§ Report from Select Committee on the Clare County Writ considered.
MR. ASSHETON CROSS,
in rising to move—That the office of Attorney General of the Colony of Victoria is an office or place of profit under the Crown within the meaning of the Statutes in that behalf,said: It is not my intention to take up the time of the House at any length; but, as one of the Committee appointed to consider the Clare Writ, I think it is right I should say a few words in moving what is practically a Resolution for the adoption of the Report of the Committee. The Committee were appointed, the House will remember, to inquire whether the Member for the County of Clare (Sir Bryan O'Loghlen) has, since his election, accepted an Office of profit under or for the Crown, and whether he had thereby vacated his seat? The first remark I wish to make on this Reference is that I do not think any question was referred to the Committee as to the policy of the Statute, or the intention of the framers of the Statute in relation to it. The simple question we had to determine was "aye," or "no," did the case fall within the words of the Statute? That being the question referred to us, and the only one referred to us, we have 1105 answered it as clearly and distinctly as it is possible for us to do. I have heard it said that we ought to have given reasons for our decision. With that opinion I entirely differ. What we were bound to give was a correct view of this case. When the question comes to be debated in this House, we are ready to give the reasons which led us to the conclusion at which we have arrived; but the duty the House cast upon us was simple, and it was to state whether, in our opinion, Sir Bryan O'Loghlen had a place of profit under the Crown, and whether he had forfeited his seat in consequence? These were the two points we had to decide. I think, Sir, in justifying the Motion which I am about to bring forward, I may take one or two things for granted. In the first place, there can be no doubt whatever that Sir Bryan O'Loghlen did accept the Office of Attorney General of the Colony of Victoria since his election by the County of Clare; and I think it may also be taken as abundantly clear that the Office of Attorney General of Victoria was, at all events, an office of profit. Therefore, the questions we have to decide are simply those—whether, first, that Office is a place of profit under the Crown; and whether, further, the acceptance of that Office vacates the seat? I wish to add, first, that I do not think we have anythink to do with any other office or any other appointment in that Colony, or any other Colony. The whole question referred to us was limited to this particular Office of the Colony of Victoria; that was the only subject-matter with which we had to deal, and we had nothing to do with any other office or any other Colony. It is hardly necessary for me either to discuss the words "for the Crown;" and I think it will be quite sufficient if, in the few observations I have to make, I inquire whether this is an Office or other place of profit held under the Crown? I do not suppose that anyone will for a moment contend that simply because there was no Sign Manual from the Crown for the appointment, and Sir Bryan O'Loghlen was appointed in the Colony by the Governor, that, therefore, this was an appointment by the Governor as distinguished from the Crown itself. Anybody who looks at the terms of the appointment of the Governor of the Colony, and the oath to be taken by him, and the Act of Par- 1106 liament which regulates the Victorian Legislature, cannot doubt for a moment that, whether this was a place of profit or not, at all events, Sir Bryan O'Loghlen was appointed under the Crown. Anyone who looks further into the question will see that there is a very important question to be decided in relation to this appointment, which seems to me absolutely conclusive on this first question, and that is the source of the funds from which the emoluments of the Office are paid. Upon that point, I would refer hon. Members for one moment to the Act of the Victorian Legislature confirmed by an Act of the Imperial Parliament of 1855. According to Clause 46 of that Act, it will be seen at once that this is practically a payment to the Attorney General out of the sums of money voted to the service of Her Majesty in lieu of the waste lands of the Colony, and which, practically, constitute the Civil List of the Colony. The 46th section of the 55th chapter of the 18 & 19 Vict. says—There shall be payable in every year to Her Majesty, Her Heirs and Successors, out of the Consolidated Revenue of Victoria, the several sums, not exceeding in the whole one hundred and twelve thousand seven hundred and fifty pounds, for defraying the expenses of the several Services and purposes named (in certain parts of the Schedule marked D) and the said sums shall he issued by the Treasury of Victoria in such sums as shall he from time to time directed to him under the hand of the Governor, and the said Treasurer shall account to Her Majesty for the same, in such manner and form as Her Majesty shall be graciously pleased to direct; and accounts in detail of the Expenditure of the several sums expended under the authority of this. Act shall be laid before the Legislative Houses of Victoria within thirty days from the beginning of the season next after the termination of the year in which such Expenditure shall have been made.Turning to the Schedule D of the Statute, in the third part we find these words—"Part 3, Colonial Secretary or Chief Secretary, £2,500. The Attorney General"—the Office in question, and several others—"£2,000 each, £10,000." Thus you have it, in fact, under the Act, that the Attorney General for the Colony of Victoria is paid out of the moneys granted to the Crown in lieu, no doubt, as the Statute shows, of the waste lands belonging to the Crown, payable to Her Majesty and the Treasury of England. The Statute not only says that, but, as we have seen in the Schedule, it expressly gives, as one of the Offices to be 1107 paid out of the funds paid by the Colony in this way, this Office of the Attorney General of Victoria. I do not think anyone looking at the terms of the Act of Parliament can doubt that. We find, then, that this is a place of profit under the Crown, and that the Schedule furnishes the clearest possible evidence of it. It is especially applicable simply to the Office of Attorney General, and other persons named in the Schedule, which, no doubt, makes this case different from that of other officers of the Crown to which at the present moment we are not referring. When we talk about the person of the Attorney General of the Colony of Victoria, what do we mean? There can be no such Office as that of the Attorney General for the Colony. He represents Her Majesty quite as much as the Attorney General for England; he is, practically, the Attorney General of Her Majesty in the Colony—the personal Representative of Her Majesty, paid in the way I have described. I do not wish to press this argument further than it ought to be pressed; but, at all events, it is worth asking in what light the Colonists themselves view this question. There can be no doubt, so far as the Colony of Victoria is concerned, that the Colonists themselves have treated this as an appointment under the Crown, for they required Sir Bryan O'Loghlen to vacate his seat on his appointment. I think, then, that I have shown that the Committee had ample ground for considering that this was an Office of profit, held under the Crown. The next, and the only other question we have to decide was, did the acceptance of the Office vacate the seat for the County of Clare? Since the Union of England and Ireland, an Act of Parliament made the same disability apply to the Imperial Parliament, as applied either in the English or the Irish Parliament. If we go to the Statute of Anne, we find that it speaks of rendering incapable of election any person who shall have "any new office or place of profit whatsoever under the Crown." Those are the exact words. I fully admit, so far as is necessary for the purposes of the argument, that if there were any reasonable doubt of the meaning of the Statute, it would be better to define the meaning of the Legislature by an Act. But, in this case, the words of the Statute are 1108 as clear and unmistakable as words can be; and we have, therefore, nothing whatever to do but to say, as a matter of fact, the circumstances submitted to us bring the case within the words of the Statute. If they do, cadit questio, and in the opinion—the unanimous opinion—of the Committee that was the case, I do not think I need take up the time of the Committee further. I have stated the case very shortly; but I hope I have stated the main facts. I want, in conclusion, to say one word about the Amendment which my hon. Friend the Member for Rochester (Sir Julian Goldsmid) is about to move. The first Amendment of which he gave Notice was a peculiar one. It was—That considering that the Committee have given no reasons for the conclusion arrived at, and that the evidence was against that conclusion, it is undesirable to decide by Resolution so important a question involving the status of Members of this House.I cannot agree with that; I think the evidence was conclusively in our favour. But the hon. Member has entirely changed his mind; he has thrown over his former words, and now presents to the Committee a totally distinct Resolution. The issue he now presents is this—That, considering it is undesirable to decide by Resolution a doubtful question of grave importance involving the status of Members of this House, it is expedient that a Bill should be brought in to settle the Law relating to the disqualifications caused by accepting Colonial offices.Well, I differ from that Resolution. I do not think it is a doubtful question at all. I think it is perfectly clear, if the House looks at it in the same light as I do. As to the Committee not having given reasons for their decision, it is not the habit or custom of Committees of this House to give reasons for their decisions. As to the proposal that an Act should be passed to settle the law, you cannot legislate retrospectively. The question is simply whether Sir Bryan O'Loghlen, as a Member of this House, is disqualified? If he is, you cannot by legislation alter his status. Therefore, so far as he is concerned, if the House is of opinion that he is disqualified, it is bound to pass that judgment. Whether it would be wise to say that there are other persons in other Colonies who may be in a different position to the Attorney General, and whether we should do wisely to come to 1109 some arrangement as to their status, is a totally different question, which does not affect the point at present between us. We have simply now to decide, "aye" or "no," whether this unanimous. Report of the Committee should be practically accepted. I think it should, and I thereby beg to move the Resolution of which I have given Notice.
Motion made, and Question proposed,
That the office of Attorney General of the Colony of Victoria is an office or place of profit under the Crown within the meaning of the Statutes in that behalf."—(Mr. Secretary Cross.)
§ SIR JULIAN GOLDSMID,
on rising to move, as an Amendment—That, considering it is undesirable to decide by Resolution a doubtful question of grave importance involving the status of Members of this House, it is expedient that a Bill should be brought in to settle the Law relating to the disqualifications caused by accepting Colonial offices,said, he was aware that this subject was of a somewhat dry and technical nature; therefore, he claimed for a few minutes the indulgence of the House, while he endeavoured to state what appeared to be the arguments on his side of the question. He thought it was desirable that if there was any doubt in the matter, that doubt should be expressed in this House and not out-of-doors. The propositions which he proposed to endeavour to prove in a few words were two. The first point, then, was to show that some doubt did exist—he believed he might put it stronger, and say there was very considerable doubt—in this matter, notwithstanding the statement of the right hon. Gentleman the Home Secretary (Mr. Assheton Cross). The second thing which he had to prove was, that if there was a doubt in this matter, a doubt of such a kind ought not to be settled by Resolution, but by an Act of Parliament. Before proceeding further, it was proper that he should state briefly the reasons which induced him to alter the terms of his Resolution. The House of Commons would remember that when the right hon. Gentleman the Home Secretary first gave Notice upon this matter, he (Sir Julian Goldsmid) simply gave Notice that he should oppose the Resolution which it was intended to bring forward. Subsequently, he was informed by the Clerk at the Table that such a general Notice of opposition could not be placed upon the Notice Paper. He was, on ac- 1110 count of circumstances with which it was needless to trouble the House, very much occupied upon that particular day, and on receiving that information he was only able in a very hasty manner to prepare a Resolution. That was on the last day before the Easter Holidays. When he came to consider the matter calmly in the Recess, he saw that his Resolution reflected too strongly upon the Committee, a Committee consisting of Members whom they all respected, and who were justly considered high authorities upon such matters. Therefore, immediately after the Holidays, he gave Notice of the Amendment now standing in his name. He thought the right hon. Gentleman the Home Secretary would consider that that was a proper explanation of the change he had made in the terms of his Amendment. Now, he thought also that the right hon. Gentleman and the House would agree with him that there should be no personal question in this matter. They ought not to look to the person interested—Sir Bryan O'Loghlen—but to the principle involved; and he knew sufficient of hon. Members who came from Ireland, and who generally sat near him, to say that if he raised, as he thought he should, considerable doubt with regard to the allegations of the Home Secretary, they would admit he was fully within his right, and that it was a question which ought to be fairly argued in the House, and that no temporary advantage which they might gain by the seat being vacated ought to influence them in considering this important and Constitutional matter involving the status of individual Members. Well, now, the question was this—Did the case come, as the Home Secretary had stated, under the Statute of Anne, 6 Anne, c. 7, or under the Irish Statute, 33 Geo. III. c. 41, by which persons accepting new offices or place of profit under the Crown vacated their seats, and were rendered incapable of being elected or of sitting and voting as Members of the House of Commons? Now, perhaps it was only right, in a matter of this kind, to give the opinion, taking it for what it might be worth, of a legal authority who himself was much concerned in this question. On referring to the Report of the Committee of last year, he found that the right hon. Gentleman the Home Secretary brought up a tele- 1111 gram from Sir Bryan O'Loghlen himself, which contained his legal opinion on the case, and as it was of some little importance, he intended to read that telegram to the House. Sir Bryan O'Loghlen telegraphed to the Home Secretary—Office beyond seas and not direct from Crown. Is outside Statute, and does not vacate seat. Examine Erskine May.At least with one part of the telegram the Committee concurred, because as last Session they did not examine the high authority Sir Bryan referred to, this Session they had thought it right and proper to do so. Notwithstanding the terms of the appointment of the Committee, which had been read to the House, the real point to be decided was, whether the Attorney Generalship of Victoria was a new Office under the Crown within the spirit and meaning of the Statute? He desired to ask a moment's consideration of the words "within the spirit and meaning of the Statute." The Committee were of opinion that the Office did come within the spirit and meaning of the Statute. At least, he imagined they were of that opinion. The right hon. Gentleman had told them they had not thought it necessary to give any reasons. That, he was informed, arose from a very simple cause. Every Member of the Committee had different reasons, and to have detailed them would have involved a Report of such extraordinary length and complexity, that it would have been impossible to arrive at a satisfactory conclusion. But he said that the Committee had arrived at a conclusion, and he supposed it was that the appointment of Sir Bryan O'Loghlen came within the spirit and meaning of the Statute—under the Statute of Anne, or, at least, under the Irish Act. If they had arrived at that conclusion, they were right in their second conclusion—namely, that Sir Bryan O'Loghlen by his appointment had vacated his seat. This Committee consisted of Members whoso authority the House of Commons was accustomed to revere. The right hon. Gentleman opposite (Mr. Walpole) who had filled the Office of Home Secretary, and who knew much about Constitutional practice, was a Member of the Committee. His hon. and learned Friend the Member for Oxford (Sir William Harcourt), who 1112 had always been devoted to Constitutional Law, also had a place thereupon; and he (Sir Julian Goldsmid) would not be disposed without very great doubt to challenge anything such Gentlemen might have said in a position of responsibility such as this. But he could not help making just one remark in regard to the constitution of the Committee. There were only two non-official Members on that Committee—the hon. and learned Member for Louth (Mr. Sullivan) and the noble Lord the Member for Bury St. Edmunds (Lord Francis Hervey)—the latter of whom, if his health had permitted him, would have been present that evening to second the Amendment he (Sir Julian Goldsmid) was proposing to the House. He regretted that the noble Lord's health did not permit him to attend; but, however, another hon. and learned Friend (Mr. Osborne Morgan), of great ability and knowledge on this subject, would take the noble Lord's place. Those were the only two non-official Members of the Committee. One was intimately connected with the Irish Party, and was, of course, more or less in a position of official responsibility; and, consequently, the only independent Member of the Committee was the Member who entirely concurred with him in the view he took in this matter. In order to fairly consider this matter, he should like the House just for one moment to examine what was really intended by the Act of Anne. He thought the object and purpose of the Act of Anne was to prevent a practice which had then begun, and which it was feared might seriously increase—namely, the creation of new nominal appointments for the purpose of influencing votes in the House of Commons. In the days of which he was speaking—the commencement of the last century—Ministers were not as honourable and independent as they were now, and the House of Commons was not so entirely free from other influences as it was today, and the object of the Act of Anne was that there should not be any creation of new nominal offices which had no other purpose but the securing of votes in the House of Commons. That was an object which they all admitted was a right and proper one, and which ought, indeed, to be carefully observed. The right hon. and learned Attorney General for Ireland (Mr. Gibson) had prepared 1113 an able Memorandum, which showed the law on this matter; but there were other considerations, if the right hon. and learned Gentleman would allow him (Sir Julian Goldsmid) to say so, besides those he had placed before the House. First of all, were there no cases which governed this matter? Search was made, on the suggestion of the Committee, into everything which might be supposed to bear upon the question at issue. Mr. Bramston, a high official at the Colonial Office, brought up every possible appointment of a Colonial character, in order that the Committee might ascertain whether there was any precedent or not. But they were utterly unable to find a precedent. Every appointment to which Mr. Bramston reverted, and with regard to which the Committee had evidence, was a case either of direct appointment under the Privy Seal, or under the Great Seal, and, therefore, direct from the Crown, or else an appointment by the Governor of a Colony upon a Warrant received from the Colonial Office in England, and, consequently, an appointment which was directly suggested by the Government. Mr. Bramston himself very fairly admitted that he really could not find any case whatever which governed this matter. What went further in that direction was that several of the appointments which had been made at that time, and which were called Colonial appointments, did not even require the nominee to go out to the Colony to which he had been appointed. They were Colonial appointments which could be held in England; they could be held without absence from England, and by persons attending to their duties in the House of Commons—therefore, obviously amenable to the influence of Ministers at home. It would be clear to the House that, under these circumstances, such Colonial appointments could not be construed into a precedent for this case. He now came to a very much more important point. The Victorian Colony was established as a self-governing Constitutional Colony by the Act of 1854 of the Colonial Legislature, confirmed by the Act of 1855 of the Imperial Parliament; and, in his view, that entirely altered the relations of the Colony both to the Ministers and to the Crown at home. Before that time, everything had been done from the Colonial Office; after that 1114 time, as he understood it, it was the intention of the Parliament and of the country to say to the Colony—"You are now in an independent position; you are capable of managing your own affairs yourselves; we do not desire in any way to interfere with you, but all we wish to do is to retain the friendly relations between the Mother Country and the Colony which have hitherto existed, and we will give you, in the person of a Governor appointed from home, a nominal Sovereign, which will get you out of the possible difficulty of having to elect your own President." His argument was this—that by the Victorian Constitution the Colony was established in a position independent of the Home Government, and dependent alone on the Sovereign. Consequently, things did not appear to be in the position the right hon. Gentleman had endeavoured to lay down. The 18 & 19 Vict., c. 55 contained in its Appendix the Act of 1854 establishing the Victorian Constitution, and he wished to read to the House the 18th section of that Act. The Home Secretary had referred to it, and for the purposes of his (Sir Julian Goldsmid's) argument, he was at liberty to allude to it. The 18th section of the Act of 1854 recited—Of the following officers of Government for the time being:—that is to say, the Colonial Secretary or Chief Secretary, Attorney General, Colonial Treasurer or Treasurer, Commissioner of Public Works, Collector of Customs or Commissioner of Trade or Customs, Surveyor General or Commissioner of Crown Lands and Survey, and Solicitor General, or the persons for the time being holding those offices, four, at least, shall be Members of the Council or Assembly.And, in Section 37, it went on to say—The appointment to public offices under the Government of Victoria, hereafter to become vacant, or to be created, whether such offices be salaried or not, shall be vested in the Governor, with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds, which appointments shall be vested in the Governor alone.Now, these two sections must be read together, and it will be seen that the Governor, by the advice of his Council, appointed all the Members of the Ministry, except what might be termed the political Members, and the appointment of these rested with the Governor alone. Was it not obvious, therefore, that what was intended by that was that the 1115 Council should be responsible for all those persons who were non-political, and that the political Members of the Governing Body should be under the control of the Constitutional Assembly of the country, just in the same way as the right hon. Gentleman the Home Secretary was under Parliamentary control here. It was their duty to remember what the system was by which, even in England, the Prime Minister was selected. It was not by the choice of the Crown, it was not by the country that he occupied his position; but he directly obtained it in consequence of his being the Chief or Leader of a Party which commanded the confidence of the nation. Though the Prime Minister, like the other Members of the Government, was appointed by the Crown, he was practically elected upon the nomination of the political Assembly of the country, and all the other Members of the Government were appointed by the Crown, upon the proposal of the first Gentleman, who, as Leader of the Party, had become Prime Minister. The position of England in such matters was perfectly clear, and so was that of the Colony of Victoria. Since the passing of the Victorian Constitution Act, Victoria was exactly in the same position as England. The Victorian Ministry was elected on the principle of Parliamentary majorities; and its Members were, therefore, independent of the Home Government, or of a vote in the English Parliament. In fact, he would go further, and say that the Ministers so appointed on the principle of Parliamentary majorities were as independent of the Colonial Secretary or the Prime Minister in England as the English or Irish Attorney General were independent of Mr. Berry, the Prime Minister of Victoria; and his (Sir Julian Goldsmid's) argument was that, in consequence of the Victorian Act, the Constitutional system of Government had been established, and the Victorian Council was in the same position and under the same Parliamentary control as the Government of England. The appointments which were referred to by the Statute of Anne were appointments "under the Government at Home" of Gentlemen who were Members of the British Parliament. But this was an appointment, "not under the Government at Home," of a gentleman who was a Member of the British Par- 1116 liament; consequently, it appeared to him that the Government at Home had no more power, in consequence of this appointment, to exercise influence over Sir Bryan O'Loghlen sitting in this House than they had the power to influence the vote of any non-official Member who was non-official so far as they were concerned. And why so? Because they had had nothing to do with the appointment. At an early part of his speech he referred to an eminent Constitutional authority recommended by Sir Bryan O'Loghlen; and he thought the evidence of that gentleman went far to support the argument he had put before the House. He did not wish to weary the House unnecessarily with this very technical matter; but he did think it right to refer to an opinion expressed by the right hon. Gentleman the Chief Secretary for Ireland, who was formerly Under Secretary of State for the Colonies (Mr. J. Lowther). The Chief Secretary for Ireland, in that admirably cool and imperious manner which they all knew and admired, suggested to Mr Bramston that, practically in law, the Colonial Secretary did control the appointment of Ministers in the Colony itself; and he believed that the Chief Secretary in the next suggestion went so far as to say that Ministers practically could not be appointed to the Colony without their names being first submitted to the Colonial Office if the Colonial Office wished it. That had caused him (Sir Julian Goldsmid) considerable astonishment, because he could not help thinking this—that if the Governor of the Colony were to delay the appointment of Ministers recommended by the Colonial Prime Minister, who had been selected upon Constitutional grounds, until permission had been obtained from the Home Government, such a storm would be created in the Colony that very serious consequences might ensue. That brought him to this point—his argument was, that the only power of control which the Home Government had was to remove the Governor. They might be dissatisfied with the Governor's actions; but he ventured to say they could not interfere with the decision of the Governor in the selection of Ministers. If, at any time, they meant to do what the right hon. Gentleman suggested, he feared they would have one of those terrible commo- 1117 tions which might ultimately lead to a severance between the Colony and the Mother Country. He thought, therefore, that he had shown that upon the points he had ventured to submit to the House there was considerable doubt and room for much argument. Now, it was right he should come to what the right hon. Gentleman called his Civil List argument. In respect to that matter, Section 46 of the same Act said—There shall be payable in every year to Her Majesty, Her Heirs and Successors, out of the Consolidated Revenues of Victoria, the several sums, not exceeding in the whole £112,750, for defraying the expenses of the several Services and purposes named in the 1st, 2nd. 3rd, 4th, 5th, 6th, 7th, and 8th part of the Schedule to this Act annexed, marked D.Having read this, he turned to the Schedules of the Act, and what did he find? The right hon. Gentleman had thought it proper to read only one; but he (Sir Julian Goldsmid) would tell the House what was contained in the whole eight. The first contained provision for the Governor's salary, and for the salaries of the Staff, and for the repairs of the Government House; the second contained provision for the payment of Judges; the third for the payment of political Ministers; the fourth for the payment of the Clerk and the expenses of the Executive Council, for the Clerk and the expenses of the Legislative Council, and for the Auditor General; the fifth for pensions to Officers appointed during good behaviour; the sixth for compensation to the incumbents of offices in Part 3; the seventh for certain pensions; and the eighth for public worship. Now, he thought the simple enumeration of that List went to show this, at least—that therein was provided payment for nearly all the important branches of the Government of the country; not only the persons, but, he might even say the things, and things not so absolutely under the control of the Home Government as the right hon. Gentleman appeared to urge. But certainly this he thought was obvious—that, as Schedule D. comprised not only political persons, but also the non-political persons—the persons who were appointed by the Governor through the advice of his Executive Council, as well as those appointed by the Governor alone—what applied to the one class applied to the other; and he could not 1118 see, though he had searched the Acts through, that the "power of control," as the right hon. Gentleman called it, over the Civil List, now the Victorian Corporation Act was passed, at all affected the position of this Gentleman. And in a moment he would show the right hon. Gentleman why, upon a clause which he should have to read, and still more so, when he remembered that the right hon. Gentleman had coupled the words to which he had already drawn attention with the words "not exceeding on the whole." Why did he say that? For this reason. Section 48 of the Act went on to declare—It shall be lawful for the Governor to abolish any of the offices named in the 3rd and 4th parts of the said Schedule.What did that mean? It meant that if the Ministry for any reason, such as did occur sometimes, thought it was desirable to abolish some of the existing offices, they might have the right to do so. Consequently, he thought that, under these circumstances, the argument of the right hon. Gentleman hardly applied. He knew there was a latter part to that section; but that applied to a different state of things. The words were—Or to apply the sums thereby appropriated to such other purposes connected with the administration of the Government of Victoria as to Her Majesty, Her Heirs and Successors, shall seem fit.He might say that these latter words applied only to the appropriation, for a very simple reason—that in all appropriations of money in Acts of Parliament, both here and in the Colony, the saving clause, "as to Her Majesty, Her Heirs and Successors, shall seem fit," was inserted; but no such saving clause was over put in as to the abolition of an office, and, consequently, those words only applied to the latter part of the section and not to the earlier. Ergo, the Governor alone could abolish this Office, and, consequently, the argument of the right hon. Gentleman with regard to tire Colony and the Home Government came absolutely to nil; for if it could be abolished by the Colonial Government without the sanction of the Home Government, the right hon. Gentleman's argument fell to the ground altogether. That was further confirmed by Section 55. That section said— 1119The balance of Consolidated Revenue shall be appropriated as may be decided by such Legislature.That was to say, supposing the whole amount voted to the Consolidated Fund was not disposed of, the Legislature should dispose of it; but it must, tinder Section 57, have been permitted by a Message from the Governor. That was exactly on the same principle as here in the House of Commons, for they could not vote away money, unless it had been recommended to them by the Government itself to do so. Consequently, it appeared to him, as far as he could see, that the parallel was complete, and the argument was conclusive, that those Offices did not come under the absolute control, that the right hon. Gentleman appeared to think, of the Governor of the Colony, because the Governor was responsible to his Council simply. Therefore, he thought he had proved this, at least—that in the Colony of Victoria there existed a state of things such as never could have been contemplated by the Act of Anne. The Act prepared them for a method of influencing votes in the Home Parliament by what he ventured to call Parliamentary corruption; but there was no question of influencing votes in that House by the appointment by a Colonial Governor in a Colony which was self-governing of a gentleman who had been recommended to him by his Constitutional Prime Minister; and so far as he could see, in the spirit and meaning of the Act to which he referred in the commencement of his observations, no such thing was ever intended or could, possibly be comprised. Now, he should have done in a minute or two; but as the point had been raised by the right hon. and learned Gentleman the Attorney General for Ireland, with regard to the Irish Act to which he had referred, he thought it was only right to say one word. The Lord Lieutenant of Ireland, as they knew, could appoint certain officers, and upon that argument, to which he should refer directly, an Act was passed in the reign of George III. which, in the opinion of some, merely set out the law, and in the opinion of others, altered it, and which had the effect of disqualifying persons so appointed by the Lord Lieutenant from sitting in the House of Commons. But the spirit of that Act was this—the Lord Lieutenant governed a portion of this 1120 Kingdom which returned Members to this House. The Lord Lieutenant was appointed by the Crown for the purpose of governing a part—an integral part—of the Dominions of this Empire, and the part which he governed had its fair share of representation in this House. Consequently, no parallel could be drawn as between the position of the Lord Lieutenant and the position of a Colonial Governor, having a separate Constitutional Government and a separate Constitutional Assembly. No parallel of any such kind could exist, and therefore it appeared to him that, from that point of view, the argument could not hold water. But the Act of Anne, and the Act 41 Geo. III., c. 52, did not apply to these Irish cases, and, consequently, two Acts were passed, to which he would now refer for one moment. Before he did that, perhaps he ought to say—because he did not want to omit any argument which the right hon. Gentleman used—the right hon. Gentleman stated that the Colonists themselves had looked upon this case as coming under the Act, because the Gentleman in question had vacated his seat in the Colony. The argument of the right hon. Gentleman was, that the Attorney General of the Colony of Victoria was appointed subject to the Colonial Legislature and the Colonial law, and by the Colonial law he vacated his seat in the Colonial Assembly, exactly in the same way as a Gentleman holding Office in this country vacated his seat in the Home Parliament. His (Sir Julian Goldsmid's) contention, on the other hand, was that the vacation of the seat in the Colonial Parliament rather went to prove the reverse of what the right hon. Gentleman said, and that as it was an appointment under the Crown there, it could not be in the same sense an Office under the Crown here; consequently, if the argument acted for any side, it was rather good for him and against the right hon. Gentleman. Now, he said this—that if the matter was to be considered on general principles it was certainly undesirable to strain the Act of Anne so as to make it apply to this case, for the simple reason that the Colony might desire to be represented in some way or other in this House. A Gentleman who happened to be a Member of the Imperial Parliament, and a Member also of the Victorian Assembly, might, perhaps, 1121 have a little more weight with the Colonial Minister; he would be able to take an independent view of questions, and would be by no means under the control of the Ministry at home; and that condition of things might be exceedingly desirable. So far as he (Sir Julian Goldsmid) could see, a Colonial official would rather come as an opponent than as a supporter of the Government, by reason of the position he held. As he had said, with regard to the two Irish Acts, he thought that in the observations he had made he had proved at least that there was a great deal to be said on the other side of the question; that the argument of the right hon. Gentleman was not so convincing as he thought; and that some of them who had thought this matter over from a general point of view shared the opinion that there was very considerable doubt in the matter; and, for his purpose, that which was all he ventured to state at the outset he should endeavour to prove. That was proved by the two Irish Acts—38 Geo. III. c. 36, and 41 Geo, III. c. 52. It was said that the latter Act was passed because there was a doubt. He did not agree with that argument; but he accepted it, just for a moment, and he said if that was so, if it was passed because there was a doubt upon this matter, that went equally to prove that the Resolution which he had placed upon the Paper was right and proper—namely, that a doubt ought not to be settled by a Resolution of this House, but ought, according to that precedent, to be settled in a Constitutional way by Act of Parliament. Put if there was more than a doubt, as he ventured to contend, the weight of the argument was all the stronger; for if an alteration of the law was proposed, that was overwhelming in favour of proceeding by Act, and not by Resolution. Therefore, in either case, whatever way they accepted the Statute, the proper way was according to his Amendment, as against the proposal of the right hon. Gentleman. They all knew that it had been laid down by the best authorities that extreme cases made bad law; and as he believed this would be an extreme case, to proceed in this high-handed manner by Resolution, he ventured to think it would make very bad law. The right hon. Gentleman had stated, at the outset, that he only wished to refer to the case of the Attorney General of 1122 Victoria, and to nothing else. He (Sir Julian Goldsmid) did not wish to depart from the right hon. Gentleman's ruling; but he wished to make one or two observations only on one other subject. It was said the case of the Agents General for the Colonies did not apply in this matter, and he quite concurred. Agents General, so far as he had ascertained, were appointed under different circumstances; they were appointed by a Resolution of the Colonial Council, and without any relation either to the Colonial Parliament, or to the Government at home. He could not conceive for a moment that the acceptance of those Offices could in anyway affect the position of Members of this House. Therefore, although some hon. Gentlemen had said that when the right hon. Gentleman the Member for Pontefract (Mr. Childers) accepted—as he did, much to the advantage of the Colony, some years ago—the position of Agent General for the Australian Colonies, that he incurred considerable risk, he (Sir Julian Goldsmid), for his part, could not see that he incurred any risk at all. It gave the Colony the benefit of his considerable knowledge, his great experience both of that Colony and the Mother Country, and his high position in this House. Surely the benefit could only be on the side of the Colonists, which he was sure they had thoroughly and warmly appreciated. The same remark applied to the position which was formerly occupied by his hon. Friend the Member for Dundee (Mr. E. Jenkins) as Agent for the Colony of Canada. The general considerations pointed out with regard to those two Offices should induce everyone to agree with him with regard to this question. If there was any argument which could be used on the other side, it would be simply because any salary that would have to be paid would have to be voted by the Colonial Legislature, or paid out of the so-called Civil List; and as that Civil List, according to the argument of the right hon. Gentleman, was under the control, either of the Treasury or of the Government at home, therefore, in that reflected way, the Agent General might be supposed to come under the control of the Home Government. He could not see much in that argument; but he was told that it was the only one which it had been ventured to use. But to return to the 1123 question of the Attorney General of Victoria. As far as his purpose was now concerned, he thought that in his statement he had proved two things—one, that the conclusion at which the official Members of the Committee and the right hon. Gentleman had arrived was not so clear as they themselves thought; that if other Members of the Committee were to state their reasons to the House they would be very different; that at least there was a very considerable amount of argument upon the matter; and that there was very considerable doubt whether this Office really did come within the spirit and meaning of the Statute of Anne, and the Irish Acts which followed it. If he had proved that, he had proved the first part of the case; and as to the second, he had shown by the Irish Acts that if there was a doubt, by that precedent it ought to be settled by Act of Parliament, and not by Resolution. Consequently, he thought he had proved the two points with which he had started. He thanked the House for the attentive consideration which they had given to his observations, which he had endeavoured to make as clear and as short as possible, and he begged to conclude by moving the Amendment which stood in his name upon the Paper.
MR. OSBORNE MORGAN
said, in the absence, which was to be much regretted, of his noble Friend the Member for Bury St. Edmunds (Lord Francis Hervey) he had been asked by his hon. Friend the Member for Rochester (Sir Julian Goldsmid) to second the Amendment, and he did so with great pleasure, although in the hands of the noble Lord it would have gone with more weight than he could give it. He should like to say, at the outset, that he could not help thinking, with regard to the question of residence, that it was exceedingly inconvenient that any Gentleman whose duty compelled him to be at the Antipodes should be qualified to sit in that House. He believed that consideration would indirectly weigh with the House in considering the Report of the Committee. But that was not the question with which the House had to deal. The question was not one of convenience, or of the compatibility of two offices. It was a grave Constitutional question as to the construction of a Statute—a disabling Statute, a highly penal Statute—involving the status of a Mem- 1124 ber of that House. They were told that the Committee, following, no doubt, the good advice of Dr. Johnson—"Never give your reasons, if you can help it"—gave its recommendation without its reasons—a very convenient advice at all times—particularly when, as was the case here, that recommendation was supported by every Member of the Committee from a different reason. However, there was one Member of the Select Committee who was more courageous, or less discreet, than his Colleagues—the right hon. and learned Gentleman the Attorney General for Ireland (Mr. Gibson). He drew up an exceedingly able and learned Memorandum, which was printed at the end of the Report. If he (Mr. Osborne Morgan) wanted a justification for the opinion to which he had come, and which he was then expressing to the House, he certainly could find it in that Memorandum. As his hon. Friend the Member for Rochester had pointed out, there was this great point in favour of the Amendment—that the present case was clearly not within the mischief contemplated by the Statute of Anne. At that time, as was said by Sir Robert Walpole, every man had—or at least was supposed to have—his price. The object of the Statute, then, was to prevent that which was a very present danger in those times—that the Court or the Prime Minister might pack the House of Commons with a mob of needy, greedy, place-hunters, or place-holders, by which means they or he would be independent of the country, and might at any moment swamp the independence of the House of Commons. In his opinion, it was as clear as anything could be, that that was the object of the Statute of Anne, and that was the mischief which it and the Statute of George III. was intended to prevent. Could they, by any stretch of imagination, suppose that the Statute was intended to apply to such a case as that under discussion? In the first place, by whom was the Attorney General for the Colony of Victoria selected? In much the same way as his learned Friends the Attorneys General for England and Ireland—by the Premier of the Colony. It was true that he was in name appointed, as all other Ministers were appointed, by the Governor; and it was upon that fact alone that the argument in favour of the Motion was based. It was said that 1125 the Crown appointed the Governor, and the Governor appointed the Prime Minister, and the Prime Minister appointed the Attorney General; therefore, the Crown appointed the Attorney General, and therefore his Office was an Office under the Crown. Was not that exactly the same argument as the old school-boy syllogism with which they were all acquainted—Athens governs the world, Pericles governs Athens, Pericles' wife governs Pericles, Pericles' little boy governs Pericles' wife, and, therefore, Pericles' little boy governs the world?That was exactly the argument which the Home Secretary had presented to the House, and it was the only way by which the conclusions of the Committee could be justified. Could they conceive any way in which the Crown at home—moaning by the Crown not the personality of the Sovereign, but the whole Government, as represented by the Prime Minister and the Cabinet—could exercise the slightest influence upon the appointment or dismissal of the Attorney General for Victoria? That question was put by the right hon. and learned Gentleman the Attorney General for Ireland to the Premier of the Colony, and the very idea was scouted and laughed at by the gentleman, who treated it as hardly serious. The only way in which it could be done would be by the Home Government putting pressure on the Governor of the Colony—because the Home Government Lad no power whatever over the Attorney General, or indeed over any Member of the Government to which he belonged—to induce him to dismiss his Ministers, and, in the event of the Governor's refusal, dismissing him from his post. What would happen if that were done he need not try to guess; but he should be very sorry to stand in the shoes of the Governor who succeeded him. There would certainly be a storm of indignation in the Colony against which no Governor could stand. They had very lately had some experience of the jealousy—and, as he thought, the justifiable, or certainly the excusable jealousy—with which the Colonies looked upon any interference by the Home Government in their domestic policy. He referred to the recent case of Canada, and the action taken by the Colonists in the case of M. Lepelletier St. Just. He maintained, with his hon. 1126 Friend the Member for Rochester, that the Home Government, or the Prime Minister of England, had really as little voice in the appointment of the Attorney General of Victoria, and as little control over his dismissal, as Mr. Graham Perry had over the appointment or dismissal of his hon. and learned Friend the Attorney General for England. The Home Secretary, in his opening speech, had relied very strongly on the fact that the Attorney General for Victoria was paid out of a sum of £15,000, which was called the Civil List. He neither understood the statement nor the argument. Did the Home Secretary mean the Civil List in the same sense as the words were used of the Civil List of the Crown of England? The test of it would be, whether the Treasury could divert that which was part of the revenues of the Colony, and part of an aggregate sum, every penny of which was applicable, under the laws of Victoria, to the purposes of the Colony, to home purposes? Would anyone suggest for a moment that any part of that £ 15,000 could be so applied? The conclusion was a most ludicrous one; yet he thought it arose very fairly out of the proposition put by the Home Secretary. Could the Home Government, for instance, apply any part of that £15,000 in increasing the salary of the Attorney General? Could they, in fact, either increase or diminish, or in any way alter, the sum of £2,000 appropriated to the Attorney General? Of course, they could not; and from that it followed that the Home Government, in no sense of the word, held the strings of the purse by which the Attorney General was paid. This was an exceedingly important question; but he would not detain the House further than by merely referring to the Report of the Select Committee, and the case of Mr. Huskisson, which was a far stronger case than the one now before the House, because Mr. Huskisson was actually appointed to some office in Ceylon by the appointment of the Home Government. Yet, because he was paid out of the revenues of Ceylon, and not from those of England, a Committee of the House of Commons, in 1829, came to the conclusion that his place was not a place of profit under the Crown. He thought the Irish Statute, to which reference had been made, was a very strong argument in his 1127 favour. It was perfectly clear, whatever might be said on the subject, that the Lord Lieutenant of Ireland stood in a very different position as regarded the Crown to that occupied by the Governor of a Representative Colony. It was impossible to have a higher authority than the Constitutional Governor of an autonomous Colony. He was, in fact, a local Constitutional Sovereign, responsible in one sense, no doubt, to the Government at home, but responsible directly to his own Parliament. Was that at all the position of the Lord Lieutenant of Ireland? He was the mere shadow of the Queen, and representing her integral Dominions. But what was the view which Parliament took of appointments made by the Lord Lieutenant? The early Irish Act—31 Geo. III.—made vacant the seats of all persons who accepted an office of profit under the Crown. The question arose, whether a person appointed by the Lord Lieutenant to a place of profit came within that disqualification? and he was told, as a matter of history, for he had forgotten the name of the case, that a person so appointed did not vacate his seat. For the purpose of avoiding that difficulty the 38 Geo. III. was passed, which, if they wanted precedents, seemed to him to be conclusive. He was much obliged to his right hon. and learned Friend opposite the Attorney General for Ireland (Mr. Gibson), or he would not have known of the matter.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON)
said, if his hon. and learned Friend would refer to the Statute he would find that he was mistaking its wording or operation.
MR. OSBORNE MORGAN
replied, that whether or no the question was decided under that Statute, it certainly was raised. At any rate, nobody would deny that the fact that the second Statute was passed showed that the doubt had arisen whether a person taking a place of profit under the Lord Lieutenant was within the operation of that Act. He did not know whether that was denied. [The ATTORNEY GENERAL for IRELAND dissented.] Well, whether that was so or not, the Act was passed, and the 38 Geo. III. recited the old Act, saying this—And whereas to obtain the object of the said Act, it is necessary that the seat of Members shall be vacated by accepting offices from the 1128 Chief Governor or Chief Governors of the Kingdom as if the same were accepted immediately and directly from the Crown.And then it extended the provisions of the earlier Act—To any persons who shall accept any office of profit from or by the nomination or appointment or by any other appointment subject to the approbation of the Lord Lieutenant, Lord Deputy, Lord Justice, or Lord Justices, or other Chief Governor or Chief Governors of the Kingdom.What could be the necessity for that Act, if the law were as laid down by the Home Secretary? He, therefore, thought he had shown conclusively, that the case of a Governor of a Colony was a far stronger case in his favour than the case of the Lord Lieutenant. They had this Statute forbidding the taking of any office under or for the Crown. Those were the very words of the Statute—yet there was fresh legislation. Why was it wanted? Could they need anything stronger to support the position he now held? If this were a mere question of convenience, he would at once admit that it was, in the highest degree, inconvenient to have a Gentleman entitled to take a seat in that House, who was bound by his duties to be 10,000 miles away. But he would say—"Do not strain this Statute; do not use it as a leaping-pole to jump out of your difficulty." He would go further than his hon. Friend the Member for Rochester, and say at once that he did not see why they should not bring in a general Bill stating who were and who were not qualified to have seats in that House, and what was to be considered a place of profit under the Crown. There never was a case about which he had felt more doubt and difficulty; and he felt it would be an excellent thing if they could have an Act defining who were and who were not subject to these disqualifications.
To leave out from the word "That" to the end of the Question, in order to add the words" considering it is undesirable to decide by Resolution a doubtful question of grave importance involving the status of Members of this House, it is expedient that a Bill should be brought in to settle the Law relating to the disqualifications caused by accepting Colonial offices,"—(Sir Julian Goldsmid,)
§ Question proposed, "That the words proposed to be left out stand part of the Question."1129
§ SIR HENRY JAMES
observed, that the objection taken to the Report by his hon. Friend the Member for Rochester (Sir Julian Goldsmid), although not expressed in the form of the Motion, had been supported by others, and it was said that it was objectionable in form, because it did not state reasons, while it was objectionable also in substance. In reference to the first objection, he (Sir Henry James) conceived that his hon. Friend had scarcely looked at the precedents in the matter, for it would have been contrary to all the precedents if the reasons had been stated. He would remind him and the House that Reports of Election Committees, which were the most nearly analogous instances of which he was aware, never stated any reason for their decision, but simply recorded the validity or invalidity of the Return, as the case might be. Then they came to the Report. The only similar case to that was one which occurred in 1868, when a Committee was appointed to consider whether his hon. Friend the present Member for Maidstone (Sir Sydney Waterlow) could hold his seat for Dumbartonshire at the time that he had a contract with the Government; and the Report was similar to that now before the House, for the Committee reported that Sir Sydney Waterlow was disqualified under the Statute of George, from sitting and voting in that House. They gave no reasons whatever for this opinion; but simply said such was the fact. But a far more important matter was the substance of this Report; and, of course, the House now had to deal with one question only. He thought the House would not deem it necessary to go into the policy of the original Act, or the policy of its application to the new state of things existing in consequence of this young Colonial life. If this Act existed on the Statute Book, controlling more Colonial institutions as well as more Imperial institutions, they must, of course, carry it into effect; and they could not enter at all into the policy of its application, unless, indeed, the House wished to hold its hand until the Statute was repealed. He also saw a great distinction between this case of the Attorney General for Victoria and many others that had been referred to. The House ought not, he thought, in expressing its views in relation to this office, to be supposed to be expressing 1130 them as to any other cases than those referred to. He saw a very great distinction, indeed, existing; and, in his opinion, that distinction was a substantial one, and would be carried into practical effect. Therefore, they had to deal with a very simple point indeed. His hon. Friends had not been quite correct, though it was not material. They said that this case arose under the Statute of Anne. It did not arise out of the Statute of Anne at all, but under the Irish Act, passed by the Irish Parliament in the 33rd year of George III.; and after the Union it became necessary to apply the same disqualification to those persons who should become Members of the Imperial Parliament of the United Kingdom. Then, by the 2nd section of 41 Geo. III., all disqualifications that had existed in relation to the Irish Parliament ought to apply to Members returned for Irish constituencies. Inasmuch, then, as Sir Bryan O'Loghlen was returned by an Irish constituency, all they had to consider was the effect of the disqualification of 33 Geo. III., in its application to the Imperial Parliament by 41 Geo. III. Substantially, however, his hon. Friends were right, because the words were clear, and the only difference in the Irish Act was that the word used was varied by saying "any office afterwards created." The Home Secretary, it appeared to him, had stated this question very distinctly. They had simply to determine whether the House would agree with the Committee that the office that was held by Sir Bryan O'Loghlen was a new office, to use the word of the statute, held under the Crown? It might be taken for granted that the office of Attorney General was a new office, and that it was an office of profit, and the only question for the House really to determine was then whether it was an office held under the Crown? They had, in fact, simply to consider the Act, and apply it to the state of things now existing. It was said that such an office could not be contemplated by the Legislature at the time the Statute was passed. He did not suppose, of course, that Irish Members and the Irish Parliament contemplated that there should be an Attorney General of Victoria at the time; but they did contemplate that new offices would come into existence. Although, then, this particular 1131 office could not possibly have been in the minds of the Legislature, the fact that new offices of all kinds and descriptions would come into existence was contemplated, and that this Act should apply. They could only construe the intention of the Legislature by the words of the Act, and the words were clear. They applied to "new offices under the Crown," constituting a disqualification without proper re-election. Then, the simple question they had to decide was one of fact—was this an office held under the Crown? How, then, was this officer appointed? His hon. and learned Friend the Member for Denbighshire (Mr. Osborne Morgan) had said that the Attorney General was appointed by the Prime Minister of Victoria. [Mr. OSBORNE MORGAN begged pardon—the Governor.] His hon. and learned Friend said the Prime Minister, although he might have made a slip. The appointment, practically, was by the Governor, and the House would see that he was acting in that instance for the Crown, in the name of the Crown, and as representing the Crown. The Governor held his office by virtue of a Patent, under the Sign Manual, which conferred certain powers upon him. By virtue of those powers he acted in this appointment. Now, what were those powers? In the first place, he quite agreed that there was very little interference between the Home Government and the Governor of the Colony. His appointment was granted to him by Patent, and it contained his instructions. Under Clause 5, he was authorized to appoint—In our name and on our behalf such Judges, Commissioners, Justices of the Peace, and other necessary Officers and Ministers of our said Colony as may be lawfully constituted and appointed by us.By section 7, the same power was given to the Governor to suspend or remove from office any such officers. So far, the appointments were made by virtue of this delegation of authority directed to him. What, then, was there in the Constitution of the Colony that prevented this office from being an appointment under the Crown? Nothing. The Constitutional Acts of Victoria entirely confirmed the view that this was an appointment under or from the Crown. No doubt, when that Act came over for approval from this Parliament, the intention was to give 1132 quasi-Parliamentary institutions to the Colony of Victoria. Certain power was vested, partly in the Legislature, partly in the Assembly, and partly in the Governor, with the advice of his Executive Council. But the Crown did reserve certain particular rights to itself—that was to say, it preserved certain rights to the Governor apart from his other functions. The 37th section of the Victoria Government Constitution Act said—The appointment to public offices under the Government of Victoria, hereafter to become vacant or to be created, whether such offices be salaried or not, shall be vested in the Governor with the advice of the Executive Council, with the exception of the appointments of the officers liable to retire from office on political grounds, which appointments shall be vested in the Governor alone.Thus these appointments were vested in the Governor alone—that was to say, in the Crown alone—without any power to the Executive Council even to interfere even to the extent of giving advice. The 48th section of the Act also seemed to him to be very important. It said—It shall be lawful for the Governor to abolish any of the offices named in the third and fourth parts of the said Schedule, or to apply the sums thereby appropriated to such other purposes connected with the administration of the Government of Victoria, as to Her Majesty, Her Heirs and Successors, shall seem fit.Yet, in face of these enactments, it was maintained that because Constitutional powers had been given to the Colony, that the Crown had not retained either the power to appoint or dismiss persons, or to abolish the office. But the most cogent argument of all was that a sort of Consolidated Fund was voted to the Crown, and out of it were paid the salaries of these very officers. The money, in fact, first went into the hands of the Crown, and then through it was paid to these officers. With regard to the arguments used, if he understood aright, his hon. Friend the Member for Rochester (Sir Julian Goldsmid) did not dispute that this was an appointment under the Crown in Victoria. He (Sir Henry James) really could not understand this distinction. If it was not the Crown there, it was not the Crown everywhere. The Crown was not divisible, and a distinction could not be drawn between an appointment in Victoria, and an appointment in any other part of the Kingdom. It was 1133 either under the Crown or it was not; and if it was under the Crown it was under it for all purposes whatever. His hon. Friend must forgive him for saying that the fact that Sir Bryan O'Loghlen had been compelled to resign his seat on accepting office in Victoria was an argument in his favour. He could not for one moment follow the argument. Why did he vacate his seat? Simply because, in the words of the Act, he had accepted an office of profit under the Crown; and, whether he accepted it in Victoria or elsewhere, it was equally an office under the Crown. If it was not, as his hon. and learned Friend (Mr. Osborne Morgan) contended, then there was no office of profit within the Colony. He wished to speak with the greatest possible respect of the opinion conveyed to the Committee by the learned authority who had been mentioned (Sir Erskine May); but, in his opinion, the learned gentleman had clearly established that the Committee was right, for his answers to questions made the matter quite clear. He was first asked by a Member of the Committee—"Is it accurate to say that an office of the Crown, within the meaning of the Act of Geo. III. to which we have referred, may be an office held outside the United Kingdom?" The answer to that Question was—"Clearly." He was then asked—"Would you say that the office of Attorney General of Victoria would be such an office?" The answer in that case was—"Certainly." Surely it was the most simple proposition that could be submitted to the House, that these answers proved his contention. He would not enter into the question whether there was any distinction to be drawn between the words "from the Crown" and "under the Crown." He inclined to the opinion that there was no distinction, that the point they were discussing now was a different one. It was, he thought, merely a distinction between an appointment made directly and one made indirectly; because, at the distance at which our Colonies were situated, the Crown could not make appointments directly, and was bound to delegate its authority. But the person who exercised this delegated authority completely represented the Crown, as much as any one of its Constitutional Representatives in this Kingdom. It had been argued that it was impossible to suppose that the 1134 Home Government could, or would, interfere with the Governor of Victoria. It was very probable that the Home Government would be slow to interfere with him; but they were asked what would happen if it did? He should think that very likely a crisis would happen, just as there would be a crisis in this country, if the Crown were to dismiss responsible Ministers when they were supported by a great Parliamentary majority. The Crown, in so acting, would not be beyond its rights, and had the power to do it. Whether it was ever likely to occur or not, it was true in the same way that a crisis might arise from the Home Government dealing in the manner suggested with the Colonial Government. He did not for a moment think that the Colonial Government was free from the control of the Crown; and he believed that the persons who would most object to such a view would be the Colonists themselves. To tell them that there was one rule in England and another in Victoria, and that the Queen of England was not the Queen of Victoria in identically the same sense, would scarcely be a pleasant doctrine to the Colonists. Yet, unless the House accepted that doctrine, the Report could not be dealt with as other than correct.
§ SIR GEORGE BOWYER
said, that after hearing the arguments on both sides, and having previously considered the question as presented to the Committee, he had come to the conclusion that the decision arrived at was perfectly correct. The only fault he had to find with the Committee was, that they had gone into a great deal of evidence more or less immaterial, and had overlaid their Report with matter only calculated to create doubts and occasion discussion. It was clear that an officer appointed by a Governor of the Colony of Victoria, who received his commission from the Crown, was just as much under the power of the Crown as if he had been appointed here. Therefore, he maintained that the Office of Attorney General for the Colony of Victoria was clearly within the purview of the two Statutes—the object of which was to prevent there being an undue number of official persons in the House of Commons removable at the pleasure of the Crown. The Office of Attorney General of Victoria was clearly a new Office. Again, nobody could deny that it was a place of 1135 profit. But was it a place of profit under the Crown? There could be no doubt that it was. The Crown appointed the Governors of Colonies, but they exercised no right of their own. They represented the Crown, and exercised the Prerogative of the Crown. If the Governor of a Colony appointed any officer, he did so by the Prerogative of the Crown delegated to him. No lawyer could deny that the Crown could revoke the appointment of a Prime Minister, or any other Minister, in a Colony appointed by the Governor, and that it would be a perfectly legal exercise of its Prerogative. It, therefore, followed that the Attorney General of Victoria was appointed under the authority delegated, to the Governor by the Crown. Everyone knew that the Crown was not only the fountain of honour, but of office. The Governor of a Colony was in the position of Viceroy; and when he, under the power given to him, appointed any person to an office, it was clearly an appointment under the Crown. There was no question whatever that although the Attorney General was appointed by the Governor of the Colony, and appointed during pleasure, that the Crown could at any moment revoke his appointment and remove him from office. From all this, it was perfectly clear to him (Sir George Bowyer) that the office of Attorney General of Victoria was an office under the Crown. With regard to the question, as to whether the 41 Geo. III. was passed to supply an omission in the previous Act?—the Statute was merely declaratory, and intended to remedy a defect in the previous Act, and was rendered necessary in consequence of the Act of Union. He should most certainly support the decision of the Committee.
§ MR. DODSON
hoped that the House would not too hastily allow itself to be carried away by the apparently unanimous decision which had been arrived at by the Committee on this subject. After having given his best attention to the matter, he was obliged to say that it was one upon which very grave doubt existed. The Report in one respect was a very remarkable one; for the Committee which reported so unanimously had, as far as he could understand, done so in the teeth of the evidence which had been presented to it. It reported against the evidence of Sir Erskine May. 1136 According to the evidence of Mr. Berry, the Prime Minister of the Colony, to all intents and purposes the appointment, though styled in the Colonial Act an appointment "under the Crown," was one corresponding with the appointments "from the Crown," the acceptance of which required re-election to Parliament. It was not therefore, according to that, one of those new offices under the Statute of Anne which were held to disqualify persons who accepted them. Then, again, the Report of the Committee was inconsistent with the summary of the right hon. and learned Gentleman the Attorney General for Ireland (Mr. Gibson). The right hon. and learned Gentleman had drawn up an excellent historical document, which was appended to the Report; but, in that document, did he come to the conclusion adopted by the Committee? Nothing of the sort. He (Mr. Dodson) could well understand that when he came to 41 Geo. III, c. 52, and quoted the section which said thatAfter the dissolution of the present Parliament persons appointed by the Lord Lieutenant to new offices should be disqualified,he stopped, and shrank from drawing the conclusion that the law and practice as to appointments by the Lord Lieutenant in Ireland before the Union was no argument against declaring an appointment by the Governor of a Colony having its own Parliament like Victoria to be a disqualifying Office under the Crown, because the clause was not declaratory of what had been, but enactive of what should be. This was confirmed by Hatsell, who, writing at the period, says of the Act 41 Geo. III.—Besides which persons holding new places under the Lord Lieutenant are in future to be disabled.It appeared, then, plain that appointments by the Lord Lieutenant, or, to say the least, some of these appointments, did not disqualify within the Statute of Anne, or the corresponding Irish Statutes; and these appointments presented the nearest analogy to those by the Governor of a Parliamentary Colony. He would further affirm that such must have been the opinion of the right hon. and learned Gentleman at the time he prepared his summary, and it was certainly a fair interpretation to be placed upon that summary. The right hon. and learned Gentleman en- 1137 deavoured, in the last paragraph of the summary, to explain away the obvious effect and conclusion to be drawn from the Statute of 41 Geo. III., for he there said that—It is possible that this section may have teen inserted by way of additional precaution, and not because there was any reasonable doubt as to the interpretation of the words 'place of profit under the Crown,'and so forth. Before passing from the action of the Committee, he wished to call the attention of the House to the fact that although it was composed of 13 Gentlemen, appointed to consider a very grave and doubtful question, involving not only the personal interest of an hon. Gentleman, but a large Constitutional principle affecting the House of Commons, remarkably few of the Members of that Committee appeared to have attended it regularly. The only Members whoso attendance was regular were the right hon. Gentleman the Home Secretary, as Chairman, the right hon. Member for Cambridge University (Mr. Spencer Walpole), the right hon. and learned Gentleman the Attorney General for Ireland, and, he believed, the right hon. Gentleman the Chief Secretary for Ireland. Again, on the day the Report was settled the attendance was also very thin, seven Members only being present, four of whom were Members of the Government, and three were Gentlemen who had never once sat on the Committee. Amongst the latter was the hon. and learned Member for Oxford (Sir William Harcourt), who would, no doubt, get up presently, and, untramelled and unprejudiced by having heard the evidence, would say that the conclusion was so plain that no man of common sense could dispute it. Another Member who joined in that unanimous conclusion was the hon. and learned Attorney General for England, who was untramelled and unprejudiced, because he also had not heard the evidence. It would appear that the Committee had been carried away by two expressions—one, the word "under," and the other, "Civil List." The expression "Office under the Crown" in the Statute of Anne, in the Irish Statute of George III., and in the 41 Geo. III. of the Union Parliament, had never, he ventured to say, been taken in that broad, general, and universal sense which the Report of the Committee attached to it. By the inter- 1138 pretation put upon the words "Office of profit under the Crown" that evening, one might say that a man driving a Hansom's call was holding an Office under the Crown, because he hold a licence, and was earning a living under the Crown. With regard to the distinction between holding an Office "under" the Crown and accepting an Office "from" the Crown, learned authorities had contended that the only Offices spoken of in the Statutes were Offices held immediately "under" the Crown, which was the same thing as accepting them "from" the Crown, and that the only distinction taken was between old Offices and new. In support of this view it was gravely contended that the section of the Act of Anne which contained the words enacting that persons accepting office from the Crown should vacate their seats, but be re-eligible, contained the general rule; and that the previous section, providing that persons holding new Offices under the Crown should vacate and not be re-eligible, was, as it were, a limitation of the other section. According to this view, the intention of both sections was to deal with Offices immediately under the Crown; and it was only by accident that the word "from" was used in one section and the word "under" in the other, because the verb "to accept" had been employed in the one and "to hold" in the other. He (Mr. Dodson) admitted, however, that the term "under the Crown" had always been interpreted in a wider sense, and applied to a greater number of Offices than those held directly under or accepted from the Crown. But he contended that the term "Offices held under the Crown" had never been interpreted in the universal sense applied to it that evening. What was the object with which the Statutes were passed? It was to prevent the influence of Ministers of the Crown being used in the House of Commons, and was intended to exclude placemen from seats in the House. The Offices under the Crown to which the Statutes applied had always been held to be substantial Offices under the influence of the Crown, and, therefore, within the mischief of the Statutes. He would not detain the House by quoting from Hatsell and elsewhere the various cases bearing upon the point; but any hon. Gentleman who took the trouble to go through them 1139 would find that they were full of anomalies, and that cases had been decided in different ways, where it was extremely difficult to distinguish between one and the other. Two striking cases were those of Mr. Hales and Mr. Corbet, who did not hold the Offices to which they were appointed directly from the Crown, but from persons who held immediately under the Crown; and yet in both those cases, though they had salaries from the Crown, it was held that they were not disqualified, nor did they vacate their seats. Against these there was the case of Daniel Whittle Harvey, in which, after an inquiry by a Committee, it was held that he had accepted an office of profit under the Crown, and in consequence of this he was obliged to vacate his seat, and was disqualified. Now, these were cases which it was exceedingly difficult to distinguish. He would only say that they showed that the words "holding an office of profit under the Crown" had never been interpreted in a general and literal sense. They had always been construed with a discriminating reference to the nature and tenure of the office in question, and to the consideration of how far it came within the intent of the Act. That Act, it was observed in a note in Hatsell, was a Statute of Incapacity, and therefore to be strictly limited in its application. He wanted to ask the House seriously to ponder whether they ought, by an off-hand Resolution, to exclude Colonial officers from the House of Commons, and by so doing to deprive the House, as they might incidentally do, of the advantage of having persons connected with the Colonies sitting in the Imperial Parliament, in addition to limiting the choice of the constituencies? It was all very well to say that the Resolution before the House only applied to an individual office, or to one particular man; but, if the Resolution was passed, it would make a precedent that would apply to future cases, and to an extent which could not possibly be foreseen. He would grant, for the sake of argument, that this Office, notwithstanding all the incidents attaching to it, was not, in the proper sense of the words of the Acts of Parliament upon the subject, an Office accepted from the Crown; he would, in the same way, grant that the office was a new one, although even that might be plausibly questioned, because there were Colonial Attorneys General 1140 before the Act of Anne was passed; he would grant that, notwithstanding the appointment was made in a Constitutional Colony, it was, in a certain general sense, an office of profit under the Crown; still, the question came, was it such an office under the Crown as would justify the House in passing the Resolution which had been proposed? Was the office within the mischief of the Statute of Anne, or included in the matters with which that Act was framed to deal? Let the House consider the question for a moment. If the Attorney General for Victoria were to take upon himself to sit in the House of Commons, he must first vacate his office; he would do so by non-residence, and then cadit quæstio; but if he was to sit in the Imperial Parliament, being still Attorney General for Victoria, the inevitable assumption was that the Colony was prepared to pay him for his services, and then to forfeit those services, and give to the Attorney General leave to absent himself from the Colony in order that he might spend six months of each year in Westminster. This was, however, such a concatenation of improbabilities, that it need not be taken into account. But supposing the Attorney General for Victoria were to come to Westminster, and to sit and vote in Parliament, the question arose whether he would be a place-man in the House of Commons in the sense of the Statute of Anne, which was passed in order to prevent Gentlemen sitting in that House who were under the influence of the Crown or of the Ministers of the day. How could a Gentleman appointed to an office by the Government of Victoria, who was in no way dependent upon the Colonial Secretary here, be a place-man in this House within the spirit of the Statute of Anne? There was only one other point to which he wished to refer. The Committee, and those hon. Members who had spoken in support of their Report, seemed to be carried away by the words "Civil List;" and to think that because the salary of the Attorney General came out of what was called the Civil List in Victoria, therefore he was receiving a salary at the personal pleasure of the Crown, or depending upon the pleasure of some Minister sitting in the English Parliament. As a matter of fact, however, the term Civil List, as 1141 we understood it here, was not applicable to the Fund out of which this payment was made. A payment out of the Civil List in Victoria corresponded with a salary which in this country was charged upon the Consolidated Fund, instead of being annually voted by the House; and the object of giving persons salaries charged upon the Consolidated Fund was not to make them more dependent upon Ministers sitting in the House of Commons, but to make them more independent. The salary of the Attorney General for Victoria was on the same footing, therefore, as the salaries paid to Judges in this country, and his appointment depended upon no one here, but was made by the Governor of the Colony, in obedience to the Constitution and the state of political Parties in the Colony. His salary came out of a certain Fund provided for the payment of particular officers, and the proportion of that Fund which be received was regulated by the Colonial Ministers; while the total amount of the fund could at any time be altered by the vote of a majority of two-thirds of the Colonial Legislature. Of course, it might be argued that the Governor of Victoria having been appointed to his Office by a Minister in this country, the Minister in question might say—"If you do not, regardless of what may be the circumstances of Parliamentary Government in the Colony, appoint Mr. So-and-So to the post of Attorney General, I will make your place so unpleasant that you will be obliged to give it up;" but that would be extending the influence of Ministers to such a strange, remote, and inconceivable extent, that it was not worth taking into consideration. He would simply say that, although this was an Office under the Crown, it was not such an Office in the Parliamentary and statutory sense of the words; and that, so far as the payment of this officer was concerned, it did not make him a placeman in Parliament under the influence of the Crown or of the Ministry of the day. He, therefore, held that the Statutes did not, in their spirit, apply to this Office; and that, as the question was one, at all events, of doubt, and important alike to the Colonies, to constituencies in the United Kingdom, and to Parliament itself—regarding the matter in a broad Constitutional point of view—it ought not to be decided on an off-hand Resolution; but that the House should pause and, pro- 1142 ceeding on the lines of the Amendment which had been moved by the hon. Member for Rochester (Sir Julian Goldsmid), deal not with a single case, but, consistently, with the whole matter, by an Act of Parliament.
§ SIR WILLIAM HARCOURT
I can assure the right hon. Gentleman the Member for Chester (Mr. Dodson) that I do not rise to reciprocate the compliment which he has been good enough to pay to me. I do not think language of that kind is ever advantageous in this House, especially when it is addressed by one Gentleman to another who sits on the same Bench; but I do feel bound to defend the Committee and all its Members from the extremely violent, unjustifiable, and unprecedented attack which has been made upon them. All I can say is that the good taste and reflection which the hon. Member for Rochester (Sir Julian Goldsmid) has exercised during the Vacation in altering the terms of his Amendment have not had any effect on the mind of the right hon. Gentleman the Member for Chester. What is the history of this Committee? The right hon. Gentleman has attacked those who were present at the sittings of the Committee; and, injustice to him. I must admit that he has chosen for his most severe attack those who were present. I have, however, a word to say for those Members of the Committee who were absent. One Member of the Committee, who has been spoken of as having condemned the Resolution in the Committee, was never there at all; and it is, therefore, not easy to understand the most singular course which has been taken by the right hon. Gentleman the Member for Chester. The Committee, I may say, took the greatest possible pains to investigate this matter. They considered it for many days; and I am told that I am disqualified from offering any observation upon the matter because I was not present when the evidence was given. The right hon. Gentleman the Member for Chester evidently does not feel that he is under any disqualification; though, as far as we are concerned, the circumstances are precisely similar. He has come to a conclusion after having read the evidence, and so have I. The Members of the Committee gave all the attention they could to the subject. They held many conferences after hearing the evidence, some 1143 of them lasting until very late at night; and eventually seven Gentlemen, all lawyers, came to as good a conclusion as they could upon the evidence given before them. If, after doing this, those Gentlemen are to be attacked, as they have been by the right hon. Gentleman the Member for Chester, it will not be easy to induce hon. Members of this House to serve on such Committees. If an ex-Chairman of Ways and Means, who thinks he has a traditional sort of right to castigate Committees of this House, uses this violent, uncalled-for, and, I was going to say, offensive language towards Committees, hon. Gentlemen, when inquired after by the "Whips" to serve, will say—"No, thank you, for there is the right hon. Gentleman the Member for Chester ready to come forward and hold us up to scorn, contempt, and ignominy." But I pass that by, because it is a proceeding I never hoard of before in the House of Commons, and I hope we shall never hear its like again; and I now come to the point of the case. I listened with some amusement to the attack on the Committee, and tried to gather from the right hon. Gentleman the Member for Chester whether he had any argument, and through the mist of his speech I was unable to detect anything like a reason, except that he said the appointment of the Attorney General for Victoria came within the mischief of the Statute of Anne. With that, however, we had nothing to do. Our duty simply was to consider the words of a Statute, and where a Statute is perfectly clear you have nothing to do with the mischief of it. The right hon. Gentleman admits that the office of Attorney General in Victoria is a place of profit under the Crown; but says that it is not such a place of profit as is contemplated by the Statute of Anne. We considered that; but as the Statute contains the words, "any place of profit whatsoever," it left no room for discussion as to whether this was or was not a place of profit which came within the mischief of the Act. The right hon. Gentleman says the decision of the Committee was an off-hand decision; but I would remind him that the Committee—which, as I have said, consisted of seven lawyers—took great pains to inquire into the case from every point of view. We observed, among other things, that the case of a 1144 Crown Colony was one which could not have been contemplated by the Statute of Anne, because no such Colony existed at the time. The Statute clearly covered every case in which a person held an office of profit under the Crown, no matter where such office was held, and left no room for for discussion as to whether any particular office under the Crown was or was not within the meaning of the Statute. That disposes of the evidence of a Gentleman whose opinion we look to with the highest respect in this House—I mean Sir Erskine May—but whose evidence was entirely directed to the point as to what might have been the view of the authors of the Statute of Anne in other circumstances. That, the Committee considered, did not come within their purview. We had only to look at whether this office came within the words of the Statute; and as the office is admittedly one of profit, there seemed to us no room for contention in any contrary sense. It has been said that the Committee have given no reasons for the Report they make, because they differed among themselves as to the grounds upon which they arrived at the same conclusion. This is an entirely unfounded statement. Whether any Members of the Committe had or had not secret reasons in their own breasts I know not. The ground upon which no reasons were given for our Report, and the nature of it, is the one which has been stated by the right hon. Gentleman opposite (Mr. Assheton Cross). It has also been said that the Report was contrary to the Memorandum of my right hon. and learned Friend opposite (Mr. Gibson); but I should imagine that no one was more surprised than he was to hear that statement. All we did was to draw up all the points in the evidence which bore upon the consideration of the question, and they were put into the Report in order that the House might have information as to what had taken place. There is only one phrase in the speech of my hon. Friend the Member for Rochester to which I would wish to take exception. He described the Crown as the nominal Sovereign of our Colonies; and I cannot help thinking that it would be unfortunate for such a phrase to go forth as representing the opinion of the House of Commons. The Crown is as really, and not nominally, Sovereign in the Colonies, as in any part of the Do- 1145 minions of the Queen; and, therefore, I feel sure that the phrase is one which my hon. Friend never intended to use.
§ SIR JULIAN GOLDSMID
said, he did not remember using the phrase in question; but if he did, it was solely in reference to the appointment of Ministers under the Colonial Government.
§ SIR WILLIAM HARCOURT
I am quite clear that my hon. Friend used the phrase; but I was as sure then, as I am now, that he did not use it in the sense which the bare words might imply. But if the Crown is in every sense the same Crown in the Colonies that it is here, that seems to me to settle the question. For instance, with reference to the Colonies, there are many questions which are excluded from the Colonial and still belong to the Imperial Legislature. Last year, or the year before that, questions of extradition and other questions were raised in connection with the Merchant Shipping Bill, which are still dealt with by the Imperial Legislature. The Colonial Legislature deals with all questions relating to the Colonies which are external to Imperial interests. How, then, does this bear upon the Attorney General of Victoria? He is the Representative of the Crown in the Colony in relation to Imperial affairs. Supposing a question of International Law arose in the Admiralty Court, then the Attorney General for the Colony would be the Representative of the Crown in its Imperial capacity, and not at all in its local capacity, as representing Victoria. There are still many questions remaining for settlement in the Colonies which belong to the Crown in its Imperial capacity; and with regard to all these the Attorney General is ex-officio Representative of the Crown—in fact, he is Attorney General for the Crown in respect of its Prerogative, which is the same in Victoria as in this country. I do not wish to detain the House longer on this subject, for I have nothing to add to what has been so briefly and clearly stated by the Home Secretary as the unanimous opinion of the Committee. If the question is doubtful, and the Report of the Committee so utterly and entirely wrong, as has been stated by the right hon. Gentleman the Member for Chester, all I can say is that the House made a very foolish selection in appointing the Committee. The House appointed seven 1146 Gentlemen, who are utterly incapable of coming to any conclusion other than that at which they arrived upon a point which seemed to me as simple as any point could be. I can only wish that the right hon. Gentleman had been a Member of the Committee, instead of me; and I can assure him that if he had been, I should not have spoken of him in language such as he has applied to some Members of the Committee, but should have treated him with such respect as he deserves, and would deserve, in a responsible position of the kind. The House is always in a position to endorse the Report of a Committee, or to refuse such endorsement. The duty of a Committee is simply to take evidence, and to give to the House the best opinions in its power upon such evidence. That is what was done by this Committee, and I do not think there was any difference of opinion among them.
§ MR. COURTNEY
said, he felt some difficulty in embarking upon a discussion of what was, at tin: outset, a Constitutional question, and had become one of a somewhat stormy and personal character. The hon. and learned Gentleman the Member for Oxford (Sir William Harcourt) claimed for himself the undoubted right, which was that of every Member of this House, to examine and comment upon the evidence given before the Committee in his absence; but he had not followed the proceedings of the Committee with perfectly strict accuracy. It was not correct to say of a noble Lord who was appointed on the Committee that he was not present at its sittings, because, as a matter of fact, he was present, and pint a series of Questions to Sir Erskine May. It was, he (Mr. Courtney) thought, somewhat singular that the Report should have been presented without any reason being given for the decision which had been arrived at. It was said, in explanation of this fact, that reasons were not given in former times for the decisions arrived at by Committees on Election Petitions; but there was this difference between such Committees and the present one—that, in those cases, the whole matter in dispute was fought out by interested parties, and the Committee had to decide upon a mass of facts and arguments based, upon them; and, in the present case, the Committee had only one side before them. In the perfectly 1147 exceptional circumstances of the present case, he thought it would have been well to accompany the Report by a statement of reasons, and such, a course would not have been without precedent. The Select Committee were aware of a precedent, for they had printed one in the Appendix to their Report. That was a Petition against the seat of Mr. Lushington for Canterbury, he having been appointed Governor of Madras; and the Committee appointed to consider the case gave an elaborate exposition of the reasons for the conclusion at which they arrived. He could only suppose that there was some special ground for not setting forth the reasons in this instance; and he suspected that the grounds with them, as occasionally with learned Judges who had settled nice points of law, was that, though they agreed as to the main issue, they could not state in detailed form the reason of such agreement. The question turned, in his mind, upon the mode of Sir Bryan O'Loghlen's appointment, and the source from which he derived his income. It was said that the Attorney General was appointed under a commission made out to the Governor of the Colony by the Crown, empowering himTo constitute and appoint such Judges, Commissioners, Justices of the Peace, and other necessary Officers and Ministers of our said Colony as may be lawfully constituted and appointed by us.It was not surprising that the hon. and learned Gentleman the Member for Taunton (Sir Henry James) should have referred to this clause, as it had been put forward by Mr. Berry, the Prime Minister of Victoria, in his evidence given before the Committee. Whether the appointment was under Clause 5 had always seemed to him (Mr. Courtney) extremely doubtful, because the Attorney General would not be a person, ejusdem generis, with those specially mentioned; and therefore the power to appoint officers given by that clause would not apply to the appointment of the Attorney General, who was not, in the words of the commission, constituted or appointed "a Judge, Commissioner, or Justice of the Peace." In the further evidence given before the Committee, he found that the commission given to the Governor of Barbadoes was worded in almost precisely the same way. It ran thus— 1148We do hereby authorize and empower you to constitute and appoint Judges (and in cases requisite) Commissioners of Oyer and Terminer, Justices of the Peace, and other necessary Officers and Ministers.But it followed, almost immediately in the evidence, that Henry Beccles was appointed Attorney General of Barbadoes under the Great Seal of England, and not through the operation of that clause. It was thus more than a matter of inference; for the Barbadoes case showed that the office of Attorney General was not included in the clause. That was not all; for if further reference had been made to the commission of Sir George Bowen, it would have been found that Sir Bryan O'Loghlen was not appointed under that clause at all, but under the 4th clause of the commission, to the wording of which he would ask the attention of the House. It was as follows:—And we do hereby declare our pleasure to be that there shall be an Executive Council for our said Colony, and that the said Council shall consist of such persons who are now or may at any time be declared by any law enacted by the Legislature of our said Colony to be Members of our said Council, and of such other persons as you shall from time to time in our name and on our behalf, but subject to any law as aforesaid, appoint under the said Seal to be Members of our said Council.And if hon. Members would look at the Constitution Act of Victoria they would find that the Attorney General was one of the specified Members of that Council to be appointed under Clause 4, subject to the law and in pursuance of the law, and that was the point on which it appeared to him the whole argument turned. The appointment of the Attorney General was not made through the delegation of any inherent power of the Crown, but in the execution of a statutory duty thrown upon the Governor. The Constitution of Victoria was intended to be the same as our own; but it differed in this respect—that it had been put into words, and all powers were expressed and defined. The Attorney General was appointed under the authority of the Crown by the powers given to the Governor by the Constitution Act of Victoria. The Governor was, therefore, a mere donee of power, not the originator of a power. He had the power to nominate only the persons who should exercise authority and discharge the functions created by the Colony of 1149 Victoria. The Attorney General was an officer of the Government under the Constitution Act of Victoria, a totally different person from an officer under the Crown as contemplated by the Act of Anne. By the 37th clause of the Act of Parliament, which contained the Victoria Act as a schedule, it was provided that the power of appointment to offices which became vacant was vested in the Governor alone; and, by the 18th clause, the Attorney General was named as one of the Members of the Council. The appointment of Attorney General was, therefore, made by the Governor acting under the power of the Constitution Act of Victoria; the Governor was the appointer, and was nominated by the Government at home as a mere donee. With regard to the salary, it was said that the Attorney General received his payment from the Crown, and, therefore, came directly within the meaning and scope of the Act of Anne. But, so far from receiving his salary in the way suggested, it was, in fact, fixed by the same Constitution Act, and did not come from the Crown at all. There were certain sums, which were formerly Crown revenue, in Victoria, reserved by the Act for the Civil List, and immediately rededicated to certain uses. The Crown had no power over the sums so dedicated, which were handed over for the stipends of these officers of the Colony. Although there was power to suppress offices, it was not carried out except with the consent of the Crown. The real analogy to the case was this, and he submitted it to the House as the true view to be taken, and one which would be supported by reference to the clause of the Victoria Constitution Act. Among the funds dedicated to special uses in the clauses referred to, was a sum of £50,000 for Church purposes. Supposing there was in Victoria an Ecclesiastical Establishment, and that power was given under the Constitution Act to the Governor to appoint Bishops from time to time; would it be contended that a Bishop so appointed was an officer under the Crown? Would it be contended that any member of the Ecclesiastical Establishment receiving sums of money so dedicated by the Victoria Constitution Act became thereby an officer of the Crown? It appeared to him altogether a false use of the word. The Constitution of Victoria was written and defined; 1150 the powers exercised under it were strictly limited and confined to Ministerial functions; and, therefore, the contention fell to the ground as a mere matter of construction of the words of the Act of Anne. The right hon. and learned Attorney General for Ireland (Mi. Gibson) had added a long Memorandum to the Report of the Committee, leading to the conclusion, as the right hon. Gentleman the Member for Chester (Mr. Dodson) had said, that this appointment was not within the Statute of Anne. The right hon. and learned Gentleman seemed to have expressed some surprise at that conclusion; but he (Mr. Courtney) would point out to him that the sense of the Memorandum came to this—that if the 5th section of the Statute of 41 Geo. III. was not a declaratory but an enacting section, then that section would prove that an officer receiving an appointment under the Lord Lieutenant of Ireland was not an officer under the Crown, and that precedent would be fatal to the contention that an officer receiving en appointment under the Governor of Victoria was an officer of the Crown. If this was not a declaratory but an enacting Statute, then the argument and conclusion, that this appointment was not under the Act of Anne, fell to the ground. But how stood the matter? It was enacted, in the operative part of the Statute, that it should not come into force until after the dissolution of the existing Parliament? To declare the law existing at that moment, and then postpone its operation, was a contradiction. The view, therefore, that the Statute was declaratory could not be sustained; audit followed that Parliament then hold that an appointment by the Lord Lieutenant was not under the Statute of Anne. There were several other considerations which had not been considered by the Committee, amongst them this point—if it was true that bidding an office in Victoria, or any other Colony having a written and defined Constitution, were the same as holding an office under the Crown in the Statute of Anne, so that a person was thereby disqualified from sitting in the House of Commons, then did not this analogous argument appear to be of some weight—that a person who entered into a contract with a Colonial Government fell within the mischief, and even within the words of the Statute which disqualified persons 1151 sitting in that House who entered into contracts with the Government here? If the Crown was one and the same—and it could not be conceived that the Crown in Victoria was a different thing in its attributes from the Crown in the United Kingdom—then a contract with the Crown in Victoria would carry with it the same penal consequences as a contract with the Crown in the United Kingdom, and many hon. Members who had entered into contracts with the Crown in the Colonies would be disqualified. For the various reasons which he had given, he thought it was very undesirable that the House should decide the point under consideration upon a mere Resolution. The subject had not been sufficiently threshed out. With all respect for the Committee, they had refused in any way to consider the spirit of the Statute, and had gone on the bare words which did not warrant the conclusions at which they had arrived. The House, therefore, in his opinion, would do well to accept the Amendment of the hon. Member for Rochester (Sir Julian Goldsmid); and, instead of pronouncing an opinion, resolve to have the question considered carefully and deliberately in the form of a legislative enactment.
§ THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON)
said, that he had listened carefully to the debate, but had failed to hear a single topic or argument suggested that had not been fully discussed before the Committee. He thought it was to be regretted that the right hon. Gentleman the Member for Chester (Mr. Dodson) had suggested some topics which implied that the Committee had been disturbed in their deliberation. Speaking for himself, he was satisfied that every Member of the Committee felt that they were discharging high judicial functions, and that they were anxious to consider the matter from every possible point of view. Every argument pro and con had, he believed, been urged; and, although no counsel were present, the Committee had done their best to supply that defect, and had unanimously arrived at the conclusion contained in the Resolution submitted to the House. He was satisfied that the House would not deem itself bound by the Resolution; but would dispassionately consider the question involved. The case was very simple and 1152 very clear, and it was extremely hard to introduce any doubt into the question. He apprehended that his right hon. Friend the Home Secretary, in the short observations which he addressed; to the House, had presented the question from the true point of view. It had been confused by hon. Members having other appointments in their minds. All they had to consider was this—Is the office of Attorney General an office of profit under the Crown? Then, if it was, did it, within the meaning of the Statutes, vacate the seat? Those questions were so simple, that it was very hard to obscure them. He was not going to show what were places of profit under the Crown; but he could not help thinking that the hon. Member for Liskeard (Mr. Courtney) had made a slight mistake in attempting to suggest to the House that he was a better judge than the Prime Minister of Victoria (Mr. Graham Berry) of the section of the Instructions to the Governor of Victoria under the Royal Sign Manual under which the appointment of Attorney General was made. He was entirely unable to follow the argument of the hon. Member with regard to the respective sections relied upon by the Government and himself; because the 4th section, on which the hon. Member relied as being that under which the appointment was made, was as follows:—We do hereby declare our pleasure to be that there shall he an Executive Council for our said Colony, and that the said Council shall consist of such persons as are now, or may at any time be, declared by any law enacted by the Legislature of our said Colony to be Members of our said Council, and of such other persons as you shall from time to time, in our name and on our behalf, but subject to any law as aforesaid, appoint under the said Seal to be Members of our said Council.It would, he thought, require a very clever man to see that that simple form, dealing with the Executive Council, could refer to the appointment of the Attorney General. It was far more probable that the Prime Minister (Mr. Berry) was correct, when he said that the appointment was made under the 5th clause—And we do further authorize and empower you to constitute and appoint, in our name and on our behalf, all such Judges, Commissioners, Justices of the Peace, and other necessary Officers and Ministers of our said Colony as may be lawfully constituted and appointed by us.1153 It seemed that the Prime Minister of the Colony was more likely to select the right clause; but the matter was not one of very great importance. "But it was of importance that the Attorney General of Victoria was "the Attorney General of Her Majesty the Queen in the Colony of Victoria," for that was the full title of his Office. There might be a question with regard to other offices; but it was absolutely impossible that any person called the Attorney General of Victoria could be other than the Attorney General of Her Majesty the Queen. It must also be borne in mind that this official had to swear the following oath:—I do sincerely promise and swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, as lawful Sovereign of the United Kingdom of Great Britain and Ireland and of this Colony of Victoria: So help me God.So that there was here a clear indication that he was holding an appointment directly from the Crown. Attention must also be paid to the way in which his salary was paid. What was the meaning of the Colonial Act of Parliament granting the Queen a certain sum of money and then providing that certain officers should be paid there out? Was it not to bring those officers into privity with the Crown of England immediately they received their appointments and salaries? It would be necessary for the opponents of the Resolution to read the words "under the Crown" in a non-natural sense in order to make out their case. The Victoria Constitution Act, which was the foundation of the existing Constitution, was set out, every word of it, and adopted in the Act of the Imperial Parliament in the 18 & 19 Vict. c. 55. The 17th section of that Act was as follows:—If any Member of the Legislative Council or the Legislative Assembly shall accept any office of profit under the Crown during pleasure, his seat shall thereupon become vacant; but such person shall, if otherwise duly qualified, be capable of being re-elected.He was aware that that section was subsequently superseded by another Colonial Act passed to limit the number of persons holding Offices under the Crown who might sit and vote in the Legislative Council and Assembly of Victoria; but the substituted enactment dealt similarly with the case, and sup- 1154 ported the view taken by the Resolution. Was it not a strange thing for the House to be asked to say to the Governors of Colonies—"You may call your officers as much as you like under the Crown, but that is all wrong; they only hold under the Crown in a Colonial and non-natural sense?" That was a point of great importance for the House to consider. There was no case precisely in point to show that this Office was under the Crown. No hon. Member who had spoken lately had suggested that it was not a place of profit under the Crown, most of them having said that it was, but in a sense different to that contemplated by the Acts of Parliament. But there was no difference of opinion as to its being an Office under the Crown. He (Mr. Gibson) apprehended that if the Statutes which were passed in consequence of the Union with Ireland were considered, it would become abundantly plain that they could not be relied upon in support of the Amendment of the hon. Member for Rochester. If they referred to the course of legislation in Ireland before the Union, they would find no Statute bearing upon the question until 33 Geo. III., which was practically identical with the Act of Anne. That Statute omitted altogether any reference to the Lord Lieutenant. But an Act passed in the year 1797 afforded indirect proof of considerable force that it was always assumed that an appointment made to new offices by the Lord Lieutenant after 1793 was considered to be an appointment under the Crown within the mischief of the Statute. For the Act he referred to, 37 Geo. III., in re-constituting and, in fact, creating a new office, of which the appointment was vested in the Lord Lieutenant, declared that the new officer should be capable of sitting in the Irish House of Commons. That implied that, but for the Act just referred to, he would have come under the Act of 1793. He admitted at once that the Statute of 1798, which had been referred to, was a necessary one, because it was passed to deal with the old Offices which vacated seats and necessitated re-election. It was more than a question whether the person accepting an old Office from the Lord Lieutenant could be held practically to accept an Office from the Crown; and, accordingly, to cover that doubt, the Statute was passed. At the 1155 time of the Union the course of legislation on the subject in Ireland was absolutely clear. There was no Statute dealing expressly or specially with new appointments made by the Lord Lieutenant, because it was assumed that such appointments were appointments under the Crown. The Act passed in the 41st George III., so much referred to in the course of the evening, and to which he (Mr. Gibson) had referred in the Memorandum appended to the Report before the Committee, was fully considered. Its history was worthy of note. After the Union a Select Committee of the Parliament of the United Kingdom was appointed to consider the question of Irish placemen. The Act of Union provided that no more than 20 Irish placemen should at any time sit in the House of Commons, and the Committee was appointed to deal with the question for the future. They reported to the House a series of Resolutions, which were ordered to be embodied in the Bill. One of these Resolutions was made the foundation of the 5th section, cap. 52, of the Act to which reference had been made, and had the Resolution been followed in its integrity, that section would have read as follows:—After the Dissolution of the existing Parliament no person holding any office or place of profit immediately or directly from the Crown, or any appointment subject to the approbation of the Lord Lieutenant, &c.Now, the words "immediately or directly from the Crown" spoke for themselves, while the reference to the Lord Lieutenant indicated another mode of appointment from the Crown which was neither immediate nor direct. It would be seen that the Bill went through without discussion;' it became law in a few days; but how the amendment was made he knew not. He ventured to think the clause was unnecessary, and that the old law would have been sufficient; but, perhaps, it was added from excessive caution. Again, the clause might have been declaratory; and Sir Erskine May's opinion was that, without that section of the Act, the appointment would have been regarded as an appointment under the Crown. That was a circumstance entitled to great weight, for the opinion of Sir Erskine May on that question was of importance. Now, he had referred to the Irish Acts of Parliament only to get rid of them. He affirmed 1156 that there was not in them anything to cast any substantial doubt upon the meaning of the law; and that brought him back to the Resolution of the right hon. Gentleman the Home Secretary. What was the construction to be given to the Statute of Anne, assuming that this Office was one under the Crown? They had no business, as the House had been asked by the right hon. Gentleman the Member for Chester (Mr. Dodson), to put different words into that Act of Parliament. But what were the clear, plain, and unambiguous words of the Statute?—"Any new office or place of profit whatsoever, created after the 25th of October, 1705." Those words were the widest and most comprehensive that could he imagined; and he used the words of common sense, as well as of law, when he said that if any one sought to limit the generality of these words, the onus was cast upon him to make out the limitation. Could it be denied that this was a new place? Could it be denied that it was a place of profit; and could it be denied that it was a place of profit under the Crown? Why should the seat not be declared vacant? What alternative had the Committee, with the words of the Act of Parliament before them, not to declare the seat vacant? But a case had been referred to, where a Committee of the House of Commons adopted a different course, which it had been suggested should have been followed by the Committee in the present case. They would have been very willing to follow that advice had such a course been possible. The two cases, however, were entirely different, for the Committee which considered the case of Mr. Lushington in 1829, known as the "Madras Case," had formed this opinion, and reported to the House of Commons that—It appeared to your Committee to be a subject of much doubt whether these enactments apply to the case of any Governor of the East India Company.But the Committee appointed to consider the present case had no doubt whatever as to the application of the Statutes. It had been said that the Committee should have looked at the object of the enactments, the mischief sought to be remedied, and have considered how far the tenure of a Colonial Office was likely to affect the independence of a Member of the House. But he answered that, by 1157 saying that the Committee were not at liberty to take into consideration the greater or lesser probability of the independence of the House being interfered with in a particular case, nor were they in the slightest degree at liberty to do more than consider whether the Office fell within the express terms of the Statutory enactments. It was conceded by a high authority—Sir Erskine May—that an office that might be and must be held outside the United Kingdom fell within the Statute. The admission of that was, to a great extent, an admission of the weakness of the argument based on the alleged mischief of the Statute. He was not influenced by the statement which had been made to the effect that the Statute was of a penal character. It would appear, on the contrary, that it was to be regarded as one of the safeguards of the Constitution of the House, and on that point, he presumed, the high authority of Hallam would be readily accepted by hon. Members. Mr. Hallam said that—These restrictions ought to be rigorously and jealously maintained, and to receive a construction in doubtful cases according to their Constitutional spirit, not as if they were of a penal nature towards individuals, an absurdity in which the careless and indulgent temper of modern times might sometimes acquiesce.That clear opinion of Mr. Hallam was one which he considered might well be borne in mind in the consideration of the present question. If the question merely related to the Attorney Generalship of Victoria, if nothing as to other appointments was to be read between the lines, a question as to the adoption of the Resolution would hardly have arisen. It would be obvious to anyone who examined the precedents, that Parliament had allowed each case to be decided upon its own merits and upon its own facts, and the Committee would have been usurping the functions of Parliament had they laid down any line to govern similar or analogous cases. They only reported their opinion as to the particular appointment of the Attorney Generalship of Victoria. He could not but think that the question as to Agents General of the Colonies had been present to the minds of some hon. Members. It would have been unbecoming in him to presume to give any opinion on that subject; but he could conceive the widest 1158 difference between an Attorney General of Victoria and the Agent General of a Colony. If the question ever came to be discussed—and he did not believe that it ever would be discussed—those distinctions would be apparent which existed, as to the mode of appointment of an Agent, as to the mode of payment, and as to the absence of an oath of allegiance. All these matters would be duly weighed. Was it reasonable, he asked, under all the circumstances, when the Committee had exercised a difficult, an arduous, and a judicial function without passion, prejudice, or the least degree of Party spirit, to ignore the conclusion at which they had arrived? Where was the room for doubt which should prevent the House confirming the decision of the Committee? He ventured to think that the House would arrive at the opinion, which was held by himself, that the Resolution of his right hon. Friend contained a sound conclusion.
§ MR. SYNAN
said, that nearly every Irish Member was in favour of the Report of the Committee, and his only regret was that the question had not long ago been decided. He must also express his surprise that the constituents of County Clare had for two years allowed themselves to be practically disenfranchised. It would be monstrous if by any further delay on the part of the House an end was not put to the unsatisfactory state that existed with respect to the representation of County Clare. There were several ways in which the same result might have been brought about. If the constituents for County Clare had petitioned, in the first instance, to declare that Sir Bryan O'Loghlen had accepted an Office totally inconsistent with his position as a sitting Member, the House might have been put in motion. The House also might have been put in motion by Bill, if appealed to by the constituents. But if put in motion in any manner, he could not see what answer could have been made to a question upon which, he believed, nearly everybody had arrived at the same conclusion. He quite agreed with the right hon. and learned Attorney General for Ireland (Mr. Gibson) that extraordinary circumstances that they all perfectly understood, and which had no connection at all with the case before the House, had complicated the matter. But 1159 for the peculiar positions of certain parties, he thought that the Report would not have been questioned; for there was no foundation for saying, as the hon. Member for Rochester(Sir Julian Goldsmid) had done, that there were deep Constitutional questions of very great importance to the country underlying the case. The hon. Member had expressed his intention not to allow a new Member to be returned for County Clare, unless the matter was considered in a Constitutional light, and the hon. Member had declined to allow the vacancy to be declared, unless in the particular manner that he had pointed out. The arguments put before the House by several hon. Members were to the effect that this was not an Office of profit under the Crown, and that the Crown had nothing at all to say to it. It was also said that the hon. Member who had been appointed Attorney General for Victoria could not, by any possibility, take his seat, and that this matter was neither within the mischief or words of the Act of Anne or of the Irish Act of George III. So far as the words of the Act were concerned, it was admitted, and, indeed, it was plain and obvious, that this was an Office of profit under the Crown. But distinction had been drawn between what was an Office from the Crown, and what was an Office of profit under the Crown. The difficulty arose from the words of the Statute of Anne, one section dealing with Offices existing at the time, which Offices must be held directly from the Crown; and a distinction had been pointed out that in the case of new Offices it would be material whether they were in the gift of the Crown, or in that of an Officer of the Crown. In the present case, it was the duty of the Governor of Victoria to appoint the Officer, which he did under the powers of the Constitution of Victoria. Therefore, to say that this was not an Office of profit under the Crown, and did not come within the Statute of Anne, was to quite misapprehend the construction of the Statute of Anne. It had been further alleged that this Officer was not appointed by the Government at all. But, on looking into the matter, it would be found that the Governor himself appointed this Officer and dismissed him; and it was, therefore, in the power of the Crown to interfere in the matter. Supposing Her Majesty 1160 thought proper to dismiss the Attorney General for Victoria, She could do so, for he only held Office during pleasure; and if it were thought necessary to take such a step, the Crown, through the Secretary of State for the Colonies, could instruct the Governor of Victoria to revoke the appointment. Here, therefore, was an Officer that could be dismissed by Order of the Queen by means of the Colonial Secretary. Was it to be said that that Officer was not an Officer of the Crown under the Statute of Anne and of the Statute of Geo. III. Another argument was, that inasmuch as this Officer could not take his seat in the House, as he only held his Office during his residence in Victoria, he did not come within the mischief of the Statute, and that, therefore, it did not apply. But it was clear that if the Attorney General for Victoria got leave, he could come to England and take his seat in the House for County Clare. That was by no means an improbable circumstance, for the Attorney General for Victoria, living in the Antipodes, could leave there in the winter and be present in England in the summer. There would be no impossibility, also, in his being allowed by the Colonial Legislature, for its own purposes, to take his seat in that House; and, if he did, would he not be within the mischief of the Statute of Anne? Would he not be as much an Officer of the Crown as the Attorney General for England, for, like him, he could be appointed and dismissed by the Crown. The Act of 41 Geo. III. was quite unnecessary and quite superfluous and insufficient to support the argument founded upon it, and the present case was entirely independent of it; and the same might be said of 33 Geo. III., for when once an Irish Member took his seat in the Imperial Parliament, he came within the provisions of the Statute of Anne. Under these circumstances, he really did not apprehend what the contention on the other side was. It was true it might be said that this was a case that might be made a precedent for every succeeding one; but for what other case could this be made a precedent? There were cases of Agents General having seats in that House; that fact was well known, and the Gentlemen holding those Offices were deservedly esteemed. A great English legislator in that House, Edmund Burke, occupied a seat while Agent General 1161 for Now York, and it was not supposed then that he came within the Statute of Anne. The contention was never raised, and the analogy between an Officer like the Attorney General, appointed by the Governor, and liable to be dismissed by the Governor and by the Crown, and an Officer who was a mere Agent for a Colony, was by no means made out. But for that collateral argument that had been brought into the discussion, he did not suppose that anyone would have raised any objection in this matter. It was also said that if this precedent were allowed, considerable difficulty would be found with Colonial contractors. They might come within Colonial Statutes; but how they could be made to come within the Statute of Anne he was at a loss to apprehend. The object aimed at by the Statute of Anne was to insure the independence of Parliament, and to prevent its being influenced by the Crown. He thought that the extraordinary and absurd cases put forward to discredit the Report of the Committee could not be regarded as serious argument. It was time that the House should come to a conclusion on the subject, and should liberate County Clare from the position in which it had so long been placed, He considered that the mode in which that was proposed to be done was a proper one; and he thought that the grounds upon which the Report had been made were perfectly clear, He did not see any other conclusion at which the Committee could arrive; and he therefore hoped that the House would at once unanimously confirm this Report, and that the hon. Member for Rochester would not put the House to the trouble of a Division upon the subject.
§ SIR EARDLEY WILMOT
was sorry to differ from so many hon. and learned Gentlemen of his own Profession, for whom he entertained so much respect. He therefore thought it right that he should state the reasons which had led him to arrive at the opinion he hold. This was a most grave Constitutional question, and it was a question far removed from considerations of Party. For that reason, he hoped that his right hon. Friends would not be in any way offended with him because he went into the Lobby against the Party that he usually supported. With regard to what had been said by the hon. Gentleman who had last addressed the House 1162 (Mr. Syrian), he could not help thinking that what he said showed a certain feeling of annoyance on the part of hon. Members from Ireland that the seat should have remained vacant so long. He could not help feeling that there were anomalies in this question; no one for a moment could doubt it. There was an anomaly in the same person filling two seats at the same time, and there was another anomaly in a Gentleman being the Representative of a constituency and yet not doing his duty to his constituency in that House. By searching the Parliamentary Records, it would be found that the effect of absence from Parliament had on more than one occasion induced hon. Members of the House to declare a seat vacant. In the only other case at all similar which had come before a Committee—namely, Mr. Huskisson's—he found, on looking over the Records, that the circumstances were somewhat different from the present, though he did not think that the circumstances that existed here could induce them to act in a different manner. The House was asked to decide a great Constitutional question, and he felt bound to give his opinion as to whether, under the Statutes, a disqualification had taken place. After the best consideration that he could give to the question, he had arrived at the conclusion that no disqualification had occurred, and he would give his reasons for coming to that conclusion. He had looked through the Statutes, beginning with the 12 & 13 Will. III., the Act of Settlement, where the qualifications of Members were laid down in strict terms, and it was provided that Members should not hold Offices of profit under the Crown. Strict and rigid disqualifications were laid down in the case of Members holding such Offices, and also of pensioners. The Statute of 4 Anne was passed to modify, to a great extent, the disqualifications previously enacted; but it also maintained them to a great extent, and in a rigid form. In a Statute of 6 Anne c. 7, passed in 1705, when the Union between England and Scotland had taken place, were contained the provisions upon which he believed the Committee had acted. That Statute had this peculiarity. The 25th section of that Statute spoke of Members of the House holding places of profit under the 1163 Crown, and provided that they should be disqualified from sitting altogether. In the 26th section, which followed, Members of the House receiving Offices of profit from the Crown were declared to be disqualified and the seat vacated; but further provision was made that the Members so disqualified should be capable of being re-elected. It appeared to him that that Statute made a distinction between Members receiving Offices of profit under the Crown and receiving profit from the Crown. That distinction was made, because the previous section disqualified those holding places of profit under the Crown. But it appeared upon the construction, not only of that Statute, but of 41 Geo. III., following it, that these sections applied entirely to places of a permanent character. Commissioners, and a variety of other persons holding appointments set out in the 41 Geo. III.—that was the Act of Union between England and Ireland—were disqualified; and it was thereby laid down that a total disqualification attached to appointments of a permanent character only. In the present case, Sir Bryan O'Loghlen, being Attorney General for Victoria, did not hold an Office of a permanent character, but an Office of the same character as the Attorney General held in that House. The Attorney General was considered to receive a place of profit from the Crown, and thereby vacated his seat; but he was capable of being reelected. For these reasons he differed from the Committee, and he felt that Sir Bryan O'Loghlen could not be brought within the 25th section of the totally disqualifying Statute, as had been held by the Select Committee, because he did not hold a permanent Office of profit under the Crown. As regarded the Office of Attorney General, there were no precedents which they could in any way follow in this case; there were precedents found set out in the Report of the Committee, and there were others in the Books, but none of them touched the present case. If the present case was to be dealt with by the House at all, let it be dealt with in a Constitutional way. Let the same course be followed as had been already done in the case of the East India Company, the Lord Lieutenant of Ireland, and, above all, the Governors of Colonies, which throw remarkable light on the present 1164 case. Let an Act, and not a Resolution, be passed; otherwise, the Privileges of the House might be invaded.
§ MR. MARTEN
said, he differed entirely from the hon. and learned Baronet who had just spoken (Sir Eardley Wilmot). It appeared to him that the proper and Constitutional course had been pursued in this case. A Committee had been appointed for the purpose of inquiring into the question as to whether Sir Bryan O'Loghlen had, since his election for Clare, accepted a place of profit under the Crown; and as to whether, in consequence of that acceptance, the seat for the county was vacant? The Committee had carefully investigated the matter, and the result was the Report which was now before hon. Members. A great deal of misconception seemed to prevail in certain quarters as to the real meaning and effect of the Statutes upon this subject. Four Acts of Parliament had been referred to—those of 1793, 1798. 1800, and 1801; but the only Statutes which really bore an express relation to the question now under consideration were the Acts of 1793 and 1801. The former, following the lines of the Act of 1707, made a distinction between those Offices which were included in the term of places of profit under the Crown—a most comprehensive term—and those which were places of profit from the Crown. The Act of 1793 provided that, subsequent to that date, all persons accepting new Offices under the Crown should be absolutely disqualified from entering the House of Commons. Those Offices were of two descriptions—first, there were Offices derived directly from the Crown and under it; and, secondly, there were Offices which were otherwise and indirectly under the Crown. In 1798, the question arose as to whether it was to be considered that Offices to which the appointment was made by the Lord Lieutenant of Ireland, or by a Governor General, were places of profit which came directly from the Crown; and it was for the purpose of giving an affirmative answer on the point that the Act was passed. A singular misconception, however, appeared to have arisen on the subject; and, apparently, that misconception was shared in by a very high authority, to whoso opinion hon. Members were accustomed to look with great respect. He referred to Sir Erskine May, who gave evidence before 1165 the Committee with regard to the Act of 1801. It was said that that Act, to a considerable extent, countenanced the idea that appointments made by the Lord Lieutenant of Ireland were not appointments under the Crown. With the permission of the House, he desired to state what seemed to him to be the exact state of the case. The two Acts on the subject which it was here necessary to refer to were the Act of Union of 1800 and the Act of 1801. The Act of Union was a matter of treaty and bargain between the Kingdom of Great Britain and the Kingdom of Ireland; and, without entering into any controversy as to the nature of the means by which the Union was brought about, it was a matter of fact that the Act of 1800 provided that until the Parliament of the United Kingdom of Great Britain and Ireland made some distinct and definite arrangement on the subject, a certain number only of those who held Offices under the Crown in Ireland should be admissible to take their seats in the Legislature of the United Kingdom. When the Act of 1801 came to be discussed, several important points were dealt with and determined. The question was considered as to what persons should be eligible in the Parliament of the United Kingdom for seats for English constituencies, and as to what persons should be eligible for constituencies in Ireland; and the provisions which were enacted on these points as to seats in the United Parliament were to the effect that the law which had existed with reference to the constituencies of Great Britain should continue to exist as regarded seats for constituencies in Great Britain, and that the law which had existed with regard to Irish constituencies should also continue to prevail with regard to seats for Irish constituencies. Certain special provisions were also made as to Irish placemen sitting in the United Parliament. The Act of 1801 was, therefore, as its title showed, both a Declaratory Act and also an Act to give effect to the Article of Union which reserved the question in what cases persons holding Offices or places of profit under the Crown of Ireland should be incapable of being Members of the United Parliament. The words of the Act were perfectly plain and intelligible; and he ventured to think that, upon calm con- 1166 sideration, the point which had been raised with respect to the construction of the Statute of 1793 entirely disappeared. In the present case, the simple answer to some of the objections which had been made was a reference—narrow and technical, perhaps, but sufficient—to the plain words of the Statute itself. It was obvious that the position of Attorney General for Victoria was an Office under the Crown; that it was an Office of profit, and that it was a new Office. The Governor of Victoria was the person who made the appointment; but he held the Queen's commission and was the Queen's Officer and Representative, and he derived no authority except from that commission. It was said that the Governor of Victoria had special authority given to him by the Victorian Constitution Act. No doubt he had certain powers; but in what capacity were they exercised?—purely in the name of Her Majesty. His oath was taken to the Queen, and all the authority of the Governor was exercised by him on behalf of Her Majesty, and as Her Lieutenant. To put forward the checks imposed upon the Constitution of Victoria as affecting the present question was to deny not only the effect, but the literal and plain words of the Act of Parliament—it was simply a bogging of the whole subject. As to the motives by which the Legislature of the past had been influenced in dealing with this matter, it appeared to him that the great motive which Parliament had in view in acting as it did was to prevent the House being overcrowded with placemen, who would not be independent Representatives of constituencies, and who might be easily controlled. Things had changed so much in our day that we might almost laugh at the idea of the Representatives of the people being influenced in any such way; but, at the same time, the Statute was adopted by the Legislature, and while it remained the law it must receive complete effect. The language of the Act, under which the case now before the House must be dealt with, was plain and comprehensive in its terms. Why, therefore, shrink from its application? Why attempt to declare that the matter was one of a doubtful character, and that the House ought to proceed by way of a fresh Bill It had been said that cases might arise in which great personal in- 1167 convenience might be experienced under the existing law. It was not incumbent upon hon. Members—nor had they a right—to enter upon purely speculative cases when the Act which was before them was perfectly distinct. Cases might, however, be easily imagined in which the Act would operate beneficially. While on most subjects the Government at home and the Government of Victoria might be acting together in entire accord, questions at some future time might arise as to the power of the Crown and as to the rights of the Colonies; and it was of great and manifest importance that if any such question should arise the House of Commons should be absolutely free from the slightest risk of improper bias upon the part of any one of its Members. Suppose that the Victorian Ministry, in some great Colonial question, took the view of the Ministry of the day here in opposition to a great Party here. The scale, but for the Act, might be turned by a Victorian placeman, occupying a seat in the House of Commons, and supporting the view of his colleagues in Victoria, with unlimited leave of absence here to advocate their cause. He did not believe that in these days any Gentleman who had a seat in that House would be influenced by improper considerations; but the Legislature had wisely sought to take away any element of interest which might possibly prejudice the decision of important questions, and the measures which the Legislature had sanctioned must be respected and obeyed. The object throughout had been to preserve the complete independence of hon. Gentlemen who had seats in the House. He had looked very carefully into the whole subject, and it did not appear to him that the hon. Baronet who proposed the Amendment (Sir Julian Goldsmid) had made out any case showing that there was the doubt which he suggested. In these circumstances, the Report of the Committee ought to receive the approval and sanction of the House.
§ MR. E. JENKINS
said, it had been suggested that hon. Members who were disposed to take exception to the terms of the Report presented by the Committee were actuated by considerations other than those which came to the front upon the evidence before the House. For himself, he felt that he was perfectly free to give a fair and unbiassed 1168 opinion upon the question. There were evidently two points of view from which the subject might be regarded. There was the point of view of the House of Commons with regard to its own Privileges and interests, and there was the point of view of the Colonists. He had been looking at the matter from the latter aspect; and, so regarding it, it appeared to him to be a very important question. How was it that, at the present moment, the House was engaged in a discussion of the subject at all? It was owing, unfortunately, to the manner in which the interests of the Colonists had been administered in past times by past Governments, and to the circumstance that there was a want of definiteness in the relations which existed between the Colonies and the Mother Country. The day was not far distant when that want of definiteness would lead to danger, perhaps to collision, and possibly oven to separation. The arguments which had been addressed to the House in support of the Report of the Committee could be boiled down to this simple proposition—that, according to the Act of Anne, a person who held an Office of profit under the Crown was not eligible for election as a Member of Parliament, or, rather, that he was liable to lose his seat. The words "under the Crown" had, however, been taken by the lawyers of the House in their literal sense, in utter defiance of the elementary rules which were always applied to the interpretation of Statutes, and which were put in practice and operation every day. The hon. and learned Member for Oxford (Sir William Harcourt) had taken the words in that literal sense; but the hon. and learned Member very often disregarded elementary rules in his arguments and in his principles. The right hon. and learned Gentleman the Attorney General for Ireland (Mr. Gibson) had contended, as he (Mr. E. Jenkins) understood, that because this was an Office of profit outside England the case was one which came within the operation of the Statute of Anne—within the letter and spirit of the Act. He (Mr. E. Jenkins) did not know whether the Judges in Ireland were satisfied with such arguments as those which had been employed by the right hon. and learned Gentleman; but he had certainly listened with wonder to what he had said upon the present occasion. What was an office of 1169 profit under the Crown; and what were the conditions under which such an office was held? He did not intend entering upon, a consideration of the question as to whether the 25th and 26th sections of the Act of Anne were collateral or correlative. His own opinion was that the words "office of profit under the Crown" were no larger than the words "office of profit from the Crown." He would also desire to point out one or two significant matters in the Papers. Although the Act expressly reserved the appointment of these Ministers to the Governor, without saying, "the Governor in Council," yet, on the other hand, the Advisers of the Colonial Office, anxious to carry out that which had been granted to the Colony—the absolute right of independent responsible Government—in their draft of instructions under the Royal Sign Manual and Signet to Sir George Bowen said—That it be hereby directed and enjoined that in the execution of the powers and authorities given to you by our said commission, you do, in all cases, consult with our said Executive Council, except in such cases where our service would sustain material prejudice by consulting the said Council thereupon.Executive Council, he understood, meant the Local Council, so that the Governor was absolutely instructed, even in cases where he had a discretion, acting under the Act as a Constitutional Sovereign, to act, as the Queen Herself would act, and to take the advice of his Ministers. He did not care what was said by the Representatives of the Crown in that House. There was not a shadow of a doubt, either theoretically or practically, as to whether any interference could take place in the action of the Governor, as advised by his Council, upon these questions of local patronage. He had shown how this question arose, and it was one of the questions in regard to which a protest was made, and upon which the Government brought in this Bill. Together these facts constituted evidence, which was absolutely overwhelming, that the Crown had denuded itself of any right of interference. Could the House come to the conclusion that this was an office of profit under the Crown under those circumstances? He would simply ask the House, in deciding, to remember that in deciding this question they might be raising grave Constitutional questions which might hereafter lead to misunderstanding.
§ MR. FORSYTH,
said, some years ago he was elected as a Member of that House, and was held to be disqualified as holding an Office under the Crown. That decision had both surprised and disappointed him; and he was not likely, therefore, to put too wide an interpretation upon the words of the Statute in order to disqualify a person elected to serve in Parliament. At first he did think this case was not within the Act; but he had since, upon consideration, come to the conclusion that the Report of the Committee was correct. They might admit without much difficulty that an Office of this kind was not within the contemplation of the framers of the Statute of Anne; for, as a fact, at that time there was no Colony which had a Constitution like that of Victoria. The nearest approach to it was the Colony of Barbadoes, which had enjoyed something like a Constitution from the time of James I. It was not however, likely, that they had that Colony in view, and the object of the Statute was of a different kind, to prevent placemen from filling the House. But the question for them to decide was not what might be supposed to be in the contemplation of the Legislature at the time. If they found the words in the Statute were plain and explicit, and if this Office came within those words, he felt that he had no option but to give effect to them, and he could not inquire as to the intention of the framers as he might do if he were doubtful of the meaning of the words. He did not think it possible to contend that this was not a now Office of profit under the Crown; and as that question had been already fully discussed he did not intend to say more upon it. But he had risen, principally, to point out that there had been some mistake and misconception as to the meaning and object of the two Statutes that had been referred to. By the Irish Statute of 1793, it was enacted that all persons who might hold any new Office under the Crown of Ireland, created after 1793, should be disqualified from sitting in Parliament. Then the Act of 1801, passed by the Parliament of the United Kingdom, provided that no person holding any office of profit by the nomination or appointment of the Lord Lieutenant should be able to sit in Parliament. It was argued that if after the Act of Union it was necessary to declare that 1171 persons holding Office from the Lord I Lieutenant should be disqualified from sitting in Parliament, it was implied that persons holding Office under the Lord Lieutenant might sit. But that argument was untenable. The Act of 1801 declared that persons should be disqualified from sitting in the United Parliament. Its first three sections provided that all the disqualifications applicable to the Parliament of Great Britain and to the Parliament of Ireland should apply to the Parliament of the United Kingdom. This might have been thought sufficient to disqualify all persons who held Offices from the Lord Lieutenant in Ireland. But there was a further enactment. The Act of Union contained a provision that no greater number than 20 of persons holding Offices of profit under the Crown of Ireland should be capable of sitting in the United Parliament until an Act was passed disqualifying them. It therefore, in effect, enacted that 20 such persons might so sit until disqualified by a subsequent Act. Now, the object of the Act of 1801 was to declare what persons should be disabled from sitting and voting in the Parliament of the United Kingdom. It disqualified several classes of officers specifically by name, and then it went on to disqualify all persons after the end of the existing Parliament who held any Office of profit from or by the nomination of the Lord Lieutenant of Ireland, obviously intending to exclude all who held Office under the Crown of Ireland, although they might be within the number of 20 allowed by the Act of Union to sit. The enactment was passed not with a view to any distinction between Offices hold under the Lord Lieutenant as representing the Crown and Offices held from him, but simply to prevent any of those 20 in future who came within the meaning of the Irish Act of 1793 from sitting in the Parliament of the United Kingdom. Notwithstanding his original doubts, he had now come to a dear decision upon the matter, and he should vote for the Motion.
said, the occasion was very tempting for a general display of Constitutional Law; but in the few observations he would ask permission to address to the House, he would avoid airing any law at all, and would confine himself to the points that had arisen 1172 in the course of the debate. He was perfectly astonished to find hon. Members, who were supposed to be permanently identified with principles of popular liberty and Constitutional freedom, sustaining the monstrous proposition that placemen under the Crown might sit in that House. The doctrine involved in the Amendment was simply that the Crown was not the same in one clime that it was in another, and that under the Crown in Australia did not mean under the Crown in England. Much had been made of the fact that no precedents had been laid before the Committee; but as to that there was great misconception as to what took place. He should be glad to know by what authority it had been assumed that there was not a full discussion, and that the Committee did not do certain things which certain hon. Members thought they ought to have done. In fact, the Committee listened with the greatest interest to an exceedingly able and protracted debate on every conceivable Constitutional point involved in this Resolution, and they had also the advantage of having almost every conceivable objection supported and ably pressed by the right hon. Member for the University of Cambridge (Mr. Spencer Walpole). That right hon. Gentleman, one of the most experienced lawyers in the House, put before them seriatim the points urged in the debate, and having considered them, the Committee arrived at a unanimous conclusion on the subject. The hon. Member for Liskeard (Mr. Courtney) fell into a very grave error, when he said that the appointment of Sir Bryan O'Loghlen was made under Clause 4 of the "Warrant to the Governor of Victoria. That, in fact, constituted the whole difference. He was not appointed under that clause as a Member of the Council, but as an Officer of Ministers under Clause 5. That clause was as follows:—And we do further authorize and empower you to constitute and appoint in our name and on our behalf, all such Judges, Commissioners, Justices of the Peace, and other necessary Officers and Ministers of our said Colony, as may lawfully be constituted and appointed by us.Turning from that clause, which governed the considerations involved to the actual appointment, they found that Sir George Bowen "constituted and ap- 1173 pointed him to be the Attorney General of the said Colony of Victoria;" that was to say as an Officer, and not as a Minister, and he was appointed under the 5th, and not under the 4th clause. As to precedents, it was, no doubt, true that they had none which would exactly square with this case; but the reason of that was, that the framers of the Act upon which reliance was placed had not before their minds such a case as that of a constitutionally self-governed Colony as they now possessed. But he would put it to any hon. and learned Gentleman in that House whether he had ever known a case in which, when the language of a Statute was clear and explicit, anybody was allowed to go behind it? As a very junior member of that learned Profession, he had never before heard such a proposition put forward as that they were to go behind the plain, explicit, and sufficient words of the Act, and deal with what was historical, and endeavour to find out what was in the minds of the framers of the Statute. Even if they could do so, however, what was the mischief that the Statute was designed to prevent? The hon. Member for Liskeard seemed to assume that the entire design of the Statute was to prevent men from going into Parliament with the salaries of the Crown in their pockets, and so to be amenable to the influence of Ministers. But the influence of the Crown in Parliament, always so jealously guarded against by their forefathers, might be exercised in a negative as well as a positive way—by keeping men out of Parliament as well as by having them in it. He had also yet to learn that it would not be a grave infringement upon their Prerogatives for the Crown to keep men out of the House and to send them away. The hon. Member for Liskeard had told them that if the framers of the Act could have foreseen this case they would have hesitated from applying the Act to it. He (Mr. Sullivan) did not agree with the hon. Gentleman, and, on the contrary, was decidedly of opinion that this case was as clearly within the spirit of the Act as it was comprised within its letter. The doctrine the hon. Gentleman wished to set up simply was that it ought to be possible, in the name of popular principles and Constitutional liberty, for a Crown official, with the money of the Crown in his pocket, to come into that 1174 House. [Mr. COURTNEY: No, no.] The hon. Member seemed to think this was not the money of the Crown. It certainly was so, just as much as any other Crown Revenue raised from taxes. The Crown in Victoria had no Crown Revenue apart from the taxes voted to it, and, in that sense, all salaries voted to Crown officials were the moneys of the Crown. The hon. Baronet the Member for Rochester (Sir Julian Goldsmid) seemed to maintain, then, that it should be tolerated in the Commons of England that a Crown official, with his salary in his pocket, should come among them and take his seat as a free Member of Parliament, without even submitting himself to the ordeal of re-election. The proposition could not be tolerated for a moment, and the evil certainly was quite as great as that dealt with in the cases of the Governors of the Bermudas and Minorca. There was another aspect of the question, though it did not properly arise on this debate, which struck him very forcibly, and it was an evil which very nearly arose. Sir Bryan O'Loghlen, after his election for County Clare, was elected to the Legislature of Victoria, and took Office under the Crown. He paid his constituents at the Antipodes the compliment, at any rate, of vacating his seat and presenting himself for re-election, a compliment he apparently did not think the people of the County Clare worthy of receiving at his hands. He was returned again, and it was then proposed that he should be sent across to this country to prosecute the interests of the Assembly of Victoria in their dispute with the Legislative Council; and it was pointed out that he was pre-eminently qualified, because he would have the status of a Member of the House of Commons, and could come into their House to carry out the behests of the party of which he was the missionary. He could conceive nothing more derogatory to the character of a Member of this House, and to the freedom of the House, than that such a transaction should have been possible, and yet possible it would have been under the doctrine set up that evening. The party in Victoria found, however, some other ambassador. He might be told, perhaps, that Sir Bryan O'Loghlen would have vacated his seat in Victoria by leaving the Colony. But that was only if he left it without leave; and as 1175 the Prime Minister (Mr. Graham Berry) was at the present time in this country on leave, he supposed Sir Bryan O'Loghlen might have got leave also. The hon. Member for Dundee (Mr. E. Jenkins) seemed to contend that £2,000 a-year was not an office of profit; he (Mr. Sullivan) could only say that on that subject many Members would think differently from him. It seemed to him that the case might be reduced to exceedingly simple dimensions, although it was one which offered tempting allurements to put forward ingenious theories that might be exceedingly interesting elsewhere, but which, he thought, were hardly applicable in the present case. As a Member representing an Irish constituency, he would remind the House that the vote it was giving was, whether the House would permit a constituency to be disfranchised as the constituents of the County Clare had been by the transactions that had taken place on this question? They had to determine whether a man should receive a salary of the Crown for doing the business of the Crown in a distant Colony, and be thereby prevented from taking his seat in the House and unable to attend to his duties in that House, and yet retain his seat? That was a consideration which had infinitely more weight than the mere theories which had been put forward Mere technical issues had been attempted to be raised in the case; but he thought they should set them aside, and should ripe to the doctrine that the influence of the Crown, not merely actual, but theoretical, should, so far as possible, be banished from the House.
§ SIR HENRY HOLLAND
said, that as he had, when in the Colonial Office, prepared the Royal Commission and Instructions to Sir George Bowen, he might, perhaps, be allowed to correct an error made by the hon. Member for Liskeard (Mr. Courtney), and a misapprehension of the effect of the Instructions into which the hon. Member for Dundee (Mr. E. Jenkins) seemed to have fallen. The hon. Member for Liskeard, referring to the Commission, stated that the appointment of the Attorney General could not have been made by the Governor under the 5th section of the Commission, because the Office of Attorney General was not ejusdem generis with other Offices specially referred to in that section; 1176 and that it was, in fact, made under the 4th section, by which the Executive Council was created. But he (Sir Henry Holland), without admitting that the appointment could not have been made under the 5th section, wished to point out that it was in truth made under the powers vested in the Governor by the 1st section of the Commission, by which the Governor was empowered to do and execute all things according to the several powers granted to him by virtue of the Commission, and according to such Instructions as were then or might be given to him—And according to such laws and ordinances as are or shall hereafter be in force in our said Colony.The appointment of the Attorney General was, by the law of the Colony, vested in the Governor, and he was by the Commission authorized to make it. How, then, did the matter stand? If the Queen Herself had been in the Colony, the appointment would have been vested directly in the Crown. In Her absence, it was vested in the Governor—that was, the Representative of the Crown—not in the Governor in Council—that was, not in the responsible Ministers. And this brought him (Sir Henry Holland) to the point raised by the hon. Member for Dundee as to the effect of the clause in the Instructions, by which the Governor was directed "in all cases to consult with the Executive Council of the Colony." The hon. Member took that as binding the Governor in all cases to act upon the advice of his responsible Ministers. But the Governor was only bound to consult them; and when a power was vested in him as Governor, he was not bound to act upon their advice, as he would be if the power was vested in the Governor in Council. Of course, he would, except in special circumstances, act upon the advice of his Ministers, and in 99 cases out of 100 no difficulties would arise; but still where, by the Colonial Act, any power was vested in him alone as Governor, he had to exercise his own judgment, and was responsible to the Crown for the manner in which he exercised it. Questions had arisen, more than once, when a Governor had been asked by his Ministers to do some act—for instance, to issue a Warrant of which he had doubted the strict legality; and, in 1177 such cases, he had been instructed from home that where the power to do the act had been vested in him alone he should decline to do it, if advised of its illegality, although, in all ordinary cases, he should act upon the advice of his Ministers. As regarded the special case now before the House, he (Sir Henry Holland) would only remark that, in his opinion, it was an Office of profit under the Crown. The appointment was, by the Colonial Act, vested in the Governor, who had, by another section, power to abolish the Office. The Governor also had power—as admitted by Mr. Graham Berry, the present Premier of Victoria—by his mere Prerogative, to dismiss the Attorney General. As, however, he (Sir Henry Holland) had only risen to explain the effect of the Commission and Instructions, he would not detain the House by any further argument in the case.
§ MR. W. E. FORSTER
said, that he could not pretend to argue this question with the same technical knowledge as many hon. Members were possessed of. He was going to make a personal remark with regard to what had been said as to his share in this Report. He was one of the Members of this Committee, and he should be very sorry for the House to suppose that he had absented himself when the Report was made without being obliged to do so. It was a very important Report, and very deeply affected the position of the House. He took care that his opinion on the subject should be known, and he entirely agreed with the other hon. Members that there was no alternative in the matter. A legal question was brought before them, and it seemed to him that upon that legal question but one opinion could be entertained. The opinion he formed, with the rest of the Committee, was that this was an Office of profit under the Crown, and within the Statute of Anne; and, therefore, he thought that the Committee could only make the Report they had upon the Reference sent to them. Their duty was plain, to make that Report. It seemed to him that there was a conflict of absurdities in this matter; they had an absurdity on one side, and they had another on the opposite side to meet it. It was an absurdity that a Gentleman should be elected in Victoria to represent a very important county in Ireland, without the slightest proba- 1178 bility that he could ever come into that House to perform his duty as a Representative. Perhaps it was rather a fortunate tiling that he was proposed to be disqualified by the Act of Anne. It was almost as absurd to say that that Act was ever meant for such a case as that, as to deny that the legal interpretation of it was to disqualify Sir Bryan O'Loghlen. The Act of Anne was meant to guard against the House of Commons being influenced by men whom the Crown Ministers in England could put in, and they knew that the Attorney General of Victoria, if anyone were, was beyond the influence of the Ministry in England. In all probability, the Ministers of the day in England would have no influence over the Officers of the Minister of the day in Victoria, and, therefore, the Act of Anne was never meant to apply to such a case as that. But here was a case, where a man was elected who could not serve and would not serve, and was of no use to the electors, and yet they were unable to get rid of him without bringing in the Statute of Anne. That seemed to him to be rather a convenience than otherwise; but he thought it would be a great disadvantage if they allowed for the future any great uncertainties to remain in their relations with the Colonies in this matter. He did not say if would be necessary to have a Declaratory Act with regard to this Office in the Colonies; but still it was a subject well worthy the consideration of the Government and the House whether it would not be advisable. But there was one matter which he should wish to allude. Allusions had been made to the position of the Agents General for the Colonies. His hon. Friend the Member for Rochester (Sir Julian Goldsmid) had alluded to the subject, as well as his right hon. and learned Friend the Attorney General for Ireland (Mr. Gibson). Now, he was of opinion, and he believed that he gave expression to the opinion of the Committee, that the case of the Agents General was altogether different from the present case, and that the arguments upon which the Committee came to the conclusion in Sir Bryan O'Loghlen's case did not apply to that of the Agents General. This, however, was a matter upon which any doubt whatever was a disadvantage; and he could suppose it possible that a gentleman might be de- 1179 terred from becoming an Agent General, who otherwise would become so, if any doubt existed. He was of opinion that it was a most desirable thing that they should have the assistance in that House of Representatives from the Colonies if any constituents chose to elect such Gentlemen. There was only one remark made by his hon. and learned Friend the Member for Louth (Mr. Sullivan) with which he could not agree. He said what a misfortune it would be if Sir Bryan O'Loghlen, the hon. Member for Clare, appeared in that House as Attorney General for Victoria, and represented the views of the Government of Victoria upon the important question which they now knew to exist. He (Mr. W. E. Forster) could not wish him there as Attorney General; but he would be exceedingly glad to have him or anybody else there who was able to speak to the House as representing the opinions of the Colony of Victoria. He did not wish to introduce a very wide political question; but he supposed he was only speaking what was felt by hon. Members on both sides of the House, when he said that if their connection with the Colonies, which they all thought desirable, should continue, they knew very well that the time must come when there must be some kind of General Conference or some joint representation of the different parts of the Empire. It was very likely that it would be brought about in the usual way in which matters were managed in this country. They were in the habit of making a transition from one system to another by meeting the difficulties of the day, and by finding that they could meet them by something which seemed to be a matter of detail, but which was really a matter of great importance. He should be exceedingly sorry that a moans, by which it appeared to him that they could get an indirect representation from the Colonies which might ultimately lead to a direct representation, and which might be now effected by means of the Agents General, should be in the slightest degree discredited in that House. He was sure that this was a matter on which not only was there no feeling of Party, but hon. Members on both sides of the House would feel exactly the same, and that the Government would take the same view; and he would be very sorry that this mere tech- 1180 nical decision, which came as a relief from a difficulty, and which seemed to him utterly inevitable, should be at all interpreted as interfering with this indirect, although very practical, representation of the Colonies which they hoped to see accomplished.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
said, he did not know that he could add anything to the arguments that had been brought forward in favour of the decision of the Committee, or that he could do any good by re-iterating those arguments; but he was glad to have it in his power to express his gratitude to the hon. Baronet who had moved the Amendment (Sir Julian Goldsmid) for his very candid explanation of the reason that had induced him to alter the form of it, and to make it reflect less seriously upon the Committee. When the hon. Baronet put his dreadful Amendment upon the Paper, all those who were Members of the Committee felt that a very grave reflection was cast upon them. It was said that they had done what they ought not to have done. It was said that they had come to an opinion of an entirely erroneous character, without paying the slightest regard to the evidence brought before them. Certainly, those were expressions of condemnation of the Committee which were very painful, and he was very happy to hear that the hon. Baronet had only placed that condemnation upon the Table of the House because he did not know exactly what else to do. He said that he was in a hurry, and did not consider the matter, and did not arrive at any conclusion upon the subject. Therefore, because he was in a hurry, and because he did not consider the matter, he thought it right to censure the Committee. He was very glad that the hon. Baronet had explained what his views with regard to the matter were; but he must ask him in future, when be undertook a similar task, to bear in mind for a moment the agony he inflicted, and to consider that he had made the Committee writhe throughout the whole of these arguments. It was very delightful to know that the hon. Baronet had not determined that the Committee was wrong, and that he only declared them to be so because he was in a hurry. With regard to the question itself, it seemed to him that although it was a very great 1181 question, and one involving Constitutional considerations, yet, that it was a question of the greatest possible simplicity. It was simply this, whether Sir Bryan O'Loghlen came within the Statute of Anne; for he did not think that the Irish Statutes had much to do with the matter. If it were relegated to the Statute of Anne, the simple question that the Committee had to deal with was to say whether or not that Statute applied to Sir Bryan O'Loghlen. They had to say whether he had accepted an Office of profit under the Crown. The whole thing depended upon whether the Attorney General for Victoria—that was, Her Majesty's Attorney General for the Colony of Victoria, who received pay at the rate of £2,000 a-year from Her Majesty's Revenues—held an Office of profit under the Crown. It seemed to the Committee that this was an Office of profit under the Crown; and it was said that, in coming to this conclusion, the Members of the Committee were guilty of some extraordinary error and ignorance of the elementary rules in the construction of Statutes.
§ MR. E. JENKINS
observed, that his observation was strictly personal to the hon. and learned Member for Oxford (Sir William Harcourt).
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
was extremely obliged to the hon. Member for Dundee for his correction. He understood from him that the hon. and learned Member for Oxford (Sir William Harcourt) had alone been guilty of some extraordinary neglect and ignorance of the elementary rules in the construction of Statutes when he came to the conclusion that this was an Office of profit under the Crown. But the explanation of the hon. Member did not quite take away the stain from the other hon. Members forming the Committee, because they were unanimous in coming to the conclusion that this was an Office of profit under the Crown, and, therefore, they must also have been guilty or some extraordinary neglect.
§ MR. E. JENKINS
was sorry to have been misunderstood. What he said was in answer to the hon. and learned Member for Oxford (Sir William Harcourt), who had objected that the mischief of the Statute was not in question.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
said, that, before they 1182 came to the mischief of the Statute, it would be well to see what language was used by the Statute of Anne. That Statute declared that whenever any Member should hold a new Office of profit under the Crown he should be incapable of sitting in Parliament. The language was as general and comprehensive as it could possibly be; and the question arose whether this was an Office of profit under the Crown? Sir Bryan O'Loghlen was appointed Attorney General for Victoria and received his appointment from the Governor of Victoria, and from him alone, and the Governor of Victoria was the Representative of Her Majesty, and was bound to obey Her instructions. Under the Statutes, the appointment was not to be made by the advice of the Executive, but by the Governor himself. Therefore, they had Sir Bryan O'Loghlen receiving his appointment from the Representative of Her Majesty. He was paid by virtue of a Constitutional Act, recognized by the Legislature of this country, and scheduled to an Imperial Act of Parliament, out of the funds stated to be accepted and taken by Her Majesty, Her heirs and successors by way of that Civil List, instead of the territorial Revenues of the Crown, including all Royalties from whatever sources arising in Victoria, and to the disposal of which the Crown was entitled. Sir Bryan O'Loghlen was, therefore, appointed by a Governor representing Her Majesty, and paid out of the Revenues belonging to Her Majesty, and one could not well see how it could be argued that the Office he held was not one under the Crown. Moreover, the matter had been decided by an Act of the Parliament of Victoria. He thought they were entitled to pay some meed of respect to that Parliament. The provisions of the Statute constituting Victoria a Colony, and the subsequent Constitution Acts, were plain and distinct. Under the provisions of Section 16, if any Member of the Legislative Council or Assembly accepted any Office of profit under the Crown his seat was thereupon to be vacant; but such person should, if otherwise duly qualified, be capable of reelection. No doubt, the law in Victoria was somewhat different to their law. The persons disqualified were set out, and by the 3rd section the Attorney General was declared to be one of such 1183 persons. Therefore, according to the Victorian Statute, a man who accepted Office under the Crown vacated his seat, although capable of being re-elected. Surely they were entitled to pay some respect and attention to this declaration of the Victoria Legislature. Of course, it might be said that this Office in Victoria was not an Office under the Crown—that it was an Office under the Prime Minister of the Colony, or under the Executive of the Colony. But no. When the Victorian Parliament came to deal with the matter, they said—"This is an Office of profit, and it is one which the Attorney General holds under the Crown." Thus they had the distinct language of the Act in favour of the decision the Committee had arrived at; they had common sense in favour of that view; and they had the declaration of the Parliament also in their favour. He would then proceed to consider the mischief which the Act of Anne was intended to remedy. The object of the Statute of Anne was to prevent placemen—persons who were or who might be under the influence of the Crown from obtaining a seat in the House of Commons. In dealing with that question, they must not assume that Sir Bryan O'Loghlen would always remain where he now was, in the Antipodes. If he did, little harm was done by him; but the House of Commons did not do much good. The House of Commons was bound, from the absurd necessity of the case, to assume that Sir Bryan O'Loghlen might come from the Antipodes to take his seat there. Supposing he did, there was no reason to suppose that he would do anything wrong. He believed him to be a most honourable Gentleman, and incapable of acting improperly or yielding to pressure brought to bear upon him. But assuming, however, that Sir Bryan O'Loghlen was not of that character, and that he came to that House and took his seat below the Gangway opposite, or on the Ministerial side of the House; suppose he made himself obnoxious to the Government, as hon. Gentlemen sometimes did on both sides below the Gangway; suppose the Government thought right, as some Governments might—this Government would never dream of it—to teach him a lesson, they had only to advise Her Majesty. He did net say that Her Majesty would act upon that advice; 1184 but if they did advise Her Majesty, and She chose to act upon the advice so received, Her Majesty had the power at any moment to deprive Sir Bryan O'Loghlen of his post. No doubt, to many hon. Gentlemen £2,000 a-year was not much; but to some it was a great deal of money, and it might induce some people to say—"We will not take that honourable, firm, and independent course we should have taken, if we were quite sure that we could not be deprived of our post." It was clear, therefore, that it was not impossible that this case might come within the mischief contemplated by the Act. He did not rely upon that argument altogether, nor did he think that there was any such elementary rule of construction as that to which the hon. Member for Dundee (Mr. E. Jenkins) had alluded. The right hon. Gentleman the Home Secretary had said that all these considerations were to be imported only if the words of the Statute were doubtful; but in this case the words of the Statute were perfectly plain—no words in any Statute could be plainer and more intelligible. He would like to put to the hon. Member for Dundee this sort of case. He said that in interpreting a Statute regard must be had to the mischief it was intended to meet. The Statute said that no man who held an Office of profit under the Crown should continue to occupy his seat in the House of Commons. Supposing a man of wealth, and of high and excellent character, were to take his seat in the House, such a man might be of a firm and conscientious character, and determined to do nothing which he did not like; in fact, he might be a sort of model character—if such a man could be found. But, supposing Her Majesty chose to present him to an office of profit, which might be a Recordership worth £25 a-year, it would be ridiculous to suppose that a man of the character he had described would be likely to be influenced by the possible loss of £25 a-year. But would the hon. Member say that such a case would not come within the mischief of the Statute of Anne, because there was no probability of the Member being influenced by any pressure that might be brought to bear upon him by the Crown? This was one of the cases the Act of Parliament was framed to meet. The Committee had taken the matter into their serious and 1185 earnest consideration. They were actuated throughout by a desire to arrive at a proper conclusion, and, in his opinion, they had done so. When they decided that the Attorney Generalship of Victoria was an Office of profit under the Crown, and that the seat of Sir Bryan O'Loghlen was vacant, all sorts of objections had been raised to the decision of the Committee; and one of those objections was that the Committee had not stated its reasons for coming to the conclusion it had. He could only suppose that it was not usual to do so. But it seemed to him that the hon. Members of the Committee had stated their reasons. They had said Sir Bryan O'Loghlen's seat was vacant because he had accepted an Office of profit under the Crown. What better reason could they have offered?
§ Question put.
§ The House divided:—Ayes 180; Noes 11; Majority 169.1186
|Adam, rt. hon. W. P.||Douglas, Sir G.|
|Agnew, R. V.||Earp, T.|
|Alexander, Colonel||Edge, S. R.|
|Anderson, G.||Edmonstone, Admiral Sir W.|
|Arbuthnot, Lt.-Col. G.|
|Archdale, W. H.||Egerton, hon. A. F.|
|Assheton, R.||Elliot, G. W.|
|Bagge, Sir W.||Elphinstone, Sir J.D.H.|
|Barran, J.||Errington, G.|
|Barrington, Viscount||Ewart, W.|
|Barttelot, Sir W. B.||Ferguson, E.|
|Bass, A.||Fitzwilliam, hn. W. J.|
|Bates, E.||Forster, rt. hon. W. E.|
|Bateson, Sir T.||Forsyth, W.|
|Beach, rt. hon. Sir M.H.||Foster, W. H.|
|Beaumont, Colonel F.||Fremantle, hon. T. F.|
|Beaumont, W. B.||French, hon. C.|
|Bell, I. L.||Garfit, T.|
|Bentinck, rt. hon. G.C.||Gathorne-Hardy, hn. S.|
|Birkbeck, E.||Gibson, rt. hon. E.|
|Birley, H.||Giffard, Sir H. S.|
|Blackburne, Col. J. I.||Giles, A.|
|Blake, T.||Gladstone, rt. hon. W.E.|
|Bourke, hon. R.||Goldney, G.|
|Bowyer, Sir G.||Gordon, Sir A.|
|Bristowe, S. B.||Gordon, W.|
|Brogden, A.||Goschen, rt. hon. G. J.|
|Brooks, M.||Gower, hon. E. F. L.|
|Brown, A. H.||Grant, A.|
|Bruen, H.||Hamilton, right hon. Lord G.|
|Burt, T.||Hamilton, hon. R. B.|
|Cecil, Lord E. H. B. G.||Hankey, T.|
|Cole, H. T.||Harcourt, E. W.|
|Colthurst, Col. D. la Z.||Harcourt, Sir W. V.|
|Cotes, C. C.||Hardcastle, E.|
|Crichton, Viscount||Hartington, Marq. of|
|Cross, rt. hon. R. A.||Havelock, Sir H.|
|Deedes, W.||Heath, R.|
|Delahunty, J.||Henry, M.|
|Herschell, F.||Pell, A.|
|Hicks, E.||Percy, Earl|
|Hill, T. R.||Powell, W.|
|Holker, Sir J.||Raikes, H. C.|
|Holland, Sir H. T.||Ramsay, J.|
|Holt, J. M.||Rathbone, W.|
|Home, Captain||Ridley, Sir M. W.|
|Hope, A. J. B. B.||Roberts, J.|
|Hutchinson, J. D.||Rodwell, B. B. H.|
|Isaac, S.||Russell, Lord A.|
|James, Sir H.||Salt, T.|
|James, W. H.||Sclater-Booth, right hon. G.|
|Jenkins, D. J.|
|Johnstone, H.||Selwin - Ibbetson, Sir H. J.|
|Kavanagh, A. Mac M.|
|Kennaway, Sir J. H.||Severne, J. E.|
|Kensington, Lord||Shaw, W.|
|Lawson, Sir W.||Sheil, E.|
|Leighton, Sir B.||Sheridan, H. B.|
|Leighton, S.||Sidebottom, T. H.|
|Leith, J. F.||Simon, Serjeant J.|
|Lindsay, Col. R. L.||Sinclair, Sir J. G. T.|
|Lloyd, M.||Smith, E.|
|Lloyd, S.||Smith, rt. hn. W. H.|
|Lloyd, T. E.||Smollett, P. B.|
|Lopes, Sir M.||Spinks, Serjeant F. L.|
|Lowther, rt. hon. J.||Stafford, Marquess of|
|Macartney, J. W. E.||Stanhope, hon. E.|
|M'Carthy, J.||Stanhope, W. T. W. S.|
|M'Kenna, Sir J. N.||Stanley, rt. hn. Col. F.|
|Makins, Colonel W. T.||Storer, G.|
|Marten, A. G.||Sullivan, A. M.|
|Massey, rt. hon. W. N.||Synan, E. J.|
|Master, T. W. C.||Talbot, C. R. M.|
|Mellor, T. W.||Talbot, J. G.|
|Merewether, C. G.||Tavistock, Marquess of|
|Monk, C. J.||Taylor, rt. hon. Col.|
|Montgomerie, E.||Thynne, Lord H. F.|
|Mowbray, rt. hon. J. R.||Wait, W. K.|
|Muntz, P. H.||Walker, O. O.|
|Newport, Viscount||Wallace, Sir R.|
|Noel, rt. hon. G. J.||Walter, J.|
|Nolan, Major||Watson, rt. hon. W.|
|Northcote, rt. hon. Sir S. H.||Wells, E.|
|O'Beirne, Major F.||Williams, B. T.|
|O'Byrne, W. R.||Wilson, I.|
|O'Clery, K.||Wilson, W.|
|O'Conor, D. M.||Wynn, C. W. W.|
|O'Donnell, F. H.||Yarmouth, Earl of|
|O'Neill, hon. E.||TELLERS.|
|Onslow, D.||Dyke, Sir W. H.|
|O'Sullivan, W. H.||Winn, R.|
|Parker, C. S.|
|Baring, T. C.||Mac Iver, D.|
|Courtney, L. H.||Otway, A. J.|
|Dodson, rt. hon. J. G.||Wilmot, Sir J. E.|
|Duff, M. E. G.|
|Fitzmaurice, Lord E.||TELLERS.|
|Gregory, G. B.||Goldsmid, Sir J.|
|Hamond, C. F.||Morgan, G. O.|
§ Main Question put.
§ 1. Resolved, That the office of Attorney General of the Colony of Victoria is an office or place of profit nuder the Crown within the meaning of the Statutes in that behalf.1187
§ 2. Resolved, That Sir Bryan O'Loghlen has since his Election for the County of Clare accepted the said office, and has thereby vacated his seat.