§ Order for Committee read.
§ House in Committee.
§ Clauses 1 to 3 agreed to.
§ Clause 4. (No change to be made in the Constitution without the assent of two-thirds of the colonial Legislature.)
§ MR. LOWE
said, he would move to omit all the words after the word "colony" in the thirty-fourth line. The effect of 101 the clause was similar to a corresponding clause in the Victoria Bill, the only difference being that, in the Victoria Bill, no change could be made without the consent of the majority of the two elective Houses, while in the Bill now before the Committee it was provided that no change should be made without the concurrence of two-thirds of the two Houses—one nominative, the other elective. He also intended to move the omission of paragraph forty-two, as he thought it was a fair and reasonable proposition that what was made by a majority should be unmade by a majority. He would ask, with what object could such a fetter be imposed upon a colony as that what was once enacted could not be altered, save by a majority of two-thirds of the whole? It was a pregnant example of the animus with which the Bill was framed. If the Legislature were really anxious to give the colony a constitution which would be satisfactory, why did they tie the hands of the local Legislature? He had before stated that the question had not been agited before the elections, and all the petitions presented to that House, and also in the colony, had been adverse to the proposition. If the principle of a majority was good in this instance, it should apply to all cases, but not in one to require a simple majority, and in others a majority of two-thirds. A majority might be in favour of an alteration of the constitution, but not such a majority as was required to take steps for such alteration. He thought future Legislative Councils should be left unfettered to change enactments, as future Parliaments in this country were to alter Acts of preceding Parliaments.
§ SIR JOHN PAKINGTON
said, that of eight petitions upon the subject presented to the House and printed for the information of hon. Members, only two related to this subject. Having already expressed his opinion on this subject in connection with a similar provision in the Victoria Bill, he should not go over the same ground again. He would only observe that the example of the United States of America was strongly in favour of such a provision.
§ MR. J. BALL
said, he wished to correct what he believed to be a misapprehension among hon. Members. There was a material difference between the present and the Victoria Bill. The restrictions in the New South Wales Bill did not extend generally to the provisions of the reserved 102 Bill, but simply excluded the constitution of the Chambers and the qualifications of their members. He thought those who wished to guard a constitutional Legislature from rapid changes had reason on their side.
§ MR. MAGUIRE
said, he thought that nothing could be more impolitic than to sanction the principle of enabling the Legislative body to restrict the power of the country in reforming its own institutions. He looked upon the whole course of policy which had been pursued with reference to this subject with suspicion, and should, therefore, support the Amendment.
§ Amendment negatived.
§ Clause agreed to.
§ Remaining clauses agreed to.
§ On the paragraph of the Schedule relating to the appointment of the Legislative Council,
§ MR. LOWE
said, that his hon. Friend the Under Secretary for the Colonies had observed, that he (Mr. Lowe) had been in favour of the principle of an Upper Chamber. But the question which was agitated in the Legislative Council at the time to which the hon. Gentleman referred was really whether they should have one House or two. They never dreamt of the Home Government letting them have two elective Chambers, and his argument was, that if they must have the nominees it would be better to have them in a separate Chamber, that the infusion would then be less obnoxious. If they were really intended to form a substantial part of the Legislature, he would point out to the Committee that no materials for such a body existed in Australia, because persons of the requisite education, who were fitted to become members, returned to England after acquiring wealth. He believed, if they established a Chamber of Peers out of the only materials they would be able to obtain, they would have a large portion of them passing through the Insolvent Court in a few years. In fact, when the Act of 1843 came into operation, three months had not elapsed before one of the twelve nominees went through the court. They could not create an aristocracy by legislation; the growth of such a body must depend on the social condition of the country, and the Government must be in accordance with that social condition. That the proposed measure was a contrivance which had been resorted to against the will of the people of the colony was testified 103 by the numerous public meetings which had been held, and by the petitions which had been signed against it, as well as by the example of all the other Colonies, which had unanimously rejected it. He knew that by the majority of the people of New South Wales the plan was regarded with detestation, and, although not with any hope of success, he felt it his duty to oppose the paragraph.
§ MR. ROEBUCK
said, that the Colonial Secretary had had this question before him so early as 1835. Canada, at that time, demanded an electoral second Chamber. The noble Lord (Lord J. Russell) strenuously opposed that demand, and the consequence was, that Canada rebelled. Since that period the noble Lord had been obliged to yield to every demand which was then made by Canada. The interests of the colony and of England were the same, but there was an interest in the colony which was neither that of England nor of the colony, but of a clique in that country, which was favoured by the Colonial Office in this. He hoped the hon. Gentleman would divide upon the question, that the colony might know that there was a party in that House determined, taking warning by experience, to confer a constitution which should really be in accordance with the interests of the community at large. He should have thought that the experience of twenty years' discord in Canada would have induced the noble Lord to do something to prevent similar discord in Australia. If he did not do so he would be obliged to yield in a pusillanimous manner to the demands of the colonists there.
§ LORD JOHN RUSSELL
said, he saw it stated, when in Vienna, that the hon. and learned Gentleman, in the course of some observations which he made with respect to his administration of the Colonial Department, asserted that when he last held the seals of that department he had provoked the Canadian rebellion. [Mr. ROEBUCK: I did not say so.] He was glad to find that the hon. and learned Gentleman repudiated any such statement. I was certainly contrary to the fact, and he did not expect him to have made it. The hon. and learned Gentleman now made a representation with respect to Canada which was greatly at variance with the history of that colony. Canada had been divided, most unfortunately, into the two provinces of Upper and Lower Canada. In Lower Canada there were two assemblies—one 104 elected by the people, and the other nominated by the Crown. It was he opinion of Lord Durham that the only thing which prevented the separation of Canada from the supremacy of this country was the opposition which was made by that nominated Legislative Council. He (Lord J. Russell) certainly opposed a proposition which, by making both Councils elective, would probably have hastened that separation. There was another way by which it appeared to him that both the wishes of the people of Canada might be consulted, and the interests of the Crown and the maintenance of the British dominions might be secured, and he accordingly introduced a measure for uniting the two Canadas. That measure had been attended with complete success—in fact, he knew none which had been more successful. All that the hon. and learned Gentleman contended for at that time was resisted, and we now enjoyed the happiness of seeing Canada prosperous, and united in the most loyal attachment to this country. If they now wished for an elective Council, that wish might be gratified without injury; but it was only the other day that the Legislative Council of Canada rejected a Bill for that purpose. In proposing the present measure the Colonial Office was only acting in accordance with the express decision of the Legislative Assembly, and with a view to the best interests of the colony. All that it was now proposed to do was that which the colonists themselves had decided upon, as likely to prove beneficial to the colony.
§ MR. ROEBUCK
said, that some time ago that House had given power to the Legislature of Australia to alter their constitution, and the reason why that power was given was, he presumed, because the existing constitution was considered faulty. When that Bill was passed it appeared to him that the House relinquished its Imperial functions, and conferred upon the colonial Legislature a power which it ought itself to have exercised. If it was necessary to alter the constitution of those colonies, it was, he thought, the duty of that House to make such alterations as seemed expedient; but, instead of adopting that course, the Colonial Office said, "We will grant to an already faulty constitution the power of acting for the people of the colony." The legislative body to which that power was granted did not, he maintained, represent the opinions of the people of the 105 colony, for, if it had done so, it would not have required any reformation. The Government of this country told the Legislative Assembly to reform itself, and that step had led to consequence which were now apparent to all. That body said, "We will have two Chambers—an elective Chamber and a nominative Chamber." If that Assembly had represented the opinions of the colony he should have been in favour of yielding to their proposal, but it by no means represented the feelings of the majority of the people of the colony. The noble Lord had, in what he had just stated, introduced a fallacy, and endeavoured to induce the Committee to believe that the Legislative Assembly had acted in this matter on behalf of the people of the colony, whereas, in point of fact, it had acted entirely on behalf of itself—monopolists endeavouring to preserve their monopoly. With regard to Canada, it was all very well to say that all that had been done had been to unite the two colonies of Upper and Lower Canada, and that the effect of that step had proved satisfactory; but what he wanted to know was, if everything which had been asked for by the two colonies had not been conceded? First, the civil list, and then, a demand which at the time it was made was considered most outrageous—a demand for an elective Council. The noble Lord had been compelled to yield to Canada the demands made by that colony in 1835, and what he wished to impress upon the Committee was, that they should take warning from that circumstance, and do at once what, in a few years, they would be compelled to do. With regard to what had fallen from the noble Lord in reference to the remarks made by him respecting the rebellion in Canada, he could only now say that what he had said on a previous occasion was, that the noble Lord, as the mouthpiece of the Government of the day, had brought in a Bill which abrogated the constitution of Lower Canada, and it was that Bill which induced the colonists to enter into a rebellion—a rebellion which was, indeed, ultimately beneficial to the colony, and of which the noble Lord ought to have foreseen the consequences; and, in fact, from his not having foreseen the consequences, he had been compelled to go back from principles which he had formerly laid down. He therefore asked the Committee not to put faith in the noble Lord, who had proved 106 himself an unwise colonial legislator, and who had been the cause of much mischief and misery in Canada—mischief and misery which, by the present measure, would assuredly be extended to Australia. He entreated the Committee not to adopt a course similar to that which, in the case of Canada, had been adopted by the noble Lord, for, if it did, it, like the noble Lord, would be ultimately compelled to give way. He did not know if the course he had pursued met with the approbation of the noble Lord, but what he had stated when the noble Lord was absent he had now in his presence repeated.
§ LORD JOHN RUSSELL
said, that the difference was, that that which could not be safely granted in the year 1835 and 1836, it was found might be safely granted, and had been safely granted, at a subsequent period. Long before he (Lord J. Russell) was at the head of the Colonial Department, or in any office whatever under the Crown, there had been disputes in the Legislature of Lower Canada, and Lord Bathurst, who was then Colonial Minister, solved the difficulty, by applying the revenues of Lower Canada when they had not been granted by the Assembly of Lower Canada. He did not think that the question could have been solved in any other way than by uniting the two provinces; and, by such union, the loyalty and concurrence had been produced which had made it safe to make those concessions which it would have been unsafe to make before. With regard, also, to Australia, it would not do to legislate for those colonies on the ground that there had been petitions and public meetings in favour of this course or that, but on some known and recognised principle.
§ MR. F. SCOTT
said, that the hon. and learned Member for Sheffield asked the Committee not to trust to the noble Lord, but, he asked, whom then should they trust to? If they were to trust the people of the colony, how could their opinion be more clearly expressed than by their legitimate organ—their Legislative Council? With regard to petitions having been presented against the Bill, out of a population of about 300,000 only about 4,000 persons had signed those petitions. He regretted having said, on a former occasion, anything that could have been considered offensive to the hon. Member for Kidderminster (Mr. Lowe). That hon. Gentleman had adverted to his (Mr. Scott's) 107 services with respect to the Colonies, and he had disapproved them. That he (Mr. Scott) also regretted, but he hoped that those services, although they at present were not approved by the hon. Gentleman, would, at some subsequent period, meet with his approbation; for he believed that during his connection with the Colonies he had spoken upon almost every question which had been raised, and had, at different periods, advocated both sides of it.
§ MR. ADDERLEY
said, he had upon all occasions voted for an elective Upper Chamber, but in this case he should certainly give his vote against the hon. Gentleman (Mr. Lowe). He had no means of testing the petitions which had been presented; but, as far as he could judge, public opinion was as much on one side as the other upon this question. It was too late now to go into the question on which side was the preponderance of feeling—that was a question which ought to have been considered in 1850. Power had been given by the Imperial Parliament to the colonial Legislature in that year to frame a constitution for themselves, and upon that, however, they had acted; it was too late now to turn round and say, "We will not confirm that constitution which you have framed under the powers we have given to you."
§ MR. MAGUIRE
said, that the framers of the constitution had attempted to get for themselves an hereditary aristocracy; but there was such an indignant shout of execration throughout the colony that they were obliged to withdraw their pretensions. He had no hesitation in declaring, after a careful perusal of the dispatches, that the feeling of the colony was in favour of an elective Upper House.
§ MR. JOHN MACGREGOR
said, he must deny that anything done by the noble Lord (Lord J. Russell) had provoked the rebellion of 1837. The noble Lord had done everything he could for the purpose of pacifying the Canadas; and, indeed, there had never been any Colonial Secretary who had given greater general satisfaction than the noble Lord had given. He trusted the policy of this country would be to give to the colony under consideration the same government and the same responsibility as existed in Canada. Although he objected to a nominated Upper Chamber generally, yet, looking to the circumstances of the colony, he would not object to the Bill.
§ Motion made, and Question put, "That paragraph 2 stand part of Schedule 1."
§ The Committee divided:—Ayes 173; Noes 36: Majority 137.
§ On paragraph 15, relating to the division of the colony into electoral districts,
§ MR. LOWE
said, that the gentleman who had prepared this constitution, not satisfied with having a nominative Upper House and a constitution that could not be altered unless two-thirds of that nominative House were willing to commit suicide, effectually packed the representation of the Lower House. He had given notice of an Amendment upon this paragraph of the schedule, which, however, he thought it was hardly worth while to move. The electoral divisions of the colony were most unfair and unequal. Sydney, which contained fully one-fourth of the inhabitants of the colony, or some 50,000 persons, returned only three members, and it was now proposed that another should be added to the number; while four remote pastoral districts, which could not contain above 15,000 inhabitants, and which already returned four members—one more than Sydney—were now to return four additional members, so that there would be eight representatives of a population of 15,000, and four representatives of a population of 50,000. He wished to observe, further, with regard to the civil list, that the colonial Legislature had appointed certain members of the Government to form a Committee to prepare this Bill, and those gentlemen had voted themselves increased salaries to meet the additional expense of living. To one of those gentlemen the Legislature, in a spirit of extraordinary liberality, had voted back Salary for eight years at the same rate, and the retiring salary was fixed at the full rate of the salary thus raised. He thought it right to mention this circumstance, in order to expose the gross jobbery which had been perpetrated.
§ MR. J. BALL
said, he thought it his duty to state, after the observations of the hon. Gentleman, that the present amount of salaries of the members of the Administration who could retire was, altogether, 7,300l. a year, but the amount voted had been 5,900l. It was not, therefore, fair to say that the increased rate of salaries was to be perpetually maintained.
§ MR. MAGUIRE
said, that the Attorney General and the Colonial Secretary had 109 voted for their own salaries; and he thought a more shameful, barefaced, and gross perversion of the official privileges was not upon record.
§ LORD JOHN RUSSELL
said, that the salaries and allowances had been settled by the Council without the intervention of the officers themselves.
§ MR. LOWE
said, that some of the Gentlemen who had been referred to were upon the Committee which settled the salaries, and they voted their own salaries at the full amount. Their salaries were increased by the allowances made on account of the gold discoveries; and the Bill gave them retiring allowances, calculated, not upon the amount of their ordinary salaries, but upon this increased rate of salary.
§ Remaining paragraphs agreed to. House resumed. Bill reported.