TOPICS OF THE DAY.

LEGAVEFFECTS OF THE DURHAM ORDINANCES.

Bya proclamation issued by Lord DURHAM in the name of the Queen, on the 2Sth of June last, it was ordained, " that no fur- ther proceedings should be had or taken against any persons whatsoever on account of any high treason, or offences of a trea- sonable nature, with which they then stood charged, or where- with they might, at that time, be chargeable; but that all such proceedings, without exception or distinction, save as thereinafter mentioned, should thenceforth cease and determine." All treasons committed at tha date of this proclamation were pardoned ; and no proceedings were to be taken upon account of them, except such as were within the exception. Now the exception was, that parties not named in a certain ordinance, passed also on the 28th of June, might, upon given security, return to their homes ; and that the parties named in the ordi- nance should be subject to the provisions contained in it. These provisions were, that as respected Dr. NELSON and seven other persons, who were stated to have admitted their participation in certain treasonable acts, and had submitted to the pleasure (not to the mercy) of the Queen, should be transported to Bermuda, during the Queen's pleasure, and be subject to such restraints as should prevent their return to " this province ; '' secondly, that as respected Mr. PAPINEAU and fourteen other persons, who had confessed nothing—who had made no submission—who allege that some of them were out of the province before any treason was either committed or contemplated—who left the province upon private business—they, as well as the persons sent to Ber- muda, should not return to the province without the licence of the Governor; and in case they returned, without such licence, "lea conviction pf kin:band at largei_or coming within the mosoce wit out permission afl'a oresaur -should --"Iiedee be guilty of high treason," and should " szinrer eatli;Ccordingly2 " -ffirblirdel-75f-Tibof OrEsi-virig-th-e-Gtiveriial--perncsicon being thrown upon the party indicted. ktbis. ordinancer the AttortLeyS.pc.nerabwyjaLas zatither law_sgFerltjes..adm1tTEk a newsrin;teoUregen was created. The ority_issge to be trie-dTeas the returp,_withont_ the heaue.0.4 ieOover Qr. of the patties name& This the words of the ordi- nance clearly state; this the proviso respecting the proof to be given at the trial, and the fact that the parties named are entitled to the benefit of the amnesty, and can plead it, if they even go into Upper Canada, or come into England, distinctly prove. The original treason that any of them may have committed, is par- doned; and the only offence for which they can be tried, under the ordinance, is returning, without permission, to Lower Canada. Of the illegality of that part of the ordinance relating to the transportation of Dr. NELSON to Bermuda, little or no doubt has been expressed. The Attorney-General, Sir WILLIAM FOLLETT, Lords BROUGHAM, LYNDHURST, &e. say, that it is illegal. Sir CHARLES GREY alone contends that it is legal; though he denies the legality of all the other parts of the ordinance. But, by ad- mitting the illegality of any part of it, the Government is com- pelled to disallow the whole ; the Crown not having the power to disallow only a part. Upon the other parts of the ordinance there is great differ- ence of opinion. The Ministers wish to avoid, if possible, the ad- vantages and mercy of a general amnesty, and to take measures founded upon the assumption of the legality of so much of the or- dinance as does not relate to Bermuda. In this it can easily be shown that they must fail. But is this orditlance in its princi- ple legal? If it is legal, Lord Dune ABI may tale from...accost-4 parties the-protectiOn of trial by. jury; he may attaint persons_aps cus-eiriTaireason witriout giving_them an onporfunity of defence; lifd lie may create new crimes—crimes unknown te_the_existing. Tirt' blh etKaoada nLRngland. If he has the power con- tended for, he may put political opponents to death without being guilty of any crime; he may execute Louis PERRAULT, who left Canada upon mercantile business and has committed no uffence; be will by law possess despotic and irresponsible power 9ver the liVes and triunes of, au personi J Cana—da. These are no exag- gerations. Some of these things he has done ; and though lie may not do all of them, a military successor, who would possess the same Power that he assumes, whose character would be no guarantee

against the commission of any excess, might do all of them. It is, therefore, of extreme importance to ascertain if his power of legislation is without limit, or if it is subject to limits which this

ordinance exceeds. If it is without limit, it is .legal in bint to de- tje_p_epular leaders of the Canadians of the defence of trial. I2LErY—to proscribe them, as he has done, en masse (the first act-orproscription of the leaders of a party known in the his- tory of English law)—lie max.create new treasons, and he may justify the execution of men fur returning to theircountry in order to defend themselves from crimes with which they may be charged.

Gage contram.the rowers given to Lord DURHAM are sub- eLe.taylimit in legJO-anon upon criminal-waiters. nor culty in showing that this ordinance is illegal ; and that,

revoked,it cannot be reenacted-1u such an atrocious pro- ceeding is contemplated; and that the parties named in it may return to Canada with impunity. This is the difficulty which the English Ministers perceive; and therefore it is that they contend that the ordinance is legal in all respects, except as it relates to Bermuda.

-Now .tbe_ law affecting_the subject maybe very shortly stated. _athe 14th George III. c. 83, s. 11, the criminal law of England was,ou account of its -c-ertaiTicy--a-nd jeuity, elitetWell....tnevada.

Lath_ihscripfloTi and quality of offences,_ as_ in the method

'OT-Sfksation and By the 31st George III. c. 31, s. 33,

(the Constitutional ,) all the laws then in force were to con-

tinue in force unless expressly repealed by that act, or under the authority of it. Atthe time the Coercion Billpassed,.no altera- tion in the English laTvof tieas61-haIlicen made by the Legisla- ture of Canhda. Lord DURHAM found, on his arrival in Canada,

that_he had to administer_.. alaw England, and

thought_propertiater it. ad he the power to make in it an alteration ?

'To-Coercion Bill (1st Viet. c. 91,) enables the Governor in Council to make such laws for the government of Canada as the Legislature of Lower Canada was empowered to make ; but it provides (sec. 6,) that nothing contained in the said act shall be taken to affect or invalidate any law, statute, or ordinance in force in Lower Canada, or (sec. 3,) to su§tend or alter anli provision of any act of Parliament of Great Britain, or oTthe Parliament of the United Rirygdetn, or of any act of itieTP-Riature_ _of. Lower Canada as then constitutes and that the Queen may disallow aTrordinancela-lie Governor in Council, at any time within two years after their beino."' passed. Can it be doubted tlyilitlielepriaisiotts preserve to the people of Canada all thrandamental criminal laws in force among thew at Iffe-Tirne of tbilicriv al of Lorcl_PuRH Am, And prevent their alteration ? Can words general, more clear, or more com- preTerssive? Oh, but says the Attorney-General, Sir Josus CoL- BORNE has violated the law by ordinances that he has passed, if Lord DURHAM has done so; and was it the intention to give Lord DURHAM a legislative authority more limited than the Legislature of Upper Canada possesses?—The policy of the provisions of the act has nothing to do with its legal construction, or the meaning of the words it contains, if these words are clear and distinct. What defence is it to Lord DURHAM that Sir JOHN COLBORNE may have acted illegally ? What does it matter what may be the powers of the Legislature of Upper Canada? $_unnose an act of Parliament was passed applicable to Upper Canada only, Mail& ifik the words feTerreirto in the CtieTiFioti-1311T;'Cii-iiitThErdiffilbd that theLegislatureT4T-pperCiiTada wouZdl►a�eTess power than it at present possesses?--fill sue ac lasllccu passed-to-affect the LegistiirM orepper-Canadd; raWard'alfedt the new Legislature of -LasTre-P-Cilia-M--- -71-111Falgt111TetirtirttirSuntbiterrof the ordinance be watched, it will be found to turn entirely upon considerations of public policy—upon a suggestion of inconveniences, if the powers of Lord DURHAM are limited to the extent which those who oppose the ordinance contend for. But does not the very ordinance itself prove the propriety of his power to deal with the criminal law of Canada _beingjimited? Upper Canada is protected byits own Representatives; who, it they think fit, may abolish trial 14 ju-rfs wTiom they please. tewerhta@ has no sum pro- tection • antrottER not to brplacerartlie mere} of any set: ofhien, Whose very office mustbe odious to the country. denTle andin-flre—dellie-61 public support, the Legislature of Upper Canada will in all probability not abuse its powers; but in the fear of resistance. and_tJae irritation arising_from upopu- laity, the Council Lower Canada SQL r e..7)%-rireqtua0 Reta-at nn uiuustiliTle-Character—for to a people accustomed to avremppiure- sentative 'government it must. be unpopular. he cases differ greatly, that there is no reason why, upoturi cip ray Legislaturi-TrT,Iwtrg. and fife permangialegislaturs (.31T ler Canada should p ossess coeiitejuive authority._

ordinance is even condemned by the Attorney. General ; and it is also condemned by Lord DENMAN, who can be accused of no party-feeling upon the question. If its illegality had not been suggested by Lord BROUGHAM, it would have been the duty of the Government to have disallowed it. Lord DURHAM'S justification of it is,* that it gave contentment to the heads of the British party—to men who could not command six votes in the House of Assembly! Mr. Secretary BULLER'S reason for it is, that juries must have been tampered with in order to convict, and that, therefore, the most politic mode of proceeding would be, that Lord DURHAM'S Council should con- vict without affording the parties the opportunity of defence !

But the ordinance is disallowed. The persons named in it are entitled to return to Canada. Lord JOHN RUSSELL, however, has hinted that some law will still be passed against them. Will he revoke the pardon of the original treason? This he will not dare to do. Will lie still proscribe the parties ? This he solemnly promised, in the house of Commons in January last, should not be done. Will he condemn them unheard, untried? This he may be assured will ruin the British authority in Canada, and will meet with little support even in the House of Commons. Will lie try them? For what ? For the crimes that the Queen has pardoned ? If he directs them to be tried, before what Jury will they be arraigned ? To try them now, said Sir EDWARD SUGDEN, would be " judicial murder." To be found guilty, the Jury, upon the authority of Lord JOHN RUSSELL and Mr. Bur.. LER, must be tampered with. • " These measures have met with the entire approbation of Sir John Col- borne and the heads of what is called the British party."—Lord Durham's Letter to Lord Wendy, 29th June MS.

The truth is, that the Government ought to have issued a ge- neral act of amnesty in the first instance. The peace of the pro- vince depended upon there being no political trials. The confi- dence that ought to have been sought, was the confidence that the acts of the Government had shaken. Will it be obtained by sending men before packed juries to be tried ; or by convincing the Canadians that with the suspension of the constitution their Worst fears are realized—that they have lost the protection of the laws, and that they have no security for their lives but by ahject submission to the Government? Is the confidence of the Cana- dians worth nothing ? Are their leaders without friends ? Has their power been acquired without exciting respect, admiration, esteem, and even affection? Can they be proscribed without in future driving the dominant party in the local Legislature to be guilty of extravagant excesses of its authority ? It is too customary to accuse the Canadian leaders of the cala- mities of the resistance that has led to a state of' things much to be deplored. But the persons who are really to be blamed are those who, in this country, violated the constitution by the resolu- tions of 1837, and that party, in Canaria, who ordered the arrests of Chambly, before any high treason had been committed or con- templated,—arrests made with too fatal a success in order to exasperate. The political leaders who withdrew from a contest which they did not prepare—from a warfare in which they could see no success—from a dispute in which the ruin of themselves and their friends was certain—are to be commended. It would have been worse than cowardice to have fruitlessly excited the generous spirit of their countrymen in a conflict in which, to themselves at the time, as to us after the real facts of the rising were ascertained, it was clear that they must have failed. They ought to be thanked for retiring from Canada. It is now for the Government to show, that no party in Canada shall gain a triumph by the suspension of the constitution, much less by the suspension of the ordinary protection which the law of every country ought to be strong enough to render to the worst and most wretched criminals, and above all, to those whom it has pardoned, or to those who by the operation of the law have ceased to be liable to punishment or trial.