HC Deb 17 May 1855 vol 138 cc719-36

LORD JOHN RUSSELL moved for leave to introduce two Bills, one— To enable Her Majesty to assent to a Bill as amended of the Legislature of New South Wales, to confer a constitution on New South Wales and to grant a Civil List to Her Majesty. The other— To repeal the Acts of Parliament now in force respecting the disposal of the Waste Lands of the Crown in Her Majesty's Australian Colonies, and to make other provision in lieu thereof. His Lordship said that the Bill referring to the Constitution of New South Wales was substantially similar in its provisions to that in regard to the Colony of Victoria, which a few nights since he obtained leave to introduce.

MR. LOWE

said, the great importance of the subject, and the novelty of it to many persons, as well as the mistaken course, as he thought, which the noble Lord had adopted in respect to this matter, must be his excuse for delaying the House a short time upon the first stage of the measure. When he before addressed the House upon a similar subject, he could only argue upon the title of this Bill; but since then he had had the advantage of seeing the Bill brought forward with respect to Victoria, which was in pari materiâ with the present. He would call the attention of the House to the points involved in this matter, which were of importance to the Colonies, and he would afterwards make some remarks upon the substance of the present Bill. With respect to the point of form, it seemed to him to be quite clear that the noble Lord, by the course which he had adopted, would not do the thing he proposed to do. He presumed the noble Lord meant to give to these Colonies certain constitutions; but if he carried the Bill in its present shape he would not give any constitution at all, and the vote of that House upon the subject would be perfectly null and nugatory. This might seem an extraordinary statement to make with respect to a Bill brought forward, no doubt, after consideration. As he stated the other night, the Colonial Cuncil acted under limited authority; for these Colonial councils were not like the Imperial Parliament, possessing full and undivided authority, but their authority was a limited authority, derived from Parliament; and if the councils went beyond their powers their act would be void, and it would not be in the power of the councils to pass it, or of Her Majesty to give assent to it. Well, the council of New South Wales in the present case had passed an Act repugnant to a number of laws already in force in the Colony, and therefore that Act was clearly void, because the council had attempted to do that which the authority delegated to it did not empower it to do. The Bill being sent home, the noble Lord, having curtailed it by striking out that particular part to which the colony attached the utmost importance—finding it a nullity as it were, and yet cutting something out of it—proposed now to make it lawful for Her Majesty to assent to it. But, even if Her Majesty did give her assent to the Bill, that would not make it a valid law, binding on the people of New South Wales. For by what authority could it be binding? Certainly not by the authority of the Act of Parliament constituting the Legislative Council, for the powers of the council were confessedly exceeded in the Bill they had sent home; nor could it be by the authority of the Bill which the House of Commons was now asked to pass, for that did not assume to make the Bill of the Colonial Legislature valid, but simply to enable Her Majesty to give her assent to it. The only result of passing this Bill, therefore, would be to leave matters just as they stood. To constitute an assent there must be the concurrence of two wills on the same subject—in this case, of the will of the Legislative Council on the one hand, and of Her Majesty on the other. But the noble Lord had altered the Bill which the Colonial Legislature had sent home, and then he proposed to give power to Her Majesty to assent to that to which the Colonial Legislature had not assented. The Bill was a nullity, therefore, and in its present shape could not stand. It might be written on the statute book, but it would have no effect. This was certainly not an advisable mode of proceeding in a matter of fundamental law, in which, above all things, it was most necessary to be clear and explicit. The noble Lord might propose to get over this difficulty by inserting words to give the Bill a Parliamentary sanction, which would provide not only that Her Majesty should give her assent to the Bill, but also that it should be valid, just as if Parliament had given its assent to it. But, if that were done, Parliament would be really taking upon itself to make a law from beginning to end; it would be converting itself into a legislative assembly for the colony, just as if it had undertaken to legislate for the colony in the first instance, as had been done in the case of New Zealand three years ago. If Parliament did thus legislate for the colony—if, instead of leaving legislation to the authority to which it had already been delegated—it chose to take the matter into its own hands, it was bound, at least, not to legislate at the dictation of the Colonial Assembly, but to exercise its own reason on the subject, and to come to its own conclusions, whether the provisions laid before it were right or not. It must take the Bill clause by clause, sentence by sentence, and endeavour to do justice, according to its lights, to the interests of the colonists. He had now shown, he thought, that this Bill would effect no purpose whatever in its present shape, and that the only mode by which it could be invested with an operative result would cast upon Parliament the duty of investigating the subject, and of acting upon its own convictions instead of degrading itself into a mere machine for registering the acts of Colonial Legislatures. This case was of much more importance than that of Victoria. He should never have taken upon himself the responsibility of preventing the passing of the Act relating to that colony, because that was a case of great emergency, and he knew that however faulty the Act might be, it was not objected to by the generality of the colonists. But the case of New South Wales was different, and he felt perfectly justified in doing everything in his power to defeat the passing of this Bill, because he knew it was contrary to the feelings and wishes of the great majority of the most respectable portion of the colonists, because it was made by a Legislature which in no respect represented the public opinion of the colony. He should oppose it because he saw clearly in it the indicia of the corrupt bargain on which it had been framed; because it involved in itself principles fatal to all good government in the colonies; and because it gave a civil list of unexampled extravagance, which appeared to be the consideration by which not a few of the votes in favour of it had been obtained. He would not attempt to go into the details of the Bill, but on the Motion for the second reading he should be able to prove all he had asserted. His first great objection to the Bill was that it perpetuated a most iniquitous electoral division of the colony—a division by which all power was thrown just where it ought not to be, and by which property and population were alike swamped and sacrificed—a division which was merely geographical, and which treated all counties as equal, though some of them were the seats of populous cities and others mere sheepwalks. He could not mention a more pregnant instance of the extraordinary manner in which the colony was divided than the county of Cumberland. It was one of the oldest settled counties of New South Wales, it contained four-ninths of the population of the colony, and 12,000 electors, the whole number being only 22,000, and yet, such was the division of electoral districts in this colony, that, out of the thirty-six members constituting the Assembly, that great county only returned eight, the others being given to thinly-peopled districts, more or less under the control of the Crown, and who were, of course, far from representing the general feelings and wishes of the colony. One-third of this body was nominated by the Crown, six being officials, and six non-officials; and even though there were no materials from which to form an opinion as to the real feeling of the colonists, he thought he had shown that the Legislative Assembly was a body the representations of which ought to be received with very great jealousy. But they were not left in the dark with regard to the wishes of the colony, for it appeared from the blue-book that, while eighteen petitions, signed by 8,000 persons, had been presented against the Bill, only two, signed, if he remembered right, by eighty-four persons, had been presented in favour of it. He himself had presented, in the course of this and the last Session, five petitions in this House from New South Wales against the Bill, one of which was signed by 5,000 persons, and there was this anomaly, therefore, that, while the Legislative Council was asking one thing, the colonists themselves were asking another. In fact, the case for the Bill had gone by default, for it appeared, while those opposed to it had called meetings and petitioned against it, its supporters had never dared to call a single meeting, or to present petitions cither to this House or their own Legislature in favour of it, with the exceptions he had just mentioned. Therefore, if the House of Commons passed this Bill, it would he doing not only a very irregular thing, but a thing which would be absolutely obnoxious to the wishes of the colonists. His second objection to the Bill was equally forcible. Parliament had established at the Cape two elective chambers; it had given to Canada the power of turning her nominated into an elective chamber; New Zealand had obtained a purely elective provincial chamber; Van Diemen's Land had taken to herself an elective chamber; South Australia had shown her wish to do so, and Port Philip had actually done so; but this Legislative Council of New South Wales now actually petitioned Parliament in favour of a nominated chamber. He firmly believed—and he was a witness as well as an advocate in this case, being perfectly well acquainted with the state of feeling in the colony—that this nominated chamber was nothing hut an iniquitous device on the part of a small oligarchical clique, which, having got all the power into its own hands, believed that it would be thus able to retain it and to exclude the people from that fair share to which they had a right. It so happened that the waste lands in the colony had got into very few hands; persons who had left England a few years ago, with nothing in their pockets, to seek a fortune in the Antipodes, were now proprietors, under leases from the Crown, of tracts of land as large as an English county. These persons, cooperating with the nominees and with the Government officers, who secured to themselves, in case they were removed, retiring pensions equal to their full salaries, combined together to make the monopoly of legislation and Government as complete as the monopoly of the land, and so to shut out the legitimate influence of the representatives of the colonists. Yet this was the system which the House of Commons was now asked to confirm, and to register in this irregular manner the edicts of the Colonial Legislature—thus putting the yoke upon the necks of their fellow-subjects. In the next place, the civil list was enormously and profligately extravagant. Owing to the discovery of gold in the colony the salaries of the public officers were raised, and properly so; but it was wholly unprecedented that a Legislature should first raise those salaries, and then vote the officers pensions for life at that increased rate, thus fixing the retiring pensions, merely because the higher scale of salary had been received for two or three years, at the highest standard. The thing would really be inexplicable, were it not that the very Gentlemen who helped by their votes to pass the Bill dealing thus liberally with them—namely, the Colonial Secretary and the Attorney General—sat upon the very Committee which recommended the Assembly to make these grants, and actually voted upon their own salaries. Another objection to this measure was of the same class as the preceding, and was based on the nature of the Legislative body which passed the most objectionable Bill they were considering. That body was so packed and manipulated that it did not represent the great mass of the colonists. But that was not all. These Gentlemen, thinking they had got a good thing in passing this Bill, were determined, if possible, to keep it; and the House of Commons was, therefore, asked to assent to a clause declaring that this Bill, constituting a nominated Chamber, should not be subject to alterations, unless two-thirds of the Legislative Council were in favour of the change. So that this odious system was to be perpetuated until two-thirds of this packed body were induced to consent to its abolition, and the nominated Council would remain in possession of powers co-ordinate with those of the Legislative Chamber. He would put it to the House, after the statement he had made of the irregular and improper manner in which this subject had been brought before them, after the proofs he had adduced that the Legislative Council did not and could not in any way represent the feeling of the colonists, and, after the indications he had given of the corrupt mode in which the civil list had been dealt with, and of the grasping motives which actuated those who brought in the Bill—whether this was a proper measure for the British House of Commons, the professed friends of civil and religious liberty all over the world, to inflict upon our Australian colonies? He spoke freely on this matter, but he had no desire in the least to embarrass the Government. He must, however, call the attention of the House to the difficulty in which both the form and the substance of this measure placed them. They were involved in this dilemma—that they must either send this Bill back to the colony if they meant to do justice, or they must pass an Act here themselves. The first of those courses would, doubtless, save the House from the trouble and, what was of much more value, from the responsibility of forcing such an obnoxious measure upon their fellow-subjects in a distant colony. But in the case of New South Wales, to remit the measure to be reconsidered by the Legislative body would be little likely to redress the evil done to the colonists, New South Wales was lately a penal settlement, and the first consideration of the new Legislative body there was, how it might invest some of its members with the rank of a hereditary peerage, a signal proof of its unfitness to make a constitution. Therefore, the House might clear itself of the responsibility of this odious measure, but only by acting selfishly to save itself from trouble. If, on the other hand, they undertook to legislate here, the House, he feared, was not wholly ripe for the performance of such a task, and would experience much difficulty in dealing with local questions, which might be perfectly easy if they only possessed the requisite local information. Under these circumstances, and acknowledging the matter to be one of great difficulty—for the Bill could not possibly stand when a Crown lawyer came to look at it—he would respectfully submit to the noble Lord whether he might not spare himself much anxiety and the House much trouble, on a subject with which it must of necessity be little familiar, by sending this as well as the Victoria Bill before a Select Committee. No one could be more competent to deal with these Bills in such a Committee than the noble Lord himself; but, if he had not sufficient time for the purpose, there was the right hon. Baronet the First Commissioner of Works (Sir W. Molesworth), who was eminently qualified for such a duty. Let the Committee be impartially constituted, and not composed of men of a particular shade of politics, and then they could take the three Bills, and compare and collate their clauses with the view of seeing whether, if they were to legislate at all on this subject, they could not frame a creditable and uniform law which should apply to all the Australian colonies. Then they would have some chance of doing justice to the wise and well-considered rules and practice of that House, and also of giving satisfaction to those for whom they legislated. If it were shown that the colony did not object to such a measure as this—if it were really content to have a nominative Chamber, caricaturing the worst anomalies of English institutions, let it be so; but he protested against that House being made the tool and instrument by which an oligarchical faction in a colony should rivet a galling yoke upon the necks of their fellow-subjects. He submitted, therefore, to the noble Lord, that having come suddenly as he had done into his present office, he should pause before he pressed this matter forward, and obliged him (Mr. Lowe) to occupy, as he was afraid he must do if this Bill went on, much of the time of the House, and to raise topics which it would not be very agreeable to have discussed, but which might be amicably and speedily settled in a manner to afford satisfaction to the mass of the people of the colony, if they were referred to a Committee upstairs. He apologised to the House for detaining it so long; but this question was really so important that he felt very strongly upon it, and he spoke not as an advocate, but as a witness, who knew the men who carried this Bill, and was cognisant of their secret springs of action, though, of course, he could not then state all the grounds of his allegations. And sure he was, that if this Bill passed, it would only give the signal for a course of perpetual agitation, which must tend to weaken the bonds of union between this country and the colony. The worst effect, however, if they assented to this measure would be, that for these lamentable results they would make themselves responsible, because after declaring that they had delegated these functions to the Colonial Legislature, they would be taking from them the authority which they had devolved upon them by the Act of 1850. Thus that House would be accountable for all the mischiefs, the ill-blood, the heartburnings, and the turmoil of colonial agitation; and their impolitic legislation might hereafter prove a dangerous stumbling-block and cause of offence between the mother country and the colony.

LORD JOHN RUSSELL

Sir, I cannot claim the excuse which the hon. Gentleman has made for me—namely, that I come on this occasion entirely new to the subject, because it was my duty, in the year 1850, to propose and to discuss at great length, and very frequently, the provisions of the Bill (which afterwards became law) for the government of the Australian Colonies; and it is because I have become familiar with the clauses of that Act, and have seen what the Colonies have done in respect of those provisions, that I now ask the House to consent at least to the introduction of a Bill which gives force and validity to one of the constitutions which have been enacted in Australia. What Parliament did in 1850 was this:—it passed a Bill enacting certain constitutions for New South Wales, and for the other colonies which had been separated from it, and giving them power to make such laws for their own welfare as should not be repugnant to the laws of England. The 32nd clause went on to confer on those colonies authority to alter their constitutions, and to establish—in lieu of a single Legislative Council, partly nominative and partly elective—a Legislative Council and a House of Assembly, or of representatives; and, in short, so to modify their organic constitution as they might think fit. Now, New South Wales having had, besides this legislative sanction, an intimation from a right hon. Gentleman not now present, acting as Secretary of State, that the Crown would receive with satisfaction a Bill by which a Legislative Council and an Assembly should be created, and by which the Legislative Council should be nominative, the hon. Gentleman proposes to say to the colony, "Now that you have exercised all these powers, and, acting likewise upon our intimation, have adopted a constitution for yourselves, we will set your constitution entirely aside—we will consider it as though it had never been adopted at all, and appoint a Committee of the House of Commons to frame a totally new constitution for New South Wales." I do submit, Sir, that this course would not be a just one towards the colony. Besides this, there are important powers which, if those Acts pass which have now been some ten months before the Government of this country, will give New South Wales that control over its own waste lands which it and other colonies and colonial Assemblies much desire to possess. Well, if you have a Select Committee searching for a constitution and endeavouring to inform itself of the number of inhabitants in each district, and of the manner in which the representation should be distributed among them—subjects with which the hon. Gentleman is familiar, though many of the other members of the Committee are not—and supposing also that the Committee at length agree to a report as to the nature of this new constitution, and legislation on this subject is, as a necessary consequence, postponed for another year—such a result the hon. Gentleman himself will hardly deny would be calculated to excite great disappointment in the Australian colonies. And this would not be just with regard to the other colonies; for what has happened with regard to Van Diemen's Land? They had passed an Act which was not in conformity with their powers—they had exceeded their powers—but they received the Act in time to alter it, with an intimation from the right hon. Baronet the Secretary for the Home Department, that by making certain alterations they would conform to the Act. This they accordingly did. The Act has been passed by the two Houses, and Her Majesty, by an order in Council, has assented to it. With respect to South Australia, they have, in the Legislative Council, declared that they wished to reconsider the recommendations which they had made, as they had doubts with reference to the constitution which they had proposed. The Act has been sent back for reconsideration, and, provided they conform to the Act of Parliament, the constitution they may desire will most likely be granted to them. If the Waste Lands Bill which I propose to introduce should be passed, they will then have the disposal of the waste lands of the Crown. With respect to Victoria, the hon. and learned Gentleman will not, I believe, offer much opposition to the form of the Bill, so that they will most probably have the constitution they desire and the disposal of the waste lands. But, in the case of New South Wales, which has acted in conformity with the Act of Parliament and the intimation of the former Secretary of State for the Colonies, it is sought to deny to them—at least for a year; it cannot be less—the constitution they have enacted. The hon. and learned Gentleman has made an objection to the Bill on a point of form, which he admits is easily remedied. I do not pretend to dispute a mere technical point of this kind, but I can only say, that this Bill was not only maturely considered in the Colonial Office, but was also submitted to the learned Gentleman who generally draws the Bills introduced by the Government. He is a man of great experience in these matters, and he, with an alteration which he suggested, and which has been adopted, declared that the Bill would be valid. The hon. and learned Gentleman raises this technical point, and says that if the Queen were to assent to this Bill, it might be an assent to a measure which was invalid; but, as he himself said, a few words would correct this defect. A few words can then be introduced into a clause, or there may be an additional clause to the Bill, stating that this House has assented, and then nobody can deny that this Act is as valid as the Act for the Australian Colonies now in force. But then the hon. and learned Gentleman goes into other points, into which I think it will be difficult for the House to follow him—nor would it be wise for the House to follow, could we overcome this difficulty. The Legislative Council being established in New South Wales, and recognised, the hon. and learned Member says, "Yes; but the representation is so unequally distributed that there is one large county, with four-ninths of the population, which only sends eight Members," and he cannot consider any legislation as valid passed by an Assembly whose basis of representation is so unequal. Are we then to have a Select Committee to go thoroughly into this subject—we, whose representation is confessedly so unequal—we, who have never had 50,000 people for each Member, or any equal basis—are we to say, after the question of the form of its constitution has been asserted by the Legislature of New South Wales—"Yes; but your basis of representation is so unequal, that, until that defect be remedied, we cannot admit as good or valid anything which you may enact"? To say this, would be to invalidate all the Acts which the Legislature of New South Wales may have passed. I am afraid that the hon. and learned Gentleman, who has spoken of myself and others as being ill-informed on this subject, is himself too well informed, he has taken too warm a part in the debates of the Legislature of Australia, or has been too considerable a leader of party in those Australian Colonies, and now wishes us to establish that which he then contended for. I must protest against following that course, or of carrying into effect everything which he may conceive to be necessary. He then came to the great blot of all, which is that, in compliance with the recommendation of the right hon. Baronet the Member for Droitwich (Sir J. Pakington), the Legislative Council, after great deliberation and frequent debates, which show great ability on the part of those who argued the question, came to the resolution that the members of the Legislative Council should be nominated by the Crown, and not elected. That was the decision come to, not only by those persons who were nominees of the Crown, but also by a majority of two to one of the elected members. Is this entirely new? Is it so abhorrent to all our views and principles that the Second Chamber should consist of members nominated by the Crown, and not elected? Our knowledge on this is to the contrary, for in nearly all colonies this principle has prevailed. We passed an Act not many years ago uniting the two provinces of Canada; that Act, I am happy to say, has been attended with the greatest success, and has contributed to the prosperity of that country, and for several years these great provinces have been content with a Legislative Council nominated by the Crown; and, according to the Act of 1852, the Legislative Council of New Zealand is so nominated. For my own part, I do not profess any special love or adherence to that form of constitution above another applicable to colonies—I think both have their advantages and both have their inconveniences. The advantage of an elective Council is this—it represents a great portion of the property and population of the colony; and its disadvantage is, that whereas a nominated Council can, by the power of the Crown, be brought into harmony with the Legislative Assembly should any difference arise, yet, in the case of two Councils, both elective, representing the people, should there be any difference between them it would be difficult to find a remedy. I do not say that the principle of an elective Council should not prevail—it may be the best form; but I say that it is not so absolutely so that we should insist upon it, if the desire prevail in a colony to have a nominated Chamber. I am not exclusively for that form, for I lately brought in a Bill for Victoria, in which an elected Assembly is declared to be valid; and I have, within the last few days, informed the Governor of New Zealand, who has just gone out, that if it should be the desire of the Legislature and of the people to have an elected rather than a nominated Council I should at once advise the Crown to comply with their desire. I think, therefore, that It is best to allow the people to judge what may be the form best suited to the interests of the colony. If you were to have a Select Committee and take fifteen Members of this House who were the best acquainted with the Colonies, I doubt very much whether the Act which they would frame would give half the satisfaction to the people of New South Wales as the Act which their own Legislature has framed. The hon. and learned Gentleman says, that a great number of petitions have been presented against this Bill. There is no doubt of this, or that in the places where a large number of people are collected there has been great industry used to obtain signatures to those petitions; but it is impossible to decide this question entirely upon petitions, for, in the counties in which the body of the people are formed of the old settlers, they are contented with the decision of the Legislature, and, supposing that its wishes will be attended to, have not deemed it necessary to petition in favour of its decision for a nominated Council. I do not know that there was any other topic propounded by the hon. and learned Gentleman, but I must remark that he himself admits there is considerable difficulty in saying what course it would be right to adopt. No doubt these Legislatures have exceeded their powers; but if they had not done so, if they had not trenched upon the powers of Parliament, the hon. and learned Gentleman cannot deny that the advisers of the Crown would have been competent—I should say that it would have been their duty—to advise that the Acts agreed to by the Legislature, with the amendments of the Councils, should be passed into law. If that be the case, where is the fairness of taking hold of what are, after all, nothing but technical difficulties, in order to oppose an obstacle to the enactment of this constitution. The hon. and learned Gentleman admits, that if we were to send this Bill back to the colony, the Legislature is so constituted that we cannot expect a better devised constitution than that which we have now obtained. Then he says, that if we attempt in a Committee of the whole House to frame a new constitution for New South Wales, to act towards New South Wales in the way we have acted towards Van Diemen's Land and South Australia, it is not likely, as our acquaintance with the affairs of South Australia cannot be very deep or minute, that we should come to a very satisfactory conclusion. Thus we are, by the hon. and learned Gentleman's own confession, debarred from the two modes of meeting the difficulty which I have not adopted, but which I rather understood the hon. and learned Gentleman the other day to recommend, although he now thinks that neither of them would be satisfactory. Then the hon. and learned Gentleman proposes an entirely new mode of proceeding; he proposes that we should say to the colony of Victoria—that colony having considered their constitution and being exceedingly anxious, as I was assured by a gentleman who took the pains to travel to Vienna to see me upon the subject, to have it enacted very soon, and more especially to obtain the powers they have asked for with respect to the waste lands, while they do not set much value upon the clauses we propose to omit—"You cannot have your constitution, because we mean to throw it into a 'hotch-pot,' because we mean to appoint a Select Committee, which shall extract from it a perfect theoretical constitution for Australia; because we mean to establish such a constitution as suits ourselves; and, therefore, although the Secretary of State has repeatedly declared that you should have your constitution immediately, you must wait for it another year; but then you will have the satisfaction of obtaining a good constitution from a Committee of the House of Commons." I think this would not be a satisfactory mode of proceeding. I am quite ready to admit that these Legislatures have exceeded their powers, and, by trenching upon an Act of Parliament, have placed us in a position of considerable difficulty; but I own I cannot see that the course suggested by the hon. and learned Gentleman would be preferable to the course we propose to adopt.

MR. GAVAN DUFFY

said, that he concurred in the objections taken to the principles of the Bill by the hon. and learned Member for Kidderminster (Mr. Lowe); and he did not think the noble Lord, in replying to them, had stated them quite fairly. The noble Lord declared the opponents of the Bill were resisting the wishes of the colonists; but he believed the ground of the hon. Member's objection, and certainly the ground of his (Mr. Duffy's) objection, was, that it did not represent the wishes of the colonists, but had been passed in opposition to their vehement protest. Parliament had offered to New South Wales a boon fit for a great Legislature to offer to a great colony—namely, responsible Government; and this measure was a dishonest attempt to render that offer null and void. The colonists were determined to get rid of their present system of Government; but if this Bill passed, the present system would be maintained, and the present Legislature would in fact, under a new guise, continue to have the supreme control. It was proposed that the very men whom the colonists were determined to get rid of should have the power of nominating the Legislative Council in which the supreme authority would be vested for five years. This alone was a fatal objection. Then how was the Legislative Council to be constituted? Why, in the most objectionable manner. In the first place, one-fifth of its Members would be able to hold offices of emolument under the Crown. It might be desirable to have in the Council men trained to public business, but it was shown in an able pamphlet by Mr. Chapman, the late Colonial Secretary for Van Diemen's Land, that persons who held offices under the Crown in the southern colonies were frequently quite unfit for the business of legislation, and it was not uncommon to see a dumb Ministry, not a single Member of which was capable of explaining its views. By constituting a Council in such a manner they would prevent that reform of the land system which was universally desired by the colonists. The new Council would be a sentry over the monopolies of the class from which it would be mainly selected, the squatters and land jobbers. It would, perhaps, be very effective for this object, but undoubtedly it would be an entire failure for all purposes of legislation, as it would neither possess the confidence of the country, nor have any reliance upon itself. Then, how were they to get rid of the Council, if the state of feeling arose which the hon. and learned Gentleman had suggested? No alteration could be made in it, excepting with the consent of two-thirds of its own Members.

LORD JOHN RUSSELL

said, he had omitted to state that he proposed to give power to the Legislature to make alterations in itself by the usual majority.

MR. DUFFY

said, he was speaking at a great disadvantage before he had seen the proposed measure of the noble Lord; he was referring to the Bill as it had been sent from the Colony. They ought to remember that they were legislating not only for the half million of people now in the colony, but also for the constant flow of population from this country, and they should take care not to legislate in such a manner as to check that flow, and to deprive the colony of the services of perhaps better men than it now contained. In Canada they had substituted an elected for a nominated Upper Chamber; at the Cape the Upper House was elective; and in New Zealand the Upper Chamber was about to become elective. Why should they establish in this colony the very thing which they had destroyed elsewhere? Another objection to the Bill was, that, although the large mass of the population thought the House of Assembly was elected upon an unfair basis, and with an unfair distribution of the representatives, the present arrangement was rendered permanent, and could only be got rid of by two-thirds of its Members committing political suicide. In truth, it was in no sense the Bill of the colonists; the elected Members, with a few notable exceptions, were taken from a class with whom the people were at war; and the official Members, in voting for an Upper House of nominees, acted under the impulse of the Colonial Office. In this sense it was less the Bill of the colonists than that of the right hon. Baronot the Member for Droitwich; and even the elected Members, a majority of whom had supported it, had voted for it in the expectation that they would be nominated to the Upper House. Men of intrigue got into the present Legislature who would never find their way into a new one created wholly by popular suffrage. The noble Lord said it was very hard to set aside the wishes of the colonists, but from the petitions presented to Parliament, they were decidedly opposed to a nominated Upper House. He had analysed those petitions, which were very numerous, and, taking the number of signatures, he found 12,152 against the Bill, 228 in favour of it, and forty-eight, out of a population of nearly 500,000, in favour of a half and half House, partially nominated and partially elected. The noble Lord found it difficult to decide what to do under the circumstances. It appeared to him the best course to send the Bill back for reconsideration, with directions to the Governor to dissolve the present Legislative Council, and to call another, in which he would take care that the nominees were men enjoying the people's confidence, and not merely partisans pledged to support a nominated Upper Chamber. If a fair election took place he had no doubt the new Council would frame a constitution representing truly the opinions of the colonists. If another course were adopted, and the Bill sent to a Select Committee, it could be deliberately considered in a fortnight or three weeks, and brought into harmony with the expressed wishes of those who were so deeply interested in it. If neither of these things were done—if the Bill was sent back in its present shape, while in New Zealand, in Victoria, and in Van Diemen's Land the Upper Chambers were elective, he was sure the people of New South Wales would not be contented, and the constitution would become a permanent source of irritation. The Earl of Derby had said that Cabinets hated colonies. If this Bill passed in its present shape the feeling would be reciprocal—colonists would hate Cabinets—and they might judge from the state of a neighbouring colony, that such a feeling, once roused in New South Wales, would not sooner easily be allayed. Whatever course the hon. Member for Kidderminster might adopt, he should take every opportunity of opposing the measure.

MR. W. WILLIAMS

said, that the only reason assigned by the noble Lord for this Bill was that it was passed by the elected chamber; but the feeling of the people was clearly against it. What should be done was to leave the colonists to choose their own form of government. If they did not do that it would lead to continued trouble and difficulty, and final separation from this country. He would recommend to the noble Lord to send back the Bill to the colony as suggested by the hon. Gentleman opposite.

MR. J. BALL

said, that it was quite evident from what had already been said in the discussion that there was great inconvenience in debating a Bill which was not yet laid on the table of the House. He had every reason to believe that no excitement existed in the colony on the subject of the Bill; it was easy for an active party to get up petitions, but the number of signatures affixed to those against the Bill was very trifling. The measure before the House came from the only constituted authorities competent to inform them of the wishes of the colonists. The Government propose to adopt the measure and give power to the colonists to alter or improve it at a future time. From his short experience of the colonies be knew that the best way to render a measure unpopular amongst the colonists was to endeavour to impose it on them in consequence of the recommendation of a Committee of that House; the only safe way was to adopt the proposals coming from the colonists themselves.

Leave given.

Bills ordered to be brought in by Lord JOHN RUSSELL and Mr. JOHN BALL.

Bill read 1°.

The House adjourned at a quarter after Ten o'clock.