said, that in consequence of what passed on Friday, it became his duty to move the third reading of the Canada Government Act Declaratory and Indemnity Bill, He ought 1161 to remind their Lordships that he introduced this bill, not so much as one of indemnity, but as a declaratory Act. He thought it absolutely necessary to pass this bill in its latter character; and as to the part which related to indemnity, he should, perhaps, have left those who sanctioned and defended the wrong (he spoke, of course, in a legal sense) to move an indemnity for the proceeding. His object was, no doubt, to indemnify, provided he could obtain a declaratory enactment, but, unquestionably, there were reasons why he should not have been the person to volunteer in such an undertaking, when he might have left it in the hands of the official defenders of the measure which he condemned. But as it had happened, that by accident he became the author of the measure for indemnifying these parties, he had no objection to move the third reading of this bill. No doubt what the noble Duke (the Duke of Wellington) had said as to the hardship of officers, even those high in rank in her Majesty's navy, and also of subaltern officers, being placed in a position either of disobeying an order clothed in the form of law, or doing what was absolutely illegal, was very true. He, therefore, thought there was great reason for giving protection to those who were so circumstanced. Protection in this case ought to be much more readily given than in that of a civil wrong, because if the motives were pure, and the party had offended through zeal or rashness, that would be a ground for pardon if a conviction had taken place, and, of course, it would be one for giving indemnity against a criminal prosecution. But where the question was one of civil remedy, and there was no doubt the wrong was done, it was, in his opinion, not perfectly justifiable to take away the party's means of procuring his own indemnity where he not only had meant no ill but done no ill. Such a party was certainly entitled to his compensation in the shape of damages. Notwithstanding these reasons, as he had become accidentally mixed up with the business, he did not hesitate to move the third reading of the bill, sensible as he was that he was making a motion on the part of her Majesty's Government.
§ Lord Denman
felt very strong objections to this measure. He had attended to what had taken place on this subject, and had given to it his best consideration. The question arose out of a certain ordi- 1162 nance issued by Lord Durham, and he was of opinion, that that ordinance was perfectly indefensible in point of law. Whatever powers the Legislature meant to invest Lord Durham with, it was quite clear to him, that they never intended that Lord Durham should carry those powers to the enormous extent to which they had been carried by him. A clause had been introduced into the bill by Sir W. Follett, which, it appeared to him, was wholly incompatible with the exercise of such despotic powers. To declare persons who were absent guilty of high treason, and subject them to the penalty of high treason if they returned to Canada, appeared to him to be a most rash and imprudent proceeding. He entirely acquitted Lord Durham of any improper motive. His object, no doubt, was to prevent the return of those persons to Canada, and his Lordship, he was convinced, believed that return they would not. But surely every one must see, that it would be attended with the very worst effects if laws were passed on the probability of their not being disobeyed. His objection to the ordinance was not founded on a technical point of law, but it arose from his feeling that it was a gross violation of the first principles of the constitution. As to the right of ordering transportation to Bermuda, he found that it was universally given up. But, for his own part, he could not come to a decision on that point; he could not decide whether Lord Durham possessed that power or not, until he had made a thorough examination of all the Acts of Parliament which related to transportation from the colonies. He conceived it to be very rash to come at once to a decision on that point; he thought it wrong for Parliament immediately to declare the illegality of this proceeding, because if a question arising out of any such deportation came before one of her Majesty's courts of justice, it must be decided by a reference to the different Acts of Parliament which were in existence at the time when the matter complained of occurred; and he thought it rather unlikely that Lord Durham, and those who advised him, would have assumed that power unless they felt that they possessed it in some sort of way. He had no doubt that those parties thought so; and he had no means of denying the proposition, until he had read all the Acts of Parliament connected with the subject. To 1163 that part of the bill, therefore, he felt very great objections—since such an enactment would fetter the judges of her Majesty's courts, when matters connected with those proceedings in Canada came before them. As to the indemnity which the bill provided, he was entirely opposed to it. The passing of indemnity bills he looked upon to be one of the most unjustifiable proceedings that Parliament ever adopted, even in the worst and most corrupt times. He remembered, some years ago, when the Habeas Corpus Act was grossly violated, the parties aggrieved were told that they might appeal to the law of the land for redress. But a bill of indemnity was immediately passed, by which those parties were debarred of that legal redress. He could conceive, that public officers might be justified by their good intentions in taking certain and extraordinary steps, or even that they might be justified in the course which they had taken by its fortunate and successful result. But he did not know, and could not feel, that Parliament had a right to say to a party injured by such proceedings, "You shall not have redress against those people who have done you wrong. We think it proper to indemnify them." In his opinion such a measure should not be resorted to without the clearest, the most urgent necessity being demonstrated. If Parliament were of opinion, that individuals had done wrong with a good and upright intention, why, let them be indemnified, if cast in actions, out of the public purse; but let them not leave the parties injured without remedy. Feeling strongly on this subject, he felt it necessary to make these observations. In 1818, he found, that a bill was brought into the House of Commons for the purpose of indemnifying parties who had acted in violation of the Habeas Corpus Act. It was strenuously and powerfully opposed, and the leader of that opposition was Mr. Lambton. Now, he thought, that if Lord Durham were present he would object to this bill, and would enter on his justification. That noble Lord was not aware of what had passed on this subject, nor were they aware of what defence he would be able to offer. Yet they were prepared to say to him by Act of Parliament, "You have done that which is not justified by law." Now, he (Lord Denman) did not know, that such was the fact. At all events, he conceived, that those who had infringed 1164 the law ought to answer for the infraction of it; and the parties injured ought not to be deprived of their remedy. His noble and learned Friend had drawn a just distinction between the propriety of indemnifying parties in a civil and parties in a criminal suit. He, however, could not see the propriety of granting indemnity in either case. In the latter, that of a criminal prosecution, the Crown might put a stop to the proceedings by a noli prosequi, or if the party were convicted the Crown might grant a free pardon. But in a case of civil action, he would ask, what good reason could exist for debarring an individual from his right of redress? A man might be brought to the greatest misery and distress; and was that man to be told when he sought for reparation, that, because the individual through whose acts he had suffered had done nothing but for the good of the public service, he was therefore to be debarred from all remedy? If such a course was permitted in one case, it might be done in another whenever the conduct of a magistrate was called in question. Then, although the individual might have been ruined by imprisonment or fine, a bill of indemnity might be called for on the ground, that the magistrate had acted for the good of the public service. On these grounds he thought the proposition highly objectionable and unconstitutional.
said, he felt the force of what had fallen from his noble and learned Friend, coming as it did from one of the first legal authorities in the country. At the same time, his noble and learned Friend would forgive him if he most respectfully submitted to him and to the House a few observations, which would, he thought, blunt the edge of his noble and learned Friend's remarks on this course of proceeding. He would not say, that he was greatly rejoiced, or that he was surprised, for it gave him no surprise at all; but it would have been matter to him of never-ceasing regret to the end of his life, and of unceasing and indescribable astonishment, if his noble and learned Friend had not expressed the opinion which he had expressed on the material part of this question—namely, the outrage on law, on justice, on humanity, and on common sense, in condemning persons unheard, untried, and even unwarned, to death, if they returned to their native country. The innocent were included in 1165 this proscription as well as the guilty. Here was Mr. Perrault, who had left the country three weeks before the revolt happened; he could not possibly have been implicated in that proceeding, and yet he was marked out as one of those who, if he returned, should be punished with death. Inauditum indefensi tanquam innocentes periêre was the language of the historian in describing the worst part of the worst times, and the very worst of the most tyrannic acts of those monsters who were a disgrace to that dark and despotic age; and such language would equally apply to the proceeding which had called for this bill. Suppose it had been enacted, that the Governor in council might pass bills of attainder against whom he pleased, still, what he had done would not have been justified under such a power, because a bill of attainder was never passed until the parties had been heard. The Chief Justice of the Queen's Bench or of the Common Pleas, had a right to try offenders brought before them. That was a legal act, they were authorised to proceed, they were obliged to hear evidence. But if they condemned a man without hearing him—if they said, "You shall not open your mouth, and you shall suffer death if you attempt to leave the dock," would not such conduct be execrated as a monstrous outrage on the feelings of mankind? Yet such was the course that had been adopted in Canada. This bill had nothing to do with the outrage and injustice sanctioned by the ordinance. What the bill touched was the conduct of those who issued the order; and, above all, as the noble Duke opposite had stated the other night, the proceedings of those who had acted under that order. His noble and learned Friend's first objection was, that he knew not whether the Governor-general of Canada might not possess the power of sending individuals to Bermuda. Possibly the Governor-general might have that power, but that power could only extend to the transportation of convicts, of persons who had been found guilty on proper evidence. The Governor-general had not the power of sending away into banishment those nine persons who had not been tried, and who, therefore, were not convicts. He was somewhat staggered by what had fallen from his noble and learned Friend respecting the indemnity, and by so doing declaring the acts and ordinances illegal in the absence of the parties; but he did 1166 not care about that declaration, so long as at the same time, they granted and gave a full indemnity from all possible penalties both civil and criminal. His noble and learned Friend had said, that with respect to criminal proceedings, there was no necessity for indemnity, because the Crown might enter a noli prosequi, or in the event of conviction, grant a pardon. But his noble and learned Friend ought to recollect that the Council might be impeached for their acts, and, by the Bill of Rights, the pardon of the Crown could not be pleaded in bar of an impeachment. He agreed entirely with his noble Friend in one part of his observations, where he stated his objections, on principle, to bills of indemnity. He was of opinion, certainly, that this was a dangerous precedent, but it was not, it should be observed, the first example of the kind. On a former occasion, in 1818, a similar measure was resorted to, and had, as his noble and learned Friend observed, been met by a powerful opposition. But, long before that period, a similar course was taken, when bills of indemnity were passed in favour of Lord Mansfield and the Earl of Chatham.
§ Bill read a third time and passed.