THE LONDON REVIEW ON LORD DURHAM'S ORDINANCES.

Isr an additional article to a second edition of the Lond'in and Westminster Review, the Ordinances of Lord. DURHAM are de- fended with a zeal approaching to enthusiasm. The paper dis- plays much ability as a piece of writing, and great powers of rea- soning from premises; though the premises themselves have rarely the merit of logical accuracy, and not always of common sense. The writer appears deficient, too, in that skilful adapta- tion of general principles to practical cases, or of old rules to new circumstances, which distinguishes the experienced statesman from the mere theorist; and having an idea, that at some time or other Lord DURHAM may turn out useful for good purposes, he seems to hold that therefore he is all in all, and propriety nothing in comparison.

Resolving the paper into its elements, its reasoning rests upon the basis that Lord DURHAM'S objects and means were right and necessary. Conceding the propriety of the ends, we are uncoil- vioced as to the means; which we hold to be questionable in a moral sense, as a piece of self display ; and still more faulty in a practical sense, as inoperative, unnecessary, and pregnant with evil consequences. Inoperative, inasmuch as the banished men could not be retained where they were sent, or prevented from returning, or even punished if they did return, without a violation not only of strict law, but of all constitutional principles and precedent. Unnecessary, because all that Lord DURHAM proposed might have been accomplished by means strictly legal and regular. If, as Government declares, the eight prisoners confessed their treason, nothing was easier than to take them into court, and record a plea of guilty : if, as their friends assert, they only confessed, in a modified way, an armed resistance to public authority, a jury—picked if you please—might have been em- pannelled, and a formal verdict of guilty taken on an under- standing (the thing is often done) that the capital sentence would be commuted.* They might then have been effectually banished ; whilst the names of the fifteen persons, for whom the new species of treasun was created,t could have been excepted in the general •• Contradiction, says JOHNSON, does not always prove falsehood, but it pre- cludes us fur the time being from arriving at truth ; and such is our position with respect to juries in Canada. The Secretary of State officially declares, that, by the existing law, juries might have been empanuelled who would have condemned every prisoner. Mr. CHARLES BuLI.Elt' the Secretary of the Go- vernor-General says, that "from an ordinary jury their certain acquittal was clear." It is not tor us to harmonize these discords; but whether Lord Jon N or Mr. CHARLES is right, a verdict, not to be followed up by capital punish- ment, could certainly have been procured. If not, Lord Du RUA m might have spared himself the trouble of going to Canada: the Canadas are clean gone. f " The appeal ad inridiam rested entirely ueon a mistlescription. It was called an ordinance for putting men to death without trial. But without trial ! Was it not, on the contrary, distinctly stated in the ordinance, that there should be a trial? Not, indeed, for rebellion ; the ordinance is one of amnesty fur rebellion ; amnesty to the men whom it banishes, as much as to those whom it sets tree altogether. Not being to be punished for rebellion, it is rather unne- amnesty, either without condition, or if the Government wid—Te`d, mark its leniency, for a specified number of years, so kg Lord DURHAM would have needed no " forbearance," but ea' defy " critics" or foes. Lastly, not being final, the ordinaa; are pregnant with evil consequences : not only, as we observed, their first discussion, in the strong probability that the baniski men might return to Canada in a time of public disconteg bearding the authorities, breeding disturbances if neglected ' ,,,a if punished inflaming the public mind by the doubtful legality,' their punishment and the breach of public faith ; but there the further risk that when the first pleasurable excitement is poi in Canada, the minds of men will dwell upon the despotic dam,

ter and illegal nature of the measures, till approbation is trans.

formed into suspicion and ill-will. The remark of Lord Etats. BOROUGH, that all illegal acts entail ill consequences, way„ universal truth. Men of affairs well know that the effects d irregularities, though seemingly advantageous, are baneful:tad cumulative. Deviations front right according to custom el only justifiable in a case of necessity, and when the irregularity contains its own conclusion.

Although these points really dispose of the arguments into London, het we may further note an assertion, that if Lord Doit- HAM had not authority to do what tie did, lie ought to have had

it. To defend a man, who has exceeded his powers, by pleading that he ought to have had what was withheld from him, is aa odd defence. But we deny that it was ever intended he should have such powers : we doubt whether they could, in a consti- tutional sense, and other than by a naked assumption of power, ha

granted to him: we are certain they were not needed. Su far as

acts of Parliament and Parliamentary orations can be understood, the Ministerial intention appears to have been, to have given

Lord DURHAM, and a Council to be nominated by himself, the

same powers as the late Canadian Government possessed. Had this intention been fully effected, we may well doubt whether that Colonial Government could pass laws contrary to the principles

of our criminal jurisprudence, especially on a matter so jealously regarded as treason : however, the clause of Sir WILLIAM FOL.

L ETT, by forbidding alteration in any act of Parliament, settled

all doubt. But can any one, not blinded by zeal or faction, affect to believe that the former Governor and Legislature of Canada had

a right to banish men without trial, or without any regularly re- corded admission of guilt ; or to punish men capitally without the proof of any crime? Is any one prepared to deny, that bad such power been assumed, the Crown would have disallowed the acts, and the Imperial Parliament interfered to prevent their re. currence. Nay, bearing in mind the difference between "a su- preme and an arbitrary legislature,” it may be questioned whether Parliament itself has such powers; or if it had in a case of last necessity, whether it could delegate them to others. The laws of a political constitution, like the laws of other things, can only be determined by our knowledge of its actions and its functions: and, throughout our civil wars and rebellions and revolutions, no act, to quote Mr. CHARLES BUL LER'S words, " so horribly unconstitutional and despotic," is on record. The only approach to it is the law by which the sons of the Pretender were to be attainted of treason if they landed in England. But mark the difference of the cases. The STU ARTS were the rightful heirs to the crown, but cut off from and cast out of the nation, on account of the national weal ; they had already caused and were again engaged in plotting rebellion; they were encouraged and assisted by the public enemy ; and only one motive could be put upon their return — unless, as Stanley tells Richard, they came to claim the crown, it was im- possible to " guess " what they came for. Nor is the absolute power of life and death, claimed for Lord Mum Ast to be exercised by his individual will, at all necessary, under any existing or conceivable circumstances. The writer belOre us talks of the ordinances being an "ostracism," just as some persons spoke of Lord DURHAM being a " dictator." But we have not to do with Greece and Rome, but with English laws; o birth are quite as effectual to prevent detriment to the republic, and with more regularity, order, and respect to individual rights. We have already shown, what is indeed obvious to every tyro, that after treason is committed, the law will punish capitally; whilst the power of pardon lodged in the Executive can apportion lesser penalties, from banishment downwards, or abrogate punish- meta altogether. If treason is suspected but cannot be proved, the Legislature, cause being shown, suspends the Habeas Corpus Act ; and the public enemies may be imprisoned till the danger is past. if treason is in arms, and the forms of liberty must be set aside to preserve that society without which liberty cannot exist, the proper authorities proclaim Martial Law ; and provision is made with military promptness for clangers as they arise. But observe how jealously the liberty of individuals is cared for. The minister who issues a warrant, the ollicer who executes it, the gaoler who retains the body of a suspected person, all are responsible to the law for their acts ; and each would be mulcted in damages as soon as

cessary that they should be tried for it. The punishment denounced by the i

ordinance, is punishment for the violation of the ordinance." [That is, death for disobeying Lord Durham.] * * * " The measure is an ostracism, not a punishmeat : they are banished because they are dangerous, not because they are criminal. But if they are to be banished, there mat be a penalty for re- turning from banishment ; and the penalty is capital, because that is the usual penalty of state offences ; and properly so, since any inferior punishment might lie a premium on the offence, while, by denouncing the highest penalty of 414 no necessity is incurred (f actually inflicting it." (The very argument of the Whigs for the Irish Coercion Bill.]—Loudon and -Westminster licciew, Nth LX I. pp. 300, 310. the suspension Act terminates, unless the state protected them by an indemnity. Of course we are not defending the various sus- pensions of the Habeas.Corpus or even alluding to them specifi- iiy. We are only potnting out.the extraordinary provisions of :Ur constitution to meet extraordinary emergencies in a regular

way.

There are other, as we conceive them, futile views in the article;

but we must leave them, having already dealt too fully with a subject upon whose first act the curtain is dropping. Nor should we have referred to the matter at all, but we notice a growing disposition in many Liberals, springing no doubt from their ano- melons position, to ado pt and overdo the thick-and-thin practices of the Tories—to be guided by wishes and feelings rather than by reason, and to consider not what is right but who has done it.