Public that it ought to be justified by Act of Parliament ;" and, after declaring the law to be what the highest judicial, and I will add, the highest legal authority in the country, says it is not, they proceed, first, to take away from those who had been suflferers by an illegal act all legal redress, and, then, to take away from the Governor of a distracted colony the power which he had exercised " so much for the ser- vice of the Public." 81 ; to the mean- Such was the declaratory Act as it was framed by one of the ex-Chancellors, after the most approved legal precedents, and adopted by the other, as the organ of his party. Its professed object was a •• warning to Lord Durham ;" and the avowed intention of its author was " a sort of rap at the Governor- General." * Well might the Lord Chief-Justice of England exclaim with warmth, when he saw this Bill, — You are doing here the very thing you complain of in Lord Durham. Absent and unheard, he is condemned for a violation of the law ; and those who have suffered from his illegal acts are, at the same time, deprived of legal redress. " I think," said Lord Denman, " that if the Earl of Durham were present he would object to this Bill, and enter on his justification. That Noble Earl is not aware of what has passed on this subject, nor are your Lordships aware of what defence he will be able to offer ; yet you are prepared to say to him by Act of Parliament, * You have done that which is not justified by law.* I do not know that such is the fact. At all events, those who have infringed the law ought to answer for the infraction ; and the parties injured ought not to be deprived of their remedy." Even Lord Brougham was staggered by this just and nolde rebuke ; and he was driven to defend him- self under a maxim of English law, which was for- gotten when he attacked Lord Durham, and only remembered to cover the inconsistencies of his Bill. * Mirror of Parliament, Sess. 1838, p. 6 1 92. 1 ' 24 The transportation to Bermuda, lie said, had taken place with the consent of tlie prisoners, and they had " no right to coniphiin of this stretch of power. They had gone of their own free will — mle}iti non Jit injuria.'' But, though staggerea - a moment, Lord Brougham does " not care so long as he gets an Indemnity Act." The indenmity was the sting. I will not attempt to follow this Bill through all the phases it presented. One day it was a mere In- demnity Act, without any declaratory clause ; the next day it was not so much an Act of Indemnity as a Declaratory Act ; and, at the last moment, its author endeavoured to throw on the Minister the odium of demanding an indemnity, nor would he have hesitated to do so, had he not received a check from the Duke of Wellington. After all, when the Bill came out of his hands, there was no indemnity for the officers who had acted under the Ordmanje. No means were taken to prevent the return of the rebels, which Lord Glenelg had declared to be " the first duty of the Government;" and the Governor of a disturbed Province was denied the power that u as conceded to the Governor of an adjoining Province, then in a state of comparative tranquillity. The Bill was in every respect worthy of the House, whose peculiar function it is to correct the crude legislation of the Commons. L niuoved by its inconsistencies, caring for none of 2S e Commons. ■ these tilings, Loid Lyndlmrst pressed the Hill upon the Minister. The part which that Noble and Learned liaron took in these discussions was very cluiracteristic ol* tlie man. Acquitting Lord Durham, whom he was " proud to call his friend," he traced all *' the mis- chief" of the Ordinance to the composition of the Special Council, which Lord Durham had himself appointed. It should have been composed, said the Learned Peer, of " men conversant with the laws and institutions of the countrv," — and then the mischief would have been avoided. Well, suppose it had been composed of men con- versant with the laws and institutions of the country — suppose it composed of the Lord High Chancellor of England, the Lord Chief Justice of England, the Learned Baron himself, and his Learned Friend who succeeded him on the Woolsack — suppose them assembled in council to assist and advise Lord Dur- ham in matters of constitutional law ; — we may form some opinion of the assistance they would have rendered him by the Debates on the Canada Bill. " In the course of the debates, last night," said the Duke of Wellington, " various opinions were given by high legal authorities on the construction of the Canada Government Bill. One opinion was given by the Noble and Learned Lord opposite, and my Noble and Learned Friend behind me ; another opinion was given by the Noble and Learned Lord on the Woolsack." A third, ditTeriuir from bo " was 1 m n 24 wards givon by the Noble and Learned Lord who presides over the Court of Queen's Bencli, upon which the Duke further observed :— " I uni surprised that the Noble and Learned Lord (Dennuiu) shouhl have intimated adoubtwliether the Governor-General of Canada has or has not the power to transport these individuals to the Bermudas." Lord Lyndhurst's attack on the Council was at once generous and safe. The day, he knew, nmst come when Lord Durham would re-appear in tiie House of Lords ;— -not so the Members of the Council. It was like his attack on a former occasion upon the absent Municii)al Connnissioners, who, if I recollect aright, were defended by the Government witli equal spirit. But to return to the Bill which Lord Lyndhurst had adopted, and to which a majority r