HC Deb 08 May 1826 vol 15 cc961-71
Colonel Beaumont

said, he rose to present a petition from Mr. Bishop Burnett, complaining of the conduct of lord Charles Somerset. He regretted that the petition had not fallen into the hands of some one more competent than himself for such an undertaking; but, as he was convinced of the justice of it, and as he had been promised able assistance whenever its merits should be examined into, he should not have felt himself justified if he had declined to present it. It was not either his own wish, or that of the petitioner, that this petition should afford an opportunity of throwing out or promulgating general invective against lord Charles Somerset. As lieutenant-colonel Bird, owing to his having been the secretary at the Cape, was well acquainted with the character and conduct of lord Charles Somerset, the petitioner desired that he should be examined at the bar of the House. The petitioner also complained, that the colonial secretary had refused to grant him permission to return to the Cape, for the purpose of enabling him to procure evidence, which would substantiate the charges he had to bring forward against the noble lord. The present charges were the same as those which the petitioner had brought before this House on the 16th of June last, and he himself had now felt it a matter of delicacy and difficulty, as to whether he should enter into a recapitulation of those charges or not: but whether he was acting right or wrong, he had resolved not to do so; which mode of proceeding would, he trusted, convince the House that his object was justice and not slander. He hoped the colonial secretary would not deny the desired permission to the petitioner, as the granting it would not imply any thing as to the legality or illegality of the original banishment from that colony of the petitioner for five years, to which he had been sentenced for a libel; which libel was nothing more than a memorial which he had presented to the governor of the colony, complaining of acts of injustice on the part of some of the members of the government, and praying for redress. On a former occasion the hon. and learned member for Winchelsea had given it as his opinion, that even if the petitioner was guilty of the alleged libel, still the noble lord had acted in so unconstitutional a manner in banishing him, that he had thereby rendered himself liable to an impeachment. He would not, by any comments of his own, weaken the observation of that learned gentleman, but would content himself by simply stating the two objects of the petition; the first of which was, that lieutenant-colonel Bird should be examined at the bar of the House,—and the second, that the petitioner should be permitted to return to the Cape, for the purpose of procuring evidence to substantiate the charges he intended to bring forward. In order to obtain justice, it was necessary to proceed temperately. He hoped, however, that the colonial secretary would give some pledge to the House that the petitioner should have the permission he requested, and that an early day would be appointed for examining lieutenant-colonel Bird at the bar of the House.

The petition was then read as follows:

"To the Hon. the Commons of Great Britain and Ireland, in Parliament assembled.

"The Petition of Bishop Burnett, of the Cape of Good Hope, gent., respectfully showeth,

"That your petitioner presented a petition to your hon. House during the last session of parliament, inculpating the conduct of lord Charles Somerset, in his capacity of governor of the Cape of Good Hope, and setting forth sundry grievances sustained by your petitioner from the oppressive measures of his excellency, through the medium of the judicial authorities at the Cape.

"That his majesty's ministers having deprecated the institution of any proceedings thereon during the current session, on the plea of leave of absence having been granted to his excellency to repair to England, for the purpose of meeting the charges exhibited against him, and lord Edward Somerset having pledged himself for the prompt return of his noble relative to face his accusers in parliament, your petitioner presented a second petition, requesting of your hon. House to facilitate his return to the Cape of Good Hope, for the collection of evidence to substantiate his charges, from which settlement he had been illegally banished by the despotic and arbitrary measures of his excellency.

"That the under colonial Secretary of State having virtually promised the sanction of his department to your petitioner's return, by pledging its accedence to his request, on the exhibition of a just pretext, your hon. House thought proper to decline acting on his petition; and your petitioner took measures for his immediate return to the colony, when to his astonishment this leave thus promised was peremptorily withheld by earl Bathurst—an act of injustice best illustrated to your hon. House by supposing the parallel case of a magistrate refusing to facilitate the conviction of a felon, by throwing impediments in the way of his prosecutor.

"That your petitioner, after encountering the systematic persecution set forth in his memorial to your hon. House, with the final sentence of banishment from the Cape, an act alone of arbitrary and unwarrantable authority, has found his complaints utterly disregarded by earl Bathurst, and himself taunted with imputations by the under colonial secretary, which have no other foundation than his own surmise, in his endeavour to screen lord Charles Somerset from the consequence of his misgovernment: a misgovernment your petitioner would now have been prepared to prove to your hon. House much beyond the extent of the charges exhibited, had earl Bathurst have granted your petitioner leave to return to the Cape, in fulfilment of Mr. Horton's pledge to your hon. House.

"That as his majesty's commissioners of inquiry at the Cape have, by an extraordinary course of proceeding, intimidated witnesses from giving in their testimony in the scrutiny of grave charges against his excellency the governor, your petitioner cannot perceive that the reference of the colonial department to the functions of those gentlemen furnishes any satisfactory hope of redress when their long-protracted report does arrive. Your petitioner therefore protests against any conclusions being drawn or any decision being formed in his case from an investigation necessarily partial and imperfect, in a colony where your petitioner has no hesitation in declaring, no man dares disclose a truth in the slightest degree offensive to its governor, without entailing persecution.

"That your petitioner most respectfully begs leave to impress upon the consideration of your hon. House, that if acts of unjustifiable aggression committed by governors of colonies are to find support through the power of family influence from authorities delegated to control them, it becomes especially incumbent on your hon. House to extend its protection to those victims of oppression who are hardy enough to encounter the consequences inevitably incurred by opposition to the wishes of government, in denouncing the guilt of its favoured deputies: otherwise it must be apparent that the right of petition is unavailing—that the licence of uncontrolled authority has no limit; and that in its encroaching progression, not only the liberty and property, but the very life, of the colonist subject may be sacrificed to a bad temperament in any tyrannic governor. Your petitioner therefore prays, that your hon. House will take his case into consideration, and examine lieutenant-colonel Bird touching the premises previous to his return to the Cape of Good Hope."

Mr. Wilmot Horton

said, that as he had not seen the petition before it was presented, and as he had not been informed of the nature of the charges it contained, he was to a certain degree unprepared to answer the allegations of it. He was not, however, surprised to hear that the petitioner impugned the motives, and protested against the report, of the commissioners; for the petitioner could not help being aware, that that report must be unfavourable to himself. Had he been previously interrogated by any hon. member on the subject, he would have stated to the House then, what he felt it to be his duty to state now, that a voluminous report had been received by the colonial department from the commissioners, and was ready to be laid, at any moment, upon the table of the House. The House, if it would take the trouble of reading the evidence annexed to that report, would be qualified to decide, whether it ought to concur in the opinion of the commissioners, that the charges which the petitioner had preferred against lord Charles Somerset were grossly exaggerated, and were not such as required the interference of that House. Even from the statement of the petitioner himself, it was evident that he inculpated lord Charles Somerset for what had been done by the judicial authorities of the colony. The commissioners had recommended that the Dutch law, which now prevailed there, should be assimilated to the British; but, until that assimilation took place, it was the duty of the constituted authorities to act upon the Dutch and not upon the British law. With respect to the constitutional topics referred to by the hon. member for Northumberland, he would leave them unnoticed for the present, being convinced that the discussion of them might well be postponed to a future period. He contended, that the commissioners were fully competent, both from the respectability of their characters and from the opportunities which they had enjoyed of collecting information, to give a correct opinion upon the subject referred to their consideration. He likewise argued, that as the fullest information was contained in a report on the subject of the charges made by the petitioner against lord Charles Somerset, it would be unnecessary to examine lieutenant-colonel Bird upon them, who, as far as he could judge, had no connexion whatever with them. With regard to the application made by the petitioner to lord Bathurst to return to the Cape of Good Hope, he would only say, that if any gentleman chose to move for copies of the correspondence which had passed between the petitioner and the colonial government, he should willingly accede to the motion. He complained that the petitioner had been backward in bringing forward his charges in a substantive form against lord Charles Somerset, and that he had been particularly active in filling the newspapers with the most exaggerated descriptions of them. He called upon gentlemen to suspend their opinions with regard to those charges, until they had read the report of the commissioners. Though the case of the present petitioner could not dispose of the cases of other petitioners, still he thought that the perusal of the report would convince every unprejudiced man, that the statements of Mr. Bishop Burnett were gross and unfounded exaggerations. The House, he admitted, would not be bound by the opinion stated in that report; but, if any gentleman were dissatisfied with it, he would be able to make his dissatisfaction with it the ground of a substantive report.

Mr. Hume

said, that at an early period of the session, he had inquired if any report had been received from the commis- sioners sent to the Cape of Good Hope, and had been informed by the hon. Secretary, that none had been received. If, therefore, there was any delay in bringing this subject before the House, the blame rested either with the colonial Secretary, or with the commissioners, and certainly not with the petitioner, who had last year brought forward substantive charges against lord C. Somerset. The reason why those charges were not then taken into consideration was, that the House thought it right that lord C. Somerset should return before it proceeded to investigate them. Why, he would ask, had lord Charles not returned to this country? Why, but because he seemed to wish to evade justice, and to frustrate inquiry? He had some time ago read to the House a letter which he had received from the Cape, in which it was explicitly stated to him, that he would not see lord C. Somerset during the present session of parliament. That prediction was now verified. And what did such conduct on the part of an accused man look like? Surely like an inclination on his part of not wishing to face his accusers. It was not fair in the hon. Secretary to say that the petitioner had been backward in bringing forward his charges. If there had been any delay on the part of the petitioner, which was not the case, it had been caused by his waiting for the arrival of the noble lord in England, in consequence of his conviction that the House would not enter upon an investigation of his charges in the absence of the noble lord. "But," asked the hon. Secretary, "had the House any complaint to urge against the conduct of those commissioners?" To that question he would answer, that he had a complaint to urge against them. They had been three years at the Cape of Good Hope, and as yet it was a secret to the House, what they had done, or whether they had done any thing. He had, therefore, good grounds for doubting their activity in accomplishing the objects for which they were sent out from this country. As to the refusal of government to let the petitioner return to the Cape, he considered it to be a very harsh and unjust proceeding. The petitioner had been sent off from the Cape at a moment's notice, without the possibility of making any arrangement for obtaining a redress of grievances; and the refusal of government to allow him to return to the Cape had the appearance of an unwillingness, on the part of the Colonial Department, to allow him to collect the evidence necessary to substantiate his accusations. The petitioner would have been called upon by this time, had the noble lord been in England, to enter upon his accusation, and that without having had any facilities extended to him for obtaining the presence of his witnesses. He had been treated with a degree of harshness by the government, which it ought not to have displayed, if it valued either the interest of the colony, or the interest and character of the noble lord who was accused of maladministration in that colony. Indeed if the witnesses were not fairly brought forward on behalf of the accusation, the acquittal, should an acquittal befal lord C. Somerset, would be deprived of more than half its value. He contended, that the House had great reason to complain of lord C. Somerset's delaying to return to England. The complaint exhibited against him by Mr. Bishop Burnett did not form a tenth part of the complaints which he would be called upon to answer. His delay was, therefore, evidently designed to evade inquiry, in the hopes of ruining the individuals in the interim, who had to support the expense of instituting it. He contended, that the government ought not to allow lieutenant-colonel Bird, who was acquainted with all the details of lord C. Somerset's conduct, to leave the country, without taking means to bring him back when wanted. His evidence was most essential, either to inculpate or exculpate the governor of the colony, and he trusted that, in justice, not merely to the colony and to the petitioner, but also to its accused governor, means would be taken to detain him in this country.

Colonel Davies

wished to know why this report had been kept back by the government to such a late period or the session, that it would be impossible to get it printed before the close of it.

Mr. Wilmot Horton

said, he had not presented it, because he thought that the House would not enter into a discussion of it until the return of lord C. Somerset. If any gentleman had asked him a question on the subject, he should have given him, without any reserve, the same information which he had that evening afforded to the House.

Mr. Fyshe Palmer

recollected, that on the occasion when this subject was before the House last session, it was said, that as soon as lord Charles Somerset could receive leave to return, he would avail himself of that leave, and would hurry home to meet the charges of his accusers. Twelve months had elapsed since that leave had been granted to him, and yet lord Charles was not in England. He could not pretend to say what was contained in a report which he had not seen, but he could not forget that, besides the accusation of Mr. Bishop Burnett, there were several other accusations, much more grievous, brought forward against him. The course which government had taken with regard to the present petitioner, appeared to him to be directly adverse to the interest of the colony, and, what was much more material, to the interests of justice. He thought that lieutenant-colonel Bird ought not to be permitted to leave the country at a moment when he might be called upon to give evidence, inculpatory or exculpatory, of lord Charles Somerset.

Lord E. Somerset

said, that as the petitioner alluded to a pledge given by a relation of lord C. Somerset in the last session, that he would promptly return to face his accusers in parliament on receiving leave of absence from the government at home, and as the hon. members for Montrose and Reading had both said, that the fact of his noble relative's not being now in England was proof that he wished to evade the fulfilment of that pledge, he rose for the purpose of contradicting the assertion. He rose for the purpose of declaring most unequivocally, that his noble relative had been most anxious to leave the Cape of Good Hope, on first hearing of the charges made against him; but that he had been ordered by the government at home—and he spoke in the presence of those who could confirm his assertion—not to leave it, until the arrival of the lieutenant-governor. The lieutenant-governor did not arrive till the 9th of February last, and his noble relative had sailed from the Cape of Good Hope as soon afterwards as he possibly could. No one could feel greater regret than his noble relative did, in not having been able to face his accusers in the present session. He still was in hopes that his noble relative would arrive before parliament separated, as letters had arrived in England, stating that he had left St. Helena. Indeed, had it not been for the continual succession of north winds for some time past, it was most probable that he would before this time have been in England. Though he repeated, that his noble relative was most anxious to face his accusers, it was not for him to say whether lieutenant-colonel Bird would be detained in this country or not. He could only say, that his noble relative had afforded to the commissioners every facility, in obtaining the information they were sent out to acquire. That information would, he trusted, soon be printed, and all his relation wished was, to have it placed as soon as possible before the public. When it was before the public, it would be seen that all the charges made against him were gross exaggerations; and his character would then be justified from the unfair, the unjustifiable, and, he would add, the dishonourable, attacks, which had so frequently been made upon it. He could have wished, that the hon. member for Aberdeen, in his desire to procure justice, had looked to both sides of this case. He could have wished that he had adverted to the fact, that the law established at the Cape of Good Hope was the Dutch law, and not the English law. Honourable gentlemen would naturally prefer the English law to the Dutch law; but they would recollect, that the governor of a colony must not govern it on the laws which he could wish, but on the laws which he found established in it. In conclusion, he repeated that no individual could be more anxious than his noble relation for the institution of an inquiry into the whole of his official acts as governor of the Cape of Good Hope.

Sir F. Burdett

said, that every man must admire the feeling with which the noble lord had defended the conduct and character of his noble relation. Upon that conduct and upon that character he should not make any remark at present, as it would not be proper for him to venture any opinion upon charges of which he knew almost nothing. He would, however, give his opinion upon the propriety of taking the evidence of lieutenant-colonel Bird, before he set sail again for the Cape of Good Hope. That was a point of so much importance, that he trusted ministers would, for their own sake, for the sake of the noble lord now under accusation, and still more for the sake of the petitioner, not deprive him of the means of securing that evidence which he described as most important to the prosecution of his claim for redress.

Mr. Wilmot Horton

said, he did not know how colonel Bird was in any respect connected with the charges brought against lord Charles Somerset. Those charges were of a nature of which colonel Bird could know nothing, as would be seen, whenever the report appendix was printed. If any subject could be pointed out on which colonel Bird could afford to the House any information which the petitioner might deem favourable to his cause, he would have no objection to grant his request; but at present he did not know how any gentleman could put a question to colonel Bird, if he was at the bar, relative to the complaints made by the petitioner. Surely the petitioner must state something specific before his prayer could be acceded to.

Sir F. Burdett

said, the petitioner stated that he conceived colonel Bird to be a material witness on his side.

Mr. Brougham

said, it would be unjust to the colony, to lord C. Somerset, and to the petitioner, if colonel Bird were not examined as to his knowledge of the facts of this case.

The Chancellor of the Exchequer

said, it was easy for gentlemen to talk of detaining colonel Bird, to examine him upon these points; but the fact was, that government had no power to detain him. He was going on his own private business to the Cape of Good Hope, and not on that of the government. What right, therefore, could government have to say that he should not quit the country?

The Speaker,

who had been reading the petition, here interrupted the discussion. He said, that in all cases where a double construction could be put upon the wording of a petition, the House put upon it such construction as was most favourable to the petitioner. There were, however, some cases, in which only one construction could be put upon it, and that construction was fatal to the petition. He believed that there were in the present petition, words which rendered it imperative upon the House to reject it. [Here the Speaker read the second and third clauses of the petition, in which reference is made to declarations of lord E. Somerset and Mr. Wilmot Horton in the House of Commons.] He thought that such reference, according to the usual rules of the House, made it imperative on them not to receive the petition.

Mr. Canning

declared his unwillingness to reject a petition of this nature, on the mere ground of an informality of this description.

Mr. Beaumont

expressed his readiness to withdraw the petition, inasmuch as it did not contain any specific charges, and he had, in some degree, obtained his object.

The petition was withdrawn.

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