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COATES, Printer. MMM*i ■MWNi f; '■m. i' I r >-..<•• f iJEORGI The n com pi if iistant, cc Secretary o His L( er Maje vithin the For ortant a o annex t ;o himself if the ans^ if Durhan 5th, 26th lespatch |l5thofD< Ition of the Gove: (Copy.) SIR, I I lency a c( jesty's Pr and mys" place in t passed bj June. [His Exci Sir 'M ~^'*% kj^dv^^^r Jf Jur'' ^JEORGE ARTIIUU. The liieutenant-Govcrnor transmits to the House of Assembly, n compliance with the request contained in their Address of the 6th nstant, copies of a correspondence between Her Majesty's Principal Secretary of State for the Colonies and the Earl of Durham, relating His Lordship's resignation of the Offices of Governor-General of ler Majesty's Colonies in North America, and of High Commissioner tvithin the Provinces of Upper and Lower Canada. For the further information of the House of Assembly on so im- jortant a subject, the LieutGnant.Gavemor has also deemed it proper lo annex to the copies of that conespondence the copy of a Despatch to himself from the Secretary of State for the Colonies, enclosing copies )f the answers which had been returned by Lord Glenelg to the Earl )f Durham's Despatches to His Lordship, Nos. 66, 67, and 68, of the 55th, 26th, and 28th of September last, together with the copy of a lespatch addressed by Lord Glenelg to the Earl of Durham on the |15th of December following, in reference to His Lordship's Proclama- ftion of the 9th of the preceding month of October. Government Home, , - 14/A MarcA, 1839. .-J- X »,» \ ^*F i 'I n / ' [(Copy.) No. 13. Castle of St. Lewis, Quebec, Oct. 9t/i, 1888. SIR, I have the honor to transmit to Your Excel- The Earl of Durham lency a copy of a correspondence between Her Ma- commu«icates cer- jesty's Principal Secretary of State for the Colonies £' J JJ^/J-i-- and myself, on the proceedmgs which have taken Goveraor of this Pro. place in the House of Lords, relative to the Ordinance vince. passed by me and the special Council on the 28th of June. a V - I have the honor to be, ,, -,4' .... .. ,, &c. «&c. &c. , . - , (Signed,) - His Excellency Major-General Sib Geouok Arthur, &c. &c. &c. DURHAM. rf : : VI. (Copy.) No. as. ^ Downing Street, btn Augiist, 1838. MY LORD, , r' o 1 ^ ^^^^^ '® acknowledge the receipt of your dcs- Kttronipatch of the 29th June. No. 18, reporting the pro- subject of tti'e dinpo. ceedings which you had adopted for disposing of the sal of certain persons Prisoners whom, on your arrival in Canada, you found TlSoi''''^ "'S** in confinement on charges connected with the late insurrection. MoMuresoftheHigh . Her Majesty's Government are fully alive to the Conimiasioner ap- difficulties by which this question was surrounded. — proved of. It has, therefore, afibrdod them much satisfaction that you have been able to surmount those difficulties, and - ' that the course which you have adopted has been favorably received in the Province, as equally free • -"^ from the imputation of too great severity, or of exces- sive and ill-considered lenity. c u •.. -1 ^u^ While, however, I convey to you the approbation Submitted, neverthe- -^- -_'. ^ , ^' "^^ /.i • -l^- i. i less to the Law Offi- of Her Majesty s Government oi the spirit m which cors of the Crown, your measures have been conceived, I abstain from making any observations on the legal objections which may possibly occur to some of the provisions of the Ordinance, a copy of which is transmitted in your des- patch, as it is at present »' tlie consideration of the Law Officers of the Cr< , I have the hc.uc to be, &c. &c. * (Signed,) GLENELG. To the Right Honorable TuE Earl of Ddhiiam, &c. &c. &c. ' '\ ^ ' (Copy.) No. 84. ' ■ ' " " Downing Street, Gth August, 1838. MY LORD, Despatch approving I have had the honor to receive Your Lordship's ofthe appointment of (jggpatch of the 29th June, No. 19, enclosing a copy quire^inio^lhe^iSBtof a Commission which you had issued for an inquiry mode of disposing of into the best mode of disposing of the waste lands of the Crown Lands, the Crown in the British North American Colonies. J^omotiorV^Emr. Her Majesty's Government entirely approve of this gration. measure, and of the instructions respecting it, which you addressed to the several Lieutenant-Governors of the neighboring Colonies. They are fully aware of the great importance of establishing a general and CI VA fr a Sr L 'ji^fa ':'-■' .-' :[ L i^A i„i L!L ' is^ - l!: i m sasrl 1^-^' eet, gust, 1838. of your dos- ing the pro- posing of the da, you found vith the late alive to the urrounded. — ' isfaction that lie ul ties, and ed has been equally free , or of exces- approbation irit in which ibstain from actions which isions of the I in your des- sideration of .ENELG. jet, ust, 1838. r Lordship's sing a copy ' an inquiry ste lands of m Colonies, rove of this g it, which rovernors of y aware of jeneral and efficient system of disposing of the Crown Lands as connected with the question of promoting emigration from the Mother Country to those Colonies, and they anticipate the most beneficial results from llie estab- lishment of such a system. I have the honor to be, &c. &c. &c. (Signed,) GLENELG. To the Hipht Honorable "'• The Earl OF DuiiHAM, "" /. ' &c. (fee. &c. '•■ ■ ' -i; ' 'J^--" t< I 1 ;«, \ < (Copy) No. 60. _ ;•;<•■ is':^ \ tial that Castle of St. Lewis, ' . •'I' Quebec, Sept.2ith, 1838. MY LORD, ,, Previous communications from me will have injurious effects of made your Lordship aware of the very injurious effects tho discussions in thu upon the course of my Government occasioned more'i''"*®.^^ Lords, of ■^ 1 I ,1 ^1 •' J. .^1 ^ ^ the mission oi tho or less by all the proceedmgs, with respect to my Lord High Commia- Mission, which have taken place in the House ofsioner. Lords since my departure from England. The re- presentations which I have made to you upon this subject, were but the echo of the public voice in these ■ • /* Colonies, where all men, of whatever class or party, gupp^jt of the Home were agreed in thinking, that unless I should be cor- Government and dially supported by the Legislature which had created Legislature essenti most extraordinary powers of Government for this ^^^g^*""^^* " Co .mtry, and by the Ministers of the Crown who had placed that extreme authority in my hands, there was not the slightest prospeet of any satisfactory result. The proceedings in the House of Lords, from the moment of mv leaving the shores of England, shewed ,Tnif„nr?„r\w , ,..", , ° , °.i tended to Jiiari Dax- DUt too distmctly, that the support so essential to my ham. success was not extended to me. I allude in particu- lar to the speech of the Duke of Wellington on the ^^^^ of Wellington's 4th July, and to the expressive silence of the Prime lJJJ^'' rove?thU °^ Minister on that occassion. — Eis Grace was pleased to say — " The act gives no power further than that = "'■ of making certain Reports on an important subject • respecting the Government of Canada, and of direct- ing the formation of a commission of enquiry for that purpose ; in any other respect, so far as my recollec- tion serves me, I know of no other powers given to the Earl of Durham which are not ordinarily given to every Governor of a Colony." The tacit assent of Her Majesty's Ministers, was even more injurious mil : ' :* \ Ml ■ \ ■■■. 1 i . ■ ? '(. y v3»-v^ 1^4 «■ ^ n ,s As also the courtmthnn Lord Melbourne's previous expression of ** very puriued by llor Ma._j.gjjj concem and surprise" at one of nny appoint- josty'd iMinistors. =» ^ i .1 i *» ' .1 * : • nienls. In the latter case my authority was not seri- ously affected, because it depended on myself to per- severe in an appointment, which had been originally suggested to me by a menber of the Government. 1 Remarks on Mr. Tur- had Constantly refused Mr. Turton's repeated proffers ton's uppointmcnt. of resignation. His talents and uncommon assiduity had been appreciated here. The proceedings of the , opposition and of the Government with respect to him i were att.^ibuted to the impatience of the one, and the timidity of the other, of the two great parties which divide the House of TiOrds. And tho performance of the arduous duties imposed upon me was scarcely impeded here by what had occurred. It was not im- peded, let me repeat, because in that case I was en- abled to maintain a deliberate act of my Government, • ' and to preserve my honor as a gentleman, by declin- ing all participation in the sacrilice of one, whoso . I, ruin through his connexion with me, would, if I had taken any share it, have left a foul stain on my cha- Iligh Commissioner's racter. But in the other case, when the leaders of anthority seriously these two great parties, the one by the most unquali- woakonod by the con. fie J expressions, and tho other by consenting silence, intho'*House'or' *^^ concurred in depreciating the auihority with which I Lords. had been invested, that authority was seriously weak- ened. The effect upon the public mind was instanta- Effects produced neous and most remarkable. The disaffected (and thereby upon the pub. ijQ^y numcrous these are your Lordship will have ** "*" * learned from my Despatch of the 9th August, No. 36 marked *- secret and confidential,") were encouraged to believe, that as my authority was so questioned, the manner in which it had been, or might be exer- cised, would to a certainty be vigorously assailed by The disaffected on-^^^ Opposition and feebly defended by the Govern- couraged to show ment. And they inferred that the success of my signs of still greater mission, which, as all parties at home had allowed Mea^on^^jequir.^jjgjj ^^e danger was imminent, and all here still felt, vigilance on the part depended on the vigorous exercise of an extraordinary of the Government, authority, was thus rendered next to impossible. In forty-eight hours after the speech attributed to the Duke of Wellington had been published here, the tone of that part of the press, which represents the disaf- fected, exhibited a remarkable change ; giving evi- dence, no longer of submission, however unwilling, to extraordinary powers unhesitatingly exercised, but of discontent, irritation, and seditious hopes. Frona ihal lime foilh ttjo, ilowii to this day, I liave rontlii- ' , ually ic'Coiv:d infirnaliotus of a slate of feeling amongst • iIk; ('anadian peasantry of the Distritt of Montreal, ' ' wliieli tluTatens, — if not aoturi. disturl)an<:os during the winter, — still so much combination of purpose and moans nruongst the disaflected, as to require the TioBamo moiinsnro. utmost vigilance on the part of Government. Nor" '^" «i;P"«i^« , did the Duke of Welhngtons speech and liord MeI-ini,„bifantsof tho bourne's silence on that occasion, produce a less mis- Colony, chievous oflect upon the great bulk of the British race in this ('ulony. As respects this class, the first impres- sion created by this evidence of my being left without , ade(|uate support at home was one of despondency. 1 can speak almost from my own persona! knowledge of numbers including gentlemen of the most respectable eharacter and highest influence, who had entered into all my views for the improvement of this much neg- DoBpondcncy and ir- lected Country, who were aware of my d'^termina-"^^!'"" '''/'>'» P<«t tion, so far as it might depend upon me, to remove the causes — to dry up the very source of past dissensions, and to render this Colony essentially British in it^ laws. Institutions, and character ; who had merely on account of those views and intentions, afforded me their confiding support; and who were employing their valuable influence in diverting Public attention from the miserable past, and endeavouring to fix it on a happy prospect of peace and prosperity. These Gentlemen, when the news in question arrived from England, — when they perceived that I wbs left alone to struggle with unparalled difficulties, — could no longer rely on the accomplishment of any of the im- * portant measures that I had projected. They were theiefore led, most naturally, as it appears to me, in stead of looking with confidence to the future, first to -■ P'^"* J the useful course, on which I had already determined ; relying not a little on the early promulgation hern of Lefjislative measures caculated to encourage British Enterprise and promote general prosperity ; and above all influenced by a conviction that the worst consequences might result from my resignation,! ilcem- cd it my duty to the Queen, to my Country, and to the people of these Colonies, who had generously con- fided in my good intentions, to persevere in my course so long as there was the least chance of success. — Thus impelled, I banished every thought of resigna- tion, and occupied myself more diligently than ever in bringing to maturity the whole series of measures by which I have hoped that these Colonies might bo established in peace and prosperity as a happy and loyal portion of the British Empire. I was thus en- when thus engaged, gaged when I received your Lordship's Despatches, Despatches were re- No. 83 and 84, conveying to me the most flattering <=°'^^*^,.^°"/''y'"etii« r/i ^- r • I ■ I 11 3 unqualified approba- expressions ot the satistaciion which ail my measures, tiou of the measuroa including the Proclamation relating to the Political pursued. Prisoners, had given to Her Majesty's Government. Those Despatches were the more gratifying inas- piatterine lcftor« much as they were accompanied by numerous unofFi- from Members of Her cial letters from members of the Government, and Majesty's Govern- especially by those from yourself and Lord Melbourne,™/"* "^^^^ rcc»ived whereoy the expressions of oliicial approbation were most warmly and kindly confirmed. While these Despatches and Letters were still be- At this moment pro- fore me, an American newspaper, which had reached *^r°^"^^.*'"*''®'^°"'? >~v 1 1 .1 r I ' 11. 01 Lords, cunimuni- Quebec by the same conveyance was placed m mycatod through the hands. Your Lordship will judge of my astonishment medium of an Ameri. when I inform you, that it contained a Report of the ''*" newspcper. > ' .'(/ \\ 10 i J ThiiB vituated His Lordship has no alter- native but tu quit a post rendered unten- able by those from whom he expected every support and us. siatanco. W On the receipt of offi- cial intelligence, His Lordyliip will decide upon the time tor so dou)g« proceedings in the House of Lords on the 7ih, 9th and IGth of August. At present no other information on the subject has reached me. I shall abstain until ofHcially informed, from en- tering at length on that important subject. Mean- while, however, it behoves me to assure Your Lord- ship that public opinion here does not wait for the re- ceipt of official intelligence on matters of vital moment tc* the interests of all; and that it has been most deeply affected by the sufficiently authentic intelligence. I have had no choice (as I shall fully explain in a future Despatch,) but to declare whether or not I should resign my now useless office. As Your Lprd- ship will perceive by the Documents which I have the honor to enclose, (being an address to myself from the Delegates of the Colonies of Nova Scotia, New Brunswick and Prince Edwards Island, with my answer) I have resolved on resigning an authority which has now, indeed, become thoroughly inadequate to the ends for which it was created, and on quitting a post which has been rendered altogether untenable by those, from whom I expected every possible assist- ance in maintaining it. I shall not lose a moment after hearing officially of the recent proceedings in England, in fully explaining to Your Lordship the reasons lor my having arrived at this determination, and the grounds on which I may, after ample deliberation, decide upon the time for carrying it i«to effect. I have, &c. (Signed,) DURHAM. To the Right Honourable 1 1 Th£ Loru Glenelg. ' iJ- 1 . JS> r> -J • "^ ■ (Copy) I'laQa*— To His Excellency the Right Honorable John George Eai I of Durham, ^c. ^'C. ^c. Address of Depv a. '« approaching Your Lordship on the eve of our tionH from Nova Sco. departure from Quebec, we beg unanimously to ofler ;.ia, i\ew Brunswick, to Your Lordship the expression of our highest res- rii,r""'Lmilin!pect,andof the deep concern with which we have Island, cxpressinj I \ r tr t i i • i • • their high cense of heard of Your Lordships rumoured mtention to resign His Lordship's short the Government of these Provinces. .,s,., . 11 tiK 9th and the subject d, from en- cl. Mean- i^our Lord- t for the re- ital moment most deeply igence. explain in ler or not I Your Lprd- lich I have nyselffrom 5cotia, New . with my n authority inadequate on quitting r untenable sible assist- officially of '■explaining 'ing arrived 'hich I may, le time for RHAM. •An George Jve of our ily to offer ghest res- we have n to resign The duties of the mission with which we have been administration, and intrusted by the Lieutenant Governors of Nova Scotia, Jjj®'!;^^'^?^^!'^^**.*' New Brunswick and Prince Edward Island, and theteni^'j^^csieaauo''*"* frankness of communication permitted by Your Lord- ship, have brought us into acquaintance with Your Lordship's feelings and views in relation to British • North America, and irrestibly impressed on our minds the conviction, that Your Lordship cherished an ardent desire to elevate the Colonies committed to your Government, and entertains conceptions calculated to render that desire effective. In a review of the short period of the Government under Your Lordship's personal direction, we behold Your Lordship, with that feeling so congenial to Eng- lishmon, which turns with repugnance from the shed- ding of Blood on the scaffold, blending mercy with justice ; while returning tranquillity had already re- warded an administration conducted without the sacri- fice of one human life ; and we were aware that im- proved laws and constitutions were in preparation, which, under a Government form, mild and impartial, gave to the future the reasonable prospect of restored confidence and renovated prosperity. For the Provinces with which we are more per- sonally connected, we saw, in the warm interests, the enlightened and comprehensive views, and extensive powers, of Your Lordship, the dawning of vigor and improvement hitherto unknown. With Your Lord- ship's departure those anticipations will we fear, fade away ; but, although it should be our lot to see these Provinces continue feeble aad nerveless, compared with the condition at which their natural advantages entitle them to aim, yet shall we ever remember with gratitude the statesman who, exalted in the first rank, and treading on the highest eminences of political life in our common country, hesitated not, at the call of his iSovereign, with disinterested zeal, to undertake an office of unparailed difficulty, and has given to these distant territories the benefit of his enlarged ex- perience and vigorous conceptions. Your Lordship's comprehensive mind has opened to our view the ani- mating prospect of great public improvements ad- vancing our common welfare, and which will ever associate Your Lordship's name with the highest prosperity of the Colonies. We are unwilling to abandon the hope, that Your Lordship may yet continue in tho administration of 1 ( lA \i '■I -3..:- n Deputation from No. va S«oit«. Peputation fi-om M«vr firuniwick. Deputation from Prince Edward la. land. i| your high office. Under any circumstances, we beg to assure Your Lordship that our most ardent wishes lor the happiness of the Countess ot Durham, Your Lordship and familv, will accompany you through life. (Signed,) J. W. Johnston, Member of the Leg- .. ' islative Council of Nova Scotia. James B. Uniacke, Member for the County of Cape Breton, and Member of Council. , . . William Young, Member of Assem- bly for the County of Inverness. M. B. Almon. ' . . Deputation from Nova Scotia, ■ , ' : Charles Simmons, Member of the Executive Council and Speaker of the Assembly for New Bruns- wick. Henrt PETEns, Legislative Council. E. BoTSFORD, Member of Executive and Legislative Councils. 'J ~ Hugh Johnston, Member of Exec- utive Council and House of As- sembly. ' '- ' James Kirk. John Robertson. Deputation from New Brunswick. J. H. Haviland, Member of Execu- tive and Legislative Councils. George Dalrymple, Speaker of the House of Assembly. Joseph Pope, Member of Assembly for Prince County. Deputation from Prince Edward Island. Quebec, 22d Sept. 1838. (Copy) iii»i9fte " i Answer of Earl Dur- ham Addrssa It is impossible for me to express lo you in irthJJ;"cediDg language sufficiently strong, the feelings of gratitude Ml, and pleasure with which I have received this address* Representing as you do, so worthily, the Three Provinces of Nova Scotia, New Brunswick, and Prince Edward Island, this proof of your confidence in me, and approbation of the principles on which my f 13 we beg t wishes 1, Your through the Leg- i Scotia. for the on, and ' Assem- iverness. X Scotia. r of the Speaker V Bruns- Council. ixecutive Is. of Exec- le of As- inswick. Execu- incils. ir of the ssembly Island. you in ratitude iddress. Three tk, and mdence bch my administration has been conducted, is most gratifying to me. I assuni{|ft the Government of the North American Provinces, With the pre-determination to provide for the future welfare and prosperity of them all ; never doubting that such a provision would be the best, nay the only real security for their permanent connection with the British Crown. In communications which have taken place between us, and from which 1 have derived equal pleasure and information, you have been fully apprised of my views and intentions. These you Answer of Earl Dur- have appreciated and recognised in a manner for which ije'Ltation from^^o. I can never be sufficiently grateful. I have, indeed, va Scotia, New had a difficult and laborious duty to perform. The Brunswick, &. Prince result of my endeavours, however, is one of which I Edward Island, need not be ashamed. In the short space of little more than three months, I have seen tranquillity re- stored and confidence reviving. I have caused sub- stantial justice to be administered, tempered by mer- cy, I have carefully examined, with a view to refor- mation, all the Institutions of the Province more im- mediately committed to my charge ; and I was on the point of promulgating such Laws as would have afforded protection to all those British Interests which had been too long neglected. I had also as you well know, devoted the most careful attention to all sub- jects which could affect the general interests of all the Colonies, and had brought nearly to maturity the plan which I intended to submit in the first instance, to the consideration of the Provinces, and eventually of the Cabinet and the Imperial Parliament. In this I trust useful course, I have been suddenly arrested by the interference of the British Legislature ; in which the responsible advisers of the Crown have deemed it their duty to acquiesce .Under these circumstances, I have bnt one step lo take- -to resign that authority — the exercise of which has thus been so weakened as to render it totally inadequate to the grave emergency which alone caljipd for its existence. Be assured however, of this Gentlemen, that this unexpected and abrupt termination of the official con- nection which united me with the North American Pro- vinces, will not weaken in my mind the feelings of deep interest which I shall ever take in their fate, or render me less anxious to devote every faculty of my mind, every influence I may possess, to the advance- ment of their interests, and to the establishment, on Mi '■h<- r\ 14 the most lasting prosperity. fouQdatiun, of their welfare and -«»«c>*~ f •een i i ■ • • ' ' Downing Sti 16//* August, 1838. (Copy.) No. 89. * • MY LORD, Despatch from Lord With reference to my Despatch, No. 83, of the Gienelg to the Earl 5th inst., 1 have now the honor to enclose to you a of Durham, respect, ing the prisoners sent to Berinudii; and siiu ting various opiuiona on tha Bu1)joct. Crown OfficeiB* opi- nioa. I \ Pifferont view of the rubjcct in the House ol' Lords. J copy of the Report of the Law Officers of the Crown on the Ordinance providing for the security of the Province of Lower Canada, a copy of which was trans- mitted in your Despatch of 29th June, No. 18. Your Lordship will observe that the Attorney and Solicitor General are clearly of opinion that so much of the Ordinance as relates to the restrictions lo be j.'aced in Bermuda on the eight persons sent by you to that place, is void, inasmuch as the legislative juris- diction of the Governor and Special Council of Lower Canada does not extend beyond the hmits of the Pro- vince. In all other respects they are of opinion that the provisions of the Ord; lance were within the compe- tency of the Governor and Special Council. I regret, however, to state, that a different view of the case was taken by several individuals of high legal attainments, whose station and professional experience could not fail to secure great weight to their opinion in the House of Lords, where the question was first agi- tated. There were indeed some, who went so far as to contend that the whole ordinance was illegal, as exceeding the Legislative authority vested by Parlia- ment in the Special Council ; but as this view of the case has not received the sanction of either House of Parliament, Her Majesty's Government, in accord- ance with the opinion of the Law Officers of the Crown, are fully satisfied that the powers confided by Parliament to the Govornor and Special Council are sufficiently ample to authorise them to Legislate to the full extent of the Ordinance in question, so far as it relates exclusively to acts to be done within the Pro- vince of Lower Canada. But an objection of a more popular and general nature was also urged with great force against so much of the ordinance as purparts, on a conviction for returning to the Province without permi85sion, to subject to capital punishment those personj who, having fled the Province> had thereby re and 1838. I, of the you a J Crown Y of the as trans- • rney a«d so much ns lo be t by you live juris- of Lower f the Pro- »inion that le compe- jt view of high legal xperience opinion in first agi- so far as illegal, as by Parlia- iew of the r House of in accord- ers of the onfided by ;jouncil are slate to the o far as it in the Pro- i of a more with great s purports, ice without ment those lad thereby 15 avoided the execution against them of the warrant for their apprehension on llie charge of High 'fieason. Her Majesty's Government, fully sensible of the numerous and weighty difficulties with which you had to deal, with reference to this question, of the notoriety of the conduct of those persons who, having taken an open part in inciting their followers to insurrection, had fled to the United States, in order to withdraw themselves from justice, and of the importance of se- curing the Province for a time at least against their return — and aware moreover that ample time had been afforded to these parties, 'had they been so dis- posed, to surrender themselves to Justice, and demand , their trial, would have been quite satislied to have left in your Lordship's hands the mode of dealing with them, with perfect confidence that no act of needless severity or of substantial injustice, would have either been committed, or sanctioned by your authority. Tiio course however which Her Majesty's Government would have taken, as in their judgment the best cal- culated to uphold your authority, and thereby to con- sult the success of your mission, has unhappily, as they feel, been overruled. A Bill was introduced into the nill introrluccd in th» House of Lords, the object of which, as it was originally Houso of Lords to submitted, was two-fold. First, to obtain a declara- """/lyfl^,"''*"""'"*^^ t- ^i . . .. ru 1- 1 • J . . of J.arl Durhaua and tion of the mtention of rarhament m accordance with council, the view to which I have referred, of the narrow and restricted extent of the Legislative powers of the Special Council, and thereby not only to invalidate the oidinance as altogether illegal, but also to prevent any future Legislation by the same authority, involv- ing a departure from t'r ~ ordinary course of Ciiminal Law, under whatever circumstances of danger and emergency ; — and Secondly, to provide an indemnity in respect of all acts done in pursuance of the Ordi- nance. Her Majesty's Government felt it their duty to off^ a decided opposition lo tke second readmg of Her Mni^ty's Gov. that Bill in the House of Lords, as calculated in their emnent oppose the • • ^ - • • 1 1 1 J ^1 • -i 1 secoad le^ioiijcr ot the opmion most mjunously, and contrary to the spirit and g-jj^ *• tenor of the act for making temporary provision for the Governtnent of Lower Canada, to narrow and restrict the power vested bv Parliament in the Special Council. 1 regret, howeve'r, to state that the second ^^^^^"^ """^'"^ "'* reading of that Bill wa« carried in the House of Lords. Under these circumstances, and after the p» blic dis- cussions which had taken place on the subject. Her Majesty's Government, compelled as they were to ■% ''I I •I 16 admit that a portion of the Ordinance, though com- paratively unimportant, rested on no legal foundation, Mininters advise Her most reluctantly advised Her Majesty to disa]lov«r the Uie^Ordna '* Ordinance. Extensive amendments were subsequent- ly made in the committee on the Bill, The clause Amondmentsmadein which would have restricted the Legislative powers Committee. of the Special Council was altogether omitted, and the indemnity was expressly confined to Acts done in respect of that part of the ordinance which was admit- ted to be beyond the Legislative authority of tho Governor and Special Council. The Bill so amend- ed, has been since passed by the other House of I'ar- Billpaiud. liametft, and has received Her Majesty's assent, j send you a copy of it. The comparatively unimport- ant point, to which alone the act, as it has finally passed, applies, renders it in itself a measure demand- ing but a slight and passing notice. Her Majesty's Government cannot however con- ceal their apprehension, that the discussions which have been raised on this question, may tend to impede and embarrass your course in the settlement of the affairs of Canada, and to raise anew some of those difficulties and obstacles, which under your adminis- stration, appears to be rapidly on the decline But on the other hand, the opposition to your measures in this country has given rise to such strong expressions of confidence in the purity and excellence of the motives by which your conduct has been regulated, and has drawn forth from those personally interested in the affairs of Canada, such decided testimony to the bene- ficial tendency of your administration, that Her Majesty's Government cannot but hope that your hands may be rather strengthened than weakened by the degree of public attention which has been directed to this subject. At the same time they feel it their rourse recommended duty to leave you in no uncertainty as to their views by Her Majegty'a Go. f^j^ ^j^g course which it may be expedient now to adopt vernment 4or the fu- -.i j * ^u u • r tujg With regard to the persons who m consequence of the disallowance of the ordinance can no longer be liable to its provisions. In the first place, I have to convey to you Her Majesty's entire approbation of the Proclamation issued by you, on the 28th oi June, by which, with the exception of the 23 persons specifically referred to, an amnesty was granted to all other per- sons charged with treasonable offences committed during the late disturbances and Insurrection in Lower ' Canada. In order however to maintain the distinction r com- lation, w the quent- clausc owers d, and lone in admit- of iho .mend- jfPar- 3nt. I m port- finally 3mand- jr con- which impede of the if those idminis- But on ^ in this ions of motives md has in the bene- Her your nedby irected it their views o adopt nee of be lave to of the unc, by ifically ler per- nmitted Lower linction ger n 17 which you appear so properly to have made between the chief leaders and instigators of the Insurrection, and their misguided followers, Her Majesty's Govern- Tho eight persons ment are decidedly of opinion that, notwithstanding f"^ **>,?"'""';* "°' , ^ ., ~ ,, •' . .^ ~. /-» V ,1 . ,oto be allowed to re. the failure of the provisions of the Ordinance, the eight turn to Lower Can- persons sent by you to Bermuda should not be per- ada. mitted to return to Lower Canada, except by the ex- press permission of Her Majesty, or of Her Repre- sentanve in the Province. It seems to them that this object could be best at- How this is to be at. tained by an Ordinance, to be passed by yourself and^**"°^' the Special Council, subjecting the persons in question to such penalty, sh.ort of death, as may be thought ex- pedient, in the event of their being convicted of return- ing to the Province without su(;h permission. With regard to those who had previously fled from Public notice shoulj justice, it may, perhaps, be suflicient, by Proclan^ion ^ g'^"° *" ^^°^° P^*"- or by any other clear and unambiguous channR of ^°"^' information, to make it publicly known that, should they re-enter the Province, without the same permis- sion, they will forthwith be arrested and dealt with, according to Law, on the charge of Treason. It will at the same time, be desirable to continue or renew Habeas Corpus Act the suspension of the Habeas Corpus, that you may be should be suspended. able to detain any of them in custody in the event of their arrest, should the safety of the Province render such a proceeding necessary. In adopting this plan, it will be indispensable that the Suspension Act should be passed at the same time as the Proclamation is issued, and made as publicly known as the Proclama- tion, in order to avoid the pob.'bility of any of the parties, referred to in the Proclamation, entering the Province in ignorance of the Suspension Act. To let them enter in such ignorance, would be to deal un- fairly with them. Her Majesty's Government hope that, by this means, the end which you had in view, may be attained, of averting the serious evil to be apprehended from persons being at large within the The return of those Province who had notoriously taken a prominent part persons would, if ai. in the recent revolt, and whose presence could not S^^ five dissatis. . ., . . , , ,. '. p . , taction to the Loyal fail to occasion jealousy and dissatisiact:on among the subjects of Her Ma. loyal subjects of Her Majesty, and might tend to re-jesty. vive feelings and passions which it must be the anx- ious desire of the Government to suppress and to allay. I do not int'^nd to prescribe to you the precise course, to which I have adverted, as that which, under exist- ing circumstances, ought to be adopted, nor am I C J>-,-1 m- IS '-J * Bensible to the objections to which any course on this subject is liable fronn those who nre disposed to tak^ ^^, an unfavorable view of the conduct of the Governnnent; but I am anxious to relieve vou, as far as possible, fronn the uncertainty in which you might be involved by the recent debates in Parliar.^ent, as to the extent to which you would be held justified in proceeding with respect to the small number of persons whom, in the exercise of a sound and wise discretion, yoU have excepted from the amnesty which has been extended ., to the great body of persons implicated in the Insur- rection. I have assumed throughout the consideration of this question that no steps have been taken under the Ordinance passed by the Special Council, during Sir John Colborne's Administration. " for the more speedy attainder of persons indicted for High Treason, who hawjfled from the Province or remain concealed therem to escape from Justice." It will be for your Lordship to determine, whether it would be advisable to proceed against the parties to whom that Ordinance refers in the manner there pre- scribed ; but, as the object to be attained is not so mush the severe punishment of the guilty as their ex- clusion from the Province, and the suggestion to them of some motive for abstaining, during such exclusion, from a mischievous interference with its affaii's, the other course to which I have referred appears to Her Majesty's Government to be, under the peculiar cir- cumstances of the case, the most expedient. Her Majesty's Gov- I cannot conclude this Despatch without expressing ernment feel great the deep regret which Her Majesty's Government wS^Ui to Thth l^av^ ^^'^^^ the embarrassment to which you will have his Lordship has been been subjected, hy the recent proceedings in Parlia- Bubjected on this sub. ment, regarding the difficult and delicate question of J®*** ' the disposal of the persons charged with Trea- son in Lower Canada. On a deliberate review of the whole case. Her Majesty's Government are enabled distinctly to repeat their approbation of the spirit in which those measures were conceived, and to state their conviction that those measures have been dictated '' by a judicious and enlightened humanity, and were calculated under your authority to satisfy the ends of justice, although in some respects they involve a de- parture from its ordinary forms. The Government are also persuaded that your Lordship will be equally anxious with themselves to avoid, as far as possible. 19 giving even a plausible ground of cavil or objection to Hostile criticism. It only remains for me to assure you of the undi- The confidence and minished confidence which Her Majesty's Government support of Her Ma. repose in you; and of their earnest desire to afford J"'*^'" ,*^^T?'"/""'l' •^ , / ' . „i J- I r *u I assured to His Lord- you the utmost support in the discharge of the ardu- ghip. ous duties with which you are entrusted. I have, &,c. (Signed,) GLENELG. The Right Honorable The Earl of Durham, '■'' ^^p- point any place heyond the Seas, cither within or with. '\^ll;X' ' '^ '" out his Doirinions to which Felons and other offenders under Sentence or Order of Transportation or Bu' nishment shall he conveyed. It provide* for the im- prisonment of such Offenders, their conveyance either in. contract Vessels or in Her Majesty's Ships, their punishment for misconduct on the voyage, their deli- very to the Governor of the Colony to which they may be sent, and their safe custody after arrival. Section 17, recites that by Law, in some of the ge^^ 17 provides for Colonies, offenders convicted of certain offences arc cuses exactly similar liable to be transported beyond the seas, and that there ^? ^'"' """ »" 4""-- niight be no means of transporting such convicts to **"** any of the places appointed by ♦* His" Majesty in that behalf without bringing them to England, and it then provides that such convicts when brought to England may be imprisoned in any place of confinement under that Act, and so soon as he. shall be so imprisoned all the provisions of that Act shall be applicable to every such convict as if convicted and sentenced in England. No provision is by this Act made for their treatment u}) to their bein^ brought to England. That is left to the local Legislatures. The Imperial Statute, 6th Geo. IV. chap. 69. Sec. g.L « „ 4 go 4, provides that " His Majesty" by an Order in Coun- Governors' of c'olo- cil, may authorise the Governors, &c. for the time nios may appoint pla being of any of the Colonies to appoint the place cos to wliich offend, within " His" Majesty's Dominions to which offenders "' "'"^ ^ •''"^' ^'• convicted in any such Colony and being under sen- ' tence or order of transportation shall be sent or trans- ported, and provides that such convicts at the place to which they may be transported shall be subject to the same laws as other convicts, but it makes no pro- vision for their transport, or their treatment on the voyage to England ; that is still left to the Local Le- gislatures, at least there is no other mode of provid- -^ - iiig for it. ^ Under these Acts an order of Council was issued q^^^^ ^j. (Council of on the 11th November, 1825, directing that all Go- iithNov.l825iBbued vernors of the Colonies for the time being, should from to that effect. time to time appoint the places to which convicted offenders should be transported. ' •■ : .: 6>:u i s ' w n / o») I \. i aaU»i«itifl« I^ord Gosford, on tin? 7tli Oc.tohor, J 835, issued to be sent \ tinuod by OnlinaucJ ^'> England, ond from lUmrti I on»t Viot. c. a. and Van Dicrnrn's. Tli'j I'r other ijuoted. j^jj Proclamation nnpointinf' such convicts ' I 1-1 -.- . r .1 jjj jY^^y South Wales, 'roviiiciul Legislature, by Act sixth William the Fourth, ch. Ij. continued by the Ordiimnco of the Ist Vict. (hap. », provided that — •' Wiienovv n!iy ollendcr shall have been lawfully siritcnccd by any of His Majesty's Courts in this Pro- vince, other than Courts Martial, to tran^'portation, it shall be lawful for the Covcrnor for the time being, from time to time, to cause any such convict to bo removed from anij jthice of confinement in this Pro- vince to any other safe place of custody.** (It does not repeat •* in this Province,*') " and thence to be sent to England, to be there imprisoned according to the [tro- visions of the fifth George the fourth, ch. 84, Section 17, to bo thereafter transported to New South VVi les, or Van Diemen's Land." The Act authorises contracts for their safe trans- port to England, and, by section 0, enacts that after the delivery of any such convict to the contractor, •' his transportation to En;^land, safe custody, treat- ment, and confinement until delivered to the authori- ties in England shall bo regulated to all intents and 84^ purposes by the provisions of the fifth George the fourth, cap. 84." This Act, although authorising imprisonment, and Act approved of by directing a certain mode of treatment upon the high Her Majesty's pre. scas, was Hot thought to exceed the powers of the sent Minister-*. Provincial Legislature, and was sanctioned and ap. proved by Her Majesty's present Ministers. These several provisions, however, only applying These provisions do to the case of persons convicted in Courts of Law of corSiiinhc'K'''uUt^^^"^^^' ^^'^^ "°^ in force as to the State Prisoners " '^ who confessed their participation in the treasonable practices of which they were accused, but they afford a sufficient guide in an emergency beyond the scope of ordinary law. If the British Parliament could authorise the Sov- ereign to name any place of transportation beyond the seas out of the British Dominions, it would seem not - "* ' less within the authority of the Provincial Legislature to appoint a place of banishment not within the local limits of their authority, but within Her Majesty's do- minions, which had been frequently used as a place of transportation from this Colony, and at which Hulks are now kept for the reception of convicts, and to 5th Geo. 4th, c. 23 5, issued ► be sent I Wales, aturo, 1)/ L'd by tbc ;d tbat— lawfully 1 this Pro itation, it Tie being, ict to bo this Fro- [t docs not he sent to o the [iro- 4, Section uh VVi les, mfe trons- ihat after contractor, ody, treat- le authori- ntents and leorge the innent, and on the high rers of the d and ap. s. y applying of Law of 2 Prisoners treasonable they afford I the scope ise the Sov- beyond the Id seem not Legislature lin the local Majesty's do- is a place of irhich Hulks icts, and to Trnnnportation m?. which, as appears by Lord Aberdeen's Circular Dos- })atch of the iJnd March, 1835, relative to transporta- tion from the C'olonies, such oflenders as may be spe- cially selected by the Homo Secretary may still be sent I need scarce! v sav that this last Despatch was by no means restrictive of my power in respect ';j;^;7;;";;;;j (;«;;: to the State rnsoners, as to whom Your Lordship s eiu in lieu of cnpiul instructions expressly suggest the substitution of trans- Puni»tliincai. portation and banishment in lieu of capital punish- ment. The power of the Colonial Governments to punish Powor to Trannport by transportation is indisputable ; and its frequent ex- indLputublo. ercise is recognised by the recital in Section 17, of the Imperial Statute, Olh Geo. 4, cap. 84, already cited ; for if by the law of the Colonies convicts can be sub- ject to transportation beyond seas, the Legislatures of such Colonies must have power to pass such laws. „ -. . ^ I asGovxr„o.-Gcn«ral ami Govcr„or.in.(;hief off;,;',^-:'™^,,^'.; Canada, had a power to appoint the place to which obBod this power. any person should be transported who was convicted of a transportable olFcnce, or who being capitally con- victed should assent to such commutation of his pun- ishment ; and 1 had at my disposal the immediate means of transport to any place within the command of the Admiral on the Halifax station, and the previous assent of the Admiral to give every facility within his power. The Legislature which had the power to suspend ,'^''° logislnturo , -T 1 ?^ k 11111 wliich could suspend the Habeas Corpus Act, and to place the whole country tho Habous ciorpus under the operation of Martial I^aw, to substitute a Act, and substiiuia Drum Head Court Martial of Volunteers for a trial JJ^'^^^^^^^^awjiad an by Jury in the ordinary Courts of Justice in the country, ottbnders admitiing if they had thought it necessary to exercise it, (and their guilt. the Executive Government alone did in fact exercise it,) had an equal power (it would be contending for little to say dinG(\}jQ.\\y Constitutional right) to subject to punishment those who admitted that they had of. fended against the laws of their country, and who ])rayed to be spared a public trial, to which the public interest was alike opposed. 'J he Legislature had an equal power by law to pass an Act of attainder with or without forfeiture of property, and with or without examining further witnesses, as they might think most likely to conduce to the benefit of the public and the tranquillity of the Province, against the associates of those who pleaded guilty, and who had fled from the pursuit of justice to a foreign country. '\ mimmm J / ) \ \ \ ,a 24 The power of ihr for- Whatever power was invesled in the assembled ITInTn'r'r n!',Z!; T^egislature of this Province before the recent troubles, ed in HjUti Durliatn o i i ci • i n milt by l.nperiai Statute was vested iH me and the hpecial Council by the Im- lat Vict. c. 9. perial Statute of the first Vict. chap. 9, so far as that Act did not expressly circumscribe the power which it originated. I have yet to learn tha: the Ordinance of the second Victoria, cap. 1, (now disallowed,) in • imposing the penalty of transportation to Bermuda on the State offenders, violated any one of the restrictive clauses of the Imperial Act. With the question in a Constitutional point of view, it is not my purpose in this place to deal, my arguments are directed merely to the legality of the Ordinance, to shdw that, (whe- ther inoperative or not in any respect) it is not illegal, Iot''e:L'Sd'itruthif ~~^*^ ^^^^ ^^^* ^^^ Legislature of Lower Canada, as rity. '^"^ * * *" ° constituted by the Imperial Parliament, kept within the limits of its authority. -4^,1 .. . I contend, then, with every deference for those who may have expressed a contrary opinion, that the The Legislature of Legislature of Lower Canada had a legal right to Lower Canada had a transport au)' offenders to Bermuda, and under that legal right to trans- j^uthority to convey them there if they had "the port tho oftouders to „•' , •' , j ^i ^ i^ i j j Bermuda. means" as much as to send them to liingiand and provide " the means,' and there to leave such offen- ders, liable to such restraints as it might please Her When they arrived Majesty to subject them to. But Her Majesty could there, the power of Only act through the Constituted authorities. The con- the Legislature ceas. stitutcd authority here was the Governor, who under ed, and it was the bu- sanction of the Legislature of Lower Canada convey- tv"8^\5overnraem''\o ^^ them, by the means at his disposal, to the Bermudas, retain them there. There the power of the Legislature of Lower Canada and of the Governor General ceased. When the Pri- soners arrived at the Bermudas, it was the business of Her Majesty's Government either through the Im- perial Parliament or through the Local Legislature to retain them there. It was perfectly well understood here in the passing of the Ordinance, that there was no power in this Legisiulure to pass any Laws which could be binding in the Bermudas ; and the Ordinance was confined to its recited object, — '* to provide for the present security of this Province by effectually pre- venting the several persons" named in it " from being at large therein." It was foreseen that the Governor of the Bermu- the^'isonerrmfgJl ^^^ might have refused his assistance in this emergen- bereieasedbyiheGo. cy and declined to allow the prisoners to be landed, vernoroftheBermu-or, if landed, might liuve instantly released them, or, . ■ 41. 25 if not, that before Her Majesty could procure any ^»«' of ^^a' ^^^7 laws to be passed subjecting the parties to the neces- "gjfajed!!^ otherwise sary restraints to prevent their return, the parties might apply to the Courts of the Bermudas for their , writs of Habeas Corpus, and might be enlarged and quit the Island to return. Opposition to an Ordinance * , ' intended as, and being in fact, an extension of Her • Majesty's mercy towards the individuals who were . the objects of it ; would probably have weakened the claim to a future permission to return to the Province, a permission which, if the British Parliament had adopted and continued the Ordinance, would have be- come of the utmost importance to the persons trans- ported ; but the " present security" of the Province But the security of was further guarded by a severe penalty (not, as isZ^llZZT/IZ: evident from the Ordmance, to be nmicted without vcre penalty on those trial) upon such as should return without due permis- returning witliout sion. As the Ordinance stands, coupled with the First permission. Victoria, chap. 9, it simply imposes banishment for four years from the Province under the penalty of death. The returning from transportation before the period for which it is inflicted, is subjected to capital punishment by many provincial statutes, in cases where the original oflence is not to be punishable. To have iqiposed a lesser penalty would have been to ' lessen the original offelfce of Treason, which those transported had a imitted. In conclusion, I maintain that in no respect is the „. x . . . Ordinance illegal, although in part it might have been tains that* the 'oV"il inoperative without the co-operation of Her Majesty's nance was in no ro. Ministers and ihe British Legislature. Instead'of^P^ct illegal, altho' waiting for the express direction of the Government |,\;"j;^™^^^^ I determined for the sake of tranquillizing the Pro- vince to anticipate such co-operation and" to remove the Prisoners instantly. I have, &c. (Signed.) DURHAM. To the Right Honourable The Lord Glenelg. &c. &C. &C. . " (Copy) No. 68. 'i * Castle of St. Lewis, • Quebec, Sept. 28th, 1838, . MY LORD, ♦ I had the honor to receive, on the ev^jning of the Durham day before yesterday, your Lordship's Despatch of Glenelg. m :?ii of to Earl Lord Mita 26 3 'h ! «- • August 18"th (No. 89) with its inclosurcB. Tliatcom- ! munication was accompanied by private letters and by full Reports of the recent proceedings in both Houses of Parliament, with respect to my mission. The information thus supplied enables me to fulfil Earl of Durham pro. the promise maiJe in my Despatcli of the 25lh instant,, ocedB to give the/]vjo_ gg) of f^Hy explaining to your Lordship the reasons of ins deter* ^ , ' l-ltiij^- j^ • V« mination to reaign. grounds on which 1 had determmed to resign my Com- missions of High Commissioner and Governor Gene- ral of Her Majesty's Colonies in North America. The Act of mere indemnity which has passed the British Legislature, no doubt differs, very materially, as your Lordship observes, from the Billlntroduced by Lord Brougham. The Bill would" have placed such restrictions on my authority as to deprive me of the legal power indispensable to the temporary go- vernment of this distracted country; the act only pur- "* ports to save me harmless from the consequences of a measure declared to have been illegal. Still my position has been, morally and practically, so much weakened as to be no longer tenable with a hope of beneficial results. But I will not detain your Lordship by drawing any further comparison between the Bill that was proposed and the Act that has passed. The ' • latter measure is now irrevocable and must be CQusider- od on its own merits. It is%ily in that point of view, which however does not exclude any of the Parliamen- tary proceedings, which resulted in the passing of the Act, that I request your Lordship's attention to the follov^irig observations on the subject. The concession made Your Lordship informs me that "Her Majesty's by Her Majesty's Government felt it their duty to ofier a. decided oppo- jviinisiers wealsened gition" to the sccond reading of the Bill introduced by thL any proceedings ^ord Brougham. But in what, I venture to ask, did that could have taken that opposition result? In a concession far more cal- place ia f'e House of cuJated, as it appears to me, to weaken my hands, than would have been any vote of the House of Lords, in which it is notorious that Her Majesty's Government have never commanded a majority. A vote of the House of Lords adverse to Her Majesty's Govern- ment, or merely condemnatory of any proceeding of mine, would have been considered almost as a matter of course in the present state of parties ; and would, if it had been decidedly opposed By the Ministers, have left my authority untouched, because it would have been attributed to the mere party motives of a power- ful opposition. Supposing that such a vote had been Lords. W 9fl m lat com- ers and in both ssion. to fulfil instantr. shi}) the ly Conn- )r Gene- rica. ssed the Lterially» roduced placed re me of rary go- nly pur- ;nces of Still my 10 much hope of jordship the Bill d. The iQnsider- of view, rliamen- ig of tho n to the lajesty'g d oppo- uced by ask, did lore cal- ids, than lOrds, in ernment 5 of the Govern- jding of I matter would, rs, have Id have . power- ad been passed, there would have remained the House of Com- mons, where I am bound to presume that a measure, decidedly opposed by Her Majesty's Ministers, would not have been adopted. In that case, the Parliamen- tary proceedings on this subject would but have re- sembled many others which have occurred of late years, and which have left the Government unharmed by a hostile proceeding of the House of Lords. In that case, I should have suffered no greater inconve- nience than such as any Gov^nment must be subject to,' which is vigorously and almost constantly opposed by a majority in the Upper House. As respects these Colonies, I do believe that the inconvenience would not have been very great ; because the adverse pro- ceeding would have been attributed altogether to the state of parties in England, and would have been con- sidered as foreign to the state of affairs in this part of the world. But at all events, in that case, my acts and my authority would have been supported by the House of Commons and the Crown. How different is my actual position I In order to stop hostile pro- In order to stop hoi. ceedings in the House of Lords,— (for after Your ^''e proceedings ia r J u • , TV * I. • r 11 the House of Lords, Lordship's Despatches approvmg of all my measures, Ministers advised the I can discover no other motive for the step), — Her Ciown to render a. Majesty's Ministers determine on advising the Crown bortive the naost im- to render abortive the most important Act of my Go- L"o"ds"ihp'8°^ Govern! vernment. The Crown, therefore, whose Represen- mont. tative I am, condemns me on the ground that I have acted illegally. But this is not all. The manner of the condemnation requires (at least so it is supposed by those who advise it) that I should be saved harm- less from the consequences of the measure which,* whatever it may have been before, they render null und void. They imagine that I require such a shield. They think that, without it, the prisoners now in Ber- muda, whom I refused to subject to the jurisdiction of such a Tribunal as would assur^Iy have condemned them to death, whose property as well as lives I spared — whom I saved from the ignominy of transportation *«. as convicts ; — whose parole of honor I took as suffi- cient security for their not attempting to escape ; — that these men are to sue me for damages for such treatment. This is the opinion of Her Majesty's Min- Further reasons fot isters, and therefore, having disallowed the Ordinance, !j^'.^^?J^''''»P'» "^"^ they support in both Houses the Bill of Indemnity. — * ' The condemnation of the most important measure of my Govirnment has thus bocoms tho Act of thi whok 1 { I f/ f i f ^^i / ^ i i ' 1 1 . ^^ be proclaimed in Ihe next Gazette 1 British Legislature. In addition to all this, the Act requires that it should be proclaimed liere ; and I am ifius compelled, unless I should instantly resign, to join la the condemnation that has been passed on me by the Crown, the Lords, and the Commons, — I may surely be permitted to think that adverse votes of the House of Lords would have been infinitely preferable to the course which has been taken in order to avert that evil. Being determined ai|ove all things that no personal Act of Indemnity to feeling or coflsidoration shall have any influence on " my conduct in the present state of public affairs in this Colony, I shall proclaim the Act of Indemnity in the next ofHcial Gazette. If I resigned immediately that duty vould be imposed on the Administrator of the Government. The reasons which induce me to abstain from resigning at present will be stated here- after. Meanwhile I have to explain the grounds on which it appears to me that my permanent occupa- tion of this Government would be rather injurious than beneficial to Her Majesty's service. . • . ' In my anxious examination of this question, I have endeavoured to disregard the past, excepting as it . aflticts the future. By this course I have hoped to gain two advantages, first, that of simplifying the sub- ject, and secondly, — which is far more important, — * that of preventing the intrusion of wounded personal feelings into a deliberation, which should be conducted solely with a view to public objects. Recurring to the past then, only as it bears on the or° and Special" Coun^f"^^*"®' ^ ^^ desirous to point out, what seems tc have oil explained. been overlooked by every body in England, that the particular measure, which has been condemned, forms but a part, though a very important one, of the whole . policy of the Special Council and the Proclaniation of ■ Amnesty issued on the day of Her Majesty's Corona- tion. That policy )|as not indicated by either of those measures separately. The two measures were in- •li^ deed one, having been divided into two parts merely for the purpose of imposing on the Governor and Coun- cil all that required legislation and was of a penal char- acter, and making all that partook of mercy and kind- ness the Act of the Queen» Nor was the whole po- ♦ licy proclaimed on that dzLf, to be found in the Ordi- nance and Proclamation alone. The official Gazette in which those documents were published, contained a most unusual announcement in the following terms : ''t-.- 29 [he Act d I am iign, to [ on me -I may s of the sierable o avert •personal LUice on ffuirs in nnity in ediately rator of me to ed here- iimds on occupa- ious than r n, I have ng as it loped to ; the sub- prtant, — personal inducted Irs on the tc have that the sd, forms le whole lation of Corona- of those " We are authorised to state that His Excellency the (.r(»vernor-Gx'neral is actively engaged in tlie prepara- tion of meatures, which will, as soon as it majj be possible, be embodied in Ordinances of the Governor and Special Council, relative to a Jury Law, a Bank- rupt Law, the Judicial and Municipal Institutions of A the whole Province, General Education, the establish- 9 ivient of Registry Olliees, and the equitable commuta- tion of Feudal Tenures." If it had been possible to prepare measures of this kind in time, they would have appeared in the form of Ordinances on the same day as the Proclamation of Amnesty. But the promise was considered sufficient to indicate my sense of the necessity of very important changes in the Civil and Municipal Law of the Province. The whole policy wliich I intended to pursue, was embodied in that pro- mise, in the Amnesty, and in that part of the pream- ble of the Proclamation, whereby is asserted Her Ma- jesty's firm resolve to punish with the utmost severity any future act of insubordination, and more especially to prevent in future the occurrence of dissensions simi- lar to those by which the Province has been disturbed, by ellectnally removing all causes of dissension, so that the Province might be established in peace as a loval and truly British, Colony." I had made up my mind, • it was evident, to the necessity of rendering the Insti- ^ tutions of this Province thoroughly British. But it ^ was also plain, I hope, that admitting as to the future, the necessity of measures which would be unpalatable to the majority of French Canadians, I was desirous ^ to deal very leniently with such of them as had by their conduct become amenable to severe punishment. As to the past, I proclaimed forgiveness and oblivion, as to the future, Britisfi Institutions ; as to the present, security against the disaffected. The only provision This policy thwarted for the security of the Colony, has been rendered null, by rendering null the Moreover, since the different parts of the whole scheme ""curUy" oFthe C^^^^^^ of policy were intimately blended with, and dependant ny. on each other, the destruction of one portion of it affects all the rest, not merely by giving a triumph to the disaffected generally, and allowing the worst of them all opportunity to play over again their part as leaders in a Rebellion, but also (and this is the main consideration) by shewing that no reliance is to be placed upon the validity of any law, or the perform- ance of any engagements proceeding from the extra- ordinary authority which has been created for the U it I I 1 ) ; M 1*' »l« 1 1 HI M-iirTii ii / 1 30 temporary Government of this country. If I hare described my own policy aright, I shall not err in re- presenting that of the Imperial Government as one • produciive of insecurity at present, and of doubt, un- • certainty and want of confidence, as to the future. Ji «ny defect existed ^he particular defect of the Ordinance which has ^n tho Ordinance it led to the disallowance of the whole of it, was occa- was not occasioned sioned by no oversight of the extraordinary Legisia- bjr any oversight. ^^^^ ^j- Lower Canada. I believed, and still believe, for the reasons assigned by me in my Despatch No. 67, that by the Legislative powers entrusted to that body, we were authorised to banish persons from the Province, and that according to a constant course of precedents furnished by the Legislation of the • ■ Province, our power extended to the custody and dis- ' posaf of Provincial Prisoners while on the High Seas, and to landing them on the shore of Bermuda, or any other portion of the globe in which free access to strangers is allowed by the municipal laws. Fur- ther, it was well known to us, our jurisdiction did not extend; once landed in Bermuda, the Prisoners were subject only to the laws of that Island. It was known that they would not arrive there as convicts, (especial pains had been taken to spare them that indignity) and • that the laws therefore which held good with regard to ordinary convicts, would not apply to them. It ^ was known that they could be forcibly detained within the preclhcts of Bermuda only by provisions to be made for that purpose by the Legislature of the Island, . or by the Imperial Parliament. The words of the Ordinance, which authorised Her Majesty to impose restraints on the Prisoners in a Colony not subject to our jurisdiction, could give Her Majesty no power which she did not possess before. It was never suj)- posed that they could ; and that part of the Ordinance was passed with a perfect knowledge that it was wholly inoperative, and that the prisoners could not be compelled to remain in Bermuda without the adop- tion of measures in aid of our Legislation by the au- thorities of the Island or of the Empire. The words were inserted for the double purpose of showing that the prisoners were not to be subjected to the •rdinary treatment of ordinary convicts, and a relieving the loyal inhabitants of the Province from the apprehen- sion of the immediate return Qf these dangerous per- Tho object of the Or- sons to it? Hmits or its vicinity. dlinanco wai eeoured As it happened however, the object of the provis- ion in question was attained in spite of its legal inade- wR by tb« Toluntnrr pa« rolo of the prisunera. quacy. For the detention of the t ^J ierg in Bermu da was secured by llieir voluntary Pfrole. Except for the purposes I have mentioned, the words objected to were, in fact, nK 3 surplusage. If, as common sense points out, they were merely inop- erative, their insertion is a matter of no importance. If the Lawyers are technically right in confounding two very distinct words and ideas, and describing as illegal all Legislative provisions, which are obviously inoperative, it may be inferred that Her Majesty 4||{|ild not give her sarciion to this enactment, and thaohe disallowance of the Ordinance was a matter of tcch- nijptl necessity. But in either case it was the business j^^, ^ , era wise Government and Legislature to correct the inoperative"*or*de" errors or supply tlje imperfections which had their ori- cimt, it was the part gin in a zeal for humanity, and for the integrity of the °^ ^ ^'^^ (Jovom. Empire. I speak of a Policy, of which the leading ;";^,;;pf/Xt'w;: features and animating spirit have n^pw been sanction- wanting ta render it ed by almost universal assent. It has hardly been effective. impugned even in this Province by those, whose friends I could not entirely relieve from all punishment for rebellion, or those whose sense of Justice 1 shocked not a little by the supposed inadequacy of my penal- ties- It has been generally and cordially approved even in its details, by the people of the neighbouring States — thofl ce ople in the world the most competent to judge wi^ut passion of the local necessities of the case, and not the least ardent in their love of freedom and their respect for the law. It has not, even amid the acrimony of party debates at home, been denied • by any person whose opinion has any weight with any body, to possess the merits, (all by which I set much store) of substantial Justice, mercy and sound discre- tion. A Government and Legislature anxious for the tranquillity of this wretched Country, for the interests of humanity, for the honor of the British Crown, would not have lightly foregone the benefits which such a Policy promised and had already in a great measure secured. They would have taken great care that its great and beneficent purpose should not be frustrated by any error which they could rectify, or by the want of any power which they could supply. If they found the Ordinance inoperative, they would have given it effect, if illegal thev would have made it law. Instead of this. Her Majesty's Ministers, at the in- J^''/iJ'^i°jfg"i'^"^ stance of a branch of the Legislature, have decided on ©d^iif poUcy Adopted disallowing the whole Ordinance. And in place ofbyEariDurhaai iiaa I I I '1 I _J 4 / l. %■ 32 beon rendoreil ^ullj^ finding the co-flHition which I had a right to expect. Act of Indemnity, for which I .nd ho find« himself I ^^ favored wRff an compelled to perso- i i ■ ,. • ■ • • - . i- vere in liis detorini- cun be thankful Only because ]t purports to relievo nation to resign. others from any penalty incurred by their ready ac- quiescence in my views. The disallowance of the Or- dinance, has, I repeat, rendered null all ihe repressive portion of my policy ; it has also, by extending a complete pardon to all, deprived me, who do not shrink from the ungracious task of framing measures obiytecious to one class of the people, of the power to mafe them some compensation by further Acts of gra- cious kindness. Finally it overthrows all confidence in my engagements ; it deprives my pledged word of^all weight and value. I should now legislate if at all, I with the expectation that each measure would bo scanned and criticised in a hostile spirit, and not im- ^ v" ' , probably rendered abortive by the Supreme authority. : * A delegated autj^orily when not sustained by the power that has bestowed it loses all moral force ; and I need not remind your Lordship that a Government of mere physical force is neither possible on this con- tinent, nor would be otherwise than wholly inconsist- ent wnth my feelings and opinions. Tiierefore 1 am satisfied that the proceedings of the Government at Home entirely preclude me from carrying out the Po- licy, which I had proclaimed and on ;^ich I have acted. I could not adopt a new policy m)w, without bringing ridicule on all concerned. I am thus disabled from rendering any important service to the public in • my present situation. By retaining an authority which has become merely nominal as regards the great pur- , poses for which it was created, I should wilfully deludo the public with false hopes, and deliberately provide for a more bitter disappointment. These are the main grounds on which I persevere in the determination of resigning, announced to you in my Despatch No. 66. The reasons given But these, though the principal, are not the only ^"w h'°- h"'"'^ •'"^^ reasons, which induce me to resign. The late pro- Lrdship"trresign!^<^^^"igs ^t home have not merely, by destroying the moral power of my Government, deprived me of all the necessary means of carrying into effect a policy, of which the Ordinance in question was a small though essential part, but have by the disallowance of that . particular measure, imposed on the Government of • ""^" this Province the most serious practical difficulties. — J* I have already called Your Lordship's attention to the - • ■ fact, that the disallowance of the Ordinance annuls all ■ -^^^^^BrnWlflBI 33 the measures of precaution and punishment which I Tli» leader of tim !,ave adopted ; and that the universal operation of j^^^h"'°" "f. P'""** ¥T -x/r • \. t T% 1 ^« r A ^ ^1 •. 1 L «n the Baine situation Her Majesty's Proclamation of Amnesty, hmited by as boforo. nd exceptions save those now invalidated, establishes an impunity absolutely co-extensive with crime ; and places the leaders of the Rebellion precisely in the same situation as that which they occupied before their recent unsuccessful attempt. I find that this result was not wholly overlooked in the debates in Parlia- ment, and that it was suggested that some precautions should be taken by the authority, which invalidated our acts, to avert the mischief thereby occasioned. — Though much was said, however, nothing has been done ; the work is left to be performed by the Pro- vincial Legislature, and Your Lordship is kind enough to suggest the course, which you think it advisable that we should adopt in the present emergency. The question 9f the disposal of the persons implicated in the late insurrection was one originally foreign to my mission, an obstacle left in my path by previous neg- lect in one quarter or another. I succeeded in remov- ing it: the effects of its existence had been efficed. — It is now placed in my way once more : with this ad- ditional disadvantage, that, having all that is difficult and odious to do over again, I had lost the power of accompanying it with an act of grace. I have to pun- ish without pardoning, and justice having been now baulked of its due, I am to execute whatever vengeance the interposition of the Home authorities may have left within my reach. The suggestion made by Your Lordship appears The course suggest- to me liable not only to this, but to other objections. — ^'^ for His Lordship's Her Majesty's Government, feeling it their duty as J'^^^/'^^P^'^"' '^''- you say, to leave me in no uncertainty as to their views on the course which it may be expedient novir to adopt with regard to the persons who,in consequence of the disallowance of the Ordinance, can no longer be liable to its provisions, suggests the passing another Ordinance, banishing from the Province the eight per- sons who have been sent to Bermuda, and forbidding their return under some penalty " short of death." ^he course proposed Your Lordship appears in a subsequent passage to liable to objections, desire that such an Ordinance should apply to the whole of the " persons whom in the exercise of a sound and wise discretion, I have excepted from the Am- nesty." This would include Mr. Papineau, and the Qthers, whom, being at large and absent from the Pro- E I I rrrrr- / It 1} .1 , 4 m ii vince, the disallowed Ordinance had sentenced to ban- ishment. But from a paragraph immediately follow- ing, which refers to the course practicable under an Ordinance of Sir John Colborne's, I am led to suppose that you look to a suspension of the Habeas Coipus Act as sufficient for effecting the exclusion of those dangerous persons. If the Ordinance which you propose, were to ex- clude only the eight persons now in Bermuda, it would be useless and iniquitous. 'I here would be no justice in punishing Mr. Bouchette for being taken, while Mr. Gagnon the companion of his guilty enterprize is al- lowed to return unmolested to his home : or in doom- ing Dr. Wolfred Nelson to a severer lot than that as- signed to his brother, who was not 6nly guilty of ' Treason previous to leaving the Provi..ce, but has since invaded it at the head of an armed b^nd of fo- reigners and refugees. If it be politic to %llow Mr. Papineau to return and lesume his former course, it were surely a heedless and petty cruelty to banish from their homes his bolder and therefore less danger- ous tools. If the Ordinance were to include Mr Papineau and "^ro^^sed wouufT*'^® ^^'^f" ^^° ^^^ ^^^*' Ijanished without a trial or liable to the same ob. confessioH of guilt, the ends of substantial justice would joctionsastheiormer be attained in the same way as in the dissallowed Or- ^"** dinance, and the new Ordinance would be liable to the same objections as those urged against the former one. Your Lordship I know does not participate in these objections. But experience has shewn me that it is necessary in the present times for those exercis- ing an arduous responsibility far from home, to look to the opinions not only of the Ministers but also of the opposition. And in following a course similar to that, which has been already impugned by Your Lord- ship's opponents in Parliament, I do not feel quite sure that the same power which has induced Her Majesty's Government to cancel an act of which you had al- ready declared their approbation, might not compel them to disallow the very course suggested by them- selves. The mere substitution of a milder punishment in place of that of death, would obviate none of the ob- jections made on principle to the infliction of any pen- alty without trial, No one can imagine that Capital punishment would ever have been wantonly inflicted Dy one, who has deviated from the ordinary Law ; in order solely that he might exercise a more than ordi' ■■■iilBflil ,«^ 35 ;ed to ban- sly follow- under an to suppose as Covpus »n of those vere to ex- la, it would c no justice I, while Mr. rprize is al- 3r in doom- lan that as- y guilty of ce, but has band of fo- » lillow Mr. r course, it r to banish less danger- apineau and t a trial or istice would 1 lowed Or- e liable to the former rticipate in vvn me that Dse exercis- 3me, to look but also of 56 similar to Your Lord- el quite sure er Majesty's you had al- not compel id by them- punishment ne of the ob- of any pen- that Capital >nly inflicted ry Law ; in :e than ordi- nary clemenc/. That penalty was announced in the Ordinance because it seemed necessary according to the general practice of civilized nations to enforce sub- mission to the second in the scale of penalties by a threat of the highest. To call an act innocent in itself, by the name, and subject it to the penolties of Treason, is not more revolting to strict notions of ordinary Law than to call it Felony or Misdementior, and punish it with banishment, imprisonment or fine. Your Lordship suggest that this new policy should Haboas Corpus— the be completed by a suspension of the Habeas Corpus, P'^pp^ty «f t'jo «""• and such a measure I am aware has been suggested Bide'ed! '°'°** ***"* as a matter of course by somo speakers in I'arliament, who profess most regard for the British Constitution. I cannot bring myseFf to rate the great guarantee of ' personal liberty as so unimportant a part of the British Constitution, or of those securities which should be possessed by every civilized community. On the con- trary, I am inclined to think it quite as important, and quite as sacred from heedless and unnecessary viola- tion as any without exceptions of the provisions made for fair and open trial. And I must own that I have That proceeding not seen with no little regret how much men's minds ap- approved of. pear to have been familiarized with the idea of sus- pending the Habeas Corpus by the frequency, with which it has been done in the bad periods of our own ' ' history ; and the consequent facility with which in these debates it seems to have been proposed as a merr matter of course, by some of those, who ex- press the greatest horror at any deviation from what they call a Constitutional course. To me, my Lord, it appears that men's notions of right and freedom would be much more shocked at such an universal violation of every man's dearest right, than by any summary process adopted for the punishment of the undeniable guilt of a few. I do not say that there are no circum- stances under which I would consent to a suspen- sion of the Habeas Corpus. I should not hesitate to adopt it in any emergency in which the notoriety of a general outbreak or of a general purpose of insurrec- tion might render it advisable that a Government should be for a while armed with a power of arresting the objects of its suspicion without bringing them to im- mediate trial. But i see no necessity on account of any existing evil in this Proviuce for taking such a step now : and the present Legislative authority of this Province will be capable of being brought into im- Mi 36 I .^. *' i mediate notion at the moiiiCDt in wl»icl» any danger \nay declare itself, on no other ground can 1 consent lO propose such a measure for adoption by the Special Council. 1 cannot think it justifiable to take away the franchises of a whole people in order to punish a few known and dangerous individuals, or to guard against the misconduct of twonty-thrce men by envel- oping them in a general forfeiture of personal liberty. Had the iuggestion llad Your Lordshlp's suggestion of these measures been aocompanioa by jjggj, accompanied by positive instructions for their in- CeZ"*7o«Bna': stant adoption, I should have felt that, in consequence tion would have been of my insuperable repugnance to taking any part in the conwquonce. them, it would be mv duty to resign immediately the Government of this iVovince, and to give up mv autho- rity to a successor, who would carry your orders into effect ; but as you expressly state, that you " do not intend to prescribe tome, the precise course, to which you have adverted, as that, which under existing cir- cumstances ought to be adopted," I conclude that you mean not in any way to fetter my discretion. 1 shall therefore pursue the course, which, taking all the cii'- cumstances of the case into consideration, I regard as best calculated for the public service. RoaBons why His [ Jq not instantly resign my authority, because I K'i'mrdfaio!'°"have made engagements, and imposed upon myself obligations which it is absolutely necessary that I should fulfil. In my character of Governor-General, I have set on foot the reform of some practical grievances which are among the many that have been long suf- fered by the people, and which, I fear, they might continue to suffer, if the governing hand, which has first ventured to meddle with abuses in this country, were suddenly withdrawn from the work of reforma- tion. In some cases, both of individuals and classes I have held out hopes, and made virtual promises, to which every sense of honor and of truth commands me, • as far as remains in my power, to give effect. In my character of High Commissioner, I have instituted en- quiries, some of them relating to the whole of these Colonies, and all to siibjects of great importance, con- sidering the great expense necessarily incurred in carrying out the objects of my mission, and the lamen- table want of information upon these subjects, which prevails in the Imperial Legislature, I should take shame to myself, if, except under some absolute neces- sity, I were to leave these enquiries incomplete. — Above all I am desirous that my mission should not .vts:^ u^ '.•i 4HWa •mm ■MMwSiEw* an prove fruitless as to its main object, namely, the pro. paration of a plan for the future Govornmeiil of this part of the British Empire. iSuch a plan could only Le framed upon ample information as to the wants, dispositions, and interests, as well conflicting as gene* ral, of every class of Her Majesty's subjects in these Colonies. I have endeavoured to gain such informa- tion from ail quarters, but have not yet completed that very arduous task ; still it is so near completion, that I cannot bear to think of leaving it unfinished ; and, if unfinished, productive of no other result than a waste of public money, of the laborious exertions of those whom 1 have employed, and of the patience of the people of these Colonies, which I do solemnly assure Your Lordship may bo tried overmuch. 1 have no . doubt that, in a few weeks more, nothing essential to JJi' J,°oi*'"^ ' '"^"" this object will be left undone. I shall then return to England without losb of lime, for the purpose of lay- ing at the feet of the Queen the Commissions of Go- vernor-Gencral and High Commissioner with which Hor Majesty has been graciously pleased to honor me. And then, in my place in Parliament at least, I may be able to render my mission productive of good, by satisfying the British people and Legislature, of the absolute necessity of steadily pursuing towards these Colonies a very different policy from any that has yet been adopted by the Parent State. Even if I can do no other good there, I shall be His Lordship's expe- able to use my experience of this Colony in checking '■'';"';° ^'i''" <-'"Joiiy ^1 . •I- J- -J.- /•« !• ..A. J • 1 Will "0 01 sonio Ubo, the too prevaihng disposition of Parliament to decide ^y enablintr j,i„i to on the vital interests of this distant community accord- correct erroneous o- ing to the principles of a Constitution, and the feelings P'uiou" respecUug it. of a state of society, the least analogous to those which prevail here. The Government of these Provinces requires something more than a knowledge of the Common and Statute Laws of England. Though ihe object of wise and benevolent statesmen should be to establish the great principles of the British Constitu- tion, and the English Law in the Province, it must not be supposed that this is yet done, and I trust that the acts of future Governors will be submitted to the decision of some more competent Judges than those who profess to try such acts by the mere principles of English Law. My acts have been despotic, because my dele/;ated authority was despotic. Until I learn from some one better versed in the English language that despotism 38 hv^ ' means any thing but such an aggrogation of the su- preme Executive and Legislative authority in a single hand, as was deliberately made by Parliament in the Act, which constituted my present powers, I shall not blush to hear that I have exercised a despotism. I shall feel anxious only to know how well and how wisely my countrymen think that I have used, or rath3r exhibited an intention of using my great powers. Nor shall I regret that I have wielded these dcs- fotic powers in a manner which, as an Englishman, am anxious to declare utterly inconsistent with the British Constitution, until I learn what are the Consti- tutional principles that remain in force when a whole Constitutior^ is suspended, what principles of the Bri- tish Constitution hold good in a country in which the people's money is taken without the people's consent, in which representative Government is annihilated ; in which Martial Law has been the law of the land ; and in which the Trial by Jury exists only to defeat the ends of justice, and to provoke the righteous scorn and indignation of the community. I should indeed regret the want of applicability in my own pnnciples of Government, or my own incapacity for applying them, had the precise course, which I should think it imperative on me to pursue in a land of freedom and of law, proved to be the only one which I could adopt in a country, which long misgovernment, and sad dis- sentions have brought to a condition which may fairly be described as one of constituted Anarchy. I have, &c. (Signed,) DURHAM. The Right Honorable The Lord Glenelg. - >\ &c. &c. «&c. . c" . . : . Circular Letter re- spocting tho Earl of ]3arhaia's Despatch- es, and his Proclaiua- rjrn Uon of the 9th Nov. ^^*^» ®4« CIRCULAR. Downing Street. \st December, 1838. The Earl of Durham having informed me that he has transmitted for vour ffnidnnce and information copies of his Despatches to me of the 25th, 20th, and 28th September, Nos. 66, 67, and 68, I feel it my duty to enclose herewith, for your information, copies of the answers which I have returned to those Des- patches, together with the copy of a Despatch which \^^. ^■''T^- •■' 39 1 addressed to the Earl of Durham on the 15th inj^tant in reference to his Proclamation of the 9th October last. 1 have, &c. (Signed,) GLENELG. His Excellency Major General, Sir George Arthur, K. C. H. Despatch. Earl Glo.nelg in ans. wer to Enrl of Dur- (Copy) No. 126. Downing Street, 26th October, 1838. MY LORD, , . , Since the date of my Despatch of the 19th jTasthTd ^2^^ ^f instant, Her Majesty's Government have had under Sept. their consideration your Lordship's Despatches, No. 66, of the S.'ith of September, and No. 68, of the 28lh . , , of September. Her Majesty's Government observe that the first of these Despatches was written before your Lordship had received any official information of the proceedings which took place in Parliament wit*^ regard to the Ordi- nance of the Special Council of Lower Canada for pro- viding for the security of the Province, or of the course adopted by Her Majesty's Government in reference to those proceedings. That Despatch was written, consequently under the feelings and impressions which could scarcely fail to be excited by the partial infor- mation, derived only from the public prints, of what occurred in the earlier stages of the Parliamentary discussi( tns on the subject. Under such circumstances, unacquainted as you were in a great measure with the considerations which had led Her Majesty's Govern- ment to the conviction that the course which they re- luctantly felt themselves bound to pursue was, in the Her Majesty's Min- actual situation of the question with which they were isters were not air- called to deal, the one least likelv to prove injurious P"*°'' ^\ f '^ ^^^ . . Ti- • ^ . 1 . • .C -^ J slap's opjiiion, deriv- to the public mterests, and to your authority, and re- ^j fro,„ p^^jjj iaf^,, senting, as it was natural to do, the imputation of an mation, abuse of arbitary power, it cannot be matter of sur- prise that your Lordship should have conceived your position in Canada to be so materially affected as to leave you little hope of a successful result to your mission. Fully entering into the feelings occasioned by the report of the earlier proceedings, only in the House of Lords, Her Majesty's Government do not think it -J 1 — \l .i 40 lu.^' A \ \ ; mission. Tiegret at Hii Lord- nccessary, with reference to the first of your Des- ■hip'8 determination patches, to do more than express their deep concern, to resign the Govern, r , . , ,. . .1 • 1 r ^l. ^ ^ 111 nient. that yielding to the impulse ot the moment, you should at once have publicly announced your determination to resign your authority. On the evening of the day subsequent to the date of your first Despatch your Lordship appears to have received my Despatch of the 18th August, together with full reports of the proceedings in both Houses of Parliament with regard to your mission. Her Majes- ty's Government deeply regret that with this full in- , -J. formation before you, your Lordship, at the date of ietera trust! however your Despatch of the 28th September, still considered that, inposses-iion ofyour position no longer tenable with a prospect of be- fuliinformation upon neficial results. But thev have been relieved from hTs Loidship's inten! ^uch of the apprehension 'which they would otherwise tion abruptly to re' have entertained for the security of the Province and linquish his authori. the interests entrusted to your care, by the assurance ty, without coinplet. pQjj^jjj^gjj ^^ j^g^ Despatch that it was not your ing some of the mea. , 1 ^1 ^ v • 1 ^l -^ x Bures contemplated intention abruptly to relinquish your authority, or to as the principal ob- abandon the Post which you occupy, without giving jects of his Lordship's gfjg^jt to the reform of somc practical grievances, to the redress of which you had applied yourself, with- out completing the main inquiries which in your cha- racter of High Commissioner you had instituted, — and, above all, without accomplishing the chief object of your mission, in the preparation of a plan for the fu- ture Governnerit of the British North American Pro- vinces. Her Majesty's Government fully appreciate the motives which have induced you to postpone your intended resignation until these important ends shall have been attained, and they are persuaded that the same regard to the public interests which had deter- red you from a sudden and immediate resignation will prevent you hazarding the tranquillity of the Ca- nadas, or placing their security in jeopardy, by the premature relinquishment of your authority, should any circumstances not contemplated at the date of your Despatch convince you that your departure at the time which you then anticipated would be attended with results dangerous to the peace and safety of the British North American Provinces. Connected with this important object, the safety of the Provinces, is the question to which your TiOrdship adverts, of the mode of preventing the evil to be ap- prehended from the impunity of the authors or leaders of revolt. Your Lordship objects to what is called { ^ ■ tr — P-l ^ >» 41 use. the suspension of the Habeas Corpus Act, as a mea- Sutpension of Haiie. sure involving a whole people in a penalty in order to ^^ ^^^'P"" '^""^^ punish a few; and you likewise condemn the levity ' - with which a measure of this severe and arbitrary na- ture is spoken of in Parliamentary debates. There can be no question that an Act eivinor power . , . r u'x jii* J' • i-r-A measure not be of arbitrary detention and imprisonment is one of a resorted to, except in serious nature, not to be resorted to without necessity extreme cases. founded on circumstances of public danger. But Her Majesty's (Government cannot agree with Your Lord- ship that these temporary suspensions of a constitu- tional Law, do in reality affect the whole people un- less upon occasions when the remedy is improperly When this remedy applied to the existing evil. That remedy when ""^y^^ properly ap. properly applied, is intended to counteract the designs ** *° ' of a few leaders, and to separate them from the great body of their followers. In this manner it was used Instances of its after the Revolution of 1688, and after the accession of the House of Hanover ; and the stability of these two great settlements was perhaps in a considerable degree owing to the readiness and decision with which this remedy was applied. In such cases the leaders of Revolt, and the chiefs of conspiracy, know them- selves to be struck at, and feel their safety endangered; but the great body of the people, relying on the general spirit and administration of the Law, fear nothing from its momentary interruption, and enjoy their liberty un- molested. Such, it appears to us, is the case of Lower Canada, at a moment when rebellion has but recently been suppressed, and preparations for a renewal of it are threatened. At such a moment the loyal and peacable inhabitants of the Province will be more secure, while the fomenters of revolt are in danger, and on the other hand, if the fomenters of revolt can act with impunity, the peacable inhabitants are in danger. Your Lordship asserts in your Despatch that in the present state of the Province " Trial by Jury exists only to defeat the ends of justice, and to provoke the righteous scorn and indignation of the community." This a picture of a most lamentable state of thin^s,of which the truth I fear must be admitted, and the evil cannot be overated. ' On the due execution of justice the whole relations of society depend. If men find that the murder of their relatives and friends is not visited with retribution in a Court of Justice, it is scarcely to be expected that they will abstain from a d >•, i\ J I 42 1|^*' .■f. f medj. Remedy proposed. \m * '• ' recurrence to the personal revenge which, in reliance upon Law, they had relinquished. The preient state of This State of insecurity imperatively requires a things requires a re. remedy. It is therefore the desire of Her Majesty's Government that an Ordinance should be passed by the Special Council of Lower Canada, constituting a Tribunal for the trial of Treason and Murder. With respect to the manner in which such a Tri- bunal can be formed, it is not proposed to bind your Lordship's discretion. Learned Judges alone might constitute a sufficient Court for the trial of these offen- ces ; or it might be better to form Courts more nearly resembling Courts Martial, — or to combine both these species of Tribunal But in any case where trial by Jury has excited the righteous scorn and indignation of the ccnmunity, it cannot be difficult to form tribu- nals more impartial and more competent than the ex- isting Juries. The cautious habits of learned Lav/- yers and the fairness usually exhibited by Englishmen even to enemies taken in open resistance, added to the publicity of their proceedings, would be a security that none but the most conclusive evidence would lead to convictions. It would not be safe to postpone the formation of such tribunals until a new Insurrection may happen to break out, for the same objections which induced Her Majesty's Government to reject the proposition to sub- ject the prisoners charged with being concerned in the late revolt, to new tribunals constituted after the com- mission of the offences, would again apply. Men would complain that they were tried by an ex-post- facto Law. While therefore the power of detention and imprisoment without trial may well be reserved for a period of eniGrgency of which your Lordship will be the judge, it is the desire of Her Majest'y Go- vernment that ycu should at once prepare and pro- pose to the Special Council an Ordinance for consti- tuting Tribunals by which future rebels and murderers may be tried. The leaders and Agents of Insurrec- tion will thus be forewarned, and cannot justly com- plain if they are made amenable for their crimes, I have thought it unnecessary to enter in this Des- patch into a detailed consideration of the observations which you have addressed to me on the course pur- sued by Her Majesty's Government, with regard to the affairs of Canada ; — to the assurances contained in my Despatch of the 18th August, of the undimin- Such tribunals sliould be formed without do- lay, so that ofronders might not complain that thoy were tried by an £x post facto Law. Lord Glenelg abstains from a detail of mat- ters of minor import, ance ; is sitisiied with the general soundness of the Earl of Dur- ham's policy, and \ 43 ished confidence of Her Majesty's Government in vour thinks His Lordship Lordship, and of their cordial approval of the s'pirit J" overrated the of. and tenor of your administration, I can only add that puWic'°in1nd by the subsequent experience has tended to justify and con- proceedings in Far firm their persuasion of the general wisdom and sound- ^**'n«nt' iiess of the policy b^ which you have been guided. — They continue to feel that, under the difficult and pe- culiar circumstances forced on them by the proceed- ings taken in the House of Lords, they adopted that course which was calculated to render those proceed- ings as little injurious as possible to the public interests, and to the great objects of your mission. They could not iiideed hope altogether to neutralize the evil con- sequences of what appeared to them an ill-timed and injudicious interference with the exercise of those powers with which Parliament had invested the Go- vernor of Canada : but when they review the unequiv- ocal proofs of respect and esteem which have been largely tendered to you in the North American Pro- vinces, when they consider the repeated testimony of persons having a deep interest in the welfare and se- curity of those Provinces to the beneficial tendency ol your administration, and when they observe the unusual concurrence of men of various parties and political opinions in deprecating your intended depar- ture, Her Majesty's Government cannot but think that on the first receipt of the intelligence of the Par- liamentary proceedings to which reference has been made, you overrated the effect of those proceedings on the public mind, both in this country and in North America, and formed an incorrect estimate of the state of public opinion with regard to them. Her Majesty's Government are persuaded that the The main act? of His more elosely the main acts of your adminstration are Lordship-s Adminis. reviewed in all their bearings, the more apparent will ^^^'■^°^ approved oi: it be to impartial observers, and to men actuated by a sincere regard to national interests, that those acts have been conceived in a spirit and executed with a firmness alike worthy of your reputation and adapted to the exigency of the circumstances with which you were called to struggle. Impressed with these senti- ments, and in the absence of any precise information as to the time which may be occupied in the coniple- tion of the several objects contemplated in your Des- patch of the 28th of September, Her Majesty's Gov- »» «v ,. , u- ■ ernment will abstain, until they hear further from te« abSi^'from " d* Your Lordship, from tendering any advice to Her vising at Miijeatj 11 ^ ' 't: m 44 m i< M I ai to tho sdceeBsion Majesty Qs to the succession to your Government.— to the Government, rp^^^ ^^^^ received with much satisfaction Sir John In tho event of His ^^^"^*^''"^''' acquiescence in their request that he would lordship's rcsiffnation continue during the approaching winter in the com- the adininisiration ofmand of Her Majesty's Troops in Canada; and as in affairs will. ofcourse.^jjQg^gpj of Your Lordship's return to England, the devolve on Sir John , • • , ^. ,. ,. zr • r t nt i -n • Cojborne, until the administration 01 the anairs ot Lower Canada, will, in appointment of a sue. the ordinary course devolve on that Officer ; Her Ma- coBBor to His Lord.JQgjy'g Government can feel no difficulty in confiding " '^' to his hands the security of the Province until the aj>' pointment of a successor in the Office of Governor General. I have &c. (Signed,) GLENELG^ The Right Honourable n; The Earl of Durham, G. C. Jj. (Copy) No. 133. Downing Street, \2tk November, 1838. MY LORD, In mv Despatch of the 26th ultimo, I abstained yecfeil*?' frnThe Co" ^^^"^ ^"^ "^^^^® ^^ y^"*" Lordship's Despatch, No. 07, TonUs To Kar/\)uN of the 28ih September, and of the observations con- ham, tained in your Desputch No. 68, of the same date, on the proceeding which, in your opinion, ought to have been taken by Her Majesty's Govei nment with regard to the Ordinance of the Special Council of Lower Ca- nada, therein referred to ; having thought it desirable to reserve for a separate communication my remarks on those subjects. Her Majesty's Government have attentively con- sidered the statements which you have addressed to me of your views as to the legality of that Ordinance. Without intending to enter on a legal discussion, or to offer any further opinion, than that which, on the authority of the Law Officers -of the Crown, 1 have Ircady conveyed to you on this subject, I have to ex- press my sausfaction that little diflerence of opinion exists between your Lordship and ourselves as to the extent to which any valid legal objection could be urged against the Ordinance. Waving the question of your right to send to Bermuda persons under xes- The Ordinance ban- 11*^1"^ by virtue, not of an Order or Sentence of Trans- ishing the State pri- portation, but of an Ordinance of the Special Council Bonors to Bermuda, of Lovvcr Canada, suhjecting them to banishment to K # •''::\ ■ i n i BW itW ft yxCT-O ' r'"^^*""^- '•' """ that particular place, it is admitted on all hands that j;J^'**jf.^*° ** P""' " so far as it purported to confer on Her Majesty the *"°P*'* '*'* power of imposing restraint on the parties named in it, while in Bermuda, the Ordinance was at least inoperative. Your Lordship has now informed me thaf you were always fully aware of this defect ; and that "that part of the Ordinance was passed with a per- ' •; feet knowledge that it was wholly inoperative, and / that the prisoners could not be compelled to remain in ' . Bermuda without the adoption of measures in aid of . your Legislation by the authorities of the Island, or of the Empire. Your Lordship has further stated it to have begn the business of Her Majesty's Govern- ment on the arrival of the prisoners at the Bermudas, either through the Imperial Parliament, or through the local Legislature, to retain them there." Her Ma-jjg, Majesty's Got- jesty's Government regret that, until the receipt of emment not aware your recent Despatches, they had no reason to believe *'>»<• ""^^ ^ns Lord that such was your view or opinion at the time when ^'^'^'^'"'^ opinion, the Ordinance was passed. Neither in your Despatch transmitting the Ordi- nance to this country, nor in your Despatch to the Governor of Bermuda informing him of your having «ent the prisoners to that place, was any allusion made to your expectation of the adoption of any such mea- sures. As the prisoners were sent to Bermuda within a few days after the passing of the Ordinance, and consequently long before it could possibly reach this country, the intervention of the Legislature of the Bermudas on which you now appear to have relied, could not have been made available at the suggestion of Her Majesty's Government, for the purpose of au- thorising their restraint on their arrival there. That object could only have been attained by a suggestion from yourself to the Governor of Bermuda, of the ex- pediency of recommending to the Local Legislature an enactment of the required character, in case that Legislature should have been at the time in Session, and the Governor should have thought that such a recommendation would be favorably received. The propriety of proposing? measure to the Im- „.,,„■• perial Parliament to supply the defect in the Ordi-HjjKfthS'ft nance, did not escape the attention of Her Majesty's expedient to supply Government. It was fully considered by them. — the deficiency in the Your Lordship will not expect me to state in a Des- Or 1 > > \ ,) 'i t f V f \ i\ ' \ V 46 crnment, after full deliberation, to think such a course inexpedient. That I abstaiiicd Irom adverting to it in my Despatch to Your Lordship of the 18th August, was solely owing to the absence of any reference in your previous Despatches to the expectation which it appears Your Lordship entertained that such a course would have been adopted. Appointment of Mr. There is one other topic to which I hoped it would to. after the renewed allusion to it in Your Loraship s Despatch, No. 66, I cannot altogether pass over in ,, silence, I mean the appointment ol Mr. Turton as an . .>*...= Executive Councillor. I abstained from replying to your Despatch of 30th July, No. 30, on this subject, irom a conviction that the correspondence which had ' '* ' already taken place with regard to it could not be ,. I continued, without a wide departure from the ordinary • ' • rules of official communications, and without exposing 'V tt) needless pain the individual who had unfortunately been the occasion of it. The observations, however, which you have made in your Despatch of the 25th September, compel me to remind you that your selec- tion of that Gentleman for the Office of your legal adviser, was made by you without any previous com- . munication to Lord Melbourne or to myself, and with- out any knowledge on our part of your intention ; and that as soon as it was known to us, Lord Melbourne Hisappointmeutsdis. stated to you the decided objection which he enter- approved of. tained to the appointment. In consequence of this intimation from Lord Melbourne, you waived the ap- pointment, expressing at the same time your intention, in consideration of the painful position in which Mr. ' Turton would otherwise be placed, that he should pro- ceed to Canada as your private friend. It was unquestionably the firm impression, and expectation of Lord Melbourne and myself, that what- ever assistance Mr. Turton might render to Your Lordship, would be given in a private capacity ; and that he was not to fill any official situation connected with your mission. fV " I have, &c. (Signed,) To the Right Honorable The E/ rl of Dirkk.iiAM, Sac. &c. &c. GLENELG. ■'-%' Jk. "^ . i_ \\ a course ing to it ill Lli August, ference in n which it :h a course }d it would jut which. Lordship's ss over in irton as an . eplying to lis subject, which had uld not be he ordinary ut exposing tfortunately s, however, 3f the 25th vour sfclec- your legal evious com- ;lf, and with- ention; and Melbourne h he enter- ;nce of this ivcd the ap- ur intention, which Mr. } should pro- .ENELG. 47 (Copy) No. 134. % Downing Streei, *siiM loth November, 1838. MY LORD, I have had the honor to receive your Lordship's Djipatch. Despatch of the IHh of October, No. 80, enclosing 5"Dwham!^ *** ^"* copies of two Proclamations bearu^g date respectively the 8th and Uth of that month, and published by you in the Quebec Gazette. Of the Proclamation of the 8th of October, I am „ , ,. - q.. , , . ^ tj 'IT • . > 1 Proclamatjon of 8th commanded to convey to you Her Majesty s approval, jj^y, approved of. The Proclamation of the 9th of October, Her Ma- Jbcsty's confidential advisers regard, not merely as a dfiviation from the course which has hitherto been in- Proclamation of 9tfc variably pursued by the Governors of the British pos- Nov disapproved^of sessions abroad, but as a danij;erous departure from vernmeiit.""'''**^ the practice and principles of the constitution. They consider as open to most serious objection, an appeal by such an onicer to the public at large from measures ^ adopted by the Sovereign with the advice and consent of Parliament. Tho terms in which that appeal has in this in- stance been made, appear to Her Majesty's Ministers calculated to impair the reverence due to the Royal authority in the Culony, to derogate from the charac- ter of the Imperial Legislature, to excite amongst the disaffected hopes of impunity, and to enhance the dif- ficulties with which Your Lordship's successor will have to contend. The ministers of the Crown having humbly submit- ,. ., •„ 4 . i- , ... . . t /^ • • 1 • r »^*' Mttjostr'a tlisiiiK ted this npmion to the Queen, it is my duty to mlorm probation conveyed you that I have received Her Majesty's commands to to the Earl of Dur- signify to Your Lordship, Her Majesty's disapproba- "*"*• tion of your Proclamation ot the 9lh of October. Under these circumstances H' Majesty's Govern- „ ,,,».. « • ,1 , ^ J •. ^u X .• Earl of rhirflam*8 in- ment are compelled to admit that your continuance in tention of resigninc the Government of British North America could be approved, attended with no bencfiqial results. I presume tliat before your receipt of this Des- patch, your Lordship will have delivered over the Government of Lower Canada to Sir John Colborne, to whom I shall address the requisite Instructions lor his guidance. I have, &c. (Signed,) GLENELG. . The E\rl op Durham, G. C. B. V y