§ Mr. Broughamsaid, he had a petition to present from Mr. Bishop Burnett, of the Cape of Good Hope, which stated sundry proceedings regarding the government of that colony, which were highly deserving the consideration of the House. He would open to the House the facts stated in the petition, and would then lay it on the table premising thus much—that he did not intend to make himself liable for the truth of the petitioner's statements. He had, however, made such inquiries of the petitioner respecting his statements as had convinced him, from the tests to which he had put the petitioner's accuracy, that he was at least consistent in the story he told. He would state the facts of the petition as they had been stated to him, and would then leave the House to deal as it chose with the allegations of the petitioner. [The learned gentleman then stated the facts of the petition, which will be found subjoined.] Assuredly this was a subject which ought to be inquired into. Indeed, if he believed that he had evidence to prove any of these allegations, he should feel it his duty to impeach lord Charles Somerset. But, he could not help believing that Mr. Burnett must be altogether mistaken. Undoubtedly, however, he had told him the same story that he told in the petition. He would add only one observation. A commission had been appointed to go out to the Cape of Good Hope, for the purpose of inquiring into the alleged grievances of that colony. Unfortunately one of the members of that commission had been prevented by illness from taking a part in the inquiry. This circumstance had, of course, occasioned some delay. He hoped, nevertheless, that it would not be long before they should 1167 have a report from the two remaining commissioners.
Mr. Wilmot Hortonsaid, that the case of the petitioner was one of some notoriety, and in all probability the report of the commissioners would refer to it. If the charges were true, in God's name let them be regularly made and proved. There seemed to be a certain degree of conspiracy prevailing against lord C. Somerset. But the petition professing to be against the governor went against the constituency of all the judicial authorities; and it was unfair not to distinguish, in such a complaint, between the acts of the governor and the defects of the Dutch law. He was not responsible for the want of facilities for complaints against the law and authorities before the commissioners. They were sent out to inquire, not into every case of grievance, but to discover the easiest and safest method of bringing about a speedy amelioration of the whole system of government in that colony. The House ought to be aware of petitions urged on individual suggestion against persons holding high and responsible situations under the government, and within the regular control of parliament.
Mr. Baringsaid, that the allegations of the petition were of so grave a nature, that it was the duty of government to ascertain their truth or falsehood. What he rose especially to draw the attention of the House to, was the sort of government to which some of our colonies, were at present subject. The principles on which those colonies were governed were those of the Spanish, and not those of the English law. While the government of the Cape was administered upon the existing despotic principles, whether lord C. Somerset or any other individual were the governor, the system of government must be a bad one. It was indispensable to consider and revise those principles; and among the various instructions which had been given to the commissioners, he hoped it was one, to examine and report how far it might be expedient and practicable to establish something like representation in the colony.
§ Mr. Ellicesaid, that government ought certainly to effect a revision of the colonial law. Most of the colonies were governed by some system now got into disuse in the countries from which the laws were derived. In the French colonies, the old Bourbon law prevailed, though that was rejected at home in favour of the code 1168 Napoleon. And now upon a case of any complexity, even the French themselves could not agree upon the proper interpretation of it. Another great evil in matters of colonial law, was the fluctuation of the orders in council, which strangely unsettled it.
§ Mr. Broughamsaid, that, by moving to refer the petition to a select committee, it seemed that he should be doing that which best suited the views of all parties. Lord C. Somerset ought not to be the sport and victim of charges loosely ventilated in that House. Lord C. Somerset ought to challenge investigation, and government ought to wish for it. He would for the present content himself with having the petition laid on the table and printed.
The petition was read, and was as follows:—
To the honourable the Commons of the United Kingdom of Great Britain and Ireland, in Parliament assembled. The Petition of Bishop Burnett, of the Cape of Good Hope, Gent."Most respectfully showeth, That your petitioner, in the year 1820, was induced to embark considerable capital in an agricultural undertaking in the district of Albany, Cape of Good Hope, the progress of which undertaking was greatly impeded by the colonial authorities refusing him that assistance so liberally extended to the emigrants then locating in the district, contrary to the express assurances of the under colonial secretary, that your petitioner should receive the utmost assistance in the event of his not burthening the government with the expense of transporting a party of settlers in aid of his undertaking.
"That, after an expenditure of more than 20,000 rix dollars, during your petitioner's first year's enterprize, upon a farm hired of one Robert Hart, for the cultivation of green forage, expressly at the suggestion of lieut.-col. Somerset, from whence his first year's returns had been estimated from 7,000 to 10,000 dollars, his enterprize was utterly frustrated by partiality in the commissariat, by preference to the military growers of forage, and by trespasses of the Cape Colonial cavalry.
"That your petitioner had then recently been the accidental medium of vindicating the character of captain Stackenstrom, Landdrost, of Graaff Reinet, from 1169 aspersion, and rescuing him from a conspiracy, the aim of which was, to degrade him in his regiment, and displace him from the magistracy, as a reference to the proceedings of a court of inquiry, held at that period upon the conduct of captain Stackenstrom will clearly establish; and that your petitioner, in consequence of this occurrence, became forthwith obnoxious to the colonial government.
"That before the expiration of the above-stated period, the said Robert Hart commenced proceedings at law against your petitioner for the recovery of 900 rix dollars, a balance of account (although your petitioner had expended so much money upon his premises), and proceeded through forms of law with which your petitioner was totally unacquainted to judgment. Notwithstanding your petitioner had tendered a bona fide claim upon the commissariat for forage supplied the Cape cavalry, and thus recognized by its commander, captain Somerset, in liquidation of this judgment, it was immediately followed up by a publication of his insolvency, and the whole of his property was forthwith advertised for sale.
"That the sale was nevertheless as arbitrarily suspended by the colonial government, as it had been illegally threatened, and that in spite of every remonstrance on the subject an the part of your petitioner, the proceedings in this instance were left in complete abeyance for a period of two years, notwithstanding the public judicial declaration of a commission of circuit about the middle of that period, that these proceedings were in error, and that your petitioner was not insolvent.
"That with a view to compel something like decision on the part of the colonial government, your petitioner, on the arrival of the ensuing commission of circuit, instituted proceedings both against Robert Hart and the Public Sequestrator for their illegal and oppressive conduct in this particular, justifying his process more especially from the public declaration of the preceding commission, that these proceedings were altogether illegal and vexatious.
"That your petitioner was universally considered an aggrieved and persecuted man, whom the colonial government had determined to crush; but that the flagrancy of its injustice had attained such a degree of notoriety, that the arrival of the last commission of circuit was hailed by the whole independent population of 1170 the district as the certain period of his triumph from its fears of a rigid scrutiny by the commissioners of inquiry, if not from its judicial integrity. That the proceedings of this commission were nevertheless a departure from the dictates of common sense as well as justice, and so palpably partial and corrupt, as to occasion general astonishment and disgust throughout the district, and a current opinion that the decisions of this commission were dictated by the colonial government prior to the investigation of their relative cases.
"That such intolerable oppression, involving no less an issue than the utter demolition of your petitioner's prospects in the colony, induced him, from imperative duty to himself and the public, to represent his case in a memorial to his excellency the governor, with a bona fide view of obtaining inquiry and redress—a proceeding warranted by the laws of all civilized states, and especially justified by those of his native country.
"That his excellency, altogether slighting the prayer of your petitioner's memorial, or instituting any inquiry into the merits of the charges he had adduced against the commissioners, placed it forth with in the hands of his majesty's fiscal, with orders to commence criminal proceedings thereon, and a prosecution for libel was begun accordingly. That as no lex loci was applicable to your petitioner's case, no English statute or Dutch decree, nor even summary enactment of a Cape proclamation, his majesty's fiscal obtained his conviction upon his own unwarranted assumption of Roman practice, both contrary to the laws of the ten tables, and of the pandects of Justinian, the acknowledged bases of that code by which the Batavian republic and its provinces had hitherto been governed, and your petitioner was sentenced to five years' banishment from the colony.
"That during the course of this prosecution, which was vexatiously protracted by the illegal retention of papers necessary to your petitioner's defence, his house was invaded by his majesty's fiscal, and attendants, under the sanction of his excellency's warrant, and his papers seized for the avowed purpose of implicating him in the promulgation of a charge against his excellency, of having committed an unspeakable atrocity with his reputed son, the physician to his household—a proceeding as unjustifiable as the grounds of 1171 it were visionary, no doubt now existing in the minds of the Cape-town colonists that it was prepared, affixed, and withdrawn, in a desperate exigence of his excellency's unpopularity, by a person named Jones, but better known by the appellation of Oliver, the spy.
"That, contrary to your petitioner's sentence, he was left at large subsequent to his conviction, and that while engaged in preparations for his return to England, necessarily unaccompanied by his family, and still appellant in nine causes before the court of justice, his house was again beset, and his papers seized by the fiscal, without the exhibition of any charge, or upon any other authority than his excellency's caprice; and though entirely innocent of any offence against the colonial government collectively, or any member comprising it, he was compelled, from the alarming suggestions of his friends, to seek concealment and withdraw himself from the further persecution of his excellency. Through the instrumentality of the chief justice and the fiscal, he ultimately embarked, and on the 22nd of last December quitted the colony.
"It will be apparent, that in presenting such a statement of grievances to your honourable House, through the vehicle of a petition, your petitioner must necessarily be restricted to a very imperfect development of four years unceasing injustice and persecution; but he is fully prepared to substantiate every allegation he has advanced, as well as charges of a more serious description, against his excellency the governor of the Cape of Good Hope, should such evidence be required of him.
"In illustrating the character of judicial procedure at the Cape, your petitioner most respectfully craves the attention of your honourable House to the extraordinary contrast of his case with that of Mr. Lancelot Cooke's, a most respectable merchant of Cape-town, who was tried for precisely the same offence—that of impugning the conduct of a public functionary in his application for redress of grievance, but with the imputed super-addition of having given his memorial publicity—the greatest possible aggravation, or rather the chief essential in the construction of libel—an offence not even charged against your petitioner: Mr. Cooke, who stood neuter with the colonial government, was nevertheless acquitted; your petitioner, unfortunately, not in this predicament, was condemned. Nor, your 1172 petitioner most humbly submits, can a pure and unbiassed judgment be looked for in causes of appeal to his excellency, where a malus animus may be said naturally to exist, as in the case of the Dutchman Dure, who succeeded in causes wherein he was appellant to his excellency, shortly after the purchase of one of his excellency's horses for 10,000 dollars, which died after payment and before delivery from the stables.
"That your petitioner, in common with his brother colonists, has been much aggrieved by the extraordinary fluctuation of the colonial rate of exchange, which has singularly proved at higher discount when his excellency has had occasion to draw, than when he has found it expedient to remit—an evil that would have less injurious operation if his excellency's salary was paid in colonial currency.
"That should your honourable House suppose the commissariat department at the Cape of Good Hope to be governed by the ordinary regulations, your petitioner most respectfully begs leave to disabuse your honourable House of such opinion; the supplies in the district of Albany having been, up to the arrival of the commissioners of inquiry, derived from private tender only. Hence the enormous price of 23 stivers and a fraction paid to the bailiff of the Somerset establishment per ration for the troops on the frontier, which your petitioner would gladly have contributed at 10 stivers per ration—a circumstance that, waving even the suspicion of peculation in the enormous balances of profit, must necessarily enrich the colonial at the expense of the home treasury, and which, by excluding competition, paralyzes the efforts of the settler in the only profitable vent for his industry.
"That in the abandonment of Bathurst, and the determined opposition of his excellency to the wise and paternal measures of sir Rufane Shaw Donkin, the interests of the settlers were directly compromised without any regard to consequences, from which they have scarcely yet recovered; while in the cultivation of green forage by the military, and the substitution of the Hottentot regiment for troops of the line, as a protecting force on the frontier, your petitioner and his brother colonists have experienced evils of grievous magnitude and pressure.
"That in the constitution of the judicial body at the Cape, none of those safeguards are perceptible which ensure to 1173 the subject the flow of unpolluted justice, its present organization consisting for the most part of displaced Landdrosts, and one retired English commissary, all removable at the pleasure of his excellency, and consequently susceptible of imputations which will be apparent to your honourable House.
"That your petitioner, so far from desiring to agitate any question which might glance at the eligibility of lord Charles Somerset to his government, has spared no effort to obtain a moderate redress from earl Bathurst's department; but that that department, throughout its whole correspondence, has projected so many obstacles and delays, and manifested so little sympathy for the unwarrantable aggressions your petitioner has sustained, that he is compelled to throw himself upon the justice of your honourable House.
"Your petitioner therefore prays, that your honourable House will cause an inquiry to be instituted into the conduct of lord Charles Somerset and the colonial authorities at the Cape, and extend to your petitioner such protection and redress as to four honourable House may seem meet. And your petitioner, &c."
Ordered to lie on the table.