vernor and Council to the regulations of every act of Parliament, though on the most minute subjects. He supposed, therefore, that their Lordships would have no objection to the introduction of a clause in the present bill explanatory of the proviso, and stating, that it should not interfere with any measure that the circumstances of the country might render necessary. He should, therefore, when the proper time arrived, move a clause to that effect.

Lord Brougham in an exordium couched in a somewhat equivocal strain of compliment commended the Ministers for "their judicious, wise, politic, and most virtuous resolution." He was willing, he said, to abandon the declaratory portion of his bill; but he could not consent to arm the Government with enlarged powers. He did not agree with the noble Viscount in thinking, that it was ever the intention of Parliament to empower the Canadian Government to pass bills of pains and penalties and of attainder against individuals.

He did not wish to restrict whatever powers they, the members of it, already possessed; he was ready to leave the law as it stood, and to give an indemnity to all who contravened it, so far as regarded Nelson and his associaates. But he was not prepared to extend it to all cases that might have happened. And it was his intention to introduce some words to that effect.

The Duke of Wellington was by no means inclined to sanction Lord Melbourne's proposed explanation of the proviso. Sir John Colborne had acted under the law as it stood, and must have found it sufficient for his purposes.

It is remarkable that this was the first occasion on which Sir John Colborne's ordinances were adverted to. The Marquess of Lansdowne, however, in the sequel of the discussion, remarked, that if the noble Lords opposite acquiesced in the mode in which that officer had exercised his authority

if they admitted, that he had not exceeded the law-Lord Melbourne's proposed clause would be to a great extent, unnecessary. Sir John Colborne had been permitted to pass an act of attainder, which had lain uncondemned, nay, unnoticed, on their table for six weeks. Ministers only claimed for Lord Durham the power which which was conceded to his predecessor. And he (Lord Lansdowne) now desired to be informed whether or not Sir J. Colborne was considered to have acted in conformity with the law.

Lord Brougham said, that, of course, Lord Durham's powers were co-extensive with those exercised by Sir John Colborne. "But, continued the learned Lord, "as to whether or no that officer has exceeded the limits of his authority, I beg to say, that the noble Marquess has put a question, which I do not feel myself at liberty to answer."

The Lord-chancellor observed, that according to the construction now sought to be put upon the act, the Governor of Canada could neither issue an act of attainder nor suspend the Habeas Corpus act; however imperatively the circumstances of the colony might demand such a departure from the customary mode of administering the law.

In the course of this discussion, Lord Mansfield is reported to have declared, that Sir John Col

borne's ordinances were to a very different effect from Lord Durham's containing nothing but a mere warning, whereas Lord Durham's pronounced sentence of transportation without notice or time given.

This rash and erroneous assertion (if indeed, as it is hard to believe, it was really made in the terms of the report) is very illus trative of the spirit in which the attacks upon Lord Durham were conducted. In the preceding Chapter we have stated enough of Sir John Colborne's ordinances to show, that they were of a most stringent and severe description. It should seem, for instance, that an ordinance amounts to something more than a warning, which after authorising the Governor, upon the petition of any person charged with treason, preferred before arraignment, and praying for pardon, to grant such pardon upon such condition as should seem proper, proceeds to declare, that such pardon shall have the same effect as an attainder for high treason as far as regards the property of the offender; and fur ther, that if any person pardoned under that ordinance, on condition of being transported, shall return to the province without permission he shall be deemed guilty of felony, and suffer death as in cases of felony. Or what would Lord Mansfield say of that other ordinance, the title of which explains its spirit, being made "for the more speedy attainder of persons indicted for high treason, who have fled from the province"? and which, though, no doubt, more in accordance with the forms of law, condemns men to death on default of appearance ?

We will mention one other le

gislative act of Sir John Colborne's which it would require some ingenuity to reconcile with Sir William Follett's proviso as construed in the House of Lords. It seems

to be the second of the series of ordinances, and enacts, that an ordinance passed in the 24th year of King George the Third by the Governor and Legislative Council intituled "an ordinance for securing the liberty of the subject, and for the prevention of imprisonment out of the province," shall be suspended till the 24th of August following, so far as relates to treason and treasonable offences. This is surely, very like altering the criminal law."

It is not wonderful, that Lord Brougham "did not feel himself at liberty" to enter into a compa. rison between the respective acts of the two Governors, or that he should exclaim, as he did during the same debate, "God forbid I should say, that Sir John Colborne is liable to impeachment or action. Whatever opinion I gave, neither Lord Durham nor Sir J. Colborne will be the better for it, for they still must act on their own responsibility."

Lord Melbourne, in the course of the evening, moved the insertion of his explanatory clause which, after reciting the proviso, proceeded to declare, that it should not extend to prevent the Governor and council from passing such laws, as might be necessary for the safety of the province, or from providing for the punishment or detention of persons engaged in conspiracies against the Government.

Lords Brougham and Ellenborough contended, that this clause gave powers as large as those which were contained in the

Canadian Government Bill before the introduction of the restrictive amendments.

The Earl of Mansfield and Lord Lyndhurst suggested, that the proper course would be to frame a separate bill, declaratory of the true meaning of the Canada Act. Thus opposed, Lord Melbourne declined to press for the adoption of his proposed clause.

The necessity of taking some steps for the purpose of clearly explaining the real extent of the powers which it was intended the Governor should retain,was strongly urged by the Earl of Harrowby, who suggested also, that it might be desirable to declare, that there was nothing in the act to restrain the Canadian Government from passing bills of attainder in a manner warranted by the ancient practice of the English Parliament, nor from suspending the Habeas Corpus Act.

Lord Ellenborough, on the other hand, expressed himself of opinion that no colonial legislature ought to have the power of passing bills of attainder. But the power of suspending the Habeas Corpus Act was of a different character, and ought certainly to be possessed at present by the Canadian Government. Provided, however, care was taken that it should not be exercised without the co-operation of a bona fide special council.

The Duke of Wellington after noticing the various and conflicting opinions relative to the proper construction of the act, recommended a full re-consideration of the subject generally, with a view to determine by a new law what the Governor's authority really was. The result of these discussions was, that the bill being stripped

of its declaratory character, became reduced to a mere act of indemnity to the parties concerned in the transportation and detention of the Bermuda prisoners. It was with some apparent reluctance that, on the 13th of August, Lord Brougham moved the third reading of his bill, in its then mutilated condition. He had, he reminded their Lordships, introduced it, not so much for purposes of indemnity, as a declaratory act. It was in the latter character that, in his eyes, its chief value had consisted. And although he was not blind to the necessity of an indemnity, under the circumstances, yet there were unquestionably, reasons why he should not have been the person to volunteer to provide one. "However," said the learned Lord, “as I have become accidentally mixed up with the business, I have no hesitation in moving the third reading of this bill, as it now stands, although quite sensible that I am making that motion ou the part of her Majesty's Government."

At the close of Lord Brougham's address, Lord Chief Justice Denman, presenting himself to the House for the first time during these discussions, delivered some very striking observations. His objections to the ordinance, he said, was founded on no technical point of law, but was directed to a gross violation of the constitution. As to the right of transportation to the Bermudas, though it was universally abandoned, he was, for his own part, unable at that moment to come to a conclusion on the point. At any rate he conceived it rash and wrong for Parliament immediately to declare the illegality of

such proceedings, since such an enactment would fetter the judges of her Majesty's courts when matters connected with those proceeding came before them.

But as to the indemnity, Lord Denman declared that he was entirely opposed to it. The pass ing of bills for such purposes he looked upon as one of the worst and most unjustifiable practices of Parliament. He remembered that, some years ago, when the Habeas Corpus Act was grossly violated, the aggrieved parties were told, that they might appeal to the law of the land for redress. But before they could obtain it, a bill of indemnity screening the offenders had been passed. It was possible that public functionaries might be justified by their good intentions in over-stepping the law; but Parliament had no right to say to the parties who had suffered by such excess of authority, "you can have no redress against those persons who have wronged you, because it is our pleasure to indemnify them. "If, indeed," said the Lord Chief Justice, "Parliament are of opinion, that individuals, actuated by a good and upright intention, and only zeal

ous for the public service, have broken the laws, let them indemnify those individuals out of the public purse against the consequences of the legal proceedings that may be instituted; but let them not leave the injured party without a remedy."

It would seem, that this declaration of the Lord Chief Justice, was all that was wanting to complete the confusion of opinions that prevailed with respect to these unfortunate proceedings. Up to the appearance of the noble and learned Lord, all parties, wide as were their other differences, concurred in admitting the invalidity of that part of the edict which referred to Bermuda, and the expediency of granting an indemnity. But now the first official authority in such a question proclaimed that the before-admitted illegality was by no means so clear as was supposed, and, on the other hand, denounced the indemnity as fraught with positive injustice.

After some additional remarks, of no great moment, from Lord Brougham, the bill was read a third time and passed, in the House of Lords.