THE ORANGE RIVER TERRITORY.

HC Deb 09 May 1854 vol 133 cc49-88

MR. ADDERLEY

said, he would now beg to move the Address of which he had previously given notice. It was so far fortunate that this Motion had not been brought forward before that evening, because by the mail of that day he had been enabled to receive important intelligence from the Colony. He had received two important petitions, not dictated by the self-interest of the territory in question, but from Cape Town and from Port Elizabeth, both advocating very strongly the views which he held; and he found, also, by the proclamation of the Governor, that the abandonment of which he complained extended, not only to a renunciation of territory, but to a clear and explicit dissolution of the allegiance of the subjects to Her Majesty. The Government had done this in direct opposition to the wishes of the Colonists, and had even threatened the interference of the military to carry out the Provisional Government which had been summarily formed. One of the first acts of the Provisional Government was to draw a cordon round the territory to prevent any other English subjects coming into the province to participate in the share of the gold lately found in the soil; and in the midst of this state of things the Governor carried away with him all Her Majesty's troops, leaving the province in a state bordering on civil war. His object, however, in bringing forward the present Motion for an Address to the Throne was simply to vindicate the right of the people of this country to a voice in the disposal of the dominions of the Crown. If there was no such right in the people of England —if the prerogative extended to the disposing of any part of the settled territories of the Crown without any consultation of Parliament, what use was there in our going to war from the apprehension that there were dangers hanging over distant territories, when there was as much danger to them from the caprice of the Colonial Minister at home? Why take so much care of Canada when the Ashburton Treaty might at any time be superseded by the authority of the Crown? Of what use was it to spend millions on Kafir wars in order to secure territory, which the Minister of the Crown might acquire merely for the sake of abandoning? That was a great constitutional question; and, at all events, he thought the present mode of settling, it involved rather a dangerous precedent. He would briefly state the history of the case before them, which was embraced in four epochs. The first of these was the occupation of the ter- ritory, and the Act of Parliament which was passed at the same time in relation to it; the second included the treaties entered into between this country and the native chiefs; the third referred to the proclamations, and charters assuming the sovereignty of the country; while the fourth epoch had reference to the steps which had been taken to abandon the territory. In the first place, what was the cause of the occupation of the territory? It was the emigration of British subjects from other parts of the Colony in disgust and irritation at what was now considered an exploded colonial policy of the Government—a system which very naturally irritated the Colonists. He was told that the remonstrants with whom he was in communication in the Colony were not to be trusted; but these men were now, by the election of their fellow-citizens, at the head of affairs in the Colony. In this period of the history the Act of Parliament formed an important feature —namely, the 6 & 7 Will. IV., which extended the jurisdiction of British courts over the whole of the territory in question. The second epoch, which related to the treaties made in 1845 with the native chiefs by Sir Peregrine Maitland, was also of great importance; for, though that House might think treaties entered into with barbarian chiefs matters almost ludicrous and of small importance, yet it was a more generous sentiment, and more becoming a great country, that the more insignificant the people we volunteered to treat with, the more particular ought we to be in adhering to our treaties. For his part, he would not, for all that England possessed, that the Queen of Great Britain should teach barbarous chieftains the art of perfidy. The third epoch was the period of the proclamation of sovereignty, in 1848, and of a second proclamation completely forming and establishing a Government, followed as the two proclamations were by a rebellion caused by the haste and precipitation, if he might not say the absurdity, of the mode in which those proclamations were carried out—a rebellion which was only put down by the strong hand of victory. These proclamations in 1851 were covered and ratified by the Crown itself under a charter. The last epoch was that of the renunciation of the territory in 1852. Earl Grey began to feel disgust, based upon fallacious reports of discontent, and sought to abandon that which Sir Harry Smith had equally hastily assumed. Earl Grey pro- posed to abandon this territory without the slightest necessity; it was not suggested during a time of war, but in a period of peace; it was not a cession to another allegiance, but an absolute abandonment of the country as derelict, and6 a leaving of the inhabitants to search for another allegiance wherever they might find a Power with more spirit to protect them. He did not now, however, enter into the question whether the occupation was desirable, or whether the abandonment was desirable. The question was, whether territory so annexed by the Crown as this was could be so abandoned? He would not dispute that by law, precedent, habit, and necessity, the Crown might have a right to dispose of places of arms, military forts, and the trophies of war. Of the disposal of such places as Calais, Dunkirk, Tangiers, and other similar places there might be no doubt. But, with regard to Gibraltar, though a more military station, the House would recollect that in the early period of last century Parliament interfered in time to prevent the unpopular proposition of the Minister of the day to abandon that post. In 1721, it was moved in the House of Commons, by Mr. Sandys, that there should be produced— The copy of a letter of the Duke of Newcastle which was asserted to be a promise on which the King of Spain founded his demand for the restitution of Gibraltar, so solemnly yielded to the Crown, and afterwards confirmed to Great Britain. It then appeared that a letter had been written by the King of Great Britain in which he assured the King of Spain of "his readiness to satisfy him of his making use of the first favourable opportunity with consent of Parliament." Now, if Parliament was so sensitive then that it would not allow the King of Great Britain to cede such a place as Gibraltar to Spain, so that the King had to watch for a favourable opportunity in order to get the assent of Parliament, and Parliament took care not to give him that opportunity, à fortiori it might be called in question whether the Crown had a right of its own discretion to cede places occupied territorially by British subjects. He hoped the Parliament of the present day would not show itself so much less sensitive on such a point than the Parliament of 1721. He did not now speak of places taken in war, nor of forts or places of arms, but of a territory which had been wholly and completely annexed to the Crown, and settled by British subjects under the allegiance of the Crown. He was not bound to prove that this territory had been annexed by the Crown, for that fact had been assumed and taken for granted in all the documents that were before him. But even if there were doubts on this point, would not these doubts be the best possible reason for an Act of Parliament on the subject? He would ask, moreover, whether Ministers were prepared to say that the Queen had assumed this territory by proclamation and treaty, had exercised all the functions of sovereignty in it for six years, and then, at the end of the six years found that all her proclamations, treaties, contracts, and engagements were a sham and a delusion, and that the territory was never annexed at all? With regard to the treaties, he begged to point out this—that those treaties never applied to more than half the territory; that not more than half the territory was ever even claimed by any chief, so that no treaty with any chief was ever supposed to affect it. Those portions, at all events, were held as a colony by occupation on the part of the Crown and settlement by British subjects. He was aware that there had been much difference of opinion among the Crown lawyers as to what constituted a colony by occupation on the part of the Crown; but, whatever doubt there might be on this point, he defied any one to say that this was a colony by right of conquest; yet it had been absolutely declared to be a colony by conquest. It was said by a revised decision of the Colonial Crown lawyer to be a colony by cession; so they had authority for taking every possible view of the Orange River territory as a colony—namely, as by occupation, conquest, and cession, and all three had been asserted by Crown lawyers. But they were not aware that one-half the territory could not be held by the same tenure as the other half. In addition to the abandonment of this territory he had now, however, to contend against the Crown absolving its subjects from their allegiance. Allegiance was a contract between the Crown and its subjects. Protection and subjection were reciprocal obligations, and neither party could get rid of the contract with the other. Some people were heard to say, "What the Crown assumes the Crown may resign;" but, in this case, the Crown did not resign the same thing that it assumed. It assumed sovereignty, it resigned allegiance; it assumed a right, but it resigned a contract. He might appeal to Grotius as an authority against the course taken by the Government. The Chief Commissioner of the Woods and Forests (Sir W. Molesworth) smiled at the name of Grotius; perhaps he would be more disposed to listen to the opinion of a supporter of the Government, namely, the hon. and learned Member for Plymouth (Mr. Roundell Palmer). He (Mr. Adderley) had advised the delegates who are now in England from the Orange River territory to take the opinion of the most eminent lawyers on the subject. Agreeably to his advice the opinion of the hon. and learned Member for Plymouth had been taken in consultation with Mr. Willes, and, although he could not read to the House the opinion of those gentlemen, yet he could put the House in possession of the substance of such opinion as stated in consultation last night. Such substance was, that the Orange River territory had been fully recognised as a colony, and that, in the opinion of the learned counsel, it was a colony by cession; secondly, that the Crown could not by virtue of its prerogative by law constitute any branch of its subjects an independent State; and, thirdly, that the Crown could not without the aid of Parliament cede its sovereignty to any independent Power, much less to any of its own subjects.

He would refer the House to the discussions which took place in the House of Lords, in the year 1783, relative to the treaty of Paris, and he would especially call attention to the opinions then expressed by two of the most eminent men of the day, Lord Loughborough and Lord Thurlow, with reference to the cession in that treaty of Florida to Spain — the former arguing that the Crown had no right to cede its dominion over a territory without the authority of Parliament, the latter, as Lord Chancellor, defending the right of the Crown. As to these two opinions, Lord Campbell, in his Lives of the Chancellors, while he admits the success of Lord Thurlow's ministerial defence by simple contradiction and denial, strongly expresses his opinion that his adversary, Lord Loughborough, had the best of the argument. But, even supposing that the Crown had a right to cede a territory to another Power, this did not prove that the Crown had a right to abandon any possession altogether, as was proposed in the present instance. If, however, the Crown had such a power, there was no question but that it ought to be exercised consistently with prudence and good faith. He contended that, granting the power, it had not so been exercised on the present occasion, but had been exerted in every respect illegally and unjustly. It appeared that the Government itself had considerable doubts as to the mode in which they ought to have proceeded, but no defence could be brought forward for the mode adopted. The noble Duke at the head of the Colonial Office had given instructions to a Commissioner (Sir George Clerk) to carry out this transaction in the form of a treaty or convention; and that for this purpose he was to call together a body of Her Majesty's subjects as delegates to be chosen as the representatives of the country; he was to treat them as an independent foreign Power, and to enter with them into a solemn convention for the separation and independence of the country. The treaty lately made with the Transvaal Republic of emancipated rebels was decided to be the best and only precedent to follow. Now, he challenged hon. Members to produce any defence of the mode of procedure which had been so adopted, and the right which Sir George Clerk had thus assumed to himself. What right had Sir George Clerk to call such an assembly together as he had, and under what authority did he act? He looked to the law officers of the Crown to explain these matters, and he hoped, for the credit of the country, that they would do so clearly and distinctly. He would remind the House, also, of the Act of Parliament 6th and 7th of William IV., which had asserted a distinct jurisdiction over the whole of this territory, and he would ask whether it was to be understood that with the cession of the territory this and all other Acts overriding it ceased to be operative? This was not so in the case of the independence of America, with respect to which an Act of Parliament was thought necessary to specifically repeal all such Acts; and, if this were the case with regard to America, why not so with this colony? But besides the assumption of a power of dereliction of territory and repeal of Acts, the treaties of the Crown with the chiefs had been violently set aside. Now, it should be remembered, with respect to these chiefs, that they were generally but little acquainted with the nature of such treaties, and that they very imperfectly understood the technicalities of the contracts into which they had entered; but this was no reason why they were to be invited to enter into them, and ousted at our convenience. It would be most unhandsome and ungenerous in the Crown to take advantage of any such ignorance as to terms imposed by itself. He was sorry to see the rights of these chiefs spoken of in so disparaging a manner as they had been, even by General Cathcart himself, who, when speaking of two chiefs who had remained the firmest allies of the English, calls them, now that it is convenient to be rid of them, "men of straw." This was not the way to speak of those who had first been courted as friends, and who had always shown a desire to act faithfully and truly with us. If these treaties should be set aside, the question would naturally arise—could not all the grants of land be also set aside? and so the Crown seemed to think, as the present settlers held their lands by grants in perpetuity from the Crown which was now abandoning them. Again, he would ask, in this matter, was it wise or politic not to have consulted the Cape colonists themselves on the subject? If this had been done, Government might soon have learnt how strong an objection existed in Cape Town itself relative to it, and what was the general impression throughout the Colony with respect to the measure. All the leading colonists had expressed themselves in strong terms against the abandonment of the Orange River Sovereignty as an act which would endanger their own territory. He thought he could show that there was in point of fact no step between the abandonment of the Orange River Sovereignty and the abandonment of the whole Cape Colony. At all events it would have been gracious, wise, and politic, to have consulted the newly established Representative Assembly of the Cape. There was this unfortunate consequence of the Cape colonists not having been consulted, that if their territory was endangered by the abandonment of the Orange River Sovereignty, the mother country, having acted simply by its own judgment and authority, would be bound to protect them from the consequences of its Act. The worst part of the whole transaction, however, was the winding up of it, and he considered nothing could be more disgraceful than Her Majesty's final exit from the territory, and the unseemly precipitancy of it. What excuse was there for leaving this country without any protection what- ever, and exposed to all the horrors of a civil war, the certain inroads of irritated tribes, and the aggression of the Dutch rebels whom our former impolicy had already rendered independent?

So far he had spoken as to the illegality of this transaction, and he would now call the attention of the House to the inexpediency of it—and, in doing so, it was requisite to consider the great authorities who had advocated these principles of abandonment, or argued against them. Two years ago, when Earl Grey changed his policy from annexation to renunciation, the excuse he gave was, that he had been mistaken as to the wishes of the inhabitants of the country. But Mr. Greene, the assistant commissioner, took a diametrically opposite view, and stated to Lord Grey that the discontent of the people was caused simply by the radical defects of his own policy. If so, surely that was no reason for renouncing the territory; it was rather a reason for improving the administration of the country. Again, the Duke of Newcastle recommended this hasty abandonment of the territory, because he was afraid of the great cost which it might throw upon the mother country, and also because of the liability which we should incur with regard to frontier contests. It could be proved, however, that the cost of the abandonment would be far greater than the cost of the retention of the territory. The Governor of the Colony and Sir George Clerk had both declared that the abandonment could not be carried out without large compensations to those whose interests might be injured by such a proceeding; and he would venture to say that, supposing the Duke of Newcastle were to advise the Queen to pay even one-third of the debts which she would honourably incur by this wholesale infraction of contracts in the Orange River Sovereignty and in the way of compensations, this alone would exceed the expense of retaining that country. Another item of expense would be the establishment of a consul and a British resident, whose position, moreover, could not fail to implicate the mother country quite as much in the affairs and expenditure of the Orange River Sovereignty as if Her Majesty retained it in her own possession. Indeed, our liabilities had already commenced, for he had read, in the mail which had arrived that day, that a grant of 6,000l. had been given by Sir George Clerk to enable the Provisional Government to start; and he understood that it was proposed to give a large sum annually to the burgher force of the country, upon their consenting to place themselves under arms. That certainly was not very encouraging as to the economy of the abandonment. Better abandon the expenses and retain the sovereignty. Let them now consider what the cost of the retention of the territory would be. Sir Harry Smith had declared his opinion that, if a representative constitution were granted to the inhabitants, they would not cost the mother country one farthing, either for the defence or the government of the country. All they would require would be a body of 500 men, until such time as they should be able to organise their own forces. He hoped he had shown that it was at any rate doubtful whether the cost of retention would be greater than the cost of abandonment. With respect to the other reason assigned by the Duke of Newcastle—the expense of frontier contests—he was not sure that that expense would not be increased rather than diminished by the abandonment of the territory. It was the opinion of the highest authorities in the Colony, that the first consequence of its abandonment would be a union of the inhabitants on both sides of the Vaal, and that a republican form of government would be established. In a despatch from the Governor of the Cape, it was stated that the chief Moshesh was avowedly endeavouring to unite the black population southwards, and that a balance of power was desirable to obviate the necessity of any interference for the protection of the coloured races now Her Majesty's subjects, who, absolved from allegiance at the will of the British Government, would consider themselves entitled to claim protection. Lord Grey himself said, that he was aware that, until Kafraria was reduced to complete subjection, it might be dangerous, and might ultimately increase, instead of diminishing, the difficulties to be contended with, if any course were taken which by these barbarous people might be regarded as showing a deficiency of power in the British authorities. And General Cathcart, in 1852, said that no doubt the unfortunate men who were called into action by Warden, and who answered to his call, and who had already suffered much, would, if now left to their fate, be liable to still further retaliation. Would England stand by and see this done? Sir George Clerk, however, consoles us by saying that should it become necessary or expedient to reassert the sovereignty of the British Crown by force of arms, or to reconquer the territory, there would be no difficulty in accomplishing it by 2,000 infantry, and a small force of artillery, in a six weeks' campaign! He would appeal to the noble Lord the Member for London (Lord J. Russell), who used to accuse him of a readiness to let other Powers take the possessions of the English Crown, whether it was not a dangerous thing for a country like this to volunteer the renunciation of a territory held in the manner in which the Orange River territory had been occupied by us? With the renunciation of this territory the whole Colony would ultimately go, because this territory was the key, the centre, the very heart of the whole Colony. The renunciation would immediately isolate Natal. Its possession was most important as forming the only line of internal communication. Its fertility was very great. Every account given of it described it as the most fertile part of the South African continent. It was that part which produced the finest wool pasture, and not the least to be considered was, that gold had recently been discovered there in considerable quantities.

He would now address a word to those who took a general interest in the cause of civilisation and humanity. It was a sentiment entertained by a great number of individuals—by Earl Grey himself, and every succeeding Colonial Minister, and by none with more warmth of feeling than by Sir George Clerk, who declared that the Orange River territory afforded a field, perhaps more favourable to the introduction of Christianity than was ordinarily met with throughout the inhabitants of the world. In the memorials of the British and Foreign Anti-Slavery Society and other bodies, they stated that in our arrangements we had brought the weak into contact with the strong, the uncivilised with the civilised; they hoped not to sacrifice but to ameliorate them. The eastern coast of South Africa was, moreover, the only remaining source of supply to the slave trade, and the only chance of controlling it would be withdrawn by the renunciation of that territory, which gave us a neighbouring outlook and hold upon that traffic. The Dutch had already begun to establish a very large commerce there. He had nothing further to add. The question he had submitted to the House was a grave political question. If the Government had made up their minds as to the policy they were to pursue, he was ready to sympathise with them. It was a humiliating office to have to carry out a policy which, according to their own account, would endanger the integrity of the empire, leave the property of British subjects exposed to great risks, and impede the cause of religion and civilisation, without even a decent pretext. He was astonished, concurring, as he usually did, with two individuals in the Cabinet on colonial policy—the right hon. Member for Southwark (Sir W. Molesworth) and the right hon. Gentleman the Chancellor of the Exchequer—he was astonished that they should have admitted the principle which the Government had adopted. They used to attribute the troubles of the Colonies to a want of self-government, and propose as a remedy, not reckless abandonment, but relief from needless interference, and concession of self-control and local administration. Now they appeared to suppose that there was no alternative between roughriding a colony and absolutely abandoning it. He would not, however, press this point further. All he at present wished to do was, to bring the question within the cognisance of Parliament, and to call upon it to maintain its right to have a voice in the disposal of any portion of the settled dominions of the Crown.

Motion made, and Question proposed— That an humble Address be presented to Her Majesty, praying that She will be graciously pleased to re-consider the Order in Council for the promulgation, on or before the 1st day of August next, of a Proclamation abandoning and renouncing all Sovereignty over the Orange River Territory and its inhabitants.

MR. FREDERICK PEEL

said, the hon. Member had impugned first the legality and next the policy and expediency of the course which had been pursued by the Government with regard to the Orange River Sovereignty. It was, however, upon the legality of that course—the competency of the Crown to abandon the territory—that the hon. Gentleman laid his principal stress; and perhaps it might in part explain the secondary importance which the hon. Member attached to the expediency and policy of the measure, that in the course which the present Government had taken they had only carried out what was generally understood to be the determination of the late Government, whose policy, he believed, was to abandon the Orange River Sovereignty. Now, what was it that the Crown had done? It had passed an Order in Council which authorised its Commissioner in the Orange River territory to issue within a specified time a proclamation by which the Crown abandoned its sovereignty over a particular district of country, and, in effect, declared that henceforward it would not hold itself responsible for the protection of those British subjects who might choose permanently to reside beyond the limits of the Orange River, and in the territory which had hitherto been known as the Orange River Sovereignty. He conceived that the Crown was perfectly competent to take that course, and that it was not necessary to have recourse to an Act of Parliament. The history of the Orange River territory was very peculiar. It was a country which had not been acquired by colonisation, it was a country which was not the fruit of voluntary settlement of British subjects; but it was a country which had been acquired by conquest. It had been in our possession for a period only of five or six years, and therefore there was no resemblance between it and Gibraltar, though the hon. Gentleman had had the boldness to compare them together. Gibraltar had been held by us for the long period of a century and a half. He said "the boldness to compare it," because Gibraltar, which was the pride of this country, the ornament of its power, and the key of the Mediterranean, could not for a moment be put in comparison with the Orange River territory, which was valueless as an acquisition, and was but a few years ago a more desert. He was not surprised, however, that the hon. Member should have instituted such a comparison; for according to him the Orange River territory was salubrious in its climate, extremely fertile in its soil, and rich in its mineral treasures. He could only say that the hon. Gentleman was greatly indebted to his imagination for the description he had given of the territory, which in reality possessed very few of those attractions which he believed were to be found in it. But there were other peculiarities in the case. This territory had never been made a colony; it remained a conquest; and the English law had never been planted in it, because under the proclamation of Sir Harry Smith the law in force in that country was the Roman-Dutch law. It was a country, moreover, to which the Crown had never granted any regular con- stitution, because, though it was true that letters patent were issued by the Crown, conceding a constitution, yet those letters happening to arrive at the Cape simultaneously with the breaking out of the Kafir war, Sir Harry Smith suspended their promulgation, and they were never brought into force at all.

Under these circumstances he conceived that the Crown was competent to alienate the Orange River territory. It was a question of the alienation of a portion of its dominions. Were there any precedents for such a proceeding on the part of the Crown? He would take the case of the islands of Tobago and Minorca. Tobago was ceded to this country by the treaty of Paris, in 1763. It remained in our possession for a period of twenty years, and throughout the whole period of the American war, and yet, by the treaty of Versailles, in 1783, without any authority from Parliament, the Crown ceded that island to the Government of France, making no other provision for the British subjects who had settled in the island except this, that the French King should respect and maintain their titles to property, and should allow them, if they chose, to sell their estates and leave the island. The case of Minorca was even a stronger one, because that island was in our possession for a period of nearly seventy years. It was ceded to this country by the treaty of Utrecht in 1713, and it remained in our possession till near the close of the American war; but in 1783, the Crown, without any authority from Parliament, ceded the island to the Government of Spain. But the hon. Gentleman had argued that this power of alienation by the Crown was exercisable only when the Crown made a treaty of peace. He had admitted that, the conclusion of treaties of peace being a prerogative of the Crown, it followed that the Crown could, in treating with an enemy, alienate a portion of its dominions; but he (Mr. Peel) must say that, unless the Crown had the power by the constitutional limitation of its prerogative of doing any act, it could not do it for the purpose of making a treaty of peace with an enemy. He would put a case. Supposing Parliament were to pass an Act prohibiting Russian vessels from coming into our ports, and it was known that Russia would not make a treaty of peace with us unless that prohibition upon its commerce were removed, would it be considered that, in order to make a treaty of peace, the Crown could dispense with that Act of Parlia- went? No; the same authority which put on that prohibition would be necessary to take it off. If the hon. Gentleman admitted that, for the purpose of making a treaty of peace, the Crown could alienate a portion of its dominions, it was clear that the Crown had that power for all purposes. He could not admit the authority of Grotius and other foreign writers as to the constitution of this country or the prerogative of the Crown. He conceived a more authoritative declaration of the nature of our title was to be found in the Report of the Privy Council, concurred in by Lord Campbell, in which they stated that they had examined Mr. Porter's argument with all the attention to which it was entitled, but could not concur in its conclusion, being of opinion that the Orange River Sovereignty was to be considered a conquest effected by Her Majesty's arms. If, therefore, the territory was acquired by conquest, and if the hon. Gentleman admitted that it might be ceded to an enemy for the purpose of making peace, it was perfectly clear it could be ceded to those from whom it was acquired, namely, to its own inhabitants. Another proof that it had been considered from the first as a conquered country was to be found in the nature of the constitution granted to it, because, if it had been acquired by occupation, the legislative power could only have been vested in a body elected by the freeholders of the country, whereas the constitution of 1850 vested that power in a Council nominated by the Crown. He conceived, under these circumstances, there could be no doubt that this territory was acquired by conquest. The hon. Gentleman had also referred to the precedent of the United States of America, maintaining that, although the Crown recognised the revolted Colonies as free and independent States, it did so by virtue of an Act of Parliament. But there were many reasons in that case which rendered advisable the interference of Parliament. It was known that the Crown was less disposed than the people to conclude hostilities, and unless there had been a declaration by Parliament of the views of the country, probably that war would not have been so soon brought to a termination. Another reason was, that there was in existence a long series of Acts prohibiting communication with America, and requiring all American produce to be sent to this country; and it could not be supposed that the American Colonies would consent to make peace unless they were assured that those Acts would be repealed and their commerce liberated from restrictions. The hon. Gentleman was of opinion that the Government had acted improperly in not first securing the repeal of the Act of 1836. But that was an Act which empowered the Crown to exercise the jurisdiction of a magistrate beyond the limits of the Cape Colony, and by the 4th section of that Act an important principle was laid down as to what ought to be the policy of this country— that nothing therein contained should extend to invest His Majesty with any claim or title to dominion or sovereignty over sovereignty over such territories aforesaid, or derogate from the rights of the tribes or people inhabiting them. It was to be regretted that England had not adhered to the policy enunciated in that Act of Parliament. He wished we had never crossed the Orange River, but had been content with that magisterial jurisdiction which Parliament vested in the Government for the purpose of punishing acts of aggression committed by British subjects on the natives, and had not proceeded to assume sovereignty over the country. It was not, however, necessary to repeal the Act; because if they abandoned the Sovereignty, all that the Crown would have to do would be to abstain from issuing Commissions to persons residing within the Sovereignty, authorising them to send offenders to the courts of the Colony to be tried there. The hon. Gentleman had stated very truly that no British subject could divest himself or be divested of his allegiance except by the concurrence of Parliament. Government had not attempted anything of the kind. The alienation of territory was one thing; the casting off allegiance was another. All that the Crown had done was to relieve the inhabitants of that country from their subjection, and for that they found an apt and close precedent in what was done in 1852 with regard to Boers beyond the Vaal, when a convention was entered into recognising their independence and relieving them from subjection to the Crown. The hon. Gentleman asked, was it intended that the people should remain British subjects and yet become the subjects of another country? He answered that question, by asking, what disadvantage was there in their remaining British subjects? Surely the Boers would find no more inconvenience from being British subjects than the millions of British subjects in America at this moment who had emigrated to that country. But with regard to that point he had no hesitation in saying that if it was the desire of these parties to be relieved from their allegiance, the Government would consider whether they would not introduce an Act for the purpose. [Mr. Adderley: The proclamation does it.] The hon. Gentleman, he apprehended, was mistaken. The proclamation could not do it. Should these parties be relieved from the liability of British subjects, they would be made aliens, incapable of inheriting lands from their relatives in the Cape Colonies. They had many relatives in the Cape Colonies, and it was natural to suppose they would wish to retain the advantage of taking property left to them by their relatives. For that reason the Government had abstained from introducing an Act for the purpose of casting off their allegiance; but if they desired to become aliens the Government would consider the propriety of bringing in a Bill for effecting that object. At the same time, he felt certain that the House would see the question was entirely a legal question—one, of course, which he was imperfectly qualified to argue. All he would say was, that the Government had proceeded on the advice of the law officers of the Crown, and he had no doubt, if the soundness of that advice was called in question by any hon. Member, the law officers of the Crown would be able to vindicate themselves, and to show that it was perfectly compatible with the Constitution and prerogatives of this country. As regarded the question of policy, he would briefly state the motives which had influenced the line of conduct that had been pursued. The hon. Gentleman complained that the Government did not refer this question to the Cape Legislature; but the Government considered it to be essentially an Imperial question—a question in which the Home Government was infinitely more interested than the local Government. The hon. Gentleman said we had recently given to the Cape Colony the institutions of free government. It was quite true we had granted a Representative Legislature, perhaps on the most liberal terms ever conceded to any colony under the Crown; and he agreed, generally, that where self-government was given the Colony ought to prepare itself to make provision for the expenses attending the maintenance of its internal tranquillity, and the protection of its frontier. The Government had recognised the soundness of that doctrine, and were endeavouring to act upon it as far as they were able. He was happy to say the Cape Legislature had shown a disposition to meet our views on the subject. They were called on to defray large expenses of a police corps and a Fingo corps on the eastern frontier. He was quite sure that expense was at least 50,000l. a-year. The principle of the Colony bearing that expense had been affirmed by the elective Legislature, and he had no doubt it would vote a sum annually for the maintenance of those corps. He thought that, year by year, the share of the military expenses borne by the Colony should increase, and the proportion borne by this country should diminish. But he would remind the House this was not the first time the doctrine of the liability of a colony to pay the expenses of its frontier wars had been laid down by a Secretary of State. In the instructions of Earl Grey, who was Secretary of State at the close of the Kafir war of 1846–47, be found this passage— The lessons taught by experience, the state of affairs at home, the enormous expense of the military operations just concluded, all contribute to impose the duty to warn all that portion of the public whom it may concern not to expect that any new wars can be carried on at the cost of this country. It is the opinion of Her Majesty's servants that, although they were justified in recommending the large grant made for the payment of expenses so incurred, such an effort on the part of the mother country cannot be repeated, unless by the recurrence of similar contingencies. A Kafir war broke out again at the commencement of the year 1851, and every one knows the whole burden of that war has been defrayed by this country. And what was happening at this moment? There were 5,000 troops in the Cape Colony. They felt it impossible to withdraw those troops, much as they wanted the regiments at home, because they knew if the troops were removed war would break out again. But supposing the Government went to the Cape Legislature and said, "Here is an alternative at your option —either we will withdraw our troops or you shall pay for them." The answer would be that the Colonists were not wholly responsible for the state of their own frontier, and it was impossible, out of their limited resources, to pay the cost of the 5,000 troops necessary for the protection of the Colony. The Government felt it was impossible either to withdraw the troops or to ask the Colony to pay for them. But if peace was succeeded by war, they would require 10,000 troops, the number there twelve months ago, and the House would see it was quite impossible for the Colonists to pay the expenses which would result from any fresh war. Therefore, he said this question was an Imperial question, and the Government would be wanting in its duty to that House, which had so freely and liberally voted the moneys for carrying on and bringing to a conclusion the late war, if they neglected this opportunity of endeavouring to make a settlement, something more than a more patching up of peace, extirpating the seeds of future trouble, which, if the hon. Gentleman's views were adopted, would be found very soon to ripen into a state of war. That was the clue to the policy of the Government. Their object was to prevent the recurrence of war. That object they had pursued in British Kafraria as well as in the Orange River territory. He had said he wished we had never gone into the Orange River territory. He wished we could quit altogether British Kafraria. He wished we could hold aloof from the native inhabitants, and say to them, "We must leave you to manage your own affairs." But, having respect to the opinion of General Cathcart, the Government could not take that course. Possession of British Kafraria was the object of the late war. If we left it, the Kafirs would consider themselves victorious, and would never rest until they had endeavoured to recover those successive belts of country which one after another had been taken from them during the last thirty years. But if they could not abandon British Kafraria, let them profit by the lesson it has taught, and abandon the Orange territory. The case of the Orange River Sovereignty was nearly identical with the case of British Kafraria. In British Kafraria they had 60,000 Kafirs and 1,000 Europeans. In the Orange River Sovereignty they had 100,000 Kafirs and about 10,000 Europeans. Now, he said, there being this admixture of Europeans and aboriginal inhabitants, the aboriginal inhabitants possessing all the most fertile parts of the country, and the Europeans being determined at one time or other to possess themselves of those rich tracts of country in possession of the natives, it was a difficult question how to maintain tranquillity between them. He knew but two courses. One course was the course they were pursuing in British Kafraria, establishing a strong Government. With a strong Government, supported by a large military force, they could prevent those encroachments of one division of people upon the other, which inevitably led to war, to be carried on at the expense of this country. They might take that course, but, he asked, was any object of interest, honour, or dignity involved in the retention of the Orange River territory worth this country's going to the enormous expense of maintaining peace between the aborigines and the Europeans? The other course was, withdrawing English rule. It was in that way peace was most likely to be maintained. If it became manifest that each party, and not the British Government, must be responsible for the consequences of mutual encroachment—if it was made their interest to live at peace with one another, he believed that result would be obtained. Of all courses, the worst course was that we had hitherto pursued. A more phantom of a Government had been established, unsupported by any military force, at the disposal of every party who chose to call it in aid, and the result was that we were involved in the squabbles and quarrels of petty chiefs, and between Dutch farmers and the natives, which would have ended in war but for the fortunate intervention of General Cathcart.

The course which the Government had taken had not been hastily adopted. They had been supported by great authority on this question. The Orange River territory was acquired under peculiar circumstances. When Sir Harry Smith went out to the Cape of Good Hope, at the end of 1847, it was still a possession beyond the limits of the Queen's dominions. In one of his despatches he compared himself with the Governors General of India, observing that those Governors General of India who were most eminent for their abilities invariably declared their determination to be contented with the dominion they found, and invariably distinguished their rule by the acquisition of new tracts of country—that he felt himself in the same position, conscious of the dangers and difficulties of extending the Colony, yet told that it was the wish of the Europeans, as well as natives, that British rule should be established for the purpose of arbitrating between them. Earl Grey, acting in deference to the views of Sir Harry Smith, and against his own better judgment and more far-seeing views, authorised the assumption of sovereignty over the Orange River territory. A very few months, however, showed that the anticipations of Sir Harry Smith were delusive, and instead of four-fifths of the population being in favour of British rule, as he represented, according to recent information, at that very time it appears that nine-tenths were against it. He did not impute any intention to Sir Harry Smith to state aught but the exact truth; but he was deceived, and the assumption of sovereignty never would have taken place, except under the impression that the government of the British Crown was generally desired by the people. In consequence of this state of things, Earl Grey, before he quitted office, left on record this declaration of opinion—that it ought to be the settled policy of this country to abandon the Orange River Sovereignty. Earl Grey was succeeded in office by the right hon. Baronet opposite (Sir J. Pakington), and he believed he was correct in stating he approved of the measure, and took steps for carrying it into execution. With regard to authorities in the Colony, he could not do better than refer to the disinterested advice of Sir George Clerk and General Cathcart. The opinion of Sir George Cleric on the abandonment of the Orange River territory was not formed until he had had full acquaintance with the state of that country, and the relations of the people. He said— The more I consider the position of this territory, relative both to the Cape Colony and to its own internal circumstances, the more I feel assured of its inutility as an acquisition, and impressed with a sense of the vain conceit of continuing to occupy it with our civil and military establishments in a manner becoming the character of the British Government and advantageous to our resources. And with regard to what the hon. Gentleman (Mr. Adderley) has said respecting the value of the country— It is a vast territory, possessing nothing that can sanction its being permanently added to a frontier already inconveniently extended. It secures no genuine interests—it is recommended by no prudent or justifiable motive—it answers no really beneficial purpose—it imparts no strength to the British Government, no credit to its character, no lustre to the Crown. To remain here, therefore, to superintend or to countenance this extension of British dominion, or to take part in any administrative measure for the furtherance of so unessential an object, would, I conceive, be tantamount to my encouraging a serious evil, and participating in one of the most signal fallacies which has ever come under my notice in the course of nearly thirty years devoted to the public service. All authority was in favour of the course taken by the Government; and he was happy to say they had reason to believe that course was in conformity with the wishes of the inhabitants of that country. There were two classes of inhabitants—the natives and the Dutch farmers. With regard to the natives, to whom the hon. Gentleman had made frequent allusion, it should be borne in mind that they were from the first independent tribes, never within the limits of the Cape Colony, brought down from the higher parts of Central Africa to the places where we found them. We had frequently entered into treaties with the natives, recognising their independence, and meeting them on a footing of perfect equality, and, although they were included by Sir Harry Smith in the Sovereignty over which the Queen's rule was extended, General Cathcart assured the Government that, within a very recent period, they were under the impression that they still continued as independent as before, and that it was entirely without their consent, almost without their knowledge, that they were made vassals of the Colonial Government, and lost the independence they had so long enjoyed. With those natives it was true we had entered into treaties. We entered into a treaty with one of the tribes as early as 1836, that, on condition of an annuity paid to the chief from the colonial treasury, he should undertake to protect the frontier of the Colony. That treaty was followed by other treaties in 1843 and 1844, by Sir George Napier, but they were not treaties of an offensive or defensive character—they were to protect our frontier, but we were not to protect them or interfere with them. With one exception, those treaties offered no impediment to the abandonment of the Orange River Sovereignty, and that exception was a treaty concluded by Sir Peregrine Maitland, in 1846, with the Griqua chief, in which we entered into an alliance with him, and undertook to protect him in the possession of his territory, and to interfere in any quarrel he might have with the European inhabitants of the country. The object of this treaty was to prevent the Dutch farmers from occupying the territory of the chief, and it appeared that, in the course of the five or six years which had passed since 1846, the greater part of his inalienable territory, which we undertook to take care should not be occupied by any Dutch farmers, had passed into their hands. But the hon. Gentleman (Mr. Adderley) need be under no apprehension that we should break our engagement with this chief, because he was happy to say the chief had expressed his perfect willingness to readjust the treaty, so as to adapt it to the altered position of Her Majesty's Govern ment. The other inhabitants of the country were Dutch farmers, and he begged to direct the attention of the House to their character. He was not going into an historical summary of their past proceedings. It was sufficient for him to say that these Dutch farmers, whom they were inviting to assume the responsibilities of self-government, voluntarily expatriated themselves from the Cape Colony from the year 1836 to 1840, because they were dissatisfied with the Act of the Government for the emancipation of slaves. They complained that the indemnification was not sufficient for what they regarded as the loss of their property. These Dutch farmers had gone into the Orange River Sovereignty, and many of them had proceeded onward to Natal. We had followed them there. This was in the year 1842. We had defeated them; we had assumed the government of the district. And then the reflux of the tide had flowed back again into the Orange River Sovereignty.

It was of these same Boers—of the very men who had thus gone forth to establish a Government of their own—who had been followed, who had been beaten, and had returned—that Sir Harry Smith had stated, in the year 1848, that he had reason to believe that they were favourable to British rule. Only a few months afterwards, they determined to show what were their feelings on the subject; for they assembled together under the leadership of Prætorius, ejected the British resident from the Colony, placed him across the river, and obliged Sir Harry Smith to proceed to the country in person, for the purpose of re-establishing British authority there, within six months after that authority had been stated to have been assumed with the unanimous approval of the inhabitants. After defeating these people in a battle, he succeeded in reducing them to submission. From that time to the present their whole policy had shown that they had no love for the Government. Their invariable practice had been to refuse to assist the British residents in their expeditions against the native chiefs; and it was stated, on official authority that in one of the districts into which the country was divided—the district of largest population and of greatest wealth—it was held a positive crime to entertain a feeling in favour of British rule. He did not believe that the feelings of the burgher's had undergone any change since the time when that state- ment was made; and, although an assembly of delegates, convened by Sir George Clerk, had seemed to advocate the continuance of British rule, the explanation of the apparent discrepancy was easy. These Dutch farmers were persons of very inactive character, and of undemonstrative minds—distrustful and suspicious—and it had been told them that the British Government were not sincere—that they had no intention to give the country over to self-government—that their only object was to ascertain who among them were loyal, and who were disloyal; and that those who declared in favour of self-government would be marked men for the remainder of their lives. These were the arts which a party had successfully practised, and it really had appeared at first as if we had been misled with respect to the sentiments of the country, and as if the feeling was, in fact, in favour of our exercising our rule there. But, as time had gone on, they had had an opportunity of allowing their opinions to manifest themselves more unmistakeably; and it appeared, from accounts which had been recently received, that, dissatisfied with the delegates who had been chosen in the first instance, they had appointed others, who had readily agreed to take upon themselves the self-government of the country, and that Sir George Clerk had succeeded in making a convention by which their country was to be independent of our rule. Under these circumstances —seeing that the great weight of authority was decidedly upon their side—seeing the advice which they had received from parties who were most competent to express an opinion upon the subject—and knowing, as they did, that the feeling among the burgher population was decidedly in favour of the course which they proposed—the Government had thought that they should not be justified in taking any other line than that which they had actually adopted.

There was another point to which he wished to refer. If there had been one bane of colonisation worse than another at the Cape, it had been the unbounded speculation which had taken place in land, and nowhere had that system been more fully developed than within the Orange River Sovereignty. We had been in the Sovereignty now for a period of six years, and it was almost incredible how many millions of acres had been disposed of within those six years. He found that there were 140 English proprietors of land, possessing among them in the aggregate no less than 2,500,000 acres. Of that number more than 100 resided in the Cape Colony, and were absentees from the Sovereignty, being mortgagees or capitalists at the Cape, who had advanced their money on the security of these speculations. None of this land was in cultivation, the herds which wandered over it were left entirely unprotected, and these were the cattle which, being stolen from the natives, had led to the wars which had been carried on at such enormous cost. This land had been obtained by encroachments on the territories of the native chiefs; and if the hon. Gentleman (Mr. Adderley) would look at the map to which he had referred, he would find that that part of it marked yellow, and which he had supposed was land first inhabited and occupied by the Dutch farmers emigrating from the Colony, was, in fact, a piece of territory of which one of the native chiefs had been deprived. What was the result? Things went on very well for a time, but soon the pressure of numbers, and the feelings of irritation and revenge, would lead the Kafir tribes to endeavour to avenge the encroachments which had been made, and to recover, if possible, the lands of which they had been deprived. The endeavour led to war; and then these speculations became profitable. It became necessary to march a British army into the place, and to occupy the country permanently; the land increased in value, in the prospect of a permanent settlement; and the persons who had speculated became wealthy at the expense of the country. In conclusion, he would state that the object of the Government was to concentrate the inhabitants of the Colony, and to carry out the principle of non-intervention in the petty quarrels of ancient chiefs, and he did hope that the House would support them in their endeavour to effect that object, and would decline to agree to the Address which the hon. Gentleman opposite had moved for.

SIR JOHN PAKINGTON

said, that, during the time he had the honour to hold the seals of the Colonial Office his attention had been very much directed to South Africa. There was not only the Kafir war, then unfinished, and exciting much interest in the country, but also the questions of a constitution to be granted to the Cape Colony, and the very important subject of the retention or non-retention of the Orange River territory, all requiring consideration; he therefore felt bound to address a few observations to the House. He did not doubt the excellence of the motives which had induced his hon. Friend the Member for North Staffordshire (Mr. Adderley) to bring this subject before the House, and he was only sorry that he could not concur in all the opinions he had expressed with regard to it. His hon. Friend's speech was divided into two portions—he had discussed the policy of abandoning the sovereignty of the Orange River territory, and the legality of the course pursued by the Government in giving effect to their intentions. The terms of his hon. Friend's Motion, however, were so very general that they could not be considered as referring directly either to the policy or the legality of the course pursued. It was, therefore, impossible for him to vote for the Address in the terms drawn up by his hon. Friend. He concurred with the hon. Gentleman (Mr. F. Peel) in the regret that we had ever crossed the Orange River, and he regarded the policy of the noble Lord's (Lord J. Russell's) Government, in acceding to the desire of Sir Harry Smith to add the Orange territory to the possessions of the British Crown in South Africa, as unfortunate. At the time when Sir Harry Smith recommended the addition of this territory, he (Sir J. Pakington) believed that Lord Grey expressed a strong disinclination to increase the territories of the Crown in South Africa; but, nevertheless, the noble Lord yielded to the representations of that officer. Lord Grey, however, shortly after desired to reverse the policy previously adopted, and when he (Sir J. Pakington) succeeded to office in 1852, he found that Lord Grey had actually sent out directions to take steps for the abandonment of the territory. Lord Grey had also sent out a Commission consisting of two gentlemen, Major Hogg and Mr. Owen—one of whom, he regretted to say, had been prematurely lost to his country—to inquire into the subject. He had postponed coming to any decision with regard to the Orange River Sovereignty while he had held the seals of the Colonial Office, in the hope of obtaining a Report from that Commission; but his individual opinion coincided with that of Earl Grey and of the Duke of Newcastle, that the step which added the Orange River territory to our possessions ought to be reversed. After the speech which had been made by the hon. Under Secretary for the Colonies, he would not detain the House by stating at much length the grounds upon which he had come to the conclusion that we ought to reverse the policy which had been adopted, if we could do so consistently with the interests of the Crown and with fairness to those who had settled in the country in question. He need only refer to the map of Africa as one reason for doing so. He had not heard any strong argument from his hon. Friend the Member for North Staffordshire why this territory should be retained; but it might be doubted whether the House and the country were aware of the gigantic extent of our possessions in South Africa. Without Natal and the Orange River, he did not think he should exaggerate if he said that territory was not less than from 600 to 700 miles in length, and 300 miles in breadth. The European population of that enormous district was most inadequate to its occupation, to its cultivation, or to its protection. It was to such a territory, already too large, that the Orange River territory was added. And what was this territory? Between the Orange and Vaal rivers was an extent of land of from 400 to 500 miles in length and fully 200 in breadth. Of the 100,000 Kafirs upon that territory, 60,000 acknowledged allegiance to the well-known chief Moshesh, and they might be characterised as the most intelligent and powerful of the Kafir tribes, with whom we had been engaged in a warlike struggle. General Cathcart, after having ended the Kafir war on the eastern frontier, had undertaken to settle the affairs of the opposite frontier, and the first step that he took had been followed by one of the most formidable of the struggles which had taken place between Europeans and the native tribes of South Africa. The natives thought, and not without reason, that they had been ill-used by the Europeans. And what was the European population? He believed the hon. Gentleman (Mr. F. Peel) had correctly put it down at 10,000. Of whom composed? Of British? No. He did not think that more than one in twenty were British, the remainder being of Dutch origin, and called Dutch Boers, who had migrated to that territory to escape from British rule. He therefore thought his hon. Friend must have been misled when he stated that the general feeling of the inhabitants of the Sovereignty was in favour of retaining their allegiance to the British Crown, and all the despatches of Sir George Clerk confirmed him in the opinion that was merely a handful of British subjects who had speculated in land that desired to remain under the do- minion of this country. Upon other occasions it had been argued that we ought to retain this Sovereignty on account of the danger and inconvenience of allowing an independent republic to be established upon our northern frontier. But could this be avoided? And was it to be supposed that wherever these "flying Dutchmen" went we ought to follow them, in order to prevent their establishing a phantom republic? On the contrary, was it not notorious that an independent republic had already been established by Pretorius beyond the Vaal? Again, look at the expense to this country of maintaining the Sovereignty. He had been advised that we could not properly support the authority of the Crown in that vast territory without keeping up an army of 2,000 men, of whom 500 ought to be cavalry. Was there any object connected with Imperial policy which would justify the maintenance of such a force? The hon. Member (Mr. F. Peel) had not made any allusion to the alleged discovery of gold in the Orange River territory, although he (Sir J. Pakington) had seen reports to that effect in the public newspapers. [Mr. ADDERLEY: I have seen gold which was found there.] His hon. Friend did not state how much. However, the impression which he (Sir J. Pakington) had formed on this subject while in office was of course quite uninfluenced by discoveries of gold, which had not at that period been reported. He was far from saying that gold did not exist there; but he was now stating what were his impressions at the time he had held office, when the discovery had not been made, and when he had retired from office he had communicated to his successor what were his views with regard to the policy that ought to be adopted upon the question of the abandonment of the Sovereignty. The Duke of Newcastle, although he had adopted this course of policy, in a despatch stated that he was still willing to consider any arguments which might be advanced against that policy, and if the hon. Member for North Staffordshire had advanced any well-founded argument opposed to the abandonment of the territory, he should have been willing to pay it every attention. It appeared that Sir George Clerk was of opinion that the assertion of the British authority would be ridiculous were it not attended with the risk of perpetual struggles and reprisals. General Cathcart spoke of the territory as the "sovereignty incubus," and strongly advised its abandonment. It appeared, then, that the opinions of the highest authorities were in accordance with the opinions which he had himself formed when he was connected with the Colonial Office, and upon those opinions he thought it only fair to the present Government to state that he was prepared to act. With regard to that part of the question as to whether or not the Government were justified, in a point of constitutional law, he did not feel competent to give any opinion, but he had, when in office, consulted the law officers of the Government with which he was connected, and, if his memory was correct, his hon. and learned Friend sitting near him (Sir F. Thesiger) had thought that it would be safer to abandon the territory by Act of Parliament than by a declaration of the Crown. The present Government had thought it proper to pursue a different course, but he was not prepared to express any opinion as to the propriety of that decision.

MR. VERNON SMITH

said, he thought it unfortunate that the terms of the Motion should have given so little indication of the main line of argument which the hon. Member for North Staffordshire (Mr. Adderley) had pursued. It was unfortunate, he thought, that the question had not been raised in some more specific manner. He should himself individually prefer that Government should have consulted Parliament on the subject of the abandonment of the Sovereignty; but he presumed that the law officers of the Crown had been consulted, and had advised that the abandonment could be made without an Act of Parliament. He entirely agreed in the policy of abandoning that territory, and deprecated the principle which had hitherto prevailed of endeavouring always to increase the colonial possessions of the country. This country had been so much occupied in acquiring possession of territory, that it never had had its attention turned to the abandonment of territory. He could understand how it was that the Colonists were naturally desirous of extending their frontiers, but he agreed with Lord Grey that the only interest in the Colony was in Cape Town and the neighbouring districts. He did not mean to say that all the other extensive territory ought to be abandoned. That was a different question. At present he confined himself to that portion of the territory to which the hon. Member for North Staffordshire had referred. With respect to that part of the question—to which but a small portion of the speech of the hon. Member was di- rected—the expediency of retaining the country, he was surprised to find that the hon. Member had attacked the right hon. Baronet the Member for Southwark (Sir W. Molesworth) and his right hon. Friend the Chancellor of the Exchequer for abandoning the principles which they held of Colonial Government. The hon. Member said that he thought their colonial policy was to extend the empire, and also the principle of self-government in our Colonies. He (Mr. V. Smith) was as great an advocate of self-government as any one, but to say that they ought to seize upon wild, uncultivated land, for the sake of giving self-government to the inhabitants, was a most preposterous proposition. Three years ago Earl Grey declared that he thought it would be advisable to abandon the Sovereignty. Major Hogg—whose death in the performance of his duty they had all to deplore—and Mr. Owen were sent out to investigate the matter. Their opinion was not on record, but he believed that it was the opinion of Major Hogg that the boundaries of the Cape Colony ought to be curtailed, and not extended. When the hon. Gentleman talked of the expense of abandoning the Colony being as great as the expense of retaining it, he must have forgotten that not long ago that House was called on to vote 3,000,000l. for the Kafir war. He was certainly surprised to find the hon. Member for North Staffordshire conclude his speech by calling upon them not to cede this Colony on the ground of humanity and Christian civilisation. He was as much a friend to Christian civilisation as any one, but he did not regard it as the duty of this country to plant missionary colonies. He gladly viewed the step taken by the Government, because it showed their determination to set their colonial establishment in order. He did not say that, if they found any portion of the Colony useless, it ought to be got rid of at the expense of those who were settled in it. In 1819, by a vote of that House, they had encouraged settlers to go to the Cape; but no such encouragement had been given with respect to the territory in question. The principle of compensation or indemnity to those who suffered loss was not denied. In the present case he believed the amount would be very small. If the hon. Member for North Staffordshire proceeded to a division, he should certainly vote against him.

THE ATTORNEY GENERAL

said, he would certainly not trouble the House with a single observation upon what might be called the policy part of the question. After the lucid and convincing speech of the right hon. Gentleman opposite (Sir J. Pakington), to do so would be a waste of time; but there was another part of the subject to which he promised to confine himself, and that was the legal part of the subject. Without wishing to say one word which might appear disrespectful to the hon. Member for North Staffordshire (Mr. Adderley), he did not think that he had acted quite fairly towards the Government or towards the legal advisers of the Crown in the way in which he had framed his Motion; for he could say for himself and his hon. and learned Colleague the Solicitor General that, until they came down to the House that evening, they had not the most distant idea that the question was one which referred to the legality of the conduct of the Government. He mentioned that circumstance, because, if he had known the turn which the question was intended to take, he would have been prepared with authorities upon the subject; but now he was only able to state very briefly to the House the grounds upon which it appeared to him that the course adopted by the Govern- was a strictly constitutional course. Our Colonies might be divided into two classes —such as were acquired by occupancy, and such as were acquired by conquest and by cession. With regard to the first of these, there was no doubt that a British subject who went and occupied a territory otherwise unoccupied carried with him, to a considerable extent, the rights and privileges of a British subject and the laws of his own country. On the other hand, with regard to colonies acquired by conquest and by cession, it was clear that the Crown had an undisputed and absolute sovereignty over them, and that the persons who settled there did not acquire any right to the laws and institutions of this country. With respect to territories acquired by occupancy, he was aware that there existed considerable difference of opinion as to whether the Crown had the power of getting rid of those territories otherwise than by an Act of the Legislature. Much might be said on both sides, but it was not necessary to enter upon this question, because the present case rested, not upon the principles which regulated territory acquired by occupancy, but upon those which regulated territory acquired by conquest. The facts stood thus:—The Cape of Good Hope, the principal colony in South Africa, was acquired by conquest. The Boers, who were subject to the dominion of the Crown in the territory so acquired, thought proper, at a recent period of history, to quit the territory of the Cape, and to establish themselves within the territory of the Orange River. They did so for the purpose of avoiding the jurisdiction and dominion of the British Crown and of establishing themselves independently of it. They were pursued by the power of the Government, and the Governor of the Cape, Sir Harry Smith, proclaimed the sovereignty of the British Crown over the territory which the Boers had so occupied. They resisted his power; they arrayed themselves against the troops of the Crown; they were overcome, subjugated, and compelled to acknowledge the dominion they had attempted to resist. Now, he said that persons in this position were inhabitants of territory acquired, not by occupancy, but by conquest, and the territory acquired so without the intervention of Parliament, could also be ceded and given up by the Crown without the intervention of Parliament. The hon. Gentleman admitted this discretion with regard to a large class and description of territory; he said, for example, that with regard to fortresses and places of arms, such as Calais, Dunkirk, and Gibraltar, this might be the case, but he denied the rule in respect to large tracts of territory. Why? Upon what principle could the Crown give up Calais, Dunkirk, and Gibraltar without the intervention of Parliament, and not the Orange River Sovereignty? There was really no difference in point of principle. Each comprehended a large number of inhabitants. Gibraltar contained, he supposed, 100,000 inhabitants; and if the Crown could give up Gibraltar, which was acquired by conquest, why not this territory? He could see no difference between the two cases. The legal proposition of the power of the Crown, therefore, rested upon this—that what the Crown had acquired by cession or conquest, and over which it had absolute sovereignty, the Crown could deal with without the intervention or the co-operation of Parliament. It appeared to him, therefore, that the course pursued had been the right one so far as the question of law was concerned. It had been said that a different opinion had been given. He was not aware upon what that opinion rested, but nothing would make him feel so little confidence in his own judgment as to know that two legal friends of his, for whose opinions he entertained the highest respect, were to propound and entertain an opposite view. He could, however, quite understand that it might have been thought and might still be considered expedient that some Act of Parliament should be passed with a view to relieve these persons altogether from all claims which the Crown might have upon them, and also with reference to the question of claims for compensation which might arise under the peculiar circumstances of the case. With regard, however, to the more question raised by the present Motion, whether the Crown obtaining territory under such circumstances as the present, had or had not the power to abandon it, he must maintain that the means resorted to were the right ones, and that the Crown, acting under the advice of the Privy Council, had a perfect right to give up that territory.

SIR FREDERIC THESIGER

said, his hon. and learned Friend was mistaken in supposing that he differed materially from him upon this point, because, although his opinion was that under the peculiar circumstances of the case it would be much better there should be an Act of Parliament which should remove all doubt, yet he had never expressed any opinion that an Act of Parliament was essential, and undoubtedly that was not the opinion he entertained at the present moment. At the same time he had certainly been led to adopt that conclusion in a different manner to that in which his hon. and learned Friend the Attorney General had arrived at his, because he did not entirely agree with him that this was a case of conquest, and that therefore it was in the power of the Crown to abandon this territory without the sanction of Parliament. It appeared to him that there never was any conquest of this territory; that the sovereignty existed under most peculiar and extraordinary circumstances; that there really never was any territorial sovereignty acquired, and never was any annexation of landed dominion to the British Crown. The Boers and farmers, at an early period, began to wander beyond the Cape Colony to find their sheep and to return afterwards, thus going and returning at intervals; but in 1836 they fixed for themselves a more permanent abode beyond the Colony, began to assume independence, and to exercise dominion over the natives of the district. That led to abuses which called for the intervention of the British power. The hon. Member for North Staffordshire (Mr. Adderley) seemed to assume that by the Act of Parliament passed in 1836, by which jurisdiction was given to the courts of the Cape Colony over offences committed between the confines of the Colony and twenty-five degrees of south latitude, we had asserted jurisdiction over the Orange River territory. Now, it was no such thing. Parliament merely asserted a jurisdiction over British subjects within the Orange territory. We did not by that Act claim dominion over the territory, but only over our own British subjects, the same force as was given to the Acts of Parliament a few years ago which declared it to be felony for a British subject to hold slaves. It appeared that that territory was divided among different tribes, at the head of whom were various chiefs, the most conspicuous of whom were Adam Kok and Moshesh. In 1846 Sir Peregrine Maitland entered into a treaty with Adam Kok, by which treaty the independent sovereignty of that chief was expressly acknowledged. Mr. Porter, the Attorney General at the Cape, it appeared, entertained the opinion that this territory was acquired by occupancy, but the law officers of the Crown came to a different conclusion, for they thought it had been an acquisition by conquest, and recommended that an Act of Parliament should be introduced, reciting that doubts had been entertained how the territory had been gained, and whether it could be abandoned by the more authority of the Crown, and then to proceed to allay those doubts by enactments proper to the case. Therefore he thought he was entitled to say that up to that time it was the established opinion that there had been an acquisition by conquest in the Orange River territory. There was nothing whatever in the documents before the House to show that there had been any acquisition by conquest of the Orange River territory, and, indeed, the facts themselves went to disprove any such supposition. Sir Harry Smith subsequently entered into treaties with the two chiefs he had named, but they were like treaties between independent Powers for the purpose of ensuring harmony and tranquillity, the interference of the Legislature. He and undoubtedly no sovereignty was recognised by those treaties over the tribes. On the 3rd of February, 1848, Sir Harry Smith issued a proclamation, declaring that they were under the absolute and paramount sovereignty of Her Majesty; but that proclamation could have had no authority country, without the assent of the chiefs, or unless it were the result of a treaty. According to his view, those treaties conferred the power upon the Governor to exercise jurisdiction over the British subjects in that territory, but gave no sovereignty whatever; and he contended that neither by occupancy, nor by cession, nor by conquest, was there any acquisition whatever of territorial dominion in respect of that district of the Orange River. Lord Grey was of opinion that that proclamation made an improper distinction between British subjects and natives, holding all to be subjects who were within the territory over which the British power extended. In March, 1851, letters patent were issued under the Great Seal, by which the Orange River Sovereignty, as it had been previously called, was erected into an independent Government. Upon a despatch, however, from General Cathcart, mentioning the circumstances of those letters patent, and expressing an opinion that the tribes had always been considered to be independent and had never acknowledged any vassalage to the Crown, the Duke of Newcastle desired General Cathcart to withhold the promulgation of those letters patent, and, in consequence, they never had been published. Though he (Sir F. Thesiger) arrived, therefore, at the same conclusion with his hon. and learned Friend the Attorney General, that this sovereignty might be abrogated without the necessity of the sanction of the Legislature, still it appeared that he arrived at that conclusion upon totally different grounds. He would not offer any opinion on the general and important question, how far it was competent for the Crown to dispossess itself of any portion of its dominions without the assent of the Legislature. The question was one of great difficulty, for Lord Loughborough had expressed an opinion one way, and Lord Thurlow another. According to his (Sir F. Thesiger's) view, it was unnecessary to enter into that, for there was no conquest, and he could not conceive that there was anything more than an abstract sovereignty to be exercised over British subjects, which could be relinquished without the interference of the Legislature. He admitted that the Crown could not give up the allegiance of its subjects; but nothing of the kind had occurred in this case. These people, born in the Cape Colony, had wandered into this territory, which must be considered and treated as a foreign country, and their allegiance had travelled with them. They were now replaced in the position in which they originally stood when they left the British territory, and they could not divest themselves of their allegiance, neither could the Crown dis- charge them from it. Upon the whole, he thought that it would have been more satisfactory if the Government had applied to the Legislature before the abandonment was resolved upon; but such application was not essential, and no ground, therefore, he thought, had been stated for agreeing to the Motion of the hon. Gentleman (Mr. Adderley).

MR. J. G. PHILLIMORE

said, he wished to say one word on the important constitutional question which had been alluded to by his hon. and learned Friend who had just sat down. His hon. and learned Friend had alluded to the difference of opinion between Lord Loughborough and Lord Thurlow; but it was well known that Lord Loughborough was one of the least scrupulous of political partisans—that he was making a violent party speech at the time—that no lawyer supported him in his assertions—and that he was immediately contradicted by Lord Thurlow. It should be remembered also that Mr. Fox, in the House of Commons, though he agreed on the general question with Lord Thurlow, yet he never ventured to assert that the Crown had no power to abandon her colonies. In fact, the question resolved itself into this, whether they were living under a monarchy or under a republic. Mr. Justice Blackstone laid down the right of the Crown to abandon colonies as clearly as could be—the check against abuse being the responsibility of Ministers to Parliament. In fact, the point admitted of no dispute, and English history furnished so many examples of its exercise, that be was surprised how any lawyer could entertain a doubt on the subject.

MR. ADDERLEY ,

in reply, said, it would be presumption in him to put his opinion on a point of law against the high legal authorities who had spoken to-night, but still he thought the time of the House had not been wasted, as it had tended to settle the question that in the case of a territory occupied and settled as this was, the Crown bad the power, without consulting Parliament, to abandon it. He must say one word with respect to the right hon. Member for Northampton (Mr. V. Smith), who had recommended the policy of abandoning other colonies besides this. He would remind that right hon. Member that the policy of abandonment was the policy of a declining country, as the policy of acquirement was the policy of a thriving country. He believed that this country in a few years would again bring the British sovereignty to the Orange River terri- tory. After what had passed, however, he would withdraw his Motion.

Motion, by leave, withdrawn.