HC Deb 12 July 1849 vol 107 cc251-61

The Order of the Day having been read for going into Committee of Supply,


rose to renew his Motion for an Address to Her Majesty on the subject of certain illegal ordinances or Acts of Council for the taxation of the people of Van Diemen's Land, and the attempts of Lieutenant Governor Sir William Denison to intimidate the Judges of the Supreme Court of that island. The hon. and learned Gentleman recapitulated what he had formerly stated to the House with respect to the conduct of the Governor—that Sir W. Denison was charged with having, by means of private solicitation, endeavoured to induce one of the Judges of the Supreme Court (the Chief Justice) to withdraw from his post, on leave of absence for eighteen months, in order that he might be enabled to appoint a successor who would give judgment on particular cases in favour of the Crown—that the Chief Justice having refused this degrading proposal, measures were taken to remove him, solely because, in the exercise of his judicial functions, he had declared an illegal Act of Council to be a violation of a British Act of Parliament—that this attempt was only prevented by the receipt of information from England, that the Governor had the power to call together another packed Council, who would bring in a Bill to change the existing law—that the Council was accordingly summoned, and by them a Bill was passed, rendering legal all those measures respecting local taxation which the courts of law had previously declared to be illegal. With this short statement he would leave the matter in the hands of the House.

Motion made, and Question proposed,

"That Mr. Speaker do now leave the chair."

Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words— That an humble Address be presented to Her Majesty, on the subject of certain illegal Ordinances or Acts of Council for the Taxation of the people of Van Diemen's Land, the attempts of Lieutenant Governor Sir William Denison to intimidate the Judges of the Supreme Court of that Island into declaring such Ordinances or Acts to be legal, and the Grievances complained of by the Colonists of that Island in their Petition presented last year to Her Majesty, and printed by order of this House; and that Her Majesty may be pleased to direct the local authorities in future to respect the independence of the Judicial Functions of that Court, and also to signify Her disallowance of any Ordinance or Act subsequently passed by the said Lieutenant Governor in Council, for giving to such illegal Ordinances or Acts the force of Law.


said, he understood the charge against the Governor to be, that he had been instrumental in passing certain Acts of the Legislative Council illegally, those Acts being intended to appropriate particular taxes, not to local objects, but to imperial purposes; and, generally, that he was guilty of interfering with the due administration of justice in the colony. The question on which these accusations turned, arose entirely out of the construction of what was called Huskisson's Act, namely, the 9th of George IV., chap. 83. The question was, whether the proceedings which had taken place came under Mr. Huskisson's Act, which declared that the Acts of the Council should be registered in the Supreme Court within a limited time; but the Council might set aside this sanction in certain cases, and the Acts would be equally valid without it. In 1845, an Act was passed by the Council in Van Diemen's Land, by which a tax was imposed upon dogs, with the view of preventing their increase. This Act, however, was not registered in the Supreme Court; but within a certain period it was declared by the Governor to have become law. Some excitement was got up in the colony on the subject, and an appeal was made to the court, which decided that the proceeding was repugnant to the spirit of Mr. Huskisson's Act. The law officers of the Crown in Van Diemen's Land differed altogether with the Judges on the point, and stated that the time for taking objections to the law had gone by. As it was, nearly the whole revenue of the colony was perilled by this decision of the Judges, as most of the taxes had been imposed in the same way. Sir William Denison was thus placed in a situation of great difficulty. Many parties had informations lodged against them, and it was altogether found extremely difficult to carry on the government. In this state of matters. Sir W. Denison no doubt did propose to the Chief Justice that he should obtain leave of absence. That leave of absence, however, the Chief Justice refused to accept. Now, he was ready to admit that an error of judgment had been committed in this respect; but with the exception of that error of judgment, he must say that he saw nothing in the conduct of Sir W. Denison throughout these transactions that could derogate in any way from his character as an able and upright Governor. With that single exception, he had no fault to find with Sir W. Denison. The noble Lord the Secretary for the Colonies had expressed his disapprobation of the error which had been committed. An explanation had since been made by the Governor to the Chief Justice, which was received as duo reparation for the slight unintentionally cast upon him; and he believed that the best understanding now existed between the Governor and the Chief Justice. As to the question that had arisen respecting the bearing of the local Acts upon the existing law, he would only say that it was a point upon which lawyers differed, and that the Governor and the Legislative Council were guided in the opinions they formed by the law officers of the Crown. As to the case so far as regarded the Governor, he thought sufficient had been done by the expression of the Secretary of State's opinion, and that no necessity existed for proceeding further.


wished to know whether the Government had any objection to lay on the table of the House the despatch which the noble Lord the Secretary of State for the Colonies had written to Sir W. Denison, in which he reproved him for the illegal manner in which he bad attempted to intimidate the Judges in the performance of their public duties. Until the Government consented to produce that despatch, he thought the House ought not to allow this Motion to be withdrawn. Representations had been made to him by the inhabitants of the colony, strongly condemning the conduct of the Governor in this matter. What security had they for the protection of their property in England if justice were not purely administered? But of how much greater importance was it that in the colonies, which were so far removed from the means possessed by people living in England of obtaining redress, the administration of justice should be pure and free! Before redress could be obtained in the colonies, evils of the greatest magnitude might be committed, and it was therefore a matter of the highest importance that every care should be taken, not only that the judicial office was filled by able, independent, and upright men, but that not the slightest hindrance should be permitted to the free execution of their decrees. If conduct such as had been brought home to Sir W. Denison were permitted to take place amongst an independent population, the results might be of the most alarming and unsatisfactory character. He know that the people of Australia had been much exasperated by the conduct of the Governor, and he was therefore anxious that everything which could explain his conduct should be laid on the table of the House. He should also like to know the grounds on which the Chief Justice ventured to take the step which he did in reference to the ordinances in question. The House would no doubt be anxious to know whether the Attorney and Solicitor General's opinions had been allowed with the Governor to overrule the decision of the Chief Justice. It would no doubt astonish people in this country if the judgment of Lord Denman, for instance, were to be set aside by the opinion of a Solicitor or Attorney General. If such a course were allowed to be taken—if Attorney and Solicitor Generals were allowed to usurp the judicial office, and to become the judges of the law—all practical justice would be at an end. He trusted sincerely that Her Majesty's Government would consent to the production of every paper tending to justify the conduct of all parties concerned.


wished to induce the House not to call for the papers in this case, for such a proceeding would not he in conformity with the spirit in which hon. Gentlemen proceeded in a case of this kind. The calling for the papers alluded to by the hon. Member for Montrose, would add much to the censure convoyed in them. If the object of such a proceeding was the vindication of the character of chief Justice Pedder, it might be a valid reason for doing so, although it would press hard upon the Governor; but he understood there was an end to all disputes between the Governor and the Judge. He believed the Motion before the House did not go for the production of papers, but was only a suggestion of the hon. Member for Montrose. He had had some experience of the colonial system, and he could state, the relations between the governor and the judges and other authorities in a colony, were not the same as existed between the Government and similar parties in this country. Custom did not in the colonies give the same independence to the judges which they possessed here; and it was very often the duty of a governor to interfere with the judges, and even, under certain circumstances, to suspend or dismiss a judge, for which proceeding, of course, he was responsible. The question then was, as the Governor had not erred fundamentally, but had erred in the manner in which he had taken cognisance of the conduct of the Judges whether, after the error bad been corrected, and the conduct of the Governor disapproved of by the Secretary of State, it was expedient to go further into the case. There were two questions mixed up in this case. The first was as to the practice of colonial governors in general; the second was as to the character and conduct of the present Governor of Van Die-men's Land. He conceived the governors of colonies should have all the support which they could reasonably look for from the Home Government, for they were placed at a great distance, and they had often to discharge the most difficult duties; and they had not the same support of public opinion in the colonies as the Government had in this country. Under the circumstances of the colonial system, it was impossible to expect that errors of judgment would not occasionally occur. He thought also they should refer to the general character of Sir W. Denison. He (Mr. Gladstone) was responsible for the appointment of Sir W. Denison to the Vice-Governorship of Van Diemen's Land. That officer's appointment was confirmed by Earl Grey. This was not an appointment at haphazard or hastily, but after a full consideration of the affairs of the colony. He frankly avowed that his object was not only to send to Van Diemen's Land a governor of capacity, but the very best man who could be procured. At that time there existed a conflict between the Legislature and the Governor of the colony, as well as with the court of justice; and the state of the sys tem of transportation was such as to excite a feeling of horror in this country as well as in the colony. There was no instance of a governor being sent to a colony with a more difficult task to perform than that which was given to Sir W. Denison. He did not say that the Governor was right in this specific case; but he would appeal to Gentlemen in that House whether an individual case of error of judgment should be framed into a general condemnation of his conduct? Sir W. Denison was known in this country as one of the most able officers of that distinguished branch of the public service, the engineers. The affairs of the colony had prospered under his hands, and he had done everything in the power of man to put an end to the frightful state of the convict system which existed there when he arrived in the colony. Under these circumstances he had obtained a claim to public gratitude, and he trusted the House would not consent to go beyond the line which the Secretary of State thought should be adopted for the vindication of the conduct of the Chief Justice. The Governor had relied and proceeded on the opinion of the law officers of the Crown in the colony, where far greater authority was attached to their opinions than was the case at home. The relations also between the governments of the colonies and the judges was essentially different from those which existed between the Government and the Judges at home, for the independence of the judges did not exist in the colonies. The question before the House was, whether, after the letter of the Secretary for the Colonies to the Governor, and considering that no practical evil remained in the case to be removed, it was necessary to add the censure of the House to the disapproval which had been already expressed by the Government; and he should support the Ministers in their en deavour to persuade the House against the necessity for such a step.


said, that some of the observations just made by the right hon. Gentleman appeared to him of such serious import, both as regarded the honour and integrity of the profession to which he (Mr. Page Wood) had the honour to belong, and as regarded the position of our Government in the colonies, that he could not remain silent, knowing what he did of this case as a counsel therein. If the allegation made by a right hon. Gentleman who had once filled the high office of Secretary for the Colonies, that the interference of a colonial governor with the functions of a judge in the colony, was an act deserving only of mild censure, and of censure not to be made public in the colony, were to pass unquestioned; then the position of a judge in a colony was one of very doubtful character for any gentleman of honour to undertake. If this question were not held as one deserving of the greatest possible attention, and if the most complete reparation were not made in every respect, not only to Mr. Chief Justice Pedder, but to all who had been injuriously affected in the transaction, he should look hereafter with suspicion upon all who accepted the position of a colonial judge. The colonial judges were appointed under patent revocable by the Crown, but not by the colonial governors; and, except under a special Act of Parliament, they were not to be removed. He admitted the difficulty in which the Governor had been placed; but he was a military man, and on an average military Governors and Judges did not get on amicably together in the colonies for more than three years. The hon. and learned Gentleman here briefly recapitulated the circumstances of the case, as related by the hon. and learned Mover, and commented upon the conduct of the Governor, which he said was calculated to shake the confidence of the colony in its institutions. He would rather see the Governor in possession of all authority at once, and responsible for all, than that this sort of interference should be exercised. If the colony was in that infant state that the law could not be administered in the usual course, so as both to secure the authority of the Governor and the duo dispensation of justice to the people, then it would be better that the Governor should unite the judicial functions with his office, and that the military man should be governor, judge, and everything. With respect to the production and printing of these papers, he had no desire to do anything vindictive or harsh towards the Governor. Even as counsel, he (Mr. Wood) had not the slightest feeling on the subject towards him. But he felt strongly as regarded the character of the bench and the due administration of justice in the colony, that it was not sufficient there should be a private expression by the Government of disapprobation of the conduct of the Governor in this case, but that there ought to be something more marked and decided, such as printing these papers, so as to have a public acknowledgment of the reparation that had been made.


defended the conduct of Sir W. Denison, and expressed his regret at the animus which had been evinced against an officer standing high in his profession. He entreated the House not to form their judgment upon Sir W. Denison upon the speeches which they had heard.


observed, that in all the proceedings on the part of the Judges of Van Diemen's Land up to the time that they declared the ordinances to be illegal, everything had been done in the most regular manner. All was conducted in perfect accordance with the forms of the constitution. Who then was the first to depart from that course of regularity? The Governor himself, who in substance found fault with the Judges for their decision. What business had he so to do? It was beyond his duty and his power to interfere with a judicial determination. It was said that the Governor was a military officer, as nine out of ten of our governors wore. He agreed that the tone of mind acquired by men of the military profession was not the best suited to civil affairs, and that it in some degree disqualified them for discharging the duties of constitutional government. What was it, then, that Sir W. Denison did? He removed one of the Judges, and sent to another a letter submitting to him that it would be a wise thing for him to request eighteen months' leave of absence. What was the meaning of that? Was there any portion of Chief Justice Pedder's conduct to be found fault with except his decision in regard to the dog-tax? It was known that that learned Judge determined that the ordinance imposing that tax was illegal. Was it for this that he was recommended to absent himself for eighteen months from the discharge of his duty? Was it not an insult to the Judges, and an act calculated to degrade the judicial bench in the estimation of the inhabitants of the colony? There was no class in the community whose character and conduct were of so much importance to the general weal as those of the Judges by whom the law of the land was administered. What would be said of that Government which should write a letter to Lord Chief Justice Den man he having adjudicated in a matter which interested both the Government and the House of Commons, and having come to a decision centrary to a previous determination of the House—what, he asked, would be said of a Government who should write a letter to that noble Lord, and suggest to him that it would be for the benefit of his health if he would take an excursion into the country for eighteen months? What, if such a letter had been written after the Stockdale case? But, said the right hon. Gentleman the Member for the University of Oxford, the judges in the colonies were not like the Judges in England, they were a very different class of people. Let him, however, remind that right hon. Gentleman that those colonial judges were called upon to administer the law which concerned the property and the lives of the inhabitants of the country in which they lived, and that they were there placed by the imperial power of England so to administer that law. Did the right hon. Gentleman mean, therefore, to say that there was something about the character of a colonial judge which denuded him of those attributes that were a safeguard to the official dignity and purity of character which belonged to a judge in this country? If it were so, then he would say shame to the right hon. Gentleman, who, having been a Colonial Secretary, and seeing an evil so seriously affecting the character of the judges of the colonies, had failed to bring in a law to remedy that defect. If one thing more than another could be calculated to bind the colonies to this country, it should be the fact that the Government of the mother country watched vigilantly over the character of those to whom was intrusted the administration of the law, and took care that justice was rendered pure and undefiled never troubled by petty passions, or prejudiced by any littleness of professional hate. The right hon. Gentleman had made an appeal to the House as a species of argument ad misericordiam, by referring to the former services of the Governor of Van Diemen's Land. But that had nothing to do with the question. The House should confine itself to the single act before it, and not refer to the previous conduct of the Governor. They were not giving evidence of character after a verdict had been found, but they were asking whether upon this particular issue the party was guilty or not. From all the lights which were afforded to him, he believed that Sir W. Denison had been guilty of an offence of a most grievous nature; and, whether from pique or from passion he knew not, neither did he care, that he had most unwarrantably interfered with the pure administration of justice in one of our most important colonies. It became the noble Lord at the head of the Administration to watch with care over these derelictions; and if he failed in that his most sacred trust, he would deserve that condemnation which he was sure the feelings of the country would visit upon the man who, holding responsible power, was careless of those great interests of the State which were wrapped up with the well government of the colonial possessions of the empire.


Sir, it is with the greatest deference that I venture to say anything upon a question having reference to one who is closely connected with myself. I hope, however, I shall prove to the House that I am capable of overcoming any prepossessions I may he supposed to be influenced by when I at once join with hon. Gentlemen in expressing my deep regret for the act that was done with regard to Chief Justice Pedder. I shall not enter into the merits of this question on either side; it would not he becoming of me to do so; but I shall confine myself to one single point. The main question I believe is this—shall a certain despatch from the Secretary of State for the Colonial Department, animadverting upon the conduct of the Government of Van Diemen's Land, be produced before this House? Now, whatever may be the view taken of this subject by my hon. Friend the Under Secretary for the Colonies, I have that opinion of the sincerity and frankness of character of my relative to believe that it would not be his desire that any expression of opinion with regard to his conduct should be suppressed, or that what he had done should not undergo the fullest investigation by this House. I, for one, cannot join my hon. Friend in desiring that that despatch should be kept from the notice of the House. As far as I am concerned, I should desire that the despatch should be produced, and the fullest information given. I repeat that it would not be becoming in me to refer to the grounds upon which the selection of that officer was made, nor to say anything with respect to the value of his public services. They are before this House; and I hope not only that the House will exercise an impartial judgment upon them, but that the closest attention will be directed to the future conduct of that Gentleman; and I do not doubt that his disposition to discharge his duty will conduct him through the very important, laborious, and responsible situation in which he is placed in a manner honourable to himself.

Question put, "That the words proposed to be left out stand part of the Question."

The House divided:—Ayes 24; Noes 72: Majority 48

Main Question put and agreed to.


then asked if there vas any objection on the part of the noble Lord to lay on the table a copy of Earl Grey's despatch wherein he censured and disapproved of Sir W. Denison's conduct?


said, that inasmuch as society in Van Diemen's Land was in a very disorganised state, and as he had stated expressly that Earl Grey had disapproved of and censured Sir W. Denison's conduct towards Mr. Justice Pedder, he did not think, considering the difficulties which the Governor of that colony had already to contend with, that any good would result from making public a document which might have the effect of lowering the Governor in the eyes of the colonists, and subjecting him to their criticism and censure. The better course, therefore, was not to lay the despatch on the table.


with reference to the remark of the noble Lord that the population of Van Diemen's Land were at present in a disorderly and disorganised state, begged to say that if under any circumstances a governor should be above all suspicion or imputation, it was where a population was in such circumstances as the noble Lord had described. There was an old saying—Omne ignotum pro magnifico; and he believed that, so long as this despatch remained unknown, it would be assumed to be of a far more sweeping and condemnatory character than it really was. The consequence would be that the Governor would never be able to put the law in force against any person, however bad or mischievous, and however deserving of blame and punishment. Indeed, he was bold enough to say, that if this despatch were not published, the Governor could not with safety remain in the colony.

Subject dropped.