§ Order for Second Reading read.
§ LORD JOHN RUSSELL
, in moving the second reading of this Bill, said that he only wished to address a few words to the House with regard to the form in which the measure was introduced. It was evident that when, in accordance with the Act of 1850, Bills arrived in this country from the different Australian colonies, proposing new forms of constitutions, there would be very great inconvenience in sending back those Bills to the colonial Legislatures, in order that they should again undertake the labour of going through their provisions, and that many questions which excited great interest in the Colonies should be again subjected to discussion. That was the view which was taken by Her Majesty's Government at the end of last Session, when the measures which the House had that evening to consider had been first brought forward. But if the course to which he referred had been objectionable at that time, it would be far more objectionable at present, after the lapse of so many months, to send back those Bills to the colonies with a view to their reconsideration. In the discussion which had already taken place, it had been suggested that another course might be taken, which was to enact de novo in this country all the provisions that might be thought necessary by the Imperial Parliament for the various constitutions. But, in the first place, that course would be totally at variance with the promises held out by Parliament in the Act of 1850, that those colonies should be allowed to deliberate through the medium of their own Legislative Councils on the proper provisions for their constitutions; and, in the second place, it would be very difficult for the Government or the Parliament of this country to say what precise clauses ought to be introduced into those measures. It would be impossible, for instance, for the Minister at home to say whether or not there ought to be an elective Council in Victoria, and a Council nominated by the Crown in New South Wales, or whether or not there ought to be a grant of 28,000l. in New South Wales, for the purpose of religious worship, 1957 and "grant of 50,000l. in Victoria, for the same purpose. The Government had, therefore, taken a third course, which was, he believed, the only practicable course—namely, that of adopting the Bills sent from Victoria and New South Wales, but at the same time removing from them those clauses to which it was impossible for Her Majesty to give her assent. Those clauses which would go to diminish the authority of the Crown, and which would deprive the Crown of certain powers which belonged to the Crown by Act of Parliament, had been struck out of those Bills, and with those omissions they were then submitted to the House. With respect to the objection urged by an hon. Member on a former evening, that even if the Queen gave her assent to those Bills, they would still be null and void, he should only say he conceived that the last clauses of the Bills were sufficient to ensure the accomplishment of the object for which they were intended, because those clauses stated that the measures should take effect in the Colonies from the time the Royal Assent was given to them; and he had only further to state, that if any other words were required, or thought to be more efficacious, he had no objection to add them.
§ Motion made, and Question proposed, "That the Bill be now read a Second Time."
§ MR. BELL
said, he rose to move that the Bill should be read a second time that day six months. He believed that the measure was opposed to the wishes of a majority of the colonists, and he found that upwards of 13,000 of their number had signed a memorial against it. His own objections to it might have been removed by certain alterations in its clauses and in its schedules, but the noble Lord the Secretary for the Colonies had refused to make those alterations, and he, therefore, felt constrained to oppose its further progress. A clause in this Bill proposed that a sum of 50,000l. a year should be devoted to religious purposes in the colony. He thought they had seen enough in this country of the heart-burnings and contentions engendered by religious endowments to induce them to refrain from extending those endowments to the Colonies, and he felt persuaded that they would be acting very unwisely if they were to establish so fruitful a source of strife in those young communities. If the Bill had been passed by a colonial Legislature, popularly elected, and if it had been sent 1958 over to this country merely that it might obtain the assent of the Crown, he should have allowed the colonists to act for themselves, as they might think best in the matter. But he found that one-third of the Members of the Legislative Council of Victoria were nominees of the Crown, and he could not also help remembering that in consequence of the form in which the Bill was then brought forward, the House was asked to give its distinct sanction to the principle of a religious endowment. He believed that the adoption of that principle in the colony of Victoria would become a source of great embarrassment. The Jews, who numbered 5,000 souls in the colony, had already shown that they were prepared to ask for a share in the proposed grant. Now, if that demand should be conceded, great dissatisfaction, he believed, would be created among the people of this country and among a considerable portion of the colonists; and if it were refused, the Jews might fairly complain that they were excluded from the benefit of an endowment to which they contributed in the same way as the other members of the community. That was a state of things in the establishment of which he had no wish to participate.
§ MR. MIALL
, in seconding the Amendment, said, he must express his surprise that the subject of religious endowments should be again brought forward in that House, after all the experience they had had of the heartburnings and strife which it excited in the Colonies. No doubt, the acts of those who had been intrusted with the powers of self-government were deserving of every respect; but it should be remembered that the Legislative Council, by which the previous vote of 6,000l. per annum had been raised to 50,000l., was a body comprising a large number of nominees of the Crown, and it had acted in this matter in utter disregard, and even in defiance, of the wishes of the colonists. The Legislative Council had professed, in the first instance, to invite an expression of opinion on the subject from the inhabitants, and accordingly a numerous meeting of the people of Melbourne, over which the mayor presided, was held, at which a memorial against this very clause was adopted, and afterwards signed by upwards of 13,000 persons. In spite of this remonstrance, however, the Legislative Council persisted in agreeing to this annual endowment of 50,000l., and sought to saddle the colonists with it for all future 1959 time: Under these circumstances, that House ought not to give its sanction to such a proceeding. It would not do to say that this part of the measure could not be altered consistently with a recognition of the right of colonial self-government, seeing that the Government had already changed, and even altogether struck out, several other provisions of the Bill more immediately affecting constitutional functions than a clause merely relating to religious endowment. On these grounds, although he had no desire to throw the measure out altogether, he must yet second the Amendment of his hon. Friend as being the only course open to him to meet the circumstances of the case.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."
§ Question proposed, "That the word 'now' stand part of the Question."
§ MR. LOWE
said, he was reminded, by the small number of Members in the House, of the wisdom of the rule by which they ought to be guided in dealing with all questions referring to the Colonies—namely, that they should abstain from legislating here upon any matter upon which the Colonies themselves were competent to legislate. The converse of that rule was also true, for not only should the Imperial Government refrain from legislating upon subjects within the jurisdiction of colonial Assemblies, but colonial Governments should also refrain from legislating upon subjects within the jurisdiction of the Imperial Government. He was sorry to say that the Bill before the House violated both those rules, on the one hand requiring them to legislate upon a vast number of subjects entirely within the cognisance of a colonial Legislature, and on the other hand allowing a colonial Legislature to lay down the law to them upon subjects of Imperial importance. A measure more vicious in principle, one that more entirely violated every rule which experience and wisdom had laid down for the regulation of the relations between the mother country and the Colonies could not have been devised. The principle upon which that House ought to act was this:— Let a line be clearly drawn between the powers of the colonial Legislatures and those of the Imperial Parliament, and let ample local powers be given to the colonial Legislatures; but that line having been drawn, let them not encroach 1960 upon it, let them not seek by any indirect means to tamper with the powers they had conferred; and, on the other hand, let them not tolerate any attempt on the part of the colonial Legislatures to invade those powers which were exclusively within the jurisdiction of that House. It was a good rule in the intercourse of communities, as well as in that of individuals, not to tolerate too much familiarity, not to allow liberties to be taken, on account not only of momentary personal inconvenience, but also of the danger of thereby sapping the foundations of any durable friendship. If they wished to maintain a permanent connection between the mother country and the Colonies, they must respect the privileges of the Colonies, and teach the Colonies to respect their privileges. Now the Bill before them did neither. It invited them to encroach upon the jurisdiction of a Colonial Legislature, and tolerated the encroachment of a colonial Legislature upon the jurisdiction of the Imperial Parliament. It appeared to him to be the most strange and—not to speak offensively—the most absurd Bill ever laid before the House of Commons. The Legislative Council of Port Philip was created by the Imperial Act of 1850, and was to consist of two-thirds elected and of one-third nominated members. Powers to make laws for the welfare and good government of Port Phillip were delegated to it, subject to two limitations—first, not to pass laws repugnant to the laws of England; and, secondly, not to meddle with the management of the Crown lands or the revenue derived therefrom. The phrase "repugnant to the laws of England" might be interpreted in different ways. He would take its most restricted meaning, which was, that the colonial Legislature was not to pass Acts repugnant to any Acts of the Imperial Parliament which had been passed with reference to the colony. This limitation was necessary for the maintenance of the connection between the mother country and the colony, far the existence of two Sovereign Legislatures, between which conflicts of jurisdiction might arise, must eventually have the effect of separating the colony from the mother country. Powers were also granted to the colonial Legislature to give a new constitution to the colony whenever it thought fit, and the preamble of the Bill now before the House recited that the colonial Legislature had accordingly passed a Bill entitled— 1961An Act to establish a Constitution in and for the Colony of Victoria; and whereas the said Bill was presented for Her Majesty's assent to the then Lieutenant Governor of Victoria; and the said Lieutenant Governor did thereupon declare that he reserved the said Bill for the signification of Her Majesty's pleasure thereon; and whereas it is by the said reserved Bill provided that the provisions thereof shall have no force or effect until so much and such parts of certain Acts of Parliament in the said Bill specified as severally relate to the said colony, and are repugnant to the said reserved Bill, shall have been repealed, and the entire management and control of the waste lands belonging to the Crown in the said colony, and of the proceeds thereof, including all royalties, mines, and minerals, shall be vested in the Legislature of the said colony.Thus it appeared by the very preamble that the Bill contained in the schedule violated both the conditions which had been imposed on the Legislature, for it contained provisions repugnant to Acts of Parliament, and it assumed to deal with the waste lands of the colony. The preamble went on to say—And whereas it is not competent to Her Majesty to assent to the said reserved Bill without the authority of Parliament for that purpose; and whereas it is expedient that Her Majesty should be authorised to assent to the said reserved Bill.And the first clause empowered Her Majesty to assent to the Bills contained in the schedules. He begged again to submit, as he had done upon the first reading of the Bill, that the measure could not possibly stand in its present shape. He also asserted that the preamble proceeded upon a supposition that could not bear investigation for a moment, and that if the noble Lord (Lord John Russell) carried the Bill, it would be an absolute nullity. The preamble was drawn up under an erroneous apprehension of the law, for it seemed to be supposed that if the colonial Legislature passed a law repugnant to Acts in force in the colony, and therefore void, it was in the power of the colonial Legislature, by deferring the operation of that law until the Acts to which it was repugnant had been repealed by the Imperial Parliament, to make it valid. He entirely denied that proposition. The Legislature must have power to pass an Act at the time when it was passed, and, if they did not possess that power, they could not defer the time at which the Act was to come into operation. This Bill referred to a fundamental law, to one which might be the mother of other laws, to the constitution of the greatest dependency of the British Crown, and yet it would be a nullity 1962 even if it were to receive Her Majesty's assent. If the question of its validity came to be tried in the Courts of Law, it would no doubt be found necessary to pass another Act to confirm it, and what he complained of was that such a cloud should be allowed to hang over a subject of so much importance. It was admitted that it was not competent to Her Majesty to assent to the Bill passed by the colonial Legislature. Why not? Because, as he had formerly stated, it was not competent to the colonial Legislature to pass it. Her Majesty and the colonial Legislature possessed the same jurisdiction, and if it was not lawful for Her Majesty to assent to the Bill, how, he would ask the House, could it be lawful for the Legislature to pass it? But the question did not rest there. The Bill included in this schedule had never been consented to by the colonial Legislature at all. Consent implied the concurrence of two wills, and if one person consented to one thing, and another person to another, that did not constitute a consent, but a difference. If he offered one horse to a person for 50l., and that person offered him 50l. for a different horse, there was no consent between them. The noble Lord struck seven important clauses out of the Bill of the colonial Legislature, and then asked the House to assent to it so amended. The House by passing this Bill might accept the responsibility of it, but it passed the omnipotence of Parliament to say that two persons had agreed to the same thing when they had agreed to two different things. The Bill certainly could not pass in its present shape, and the noble Lord would be obliged to alter its title, its preamble, and its operative clauses. He begged the noble Lord to lay the question before the law officers of the Crown before involving himself in the vast difficulties which would be raised by the passing of the measure. If, as was recited in the preamble, the Legislature of Port Phillip had power to pass the Bill, but Her Majesty had not power to assent to it (a case of which he denied the possibility) he would offer no opposition to it. He only wished that the colony should be allowed to manage its own affairs. But when the law officers of the Crown came to examine the Bill, if they condescended to look into so trivial a question as one upon which would ultimately depend the regulation of the destinies of the noblest dependency of the British Crown, it would be found that all their machinery of schedules 1963 was null and void, and they would have to pass the Bill at last as an Act of Parliament. If this were the result, if the Bill were made into an Act of Parliament, who, he asked, would be responsible for it? Would it be passed as the Bill of the colonists, and would that House have no share in it? If it were necessary for them to give a schedule to the Bill before them, would this be an act of the colonial Legislature or of the House of Commons? The Imperial Parliament was now asked to make itself responsible for every part of the Bill passed by the Legislature of Victoria, and it ought therefore to see that it was suitable to its objects. The noble Lord proposed by the Bill now before them to break through the line which separated colonial and Imperial legislation, and hon. Members would either be obliged to make themselves masters of the subject by taking evidence upon it, or else they would give their assent to the measure with the strong conviction, if not with the absolute certainty, that they were in the wrong. The Bill contained six enacting clauses and a schedule. Her Majesty was to assent to the Bill contained in the schedule; but was it all over then? The schedule would hot become a bit more the law when the Bill passed than it was before, for it would be necessary for Her Majesty, by an Order in Council, to assent to the schedule, to which she had assented already. The Bill of the colonial Legislature must and would become the act of the Imperial Parliament. If it were to have any validity at all, that validity it derived from that House; and he would ask the House, before they legislated for a colony 16,000 miles off, in which very few hon. Members had ever been, whether the provisions of the Bill were such as the House ought to pass? The schedule for public worship was a proper subject for the Legislature of Port Phillip to entertain, and, if they liked to display the same prodigality in this provision that had brought them to the brink of ruin, he should not object; but he did object to the Imperial Legislature being dragged into the recognition and adoption of a schedule on which it was for the local Legislature, and for them only, to decide. Why could not the Legislature of Port Phillip take example from the Legislature of Van Diemen's Land, who had shown their ability to frame and carry out a most excellent and practical constitution, without leaving the provision for public Worship to be brought before 1964 the Imperial Parliament? The 43rd clause of the Act in the schedule began as follows:—"Subject to the provisions of this Act, and notwithstanding any Act of Parliament now in force to the contrary, it shall be lawful for the Legislature to impose and levy such duties of customs, &c." He objected to this language, which made Acts of the Imperial Parliament subject to the sovereign will of the local Legislature, and which encroached upon the privileges of the Imperial Parliament and the prerogative of the Queen. If Parliament did not teach the Colonies the respect due to the central power of the kingdom, there could be no mutual respect between the Colonies and the mother country, and the union between them would not long continue. The colony had the power of framing a constitution for itself, and why should the colonial Legislature want to meddle with imperial matters? In many of their wishes they were right, but was it the proper way to get what they wanted when, instead of exercising the powers they possessed, they took it upon themselves to exercise powers that they did not possess, and sent home Acts and drew the very clauses that the Imperial Parliament was to assent to? Any colonial Legislature that did that encroached upon the freedom of action of that House, which ought not to permit such dictation from subordinate Legislatures. If there were one good principle in the Act of 1850, upon the policy of which the noble Lord (Lord J. Russell) was now infringing, it was that in giving the colony the power of self-government it relieved the Imperial Parliament of all future responsibility. If their constitutions did not please the colonists, to whom the right of self-government had been given by that Act, they had only to blame their representatives, and the grievance was purely local, for the colony could not say that Parliament had inflicted its yoke upon their necks; and the event need not loosen the connection between the Colonies and the mother country. But by this Bill the noble Lord mixed Parliament up with these constitutional colonial questions, and took back the powers that Parliament had delegated to the Colonies; and now Parliament might be justly blamed for undertaking a responsibility without the requisite knowledge that would enable it to carry out the objects thus undertaken. The schedule contained the electoral provinees of the Legislative Council and the electoral districts 1965 of the Legislative Assembly. These were very proper subjects for legislation within the colony, but now it would be from the Imperial Parliament that these arrangements would receive their validity. The Legislature of the colony had the power of passing these enactments for themselves, and why should the Imperial Parliament be asked to make itself responsible for these matters of local arrangement? Then, again, the qualification for members of the two Legislatures seemed to him to be utterly outrageous; but how was Parliament to know the value of property in the colony or the state of society there? These were matters within the cognizance of the local Legislature, and why was Parliament to give an opinion on subjects with which it was so incompetent to deal? He now came to a practical point of such importance that, if he had not known how that House, at the bidding of Colonial Secretaries, had by turns thrown into confusion almost every interest in the Colonies, without redress, he should have hoped that the point in question might produce some impression upon the Government. The civil list, contained in the schedule annexed to this Bill, consisted of items amounting in the whole to 112,000l., the colony, be it remembered, containing a population of 300,000 inhabitants. When he had the honour of being a member of the Legislative Council of New South Wales, which then included Port Phillip, the whole revenue of Port Phillip was, in 1849, 132,000l.; and now Parliament was asked to assent to a civil list of 112,000l. for that colony. This civil list was agreed to at the end of 1853, when the colony was at the acme of prosperity, and when the discoveries of gold in the colony had made everything valuable in Victoria except gold. The Legislature of the colony became excited, and this sapient body, which sent over clauses cut and dried for the assent of the Imperial Parliament, had, in 1853, a revenue of 2,479,000l., and an expenditure of 3,564,858l., so that in that year there was a deficit, in a colony of 300,000 persons, of no less a sum than 1,085,858l. It was in the frantic and ridiculous excitement consequent upon the gold discoveries that the colonial Legislature agreed to the enormous and outrageous civil list contained in this schedule. When the newly appointed Governor (Sir Charles Hotham) arrived at Melbourne in the autumn of 1854, he asked for the 1966 estimates, and he found the revenue (Ways and Means) set down at 3,016,283l., while the expenditure was estimated at 4,801,292l., the deficit being set down at 1,785,000l. The Legislative Council began to think they had gone far enough, and wisely passed a resolution that they must endeavour to make their income and expenditure meet. They imposed additional taxes to the extent of about 300,000l., which reduced the deficit, speaking in round numbers, to 1,500,000l., and then the Government set to work to retrench. The Government cut down the estimates, which were afterwards still further reduced by the Council. He would read a few of the reductions made by the Government in the estimates which they laid before the Council. From the Executive and Legislative Department they took off one-third, 26,430l.; from the Customs, one-fifth, 21,000l.; from the Post Office, 48,978l.; from ports and harbours, one-half, 63,000l.; from police, one quarter, 183,689l. The House could imagine the state the Government must have been in to propose originally estimates from which in the item of police alone they could take off 183,689l. From petty sessions, 14,000l.; from gaols, 12,000l.; from penal establishments, 9,000l.; from public works, one-third, which formed a little item of 566,228l.; from stores and transports, 57,000l.; from medical establishments, 7,000l.; from scientific establishments, 26,000l.; from charitable institutions, 27,000l.; and from miscellaneous 40,000l. The whole reduction which the Government made upon its own estimates, before they were proposed to the Council, was 1,108,000l. They cut down every salary they could touch. The Speaker was reduced from 1,500l. to 1,000l.; the auditor-general and the colonial treasurer were reduced, each, from 1500l. to 1,200l. a year. Every one not in the schedule suffered reduction, and that no slight incisions were made the House could judge from the figures which he had just read. But the salaries in the schedule, including the Governor's salary of 10,000l. a year, and 5,000l. a year for etceteras—salaries, in fact, the most extravagant, absurd, and unjustifiable—were put out of reach and would remain intact; and yet the noble Lord (Lord J. Russell) asked Parliament, in deference to the principle of allowing the Colonies to do what they liked, to pass the schedule in its integrity. He said that was impossible. He could 1967 believe most things with regard to the Colonies, but he would not believe that the noble Lord would press them to pass this civil list of 112,000l., when he knew that, if the Legislative Council of Port Phillip were at the bar, they would intreat the House of Commons to take off at least one-third, probably one-half the amount. It was no part of the duty of Parliament, it was a matter for the colonial Legislature, to which was given power by the Act of 1850, to alter this list by a vote of a simple majority, and not a majority of the whole Council; and was it to be tolerated, for a single moment, that the House of Commons should step in and fix such an intolerable burden as that upon the colonists? The House could do nothing of the kind. Though it was put as a mere schedule to the Act, they must look into it; they dare not as a Sovereign Legislature, impose such a monstrous yoke upon the Colonies, however tardily they might have seen the necessity of retrenchment. Then, it was urged that no time should be lost; but this Act was received in England in May last year; it had been lying for more than a twelvemonth in the Colonial Office, and had had the fate to see four Colonial Secretaries come and go—(the Duke of Newcastle) the right hon. Baronet the Member for Morpeth, (Sir George Grey) the right hon. Gentleman the Member for South Wiltshire, (Mr. Sidney Herbert), and now the noble Lord the Member for London. There was one other observation which he wished to make upon this monstrousand outrageous civil list. It was only justice to the Legislative Council of Port Phillip to state, that one of the means by which it was obtained was, he was sorry to say, the influence of an official sent out from this country to take care of the affairs of the colonists, because they were unable to take care of their own. Dr. Thomson, a member of the Legislative Council, happened to come to England, and he naturally thought that, having been one of the Committee which prepared the constitution, and having come 16,000 miles, he might as well see the Colonial Minister; but he found he would have to go 1,200 miles more, because the noble Lord (Lord J. Russell) was then negotiating at Vienna. But he did go to Vienna, and there he saw the noble Lord, and, judging from the state of the Bill, he imagined Dr. Thomson obtained very little satisfaction from the interview with which he was honoured by the Secretary of State for the Colonial 1968 Department. Dr. Thomson upon his return called upon him, and he asked by what possible species of insanity the people of Port Phillip were induced to pass this civil list? Dr. Thomson, in reply, made a statement, which, at his request, he subsequently put in writing, and this was an extract from the letter:—I am bound to state that the schedules appended are universally condemned as extravagant n the extreme, and as suggested in a state of intoxication induced by excited feelings of the time and accepted by the representative members as a compromise; in fact, as the best bargain they could make with the Government party, and under the assurance of Mr. Foster, the Colonial Secretary, who spoke the sentiments of the Duke of Newcastle—[that he (Mr. Lowe) begged to doubt, as it did not agree with the Duke's despatches]—that the Home Government would not accept the Bill without the schedules, that without them it would be sure to be sent back.He thought that made a fit conclusion. Here was a matter of the most outrageous extravagance. The Legislative Council had seen fit to retract as far as they could, but a part was not in their power to retract, and that extravagance was perpetrated by an emissary of the Home Government. It came round to the Home Government that they had caused the extravagance, and now the House of Commons was asked in the name of the people of Victoria to perpetuate that extravagance by giving the authority and weight of Parliament to it. He apprehended that it would do nothing of the kind. He apprehended that, if the noble Lord would persevere, they must consider the items of the schedule and cut them down. But if they did, what Gentleman could say how much was a proper salary for the Chief Justice, for the Colonial Secretary, or for the Governor, and, if they did say what salaries were proper, it was not their money; it was other people's money, and if they meddled with it they would commit the anomaly of dealing with money not their own. There was no choice. They must either do that which they had no right to do, which they would not think of doing under other circumstances—going into details to deal with which they were totally unfit—or else they must send the civil list back to Victoria stamped with the high approbation of Parliament. It would be in vain to say Parliament did not approve, when part was left out, and the part sent back with their sanction was thought so good that it was never to be altered but by a majority of the whole of the Members of the Legislative 1969 Council. He said that could not be. They were really responsible for this Bill. If they chose to pass it, they undertook the responsibility, and they ought not to undertake the responsibility unless they had the knowledge to discharge it efficiently, and that knowledge they did not possess. Without wearying the House, he came to this conclusion, that it was their duty not to go any further with this measure; that it was their duty to say to the noble Lord, "The measure you propose carries out nothing; you must remodel it before you can cast the responsibility on this House of adopting it; it makes us interfere with colonial matters, and allows the colony to interfere with imperial matters, both of which are highly objectionable; it pledges us to details of which we have no means of judging, and tends to embroil us in the disputes of colonial politics, with which we have, and ought to have, nothing to do." Therefore, he submitted, they ought to refuse to read the Bill a second time. The course for the noble Lord to adopt was to send back the Bill to Port Phillip to deal with as much at least of it as they had power to deal with, and, as to the rest, to take it into consideration, as the Government had taken into consideration the question of waste lands, and grant as much as they thought ought to be conceded to the wishes of the colonists. In order to avoid delay, which he knew was very prejudicial, he would beg to submit that the noble Lord should prepare and send out an Act of Parliament giving the Governor power for and on behalf of Her Majesty to assent to such a Bill as the Council might pass. They would thus avoid any delay. They would avoid meddling with matters of colonial importance which they did not understand. They would avoid committing themselves to a responsibility which they ought not to be asked to incur, and they would insure to the colonists the doing what they desired. Such a measure would conciliate all objections, and he earnestly entreated the noble Lord on no account to involve Parliament in the alternative either of passing a monstrous and outrageous civil list, which they knew the colonists with one voice would repudiate if they were consulted, or of going into details as to the range of salaries upon which they had neither the means nor the leisure to form an accurate judgment.
§ MR. J. BALL
said, that after the speech of the hon. Gentleman who had last addressed 1970 them upon the first reading of the Bill, he was not prepared for the tone of high prerogative which he had adopted upon the present occasion, nor for the appeal made by the hon. Gentleman to the House to reject a measure specially intended to give validity to the Acts of the colonial Legislature, upon the ground of the unfitness of that colonial Legislature to deal with its own affairs. If that was not the doctrine asserted by the hon. Gentleman, at least such was the purport of his speech. He (Mr. Ball) was not competent to discuss with the hon. Gentleman the points of technical legal character to which he had alluded, and he was sure the House would agree that a measure of this importance ought not to be debated upon such grounds. At the same time, if the hon. Gentleman could point out anything wanting to make the measure complete for the purpose for which it was intended, the Government would be indebted to him. It was not convenient at every stage of legislation to introduce a new precedent, and the course adopted in this case had been to follow a precedent existing as to a very important Act of Parliament, and to apply to New South Wales the principle applied to Canada in the case of the measure of the colonial Parliament granting a civil list to Her Majesty. That Bill contained provisions inconsistent with those of the Act conferring the Constitution. It was by the Governor referred for the signification of Her Majesty's pleasure; Parliament was appealed to, and by the Act 10 & 11 Vic., cap. 71, it, in words as nearly as possible those of the Bill now before the House, authorized Her Majesty to give Her assent to a measure which had ever since been considered as settled law. The hon. Gentleman admitted that it was a purely technical point whether the House was called upon to assent to the Bill contained in the schedule to the measure, and it was clear the effect of what the House was called upon to do was simply to give legal force and validity to the measure of the colonial Legislature. The hon. Gentleman said, the Bill was not the same Bill as that passed by the colonial Legislature, and, if the House assented to it, it would not be an Act of the colony itself. If it could be shown that any change had been introduced affecting the interests of the colony, or interfering with the obligations, duties, or privileges of any one in the colony, there might be some force in the remark. But that was not the case. There 1971 had been no alteration in the Bill. There had been an omission precisely upon the principle Upon which the hon. Gentleman called upon the House to reject the measure—an omission of that part of the measure by which the colonial Legislature did somewhat encroach upon the power and jurisdiction of the Imperial Government. The hon. Gentleman had also said that in assenting to this Bill they would be called upon to legislate for the colony in the uncertainty of what was right or wrong for its interests; and upon that ground he called upon them to set themselves in direct opposition to every public declaration of the will and desire of the Legislature of the colony, and, in support of that appeal, the hon. Gentleman had read a private letter from one of the Members of the Legislature, at present in this country. [Mr. LOWE said, that letter was purposely written to him.] The wishes of the colonial Legislature were on record in the measure adopted by them by an overwhelming majority. It might be that a solitary Member of that Legislature, being in England, had thought fit to communicate his dissent to the hon. Gentleman; but the House would be slow to accept that private and irregular statement as an authority for them to send back the measure to the colony, and thus throw overboard this measure as useless and invalid because that particular Gentleman chose to assert that it was so. He (Mr. Ball) could not follow all the arguments of the hon. Member for Kidderminster. If he conceded that the colonial Legislature, the representatives of the people of the colony, were most competent to decide upon measures affecting their interests, then a great portion of the hon. Gentleman's arguments fell to the ground. With respect to the financial statements read by the hon. Gentleman, he (Mr. Ball) thought parallels might be found near home. There had been moments of excess, no doubt, but the practical good Sense which characterised the people of this country soon led them to discover their error, and now the colonial Legislature was engaged in remedying the effects of their own extravagance. The Government had not the slightest reason to suppose that the colonial Legislature had any wish to alter the schedule of the Bill, but, even supposing they had, the power to do so was in their own hands. The Legislature of Victoria could effect any alteration in the civil list, provided such alteration were carried by 1972 an actual majority of the whole body in each House of Legislature, a provision which they had themselves inserted and to which they would most probably adhere. That appeared to be a reasonable check, and he (Mr. Ball) did not feel called upon to defend the Legislature of a distant colony from the attacks which the hon. Gentleman had made upon it, and who had indulged in invectives against those bodies which his acquaintance with them ought to have induced him to abstain from. If those invectives were deserved, and the colonial Legislature was so unfit to manage its own affairs, it would be better to revert to the old system of conducting them in this country—a system which the hon. Gentleman had equally condemned, and to which he thought the House would not be inclined to return. He could not help thinking that the ingenious argument of his hon. Friend was rather intended as a means of reserving for himself a greater liberty in attacking another measure, to which he had still stronger objections. Before he sat down it might be right to notice the statements of two hon. Gentlemen, with reference to a portion of the civil list in the schedule of the Bill—namely, the 50,000l. a year devoted to the purposes of public worship. He should decline to discuss the expediency of that grant, or reopen so large a question, but it was perfectly clear that the people of Victoria, through their own representatives, had thought proper to vote that sum for such a purpose, and it was by no means necessary to repeat in London the lengthened arguments used in Melbourne; for if it Were right to enable people in the Colonies to expend their own money as they thought fit, there was an end of the argument. He trusted that any efforts Which had been made, or might be made, to induce the House of Commons to place itself in direct antagonism to the population of so important a colony as that of Victoria, in dealing with a constitution framed by themselves and for themselves, Would be discountenanced; and, indeed, he could not believe that any considerable number of hon. Members in that House would join in adopting a course so dangerous to the continuance of the good feeling between the colony and this country, and so contrary to those principles of colonial administration which now happily regulate our relations with the great British communities that have grown up in the southern hemisphere.
§ MR. ADDERLEY
said, that the hon. Gentleman who had just sat down had expressed his surprise at the objections which had been raised by the hon. Member for Kidderminster (Mr. Lowe), as involving a principle of interference with self-government but he (Mr. Adderley) understood the hon. Member for Kidderminster to object to the measure because it was a Bill of the colonial Legislature which they had no right to pass. The hon. Gentleman the Under Secretary for the Colonies had omitted to distinguish between the two portions of the Bill presented to the House—that which was within the power of the colonial Legislature, of which power he had no wish to deprive them, and that with which they had no power to deal. He agreed that the colonial Legislature had power to deal with certain subjects, but he protested against the additional power which they had assumed, they not being fit persons to deal with the subject; and when the hon. Member for Carlow (Mr. J. Ball) quoted the case of Canada, he quoted a case which was not parallel to the present, because in that case there was a distinct contract between Canada and the mother country; and though it was necessary for the Bill to pass through Parliament in order to place the Act with the Imperial Statutes, the main proposition came from Canada, and the subject was one which they had a recognised right to legislate upon there. The history of the present measure was simply this:—The Colonies of Australia up to this year 1842 were Under the government of a Governor and Council. That Government was allowed by the noble Lord (Lord J. Russell) himself to be less free than British colonies had a right to have; therefore, in that year a Bill was passed giving to one of those colonies—New South Wales—a somewhat more representative form of Government. Remonstrances were made immediately, which increased year after year until 1850, when a Bill was passed extending the same form of Government—namely, two-thirds representative and one-third nominative, with a single Chamber—to the three other colonies of Australia, so that the four colonies were placed under the same mongrel form of Legislature. But in that Act there was a material clause, upon which hinged the whole of the present discussion. That clause gave to the Legislative Councils of those colonies powers to alter their own constitution, those powers, however, being specific 1974 and limited. The very instant, however, that the Act arrived in New South Wales that colony protested against it. They had hadly received it before the Legislative Council of New South Wales remonstrated against it in the strongest terms as a mockery and a deceit, and they said—You have given us the same form of Government against which we have already protested, and have extended it to all the other colonies, giving us merely the power of altering the qualification and determining whether we should have one Chamber or two. We demanded a great deal more than that, and this Act leaves our grievances unredressed in the most material particulars.They divided those grievances into five heads, demanding that the colonial patronage should be given by Her Majesty to her representative on the spot, that they should have complete power to appropriate the revenues derived from their Customs, that they should have the management of the civil list, and the appropriation of their land revenues, and the last and most material demand was that the veto in matters of local legislation should be exercised on the spot without reference to the mother country. How was that remonstrance met by the then Colonial Minister? Lord Grey expressed his astonishment that the Legislative Council should have remonstrated, and denied that they represented the feeling of the country, explaining the provisions of the Act of 1850, and appealing from the Council to their constituents. The reception of that reply irritated the Legislative Council to such a degree that they prepared a remonstrance, which the Governor thought it necessary to apologise for sending. That was in 1852, and Lord Grey's answer was received in June, 1853, by which time the Council had acted on their own views, and drafted a Bill setting at nought the limits of the clause in the Act of 1850, altogether including in this draft the five heads of grievance, and providing for all that they considered they were entitled to. Before that Bill arrived in England the right hon. Baronet the Member for Droitwich (Sir J. Pakington) became Colonial Secretary, and he sent an important despatch, divided into two heads, one of which dealt with the five additional subjects, upon which the right hon. Gentleman was perfectly justified in expressing an opinion, and, indeed, it was his duty to do so. But when the right hon. Gentleman discussed the subjects which had been handed over to the Legislative Council he exceeded the powers 1975 which he possessed even as a Minister of the Crown, and he contracted those which had been granted to the Legislative Council of New South Wales. It was material that the House should bear in mind the opinion which the right hon. Gentleman had given at that time upon the five heads of grievance. With regard to the first, the request that the colonial patronage should be handed over by the Crown to the Governor on the spot, the right hon. Gentleman expressed an adverse opinion. He now wished to ask the right hon. Gentleman whether he had changed his mind upon that subject, because the present Bill conceded that point, and rightly, as he (Mr. Adderley) thought. Upon the second head—that of handing over to the colony the entire control of the Customs' revenue and department, the right hon. Gentleman stated that he thought the point had been already met. Upon the third demand—that of giving to the colony the uncontrolled power of appropriating revenue to the civil list—the right hon. Gentleman expressed an opinion that it certainly was large; the demand was now, however, considerably larger. The fourth point, which related to the waste lands, the right hon. Gentleman conceded; and upon the fifth and main point—namely, the claim of the colony to plenary powers of legislation upon local subjects, the right hon. Gentleman expressed an opinion in which he (Mr. Adderley) concurred—that, if it were practicable, it would be most desirable. In 1853, upon that despatch arriving in the Colonies, the Colonies modified accordingly their draft Bills, two of which arrived in this country in February, and the third in May, 1854. The answer which they received to those Bills was, that it was too late in the Session for them to be discussed then. It was now not February or May, but the 14th of June, 1855, and for the first time, after a most unfortunate delay, the House was called upon to consider these important measures at a still later period in a succeeding Session. It was true of late the changes in the head of the Colonial Office had been more than usually frequent; but he thought that the Colonies, and especially those at the antipodes, had a right to look upon all Colonial Ministers as one corporation. Ministerial changes at home were no good excuse for postponement of their affairs. Van Diemen's Land—the only colony which had not then sent home any Bill—had had the good luck of the tortoise in the race; for, having received 1976 a warning that the other Bills exceeded the powers of 1850, they draughted a Bill in accordance with those powers, and that measure having come home, had received the sanction of Her Majesty. In discussing the measures before the House, he would not contest the question whether the constituent bodies were the best that could have been constituted, because it was too late now to discuss that question; neither would he dispute their right to exercise functions which were conferred upon them in 1850. It was too late to debate the propriety of what the Colonies proposed within the limits of the powers given them. But given the constituent body, and the constitution as far as authorised, the question was how to deal with an assumed excess of claims; and he asked what the Government proposed to do with those five points with which the Colonies were not authorised to deal. Van Diemen's Land had abstained from dealing with them. Australia was in process of abstaining also. Two colonies stood out for their whole claims. Are they objectionable in themselves? With regard to the waste lands, the Government proposed to accede to the wish of the Colonies by way of a separate Bill originating here, and so far he thought that they were perfectly right. With respect to three other points—handing over the local patronage to the Governor, the civil list, and the Customs' revenue—they proposed to grant all that was asked within the limits of the colonial Bill. The fifth point, relative to plenary powers of local legislation, they proposed to reject. The Government, therefore, had introduced an amended measure, which must be, as the hon. Member for Kidderminster had very properly observed, to all intents and purposes an Imperial measure. The colonial Bill, which was brought forward in the shape of a schedule, was in reality no Bill at all, and no words which the Crown lawyers could introduce could make that schedule a colonial Bill. If it were an Imperial Bill, however, it ought to have been drawn as Imperial Bills were always drawn, and not in its present form, for which there was no precedent in existence. Instead of the course proposed, he would suggest as follows:—To the extent to which he Bills are covered by the constituent towers given to the Colonies in the Act of 1850, he would pass them. So far, then, the four colonies would be put on an equality, and treated alike, and no time would be lost. But as to the assumptions 1977 ultra vives, he was not content so far to extend the action of a notoriously vicious constituent body; but he would deal with them at home, not imperially, but by an Imperial Act, handing over the subjects in question to the reformed colonial Legislatures, only reserving specifically what must belong only to Her Majesty at home. The management of waste lands he would hand over to the colonial Government, only regretting it had not been done long ago; and, as to colonial appointments, there could be no doubt that in all justice those appointments should be made by Her Majesty's Representative in the colony itself. A wish had been expressed by the Colonies that they themselves should control the Customs' revenue, and most certainly he was prepared to pass over the management of that revenue, free from useless Imperial interference, to their hands. The Bill of the noble Lord (Lord J. Russell) proposed to retain the civil list in the hands of the Home Government, but to do so was, in his opinion, to retract the powers already given to the colonial Assemblies by the Act of 1850, and was moreover, in principle, unconstitutional. The Bill says, "There shall be payable to Her Majesty 112,750l. of Victoria revenue and 64,300l. of New South Wales taxes annually." But only representatives of Her Majesty's subjects can vote her a civil list out of their own taxes. It was unconstitutional to deal with taxation by legislation not passed by the taxpayers. [Mr. J. BALL: Hear, hear!] The hon. Under Secretary cried "hear, hear!" but how did he meet the objection? He asked the House to pass a Bill appropriating colonial funds. As to any supposed power of alteration in the colony it was illusory. Constitutional principles required that the appropriation of their own taxes should be left to the colonists. It was impossible to contest so clear a principle, against which we had struggled in vain in Canada, and had nearly lost the colony in consequence. And cui bono? What have we to do with voting 50,000l. for public worship in Australia, or with salaries of clerks, auditors, or Judges? Who suffers if Victoria has underpaid Judges? There was only one thing in the civil list in which this country, as distinguished from the rest of the empire, had the slightest interest, and that was, the salary of the Governor of a colony; but if this country was interested in the salary of the Governor, it was the duty of this country to pay that salary. The Governor of a colony was 1978 the representative of the Queen in that colony; he was the guardian of Imperial interests, and should, consequently, be paid by the mother-country; the rest of the civil list should be left to the vote of the colonial Legislature. The present state of things with regard to the power given to the covernor of suspending measures of colonial Legislature was the last and greatest grievance. When a Bill passed the Assembly, the Governor had the power of granting Her Majesty's assent, of withholding it, or of reserving assent. Any Bill to which he gave assent might be revoked by the Queen in two years, and all Bills which were suspended became of no effect unless they received the Queen's assent within two years. It was a monstrous thing that British subjects should thus be subject to two Sovereigns, and in his opinion there was no greater proof of the vigour of the British colonies than that they had flourished, notwithstanding such a state of things. Frightful as it would be in an old country, such uncertainty was doubly fatal in a new one. The Draft Colonial Bills express a sense of this grievance as intolerable, and propose accepting a remedy first suggested by Sir W. Molesworth, namely, a division between local and imperial subjects, the former being left to plenary legislation in the colony, the latter reserved for Her Majesty's pleasure. It might be difficult, as the noble Lord (Lord John Russell) had said, to draw that distinction, but the colonies had suggested that in all doubtful cases the Privy Council should judge as to what were imperial and what local subjects. He would himself propose, in order to meet the difficulty, that the Governor should be the judge on that point; and that those Bills alone which the Governor should in his discretion consider to trench on Imperial subjects should be reserved for Her Majesty's sanction. If the noble Lord would not agree to that alteration, the only way left of dealing with these Bills, and carrying out the object of the hon. Member for Kidderminster, would be by moving Resolutions on the House going into Committee upon the Bills, and then the sense of the House could be taken on the question.
§ SIR JOHN PAKINGTON
said, he had heard nothing, either from the hon. Member for Kidderminster (Mr. Lowe) or from his hon. Friend who had last addressed the House, and who, though he spoke against the Bill, intended, it appeared, to 1979 give his vote for the second reading, to induce him to retract the opinions he had formerly expressed, or to vote against the second reading of the Bill. He looked on these two Bills as the complement of an arrangement entered into in 1852 by the Government of Lord Derby, for the purpose of meeting the express wishes of the colonists on subjects in which they took a deep interest; and he could not help thinking that should they be rejected, except on very strong and sufficient grounds, something like great dissatisfaction would be felt by the colonists. He believed that gentlemen connected with the colonies of Australia, now in London, were decidedly favourable to the passing of these Bills. The noble Lord the Secretary for the Colonies had had a deputation of those gentlemen to wait upon him; and he (Sir J. Pakington) had also had the honour of receiving a deputation. But, at the same time, he must state to the House, that a gentleman connected with the colony of Victoria had waited on him some time ago and pointed out the objections which he entertained to this Bill. From all that he could gather from that gentleman, his objections were only three. The first objection was to the terms and form in which the Bill was drawn; the second turned on the high qualifications required for the two Chambers; and the third related to the high civil list reserved in the Bill for the colony of Victoria. With respect to the question of the qualifications for the Members of the Council and the Assembly and to the civil list, these were exclusively colonial questions, which should not, in his opinion, be altered or deviated from, but assented to as proposed by the colony. The only serious objection, then, which he (Sir J. Pakington) could entertain to these Bills was the form in which they had been drawn, and he thought considerable weight attached to the observations on this point made by the hon. Member for Kidderminster and by his hon. Friend the Member for North Staffordshire, who had just spoken. He was aware of the fact that the colonial Legislature had exceeded their powers, and therefore it was necessary to take some step to meet that difficulty; but he could not understand the shape proposed by the Government, which was, that of enabling Her Majesty to give her assent to certain schedules. He thought it would have been an easier course if the Government had brought in an Imperial Statute, enacting at once those constitutions 1980 which the Colonies desired. But the objections urged against the civil list he could not share. He could, however, say that the civil list for Victoria was not very light, and, possibly, even extravagant. Hon. Members referred to 50,000l. for public worship; but that, surely, was the last part of the civil list that should be objected to. He (Sir J. Pakington) was glad to see that that part of the civil list had been passed by a large majority in the colony. Looking at the extraordinary rapidity with which the population of the colony had increased, owing to the discovery of gold, he thought a grant to promote religious worship did honour to the colonial Legislature. The hon. Member for Kidderminster stated that the civil list amounted to 112,000l., whereas in the year 1849–50 the whole revenue of the colony was only 113,000l. Now, this, he considered, was not so much a proof of an extravagant civil list as it was an illustration of the extraordinary progress made by the colony in that time. In 1834, the present Lord Aberdeen, as Secretary of State for the Colonies, was applied to by some bold adventurers, and asked if they might found a colony at Port Phillip, and his answer was that it was not the policy of England to extend her colonies, and he refused his assent. In the following year Lord Glenelg was applied to by these adventurers, and he likewise refused—[Mr. J. BALL: No; he assented.] Well, at last the request was granted, and happily these bold adventurers were allowed to establish the colony, and now, after twenty years, the House was discussing the question whether or not they should have a civil list of 112,000l. per annum. That was, as he had just said, a proof of the extraordinary development of the colony. Should the House take on itself to decide the civil list, it would adopt a very irritating and unwise course. He understood the hon. Member for Kidderminster to say that in re-enacting these Acts passed by the colonial Legislature, Parliament should not allow this civil list; but the course taken by the Government was wiser—not to interfere with the Act, except as to that part of it which interfered with the prerogative of the Crown. The main objects of these Bills were two, to give to the Colonies the management of their own waste lands, and to confer on them an improved constitution, consisting of two Chambers instead of one. The hon. Member for Kidderminster had himself recorded his 1981 vote in favour of two Chambers, and he had moved for a Committee of inquiry into the management of waste lands in the colony. There was a declaration and a remonstrance adopted by the Legislature of New South Wales in 1851, the prayer of which Lord Grey refused, and the new Legislature repeated that declaration and remonstrance, and sent it home. The Government of Lord Derby considered it their duty to give their attention to these representations, and they also felt it their duty to assent to the prayer of the Legislature of New South Wales. They conceded the double Chamber in the form in which it was asked. The hon. Member for Kidderminster had on a former occasion said that he (Sir J. Pakington) had then given his consent to the proposition respecting the waste lands as a bribe to induce the colonists to accept a nominated Chamber, but he could assure the hon. Member he had had no such motive. He did not deny that his opinion was in favour of a nominated in preference to an elective Upper Chamber, and he thought that if men of property, ability, and station were content and willing to accept seats for life in the Upper Chamber, they would form a Council as nearly as possible approaching to our House of Lords. He also thought that with an elective Upper Chamber greater risk of collision between the two Chambers would be run, and that it would be more difficult to carry on the business of legislation with a nominated than with an elected Upper Chamber. Therefore, he himself preferred a nominated Upper Chamber, but he had had no motive in inducing the colonists to accept it, such as that referred to by the hon. Member for Kidderminster. It was the sort of Chamber the Colonies asked for, and the Government of Lord Derby had consented to the prayer of the colonial Legislature, on the ground that the colonists had a fair claim for the concession of their demands. If he (Sir J. Pakington) had to make any complaint against the Government, it was that they had been so long in making their arrangements on this subject. He could not understand why these Bills had not been introduced last Session. He was indisposed to any delay in a matter so deeply affecting the feelings and interests of the colonists; and he thought that the Bills should have been introduced to the House, at all events, in the earliest part of this Session. He felt doubts whether the noble Lord the Secretary for the Colonies 1982 would be able to set at rest the objections he (Sir J. Pakington) entertained with respect to the shape in which the Bills were drawn. There was one point indispensable for the House to consider well—namely, that the utmost care should be taken to leave no doubt as to the validity and legality of these Bills when passed. He should certainly vote for the second reading.
§ MR. GAVAN DUFFY
said, that when the hon. Member for Kidderminster announced his intention to move the postponement of the second reading of the New South Wales Government Bill, he (Mr. Duffy) stated that he would cordially vote in favour of that proposition; but the Bill now before the House was one which had the hearty support of the colonists; it was a wise and liberal measure, and one to which the House could give its assent with a clear conscience. There were, doubtless, some points in the Bill to which objections might be taken, but he thought those points could be most properly dealt with in Committee. There was one provision relating to the qualification of Members of the two Houses, which was open to very serious objection. The qualification for Members of the Upper House was 5,000l. worth of freehold property, and for the lower House 2,000l. worth of freehold property, or freehold property of the annual value of 200l., situated in Victoria. The result of this provision would be to throw the whole Government of the colony into the hands of a small class, against whom there was a violent popular prejudice. In Victoria a qualification could arise from no property but freehold property. In this country a Parliamentary qualification was derived from lauds, tenements, and here-ditaments of any kind, and from personal estate and effects of any description, subject to certain conditions as to the time of possession; from the dividends upon, or annual proceeds of, such property; or from these several kinds of property united. The House was, however, asked in the case of a new colony, to exclude all but one of the qualifications which existed in this country, and it would, consequently, be easier to qualify a representative for Liverpool or London than for a village or a sheep-walk in Australia. It had been a matter of complaint in the colony for years that nobody could get land, the landed proprietors were a very limited class; and if the Bill was passed as it stood, the future Government of the colony would be committed 1983 to that handful of persons. He also objected to the clause of the Bill, which provided that every Member of the colonial Legislature should, upon his election, sign a solemn declaration that he had not obtained the property, upon which he qualified, by collusion for the purpose of acquiring a qualification. Such a declaration once existed with regard to Members of that House, but the progress of liberal opinions had led to its abandonment, and yet they were asked to apply it to a new colony. It was scarcely probable that a practising barrister or a doctor in Victoria, who might be very fit persons to have a seat in the Legislature, would possess 2,000l. worth of freehold property. No property qualification existed in the popular branches of the legislature in Canada, or at the Cape, that would not exist hereafter in New South Wales, South Australia, Van Diemen's Land, or New Zealand. If they sent back this Bill to Victoria with such a provision, it would be the beginning of a very unpleasant end. The population of the colony were strong and resolute, and were by no means disinclined to take the law into their own hands; the best Government for such a colony was a democratic House, possessing the entire sympathies of the people, held in check by an Upper Chamber, composed of men of more mature years, and who possessed a larger amount of property. The Governor of Victoria had told the colonists that whatever wrongs they had to complain of would be remedied by the new constitution, the basis of which was, that all rights sprang from the people; and what would be the consequence if, after that declaration, this Bill was sent back to the colony in a form which would render it as impossible for the people to obtain seats in the Legislature as it was for the people of this country to obtain seats in the House of Lords? But this was not all. Sir Charles Hotham had told a deputation from the "diggers" that they might elect any person they pleased as their representative, and he would use his prerogative to nominate him to a seat in the present Legislature. Under the present system they were offered one representative: but under the new constitution, while the proposed qualification was maintained, they would not have even one. These "diggers" created the wealth, and paid the taxes, and, to a great extent, constituted the strength of the colony—to shut them out from political action in its government was madness. He might be 1984 told that the qualification was in accordance with the wish of the people of the colony, but he ventured to question the accuracy of that assertion; when the Bill was before the Select Committee of the Legislature, that provision was carried by a single vote—namely the vote of a nominee who had since lost his seat. When the Bill came into Committee he should take the liberty of moving an Amendment, upon the grounds which he had already stated. If the noble Lord (Lord John Russell) would not consent to abolish a property qualification a medium course might be taken. The qualification for a voter of the Upper House included the learned professions and retired officers of the military or naval service; these classes might be declared qualified to be members of the Assembly. And surely chattel property as well as freehold property ought to be made a qualification. He thought that the provisions which had been omitted in the Bill directing that the Governor should have no power to send to this country, for the consideration of the home Government, any Bill passed by the local Legislature, except in certain specified cases, were essential to the well working of the measure, if it was considered desirable to maintain a permanent connection between the colony and the mother country. Parliament were about to grant to the colony a large and generous measure, and he hoped they would not render it unsatisfactory by refusing this small additional concession.
§ LORD JOHN RUSSELL
said, he must decline to follow the example of the mover and seconder of the Amendment, and to enter into questions respecting endowment and the voluntary principle in matters of religion. He conceived that they were not called upon to decide those questions; but, the colony of Victoria having decided that they would appropriate 50,000l. for religions worship, it would be quite impossible for that House, consistent with the principle asserted of giving power to the Colonies in local matters, to say that they should not be at liberty, for the welfare of their own society, and for the good of religion and morality, if they believed it to be so, to dispose of that sum if they thought proper, and appropriate it to that purpose. He should not think it necessary to alter any of the clauses contained in the schedule of the Bill; for one of the clauses of the Bill itself gave power to the Colonial Legislature to go beyond the restrictions which they had imposed upon 1985 themselves, and to repeal at any time, by a majority, the conditions by which they had bound themselves in the first instance. If, at any time hereafter, they should think it inexpedient to appropriate so large a sum, or any sum to the purposes of religious worship, this clause gave them power to alter it. The Bill in this respect followed out what had been done in Canada, and avoided the error that had been before committed. The difficulties that arose in Canada were owing to the restrictions which Parliament had placed upon the colonial Legislature in that respect. The Acts of 1791, and subsequent Acts, had restricted the Legislature of Canada from legislating on the subject of the clergy reserves. Full liberty had since been given them; and they had chosen to use that liberty by dissolving the connection between Church and State, and appropriating to secular purposes, the sum there to fore derived from the clergy reserves. The Government had not in any way contradicted or opposed the wish of the Legislature of Canada on that subject. Following the same principle, they allowed the people of Victoria to make the provision they now made, and to alter that provision afterwards if they should see fit. An objection had been most ingeniously urged by the hon. Member for Kidderminster (Mr. Lowe) as to the form of this Bill; but the force of that objection, it appeared to him (Lord J. Russell), rested entirely on the word "assent." If Parliament chose to recite that the Legislative Council of Victoria had passed a certain Bill which could not receive Her Majesty's assent, that among the provisions of that Bill were to be found the following—(specifying the clauses)—that it was exceedingly desirable that those provisions should have the force of law—and that it was declared by Parliament that they should have the force of law—there could be no objection to such an enactment, and it would be as good and valid an Act as an Act of the Legislature of Victoria. That being the case, the objection of the hon. Member was rather ingenious than solid; it amounted only to this, that the Royal Assent was not given to the identical Bill that had been passed by the Legislative Council of Victoria. But all the substance of the Bill would be assented to, and the parts omitted were not parts relating to the constitution of Victoria, but to the general powers which the Legislature had reserved to itself, upon the ground that 1986 certain Acts should not have the force of law until they had been submitted for Her Majesty's pleasure, or should be within a certain time disallowed. Those were the clauses omitted; and in common sense it was quite fair to say that the Bill was the Bill of the Legislative Council, though it had been amended in the manner he had stated. A very few words would make it quite clear that the Bill would have the force of an Act of Parliament, and when it was received in the colony, would have the force of law, and would be so acknowledged by all the Courts of Justice. The hon. Member for North Staffordshire (Mr. Adderley) proposed, that instead of the present Bill, instructions should be sent out to the Governor to assent to a Bill which should be within the power of the Legislature of Victoria. There was, however, one slight objection to sending out such instructions; it would be against the law. The Act of Parliament would not allow the Secretary of State to send out instructions of that kind to the Governor; and if he were to obey those instructions, his Act would have no validity; he would be forced to send the Bill home, which would have to lie thirty days before both Houses of Parliament, and could only become a valid Act after it had received Her Majesty's assent. The hon. Member for Kidderminster (Mr. Lowe), knowing that objection, had proposed a measure that would be valid—namely, that Parliament should pass a Bill giving full power to the Governor of Victoria, notwithstanding the existing law upon the subject, to give Her Majesty's assent to a Bill which should be within the competency of the Legislature of Victoria to pass. No doubt that would cure any defect; but it was a measure such as he (Lord J. Russell) would not venture to propose. It would be a measure to dispense with the provisions of an Act of Parliament—not by the Officers of the Crown, or Ministers responsible to that House, but by the Governor of the colony, according to his own interpretation. Might not the difficulty arise that the Governor had exceeded the power derived from that Act, and that therefore the Constitution of Victoria was null and void, and must be set aside? The hon. Gentleman said the Bill before the House was an absurd Bill; but such an absurdity was never propounded as that of giving the Governor of a colony power to dispense with the law of the land according to his own interpretation 1987 of what was legal. On the question as to the power of reserving Bills for Her Majesty's pleasure, and of disallowing certain Bills, he agreed in the main with the statement referred to in the despatch of the right hon. Baronet (Sir J. Pakington) that under the present mode of exercising the Royal prerogative, the grievance complained of was rather theoretical than practical. If any attempt were made to define the questions which should be so reserved, they would probably include either too few or too many; and, in the latter case, the Colonial Legislature would be a great deal more restricted than it practically was at present. The proper course was to give general instructions to the Governor, and to use great forbearance with regard to any matter which was clearly and plainly one of local interest, so as to leave the local authority as free as possible. That the question was not very much felt in the colony he inferred from a conversation which he had had at Vienna with a member of the Legislative Council. He (Lord John Russell) had told him that the Bill would not contain any clause with respect to Imperial and local legislation, and he, in reply, said that he believed the colony would be quite ready to postpone that subject for future consideration—what they wished was to have the constitution, and the power of disposing of their waste lands, but that the other matter excited no great interest at present. He believed that the colonists would have as little ground of complaint on the way in which the prerogative of the Crown was used as we had in this country. A century or two ago that prerogative gave rise to very great remonstrance and complaint; but it was now acted on with such moderation and forbearance, that no complaint arose. Reference had been made by the hon. Member for New Ross (Mr. Duffy) to the qualifications of the elected members. If the legislative Council were to be elected, he thought it a wise thing to make the qualification high for the present. They had taken three securities for the moderate and wise conduct of their Legislative Council; they required that each member should he thirty years of age, that he should have a considerable sum in landed property, or an equivalent value, and that he should be named for a considerable period—for ten years. There was nothing more remarkable in the United States of America than the care with which they had provided that the excess of democracy should not impede 1988 the good order of society or the well-working of the constitution, He was delighted to see that our colonies, while adopting the frame work of the British constitution, and thus acknowledging its excellence, were at the same time careful to provide safeguards and barriers for the well-working of that constitution. He should not, therefore, propose to make any alteration in the measure that had been sent over. He quite agreed that it was a very large and liberal measure; and, at the same time, he rejoiced that it was so. He did not enter into the question of the particular sum voted for the civil lists. That sum might be too large; it might have been calculated on the extravagant prices of every article of sustenance which prevailed at the time in the colony. He did not defend their economy or censure their extravagance. It sufficed for him that this was the civil list which the colonists had, after due deliberation, proposed for themselves, and if that sum should at any time appear to be extravagant, the colony would have the power of reducing it. At the same time, he would not assent to any measure which would contravene the principles of justice or take away from men the incomes which they received and were encouraged to rely upon. The introduction of responsible government into almost all the Colonies had created a great change in the position of those who many years ago went out under the belief that they had obtained offices for life. It had been the care of the Secretary of State, of the Governors of the Colonies, and likewise of the colonial Assemblies generally, to make the change in such a manner that these persons should not have reason to complain of injustice. These questions had been discussed in a most satisfactory manner by the colonial Legislatures; and in the Council of New South Wales, in particular, the ability displayed was most remarkable. Whether he agreed or not in every particular of their constitutions, he was satisfied they used great deliberation in the framing of their provisions, and showed that affection and attachment which he should have expected to the constitution of the mother country; and he hoped and trusted that they might be the means of happiness and prosperity to the Colonies themselves.
§ MR. APSLEY PELLATT
said, he would beg to refer to the numerous meetings which had been held at Melbourne, Geelong, and ether places, at which resolutions 1989 were passed condemnatory of the proposed endowment clause. These demonstrations appeared to him entitled to some respect, and he thought the House ought to consider well the propriety of striking out this clause. He should like to know from the noble Lord whether, if this Bill went out intact, the Colonial Legislature would have the power to rescind the endowment clause?
§ LORD JOHN RUSSELL
said, that the colonial Legislature would hare the power of rescinding the clause, but that they would be bound to have the sanction of the Crown to any such alteration.
§ Amendment, by leave, withdrawn.
§ Main Question put, and agreed to.
§ Bill read 2°.