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before the bill passed, of pointing out what were the powers which he really possessed. Whether that should be done by a declaratory act or not, he could not pretend to say. He merely threw out the suggestion, whether there were not two powers which ought to be placed in the hands of the government of Canada, and whether the bill might not declare that the act of this Session was not intended to prevent the passing of such bills of attainder as were warranted by the ancient practice of the Parliament of England, or the suspension of the Habeas Corpus Act. This would, at the same time, avoid ambiguity, and the arbitrariness of the measure proposed by the noble Viscount.
Lord Ellenborough thought that after the discussion which had taken place in that House, and the difference of opinion upon the construction of the act expressed by his noble and learned Friend opposite, by the noble and learned Lord on the woolsack, and the noble and learned Lord below him, their Lordships could not expect that any man fit to be a governor, would consent to govern Canada, unless the doubts which existed were cleared up. He could not do it if he had any respect for his own character, or any regard for the welfare of the persons whom he was to govern. He was, therefore, strongly in favour of an Act which should declare what the powers of the Governor-general and council really were. However, with the means which existed of applying to the Parliament of Great Britain, he did not think that any colonial Legislature ought to have the power of passing acts of attainder. The power of suspending the Habeas Corpus Act was of a different character, and one which the Government of Lower Canada certainly ought to possess at present. He understood, that it had been supposed, that the Government had not the power to suspend the Habeas Corpus Act, and therefore, they were obliged to have recourse to a stronger measure—the proclamation of martial law. What, therefore, he thought ought to satisfy the Government, was an explanation of the powers really vested in the Governor-general and Council of Lower Canada. He must, however, observe, that it was never intended that the Special Council should be illusory—a sort of sham. That, he repeated, was never intended by Parliament. It was the fault of her Majesty's Government, who ought to hare selected a sufficient number
of persons to form a proper and sufficient special council. But when they had united the Governor and the Council, and enabled him to absorb the Council, he must say with such a Governor-general, and such a Special Council, he would not give the Government of Lower Canada the power of suspending the Habeas Corpus Act without a provision was made that a real Special Council should be appointed.
The Duke of Wellington said, that it was absolutely impossible to enter into this question without taking into consideration the act of the present Session, and considering it in all its parts, and reviewing the acts of the Governor-general of Canada, and making provision for them all. He therefore acquiesced in the withdrawal of the motion by the noble Viscount, which in his opinion was wise and proper. In the course of the discussion last night various opinions were given by high legal authorities on the construction of certain clauses of the Canada Government Bill. One opinion had been given by the noble and learned Lord opposite, and his noble and learned Friend behind him, and another by the noble and learned Lord on the woolsack. He would ask their Lordships, therefore, under these circumstances, and considering that there was nothing positive on the subject, excepting, that it was necessary to pass an Act of indemnity for those acts which were known to be illegal, to enter into a revision of the whole power and authority intrusted to the Governor-general of Canada, and to consider the acts of the Governor-general under the several provisions of the Act of this Session, and then to make a new law. Before he sat down, he earnestly recommended to the noble and learned Lord to print his bill after it had been amended in the report, and that the third reading should take place after the bill should have been printed.
The Marquess of Lansdowne rose merely to say, that he thought the course proposed by the noble Duke was the most convenient that could be adopted ; but it was very inconvenient that doubts had been thrown out at all. There had now been three days' discussion on this subject, during which doubts had been raised by high legal authorities in this House as to limitation of particular words introduced into the Act of the present Session by an hon, and learned Member of the other
Lord Mansfield) felt it necessary tomake some observations on the bill which he would confine within Lite narrowest limits; though he feared, that he could not equal the rapidity of the Committee. Although the bill had not been discussed in the House, it was correctly stated by the noble and learned Lord (Lord Brougham) that few bills had undergone so much consideration in the Select Committee; but previously a noble Duke Cthe Duke of Buccleugh) who was always most attentive to any measure which was connected with the advantage of the people of Scotland, had assembled several Peers at his house, who had been employed for several days in trying to alter the bill and make it fit to pass this Session; but being unable to agree upon these improvements, they had proposed to the House to defer reading the bill a second time, Their Lordships, however, had determined to refer the bill to a Select Committee, which had had the advantage of the assistance of the noble and learned Lord and of two other noble Lords who had had great experience in Select Committees and the result was that the bill with the corrections was submitted to the House—but in the opinion of the Select Committee in an imperfect state. The bill therefore in his (Lord Mansfield's) opinion, should not be allowed to pass. To state shortly the object of the bill; it was to relieve the Royal Boroughs from the obligation under which they were now placed, of building and maintaining sufficient prisons and bearing certain expenses for the maintenance of prisoners, to erect sufficient prisons in every county, and place them under the management of a local County Board, acting under a general Board, which would have the sole management of three great Genrral Prisons,—a part of which would be Penitentiaries in which prisoners were confined with the hope that an improvement in their morals would be effected, before their liberation.
In the constitution of this Board great alteration, and in his (Lord Mansfield's) opinion great improvement had been made but he could not see the necessity for the House passing a bill (which perhaps would be rejected elsewhere) merely to show that the House of Lords approved the principle of centralization, as recommended by a noble Lord opposite, for his own part he would not object to any plan of centralization or one mixed with local Boards, he
had no prejudice upon this point, he could agree to anything which appeared to be most advantageous, but at this moment was not prepared to say, what was best. But in relieving the Royal Burghs from the obligation of maintaining the prisons, there was a clause providing that a prison should be built in each county and, that in this debtors were to be confined, now this would occur; in some places there would be a small prison, and the gaoler would not receive high wages, yet he was to find security against the escape of debtors who might be confined for a considerable sum, it could not be expected that the Royal Boroughs should remain bound as before, now that they were discharged from all interference with the prisons; the clause had just now been struck out, but no other provision had been set in its place, there would be no adequate security.
The expense of the three general prisons and of maintaining prisoners, was to be defrayed by a general fund to which the boroughs and counties were to contribute, and an assessment was to be laid on by the general board according to an estimate founded upon population and crime.
Now, against this basis, remonstrances had been made by several counties, complaining that a much larger sum would be assessed on them than if the estimate had been founded upon population only, or upon crime; the county of Perth and the county of Ayr, were nearly equal in population, but by taking an estimate on population and crime, there would be an assessment on the county of Perth, greater by 1,000/. Upon what basis the estimate should be founded there were different opinions; but the present returns were notoriously incorrect, inasmuch as some counties had returned the number of convictions, and others had given the number of committals as establishing the amount of crime.
Again, the sum is to be assessed on the counties and the burghs, in equal proportions; but this question arises, should this be the uniform mode of assessment, or should not the particular circumstances of each burgh be taken into consideration, the amount of the burgh revenues which is stated in the preamble as a ground for relieving them, as well as the uncertainly of the contributions of counties.
Should a borough like Dundee for instance, which has lately built a gaol, at anexpense of 22,000/., to which the county