§ On Clause 1 being proposed,
§ Lord Lyndhurst
rose and said, that it was his intention to move that this clause should be expunged. In stating this to their Lordships, it would be necessary that he should declare the ground on which he proposed the amendment, and it would be necessary for him, although he would not do it at any great length, to enter into a view of this most important subject. He thought that it appeared from the bill which had been brought into the other House of Parliament, but which was afterwards abandoned, from the speech of the noble Marquess opposite last night, from the spirit and the tenour of that speech, and also from the observations which had fallen 1097 from the noble Viscount, that there was a disposition on the part of her Majesty's Government, if possible, to abolish the Assembly of Jamaica, and to substitute a new form of Government in lieu of that which had subsisted in that island during a period of nearly 200 years. A similar attempt had been made in the arbitrary reign of Charles the 2nd, but it was defeated, and now the attempt was repeated by the liberal Government of this day, and it had been defeated up to the present time; but he could assure the House, that if this bill in its present form were adopted, that object would be accomplished by a side wind which Ministers had not been able to carry into effect by a direct attack upon the Legislative Assembly of Jamaica. He did not for a moment deny that this House had the power of passing laws for the purpose of governing the island of Jamaica—he did not for a moment dispute that they had that right in cases of emergency and extreme necessity; but what he denied was this, that they had any right whatever to pass laws for the internal regulation of the affairs of the island of Jamaica, or of any other colonies, except in cases such as he had stated, namely, cases of necessity and extreme emergency. This was the doctrine which had always been held by all statesmen who had expressed any opinion upon the subject, and for the plainest of all possible reasons, which was, that the colonies were not represented in the Imperial Parliament, and Parliament, therefore, had no right to pass laws for their internal regulation. The Assembly of Jamaica had, as it appeared to him, been most unjustly treated in every part of this transaction. If their Lordships looked to the preamble of the bill, they would see stated in it the reason why they were called upon to enact this measure, but that reason was not accurately and fully stated. It was stated in the preamble of the bill that the House of Assembly in Jamaica had refused to exercise its legislative functions, except for the purpose of passing votes of supply. That was the proposition stated without any qualification; it was unlimited in point of time, and he contended was devoid of foundation. That was not the effect of the resolution of the House of Assembly, but that resolution was of a very different character. It stated, in fact, that the House of Assembly would not exercise its 1098 legislative functions, except for the purpose of passing supplies, until left to the free exercise of their rights as British subjects. It was obvious, therefore, that they had some cause of complaint, and that they called for its redress, and if they had been assured in conciliatory language that what had been done up to that time was not meant to be a precedent for future acts, what had taken place would not have occurred, and they would not have refused to exercise their functions. He was not there to support the resolutions of the House of Assembly. He thought them reprehensible, but he could not help recollecting that on former occasions, when their rights had been infringed, the same course had been adopted by their predecessors, and that that course had led to the remedy of the grievances of which they complained. There was another circumstance to which he would refer, arising out of what fell from the noble Marquess yesterday. He meant the allusion which he had made to the protest passed by the Legislature. He begged to declare his opinion, that considering the circumstances under which that protest was framed, it should not have been insisted upon, and descanted upon, so much at large by the noble Marquess. No person could condemn the adoption of the measure taken by the Assembly, or the insulting language used in it, more strongly than he; but he did not think that it was fair to appeal to it for the purpose of exciting the feelings of their Lordships against the House of Assembly in reference to circumstances totally unconnected with the matter to which it had reference. He begged to be allowed in the first place to remind the House of the effect of that protest which was adopted at the close of a Session when the greater number of Members of the House were gone to their homes, and, in fact, when about twelve only of them remained in Kingston. It was their act, drawn up by them, and, as he was given to understand, disapproved and condemned by the general body of the House of Assembly. He knew that this was communicated at the Colonial-office immediately after the document arrived in this country, and there could be no doubt that the noble Marquess was acquainted with the fact, and he thought that it was both unjust and unjustifiable to refer to it at such great length. Another circumstance, 1099 which was exceedingly material, was, that the protest was passed and adopted long before the measure which had given rise to the resolution had been adopted. It was passed long before the Prisons Bill was enacted, and of course long before it had arrived in Jamaica; and it was in respect of that bill, and of the consequences resulting from it, that these resolutions were to be referred, as well as the bill now before their Lordships' House. The protest, therefore, had no connection at all with this transaction. Then, with respect to the Prisons Bill, he must say, that another attempt had been made which he considered calculated to excite prejudice, unfounded prejudice—he meant the attempt to connect it with the bill for the abolition of slavery. It had no connexion whatever with that measure. It was in substance a transcript of the bill which was originally adopted in this country in the year 1835, he meant that bill which was carried for the ordinary regulation of prisons in this country, having nothing to do with a state of slavery, and adapted only to a state of freedom. When talking of the Legislative Assembly, he begged to remind the House, that the Prisons Bill contained three clauses; one of them gave to the Governor and Council the power to lay down and adopt rules for the management of gaols; the second gave the Governor the power to appoint inspectors; and the third gave a power to the Governor and Council either to visit or appoint other persons to visit, on special occasions, the gaols of the colony. These were the three substantial provisions of the bill. Under the first clause, by which the Governor and Council had the power to adopt regulations, orders, and rules, for the management of gaols, it was remarkable, that the Governor and Council had adopted precisely those rules and regulations which formed a part of the colonial bill of 1834, the rules and regulations adopted by them differing only in the very slightest circumstances from the rules which were in force in the colonies at the time at which the bill was passed. As to the power of appointing inspectors) the Governor had the power of appointing them under the former bill. If the Governor had thought proper to exercise that power, it was Tested in him by the bill of 1834—that he distinctly asserted. Who were the inspectors that had been appointed? They were the stipendiary magistrates. The 1100 stipendiary magistrates were local magistrates, and therefore they came distinctly within the provisions of the bill of 1834. Again, under the bill of 1834 the Governor had the same power that he had under the English bill, to visit the gaols, or to order any other person at his discretion to do so when he thought proper. All the powers given under the English bill were substantially in the possession of the Governor in Council under the bill of 1834, if the Governor thought proper to exercise them. Then their Lordships were charged with having been the actors in the passing of the West-India Prisons Bill. He admitted that charge to be well-founded. He was-in the House when the bill was introduced, but took no part in the discussion, and did not oppose it because be was not apprised of the circumstances out of which it originated. He was not then acquainted with the facts which appeared from the papers now on their Lordships' table—he was not then in possession of the facts which he had since derived from other sources. Had he been acquainted with them he should not have been silent, and he should have given that measure his warm, zealous, and determined opposition. They were told, that there was an indisposition on the part of the Assembly to legislate on the subject of prisons, and the noble Marquess had expressed great astonishment, that the learned counsel who had been heard at the bar should have controverted that proposition. He had looked at the papers that had been laid before their Lordships on this subject, and he must say, that not the slightest imputation rested on the House of Assembly in that respect. They had done all they could be expected to do. It was not his intention to go into the detail made by counsel at the bar, or to go through the whole course of documents and observations made by him, but he would call the attention of their Lordships to two or three facts, which would satisfy them, that what the learned counsel had argued was correct. In 1834, the attention of the House of Assembly was called to the subject of prisons, and an address was presented to Lord Sligo, who was then the Governor, telling him, that they would direct their attention to it immediately. They fulfilled their pledge — they appointed a committee— that committee prepared a bill—the bill was introduced and passed that Session, and it was pro- 1101 nounced on more occasions than one by Lord Sligo to be a most beneficial measure. That was the first step. What followed? Lord Sligo some time afterwards informed the House of Assembly, that in some of the parishes of the island the bill could not be carried into effect. The House of Assembly again appointed a committee, and found that representation to be true; and that the reason which rendered it impracticable to carry out the measure, was the want of pecuniary means, and they voted 42,000l. in aid of the parochial assessments for that purpose. That was not all. In the same Session a bill was passed relating to a similar object, and everything that could be effected was effected in 1834, to render the system effectual. Was it any reproach to the House of Assembly, that in that first effort for the purpose of establishing a good system of prisons, the system adopted was open to some objections? Their Lordships had themselves been employed on this subject during thirty years, and their labours were not yet completed. The House of Assembly entered honestly into the consideration of the subject. They passed a bill which was considered by every one in Jamaica as a most beneficial measure, and the moment that any point of difficulty was suggested to them, they directed their attention to the subject, and passed those subsidiary acts which were necessary for removing the obstacles which existed. Such was the state of things in 1834. Now what took place in 1835? Lord Sligo represented, that there were some defects in the system. What did the House of Assembly do? They appointed a committee immediately for the purpose of investigating the statements made by the Governor, and what was the result? They recommended that a bill should be introduced for the purpose of remedying these defects. While they were so employed, a message came from the Governor, laying before them the bill passed by their Lordships in 1835, together with three reports of different committees upon the subject of prisons. The committee directed their attention to these reports and to the provisions of the bill; and before they could read the reports, in the course of eight days from that time the House of Assembly was prorogued. Was it the fault of the House of Assembly that their measures were thus interfered with? No, it was not the fault of the House of 1102 Assembly, but it was the fault of Lord Sligo himself. It showed that Governors could commit errors as well as Houses of Assembly, for Lord Sligo had himself, on three distinct occasions, been guilty of a flagrant violation of the privileges of the House of Assembly, and it was on that account that he prorogued the House. The Governor was afterwards compelled to make a proper concession to the House of Assembly, thereby proving, in the most distinct manner, that he was wrong. This was in February, 1836; and what he had stated showed that in 1834 an effective and useful measure was passed by the House of Assembly in reference to prisons. In 1835 the House of Assembly again directed its attention to the subject, and in 1836, when they were considering what course should be further pursued, an end was suddenly put to their labours. Then what took place in 1837? Sir Lionel Smith, the Governor of the colony, directed the attention of the House of Assembly to the subject of prisons, and they did then what they had done on various occasions before, they appointed a committee to investigate the subject. They had no sooner done so, however, than a communication was made to them by the Governor. And what was the nature of that communication? He told them that he had ordered returns to be prepared and sent to him from the different parishes, and that when they were completed he would have them condensed and laid before the House. They were never laid before the House. Sir Lionel Smith never redeemed his pledge. He called on the noble Marquess, therefore, who must be acquainted with all the circumstances which he had stated, to look to this subject. The committee were sitting, and were proceeding with their duties, when they were interrupted by the message of the Governor, who promised that returns should be given to them, which were never produced, and he asked them whether it could be said that they had neglected their duties? But was that all? A portion of the despatch from Lord Glenelg to the Governor was laid before the committee, and what did that state? It said that the Prisons Bill would expire in 1840, and that before that time should arrive, it would be necessary for the House of Assembly to direct their most serious and earnest attention to this most interesting and important subject, with a view to pro- 1103 duce an improvement in the system. Did not this, then, suggest that this was a subject which required much care and great attention, and that it would be necessary to complete the new measure before the year 1840? This was in 1837, and what was there to lead the House of Assembly to conclude that the Colonial Office expected it should be done immediately? The committee, however, continued its inquiries, and almost immediately afterwards Captain Pringle arrived, as a commissioner from the Government, to inquire into the state of prisons in Jamaica, and to report upon the subject —with what view, and with what purpose? To report, most obviously, for the purpose of laying a foundation for some future improvement in the system of prison discipline. It was quite clear, then, that the House of Assembly could not legislate without receiving a copy of the report. Captain Pringle, however, was allowed to leave the colony without presenting any report to that body; he came to this country, he presented his report to the Government, but no copy of it was ever sent to the House of Assembly. Could they then be blamed for not passing a bill, the inquiry still going on, and they having every reason to believe that they would be made acquainted with its result. But the facts were still more strong than that. Captain Pringle found fault with the construction of three prisons; the House of Assembly were prepared to alter them. "No," said Captain Pringle, "don't do that, but wait till the Government plan for new prisons arrives here, otherwise you may be throwing away your money." Was the House of Assembly to blame, therefore, in waiting for the material the Government had promised to furnish them with for the purpose of legislating? Now, these were the real facts, but notwithstanding the neglect on the part of the Government to furnish them with the information which they required, the committee still continued to sit, and the gentleman who was chairman of that committee prepared his bill, and was waiting for the information promised by the Government, when, to the astonishment of the island, and without any previous notice, the West-India Prisons Bill, which had been passed by their Lordships, arrived in the island. That bill was passed for the purpose of internal regulation; and this House had no right, according to the Constitution, to 1104 pass it. It was a direct infringement of the privileges of the House of Assembly. This he asserted most boldly and most broadly, and was there any one who could oppose such a declaration? He asked the House, then, whether it were surprised that the House of Assembly should have resisted? They knew what was the temper of the best constituted popular assembly when an indignity was offered to it, and were they surprised that the House of Assembly should have come to these resolutions, more particularly when they recollected that in two instances they had passed similar resolutions for the purpose of obtaining redress of their grievances, which had been granted to them? He repeated, that he was not there to defend the resolutions or the conduct of the House of Assembly, but he only stated these circumstances in explanation of their proceedings. This, however, was not all; the House had not only invaded the privileges of a popular Assembly, but had insulted that Assembly at the same time What was the nature of that insult? The bill arrived in Jamaica in the month of September. It was said to be necessary and urgent. It was not proclaimed until the end of the month of November, nearly three months afterwards. What took place in the mean time? It might have been expected that there would have been a line of conduct conciliatory in its nature adopted on the part of the Government: but no such thins took place, for not the slightest communication was made upon the subject to the House of Assembly. There was no conciliation—no apology. What had been done by the Governor of another colony under circumstances exactly similar? He alluded to the conduct of the Governor of Barbadoes, who was placed-in a situation precisely like that of the Governor of Jamaica. Did he content himself with proclaiming the bill. Far from it. Lord Glenelg sent it out, with a most conciliatory dispatch to the Governor, with instructions that it should be communicated to the House of Assembly. It was so communicated to them, and it was accompanied by a most conciliatory message from the Governor. But it was to be remarked, that this took place a considerable time before the law was proclaimed in Jamaica,—it was known in Jamaica what had taken place in Barbadoes, and the inhabitants of the former colony were preparing for conciliatory measures being 1105 used, and supposed that they would be treated, under the circumstances, with the same consideration as their neighbours. But no; the law was proclaimed, and they were left to find it out. He asked then, with confidence, how the House of Assembly could be blamed for having passed the resolutions to which he had referred—not those alluded to in the preamble of the bill, but those which he had stated? Were not these strong and urgent, and, considering the whole tenor of the conduct observed with regard to them, he asked whether the House could be surprised at the proceeding which the House of Assembly had taken. So much for that part of the subject. But then it was said that these laws, which it was proposed to enact similar to the orders in council, were necessary for the island of Jamaica, in consequence of the change which it had undergone, and further it was said, that the Assembly of Jamaica would neither pass these laws, nor provide efficient and proper laws directed to this important object. This he had heard stated, and the noble Marquess, if he did not make it in direct terms, insinuated such a charge. What right had they to say that the Assembly of Jamaica would not pass these laws? What right had they to say, that the Assembly would not provide effectual legislation? Had it been tried? Had it had any opportunity of passing such laws? Had even a message been sent to the House of Assembly by the Governor? Nothing of the kind. Sir Lionel Smith said loosely, in one of his dispatches, that he did not think that the Assembly would pass a vagrancy law. But before they interfered, they ought to give the Assembly an opportunity of passing such laws, and to see whether they would adopt them. Till they did this, they had no right to make a change in the constitution of Jamaica, and if they did make such change, they would be wrong doers. The Assembly of Jamaica abolished the apprenticeship system two years before the legal period; the Assembly did this by its own voluntary act. He did not mean to say that the Members did not do it as a choice of difficulties; but they did that for which they were entitled to, and for which they had received, the distinct and emphatic thanks of the Governor. The Government said, that these acts were a necessary consequence of that abolition. Be it so. But if the House of Assembly 1106 passed the Act abolishing apprenticeship of their own free will, what right had the Government to say, that the Assembly would not, of its own free will, pass such laws as this change required? He said distinctly, that they had no such right: and when he spoke of the House of Assembly, he would recal to the recollection of the noble Marquess what Sir Lionel Smith, and the Marquess of Sligo had said in approval of the conduct of the Assembly. He would refer particularly to the language of Sir Lionel Smith in his address to the Assembly, at the close of the Session, when he had full opportunity of knowing the conduct of that body, and after he had been one year governor of the island. Sir Lionel Smith said, that he acknowledged with great pleasure the readiness and attention which the Assembly had paid to all his communications; he thanked them for adopting the plans he had suggested for the classification of the apprentices, and he bore testimony to the zeal with which they had applied themselves to the public business, and to the good understanding which had been apparent in all their proceedings during the Session. That speech was delivered a year after Sir Lionel Smith had been in the island, and he took it as a sample, though by no means the most striking sample of the encomiums which were passed by the Governors, both by the Marquess of Sligo and by Sir Lionel Smith, on the conduct of the House of Assembly. This being the case, he would ask, where was the pretence for passing the bill? And here he was not objecting to the whole bill, but the material clause in it. What were the grounds which had been stated for giving these powers to the Governor, by which they were about to create a new constitution, so far as related to the enactment of laws for Jamaica? They gave the Governor and Council the absolute and the arbitrary power of imposing the Orders in Council on the legislature of Jamaica. They took away the power from the three branches of the Legislature, and they transferred that power to two branches only. They not only gave to two branches of the Legislature, Governor and Council, the power of imposing the Orders in Council on the island, -but they were to have the force of law, and that, without any possibility of repeal, or of alteration, or of modification of that arbitrary power which they gave to the Governor and Council. How would the Act stand if the House of 1107 Assembly, the Council, and the Governor should not agree in passing laws directed to the same objects as the Orders in Council before the 1st of November? Why, that the Governor and Council would have the right of imposing laws on the island of Jamaica. Suppose the House of Assembly should be disposed to pass the best laws. Having all the local information, and all the knowledge that was necessary, let them suppose that the Assembly should be acting bonâ fide—suppose they should prepare a law founded upon long consideration, and framed to the best of their judgments—it would be sent to the Governor; and, if the Governor did not choose to give to it his assent, what would happen? The Governor and Council would have power immediately to impose laws on the island. If the Council should object to the law, they and the Governor would have the same power. Now, attending a little to things as they passed in that House and in the Colonial-office, he did not feel any great assurance that the Governor acting upon orders from the authorities at home, would assent to any law making any difference in its enactments from the Orders in Council. Indeed, he was persuaded, unless he shut his eyes to what was going on, and unless he closed his ears to what was generally stated, that such would be the instructions which the Governor would receive. Therefore, unless the laws passed by the House of Assembly should correspond with the Orders in Council, the Governor, by the advice of the Council, would substitute in lieu of those laws the Orders in Council. Had he then made out his position, that by this bill they were enabling two branches of the Legislature of Jamaica to pass laws? Were they not, by so doing, placing themselves in the wrong, and were they not violating one of the first principles of the constitution by transferring the power of the whole of the Legislature to a part only of the legislative body? But was that all? If once the Orders in Council were passed into laws, there was no power to alter or amend them. If the bill were read carelessly, it might appear that the House of Assembly would have power to pass or to alter such laws as they might think necessary, but he had shown that instead of the House of Assembly having any power to make such laws as they thought necessary, the power was 1108 vested exclusively in the other two branches of the Legislature; and with respect to any alteration, modification, or repeal of these laws, it was clear that it could not be done by the House of Assembly, which was only one branch, but that the consent of the Governor was required. In fact, an arbitrary and exclusive power was given by the bill, which, under no circumstances was he disposed to grant, and more particularly was he disposed to grant it when he considered that the conduct of the House of Assembly had been as he had pointed out in the course of his observations on the bill. He would not enter into a consideration of the proposed laws themselves; it was no part of his intention to discuss the laws comprehended in the Orders in Council; he had not the local knowledge which would enable him to do so with advantage; it was not necessary for his present object that he should do so. But, if one thing struck him in reference to these laws, it was with reference to the law of contracts. He found that no civil contract would be valid unless it was entered into in writing, and subscribed by the parties, but it must be entered into within the island of Jamaica. He found also that no contract of any description was to be in force for more than twelve months. Now, he was informed by persons connected with West-Indian affairs that it was the habit, and that it was necessary, that contracts should be entered into in this country with artificers and workmen to go out to Jamaica, and he was persuaded that no such persons would go out unless a contract with the masters was previously signed, nor unless it could be maintained for a longer period than twelve months. He alluded to the case of coopers, and other artisans of that description usually sent over from this country. He could show many more of the evils of these orders, but he passed them over as not being necessary for his view of the case. There was, however, another clause in the bill to which he would revert for a moment, and he would put it to the noble Lords opposite, whether they would not see the propriety of their own free will of abandoning part of the clause. Seven of the bills therein mentioned were money bills, and he was told by those acquainted with the colony, that it was not necessary to renew these bills. There were funds amply sufficient for the conduct of the 1109 civil service of the island without passing this bill, which was a direct infringement of the declaratory act of one of the fundamental laws of the empire. This part of the bill was unnecessary, and it was doing gratuitous injustice, because the House of Assembly distinctly stated that they would exercise no legislative functions except such as might be necessary for preserving faith with the public creditor. The House of Assembly was content to renew these laws, and how could they pass the present bill when the Assembly said that they were willing to keep faith with the public creditor? Could they say, that the House of Assembly would not renew these laws? Could they make that assertion in the face of the actual statement of the Assembly, when they said that they were ready to renew these laws. Had they given them any opportunity from the month of December up to the present time? From the 20th December to the present day, no opportunity had been afforded to the Assembly to renew these laws? They gave the Assembly no opportunity to renew them, and now the Parliament proposed to renew them on its own authority, in violation of one of the first principles of the constitution, and of one of the fundamental laws of the empire. He threw this out for the consideration of noble Lords, and he thought that they should not in decency maintain this clause, but that they ought to abandon the whole bill. He was not, however, making that proposition. What course did he recommend? He recommended a course of conciliation. He disapproved of the resolution of the House of Assembly, but he wished to give the House of Assembly an opportunity of rescinding that resolution, and of retracing its steps. Give them, he would say, that opportunity. The Government had begun to conciliate, they had removed Sir Lionel Smith, who was a warm partisan; this was the first step towards conciliation; let the new Governor deliver but a conciliatory speech on the opening of the House of Assembly, and he would pledge himself, from all the information he had been able to obtain from the island, that there would be an end to the unfortunate state of things that now existed between the parent state and the colony. Give the Assembly, he said, the opportunity to do this, and if they did not avail themselves of it, then would their positions be changed, the Government 1110 was in the wrong now, the Assembly would be in the wrong then, and when they refused, all parties in this country would be ready and willing to unite in removing the evil; but at least give the Assembly the trial. What objection was there to such a course? He had heard of none. It was said, that the bills were urgent—that time was material—that the bills ought to be immediately passed. He denied this necessity. Even if this bill were passed, the laws could not come into effect before November. If the House of Assembly held out, if it refused to pass laws, the Governor and Council could not act before November. At that time it would not be long before the Imperial Parliament would meet, they would be apprised of the conduct of the Assembly, and before March laws most effective would be imposed without a dissentient voice. What loss would there be in time? Just four months; and was that loss an object? Let them look at the case of the Vagrancy Bill. Would any inconvenience result from the delay in reference to vagrancy? There was no vagrancy now in the island of Jamaica; it might grow up. If the negroes refused to work there might be vagrancy, but there was none now. It was not necessary, therefore, to pass the Vagrancy Bill for four months. Was he without authority upon this point? Lord Glenelg had ordered an inquiry to be made into the amount of vagrancy from the expiration of the apprenticeship system up to the end of the last year; the return from every district, without an exception, was "nil;" there was not a single vagrant throughout the whole population. What was the reason, then, why the Government said, they would press this bill with the knowledge, that it was not urgent—to be derived from the documents to which he had referred? Then, with respect to the illegal occupation of the land, the same observation applied. If the negroes would not work, there might be that illegal occupation of land which was called squatting, and it might be necessary to remedy the evil; but that system had not commenced. What, then, was the great evil occasioned by the want of those measures for the next four months, that they should be content to change the constitution, and to introduce the orders in council? Let them wait for four months. By thus doing they would be acting wisely—they would 1111 be acting judiciously; instead of being wrong themselves they would be placing the House of Assembly in the wrong if they did not avail themselves of it. Upon these grounds—upon this principle—he proposed the extinction of the first clause in toto. They were not pressed by circumstances to pass this bill; they should not force the Assembly of Jamaica by this bill to do that which they would otherwise accomplish. It should be their object to give the Assembly time to legislate, to give them an opportunity of applying their local knowledge, and not to pass a bill which should only be adopted in a case of emergency. He was sure, that they would pursue the wise course, by pursuing a temperate and a conciliatory course; it would be the forbearance of the powerful towards the comparatively weak; it was the expedient course—it was the dignified course, and he was persuaded, that the Imperial Parliament ought to adopt it. The noble and learned Lord concluded by moving, that the first clause be expunged.
§ Lord Glenelg
had not had the advantage of hearing all that had fallen from the noble and learned Lord. The noble and learned Lord had said that the Prisons Bill was no part of the Abolition Act. What he had ventured to state the day before was, that the Prisons Bill was, in fact, identical with the Abolition Amendment Act, which had been passed last year with the complete concurrence of that House. Perhaps he had misapprehended the sort of reasoning of the noble and learned Lord, but it seemed to him as if the noble and learned Lord supposed him to have argued that the bill was necessarily a connection of the first Abolition Act. But his argument the day before was, that the Prisons Bill was, in truth the same bill as the Abolition Act Amendment Bill, because the merits of that bill had been discussed in passing that act, and the same approbation which had supported the Abolition Act Amendment Bill had also supported the passing of the Prisons Act. But he took the liberty of saying, notwithstanding what the noble and learned Lord had said, that it was not to be disputed that the House in acceding to this Prisons Bill and Abolition Act Amendment Bill did in truth undoubtedly, and in fact, give its approbation to the Prisons Bill. But the noble and learned Lord had stated, that 1112 the Prisons Bill was, in truth, nothing more than a transcribing of the act of 1835 of this country. But the observation to which he was peculiarly adverting was when the noble and learned lord adverted to the Jamaica Bill of 1834; and he stated, that in that bill was contained the substantial provisions embodied in the Prisons Bill, and the noble Lord argued therefore, that it was a superfluous infraction of the West-India constitution to introduce that Prisons Bill. What was the difference between these two measures? The act of 1834 in its general provisions and enactments, though open to amendments, was not an executive measure. It had received the approbation of the Government, and it had expressly admitted that the bill was entitled to approbation. But he had stated yesterday, and he begged their Lordships to observe this distinction, that the great evil of the Prisons Act of 1834 was this, not that it failed in enactments, not that it failed in principle, not that it failed in provision —all right, all perfectly correct, in classification, in cleanliness, separation, ventilation, religious instruction,—all this was as strongly provided for as in any Act cast in any Parliament. But he had stated, and with submission to the noble and learned Lord be would re-state it, that with all these most just provisions that Act was a dead and powerless measure because it had no principle of execution, because it had no adequate executive principle. The noble Lord told them that that Act had precisely the provisions which the Prisons Bill had, namely, that it gave the governor the power of appointing inspectors. With the greatest submission he begged to deny that position from first to last. There was not even a loop hole for giving that power to the governor.
§ Lord Lyndhurst
said, the noble Lord did not understand what he had said. What he had said was, that the visiting magistrates were local magistrates. The stipendiary magistrates were now inspectors; the stipendiary magistrates were now local magistrates, and the moment they were appointed local magistrates they became visitors and inspectors under the bill of 1834. That was what he had stated. The noble Lord was not present at the time.
§ Lord Glenelg
believed he was. But the noble Lord had then enumerated three particulars in which he said the Prisons 1113 Bill exactly corresponded with the act of 1834. He thought he was correct in stating that. He thought that the noble Lord said that the Prisons Bill allowed the Governor to make regulations for the prisons?
§ Lord Lyndhurst
did not state that. Did the noble Lord wish that he should state again what he then had stated? He had stated that, by the new Act, the West India Prisons Act, passed by that House, the Governor and Council were authorized to make rules and regulations for the government of prisons. He had stated that the Governor and Council under that Act exercised that power, and had adopted the very rules and regulations which formed part of the Act of 1834.
§ Lord Glenelg
was about to mention that very point. But there were two other particulars in which the noble Lord said the Prisons Bill did no more than the Act of 1834. [Lord Lyndhurst: one, that the Governor had a power of visiting gaols,] And under a local magistracy the power of inspecting.] [Lord Lyndhurst: Yes.] He admitted the fact of the transfer of these rules from the Act of 1834, and it did not in the slightest degree militate against his statement. He stated that the Act of 1834 was unobjectionable. The great object of the Prisons' Bill was, (not that the rules of the Act of 1834 were bad) to put in execution the rules of the Act of 1834, which gave no means of putting them in execution. In a dispatch of his, dated May, 1837, he stated:The Gaol Act of the Jamaica Legislature, passed in 1834, recognizes in the preamble as the basis of prison regulation, classification, separation, superintendence, regular labour and employment, and religious and moral instruction, as essential to the discipline of a prison, and to the reformation of offenders; but the salutary provisions of this statute appear to have been imperfectly administered, and those principles would seem in practice to be almost entirely disregarded.And he afterwards stated—I cannot close this dispatch without adverting in a more direct and especial manner than I have hitherto done to the evidence afforded by a comparison of the law respecting prisons with the practice and the actual condition of them; that the Legislature on the subject is paralyzed throughout by the fatal circumstance of the act containing no adequate executory provisions. Its execution depends upon the parochial authorities and the justices; and it appears to be proved by experience 1114 that so long as it shall be solely intrusted to those functionaries it will be inoperative. Were it possible to anticipate that a fair degree of operation would be obtained for such enactments through this agency, there is no way in which his Majesty's government would more gladly see the objects accomplished; for it is of great importance to every community that the gentry and other persons of respectability should be engaged in voluntary efforts pf this nature, and that those efforts should be assisted by the Government rather than that any other agency should be substituted; but if no such effort can be relied on, it then becomes the duty of the Government to consider what other means can be adopted for the accomplishment of purposes which cannot be abandoned or neglected without incurring a grave responsibility.Now, that was precisely the statement which he had made yesterday, and which he begged leave to repeat. He asserted, that the Act of 1834 had no one provision for execution whatever. It was impossible for the legislative authority in any manner to carry out the efficient execution of that Act, and the result proved that to be the case, for while that Act was in operation, it was continually disregarded, as was notorious, in their despatches and in all the letters to the Governor. The fact was, that the Prisons Act was utterly powerless. Lord Sligo and Sir Lionel Smith brought under the notice of Government, instances of workhouses and prisons in which the regulations adverted to in that Act were utterly unknown; and Captain Pringle, on a subsequent inquiry, had stated precisely the same thing—that with few exceptions, the codes of rules were not known in the prisons and workhouses. The various regulations respecting cleanliness and ventilation, and separation, were really unknown and unheard of; and therefore the Act was in a manner perfectly powerless. It was an act on their statute-book to which the House of Assembly could refer, and assert that there was an act for the government of prisons; but if they asked where were the workhouses and prisons in which the beneficial effects of this Act were to be seen in any cleanliness, or in any religious instruction, the answer was, the mass of the prisons and workhouses were as utterly ignorant of the existence of this Act as if it had never existed. Then that Act wanted an executive principle, and therefore it was not extraordinary that the Government should take the regulations from the act of 1834; the point was to execute them. But he 1115 begged to state further, that the noble and learned Lord had omitted to advert to two very material enactments in the Prisons Bill, which were not at all touched in the Act of 1834; the one was, that the Governor had the power of dismissing the officers and workmen on their being guilty of misconduct, which was a most material enactment; and the other clause was, that the governor was to signify when any prison was unfit for receiving prisoners, and that from that moment that prison should not receive any more. That was an exceedingly beneficial measure. It was not an uncommon practice that the prison-houses and workhouses were so ill-built, that the prisoners were obliged to be put in chains and attached to each other, and to be kept during the night in chains and in stocks; in short, in addition to the sentence of imprisonment, they added the sentence of torture. And how could they tell him, when an Act of this description remained on their table, that the population, who were crowded day and night into hot-houses, into workhouses, into prisons, into cells, and other places, not by the sentence of any magistrate, and not punished at the direction of any superior authority, but at the direction of the prison keeper, who at his own will and command inflicted on any person what degree of confinement and pain he thought right in his discretion to do, would be satisfied under such a measure? And who were the persons intrusted with the care of the gaols, and what were they in respect of character? They had each a gaoler and a supervisor, each of whom might be of respectable character; but the person generally intrusted with the management of these prisons, was a person who was termed a "boatswain," who was generally a convict for life. It appeared from the report of Captain Pringle, that sometimes the gaoler, the supervisor and their wives, were absent on business for three or four days, and the whole of the prisoners were then left in the charge of the officer called the "boatswain," and who was generally a man of bad character. It was notorious that the sexes were not separated, except at night; that they were during the whole day together, and the person who locked the females in their cells at night and let them out in the morning, was the "boatswain". This was the species of religious instruction given to them. Look to the earnest and strong appeals which had 1116 been made year after year in succession by the Marquess of Sligo and by Sir Lionel Smith. What were those appeals? Were they for a new bill? No. They were distinctly for such specific measures as might suffice to remove a state of things, not of doubtful or questionable tendency, not of a nature about which there ought to have been room for any the smallest hesitation or delay, but a state of things the existence of which was disgraceful and atrocious, which could not but be deemed disgraceful and atrocious by any man, or any set of men. What were the subjects of complaint? They were the flogging of females; they were cruelty to males; they were deaths by starvation of offenders in the prisons of the island. What was complained of by the successive Governors of Jamaica was this, you send a female to prison for certain offences, and while you think that you thereby impose a sentence proportioned in severity to the nature of her offence, it is in effect, and, in fact, torture, to which you subject her—it is the infamous curse of the lash which you cause her to endure. He would refer to a despatch of the Marquess of Sligo. The noble Marquess wrote to him, in 1836, to this effect:—I will apply, in pursuance of your instructions, to the House of Assembly, to concert some remedy for the evils connected with the subject of prisons and prison discipline in this island; but there is no chance of their acceding to any satisfactory measure.The noble Marquess afterwards applied to the House of Assembly, and what was the result? He said,I did apply to them, and the subject has been referred to a committee; but since I applied to them, no fewer than forty cases of an aggravated description, arising out of the state of the prisons, have occurred. There have been, among these, cases of the grossest cruelty to females; cases of the grossest cruelty to males; cases of persons who have died in confinement from the treatment they have received; cases of persons who have been left four days without food; cases of persons who, having had medicine ordered them, had suffered severely, because the medicine was not given them, in consequence of the boatswain being absent, although the gaoler and supervisors were at their posts.These, and such cases as these, were what had occurred, and were enough to harass and outrage the feelings of every man. Having thus, as he had shown, repeatedly called upon the House of As- 1117 sembly, not to go out of their way, not to pass a new Bill, but to do barely what the simplest dictates of humanity pointed out, the House of Assembly was called upon to enact some measure providing that females should not be subjected to the lash and to insult in these prisons; that the male prisoners should not be subjected to cruelty; that human beings should not meet their death in prison from wanting necessary medicines, which could not be administered because the boatswain did not do his duty. Was it not deplorable to find that when people died in consequence of their treatment in those prisons, the grand jury should return for verdict "Died by the visitation of God!" A glance over the particular points which had been again and again referred to the House of Assembly of Jamaica by the Governor, under instructions from the Government at home, would more particularly show the imperative necessity which had arisen for interference on the part of the Imperial Parliament to effect some remedy for this state of things, which it was disgraceful to suffer to continue, because it was revolting to the commonest humanity. As the Marquess of Sligo said, the Prisons Act, when it was communicated to the House of Assembly, was by them referred to a committee of their body. Now, on this, their Lordships would observe, that all through every Session of the House of Assembly for three or four years references of important subjects were continually made by the House of Assembly to these committees. But the cases to which he had referred were atrocities such as could not be suffered to go on, and he had said, that they must be put an end to. But how was this to be done? If, as the learned Lord (Lyndhurst) said, the special magistrates, invested with power from the governor, and armed with all the means at his disposal, had repeatedly endeavoured to penetrate these receptacles of horrors, but had been repeatedly repelled, and repelled, as it was said, according to law, then the particular result of this statement of the noble and learned Lord was an admission that under this act of 1834, the governor had no power of inspection over the prisons. But the cases he had referred to were not the worst; in 1836 came out the most atrocious of all the atrocious cases that had occurred in these workhouses. Well, to the House of Assembly, which had met in 1835, and which continued in 1118 existence throughout the whole of 1836, the subject was again referred, but referred in vain. They excused themselves. The medical inspectors of workhouses, they said, had failed to perform their duty. On the 21st of February, 1837, Sir Lionel Smith sent a message to the House, recapitulating all the atrocities of the prison system which had come to the knowledge of Government; calling attention to the despatch of the Secretary of State in which reference was made to some correspondence between the Marquess of Sligo and the Secretary of State relative to the adoption of means for the improvement of the condition of the apprenticed labourers generally, and expressing a wish that the House would enter upon the subject of prisons and workhouses and that they would take some method of putting a stop to the system of treatment which apprentices met with, when committed to prison. In March following the Assembly returned, for reply, the following statement:—If the House were at all cognizant of the existence of abuses in the gaols and houses of correction, which require legislative interference, they would most readily go into a revision of the laws which regulate those establishments; but without such facts before hem, impressed as they are with the belief that the Marquess of Sligo was much misled, that the representations put forward by him of workhouse punishments were greatly exaggerated, and that the existing laws, if duly enforced and fairly acted upon, were sufficient to prevent abuses, the House deem it unnecessary to deal with the subject at present, particularly as the session is so near its close.They went on to state that they believed the inspectors were legally excluded, and they concluded that, on the whole, it would be better to defer the consideration of the subject until the next Session. This was in March, 1837. During the succeeding twelve months fresh instances of cruelty came to light; among others was the case of Williams, which he had mentioned to their Lordships before; and the Governor consequently returned word that these cruelties were completely proved to exist. With respect to the case of Williams he (Lord Glenelg) protested that when he at first heard it he could not believe anything so atrocious could be possible. Now this document of the Governor was public to all Jamaica; the facts stated in it were made the subject of animadversion in the British Parliament; they had been made the subject of general 1119 conversation in the island; they had been held up to notice by two most hon. magistrates there; they had been the theme of every man who advocated humanity in Jamaica; and yet when Sir Lionel Smith suggested, that the House of Assembly should adopt some measure to take away the stain which these cases fixed upon their country, to abolish this perpetual torture to which they subjected the black population, what did the House of Assembly do? They referred the matter to a committee. That committee made a report on which he would remark presently; but in the mean time he would take upon him to say, that under this evasive method of proceeding on the part of the House of Assembly, the Act of Emancipation was a perfect mockery, unless the Legislature of this country stepped in, and took measures for carrying it into execution. The Government thought that they had too long delayed to put a stop to the power and the practice of inflicting these cruel torments on the apprentices, which had not been exercised even in the state of slavery. But what steps did the committee of the House of Assembly take? He ought to say that before they concluded their sittings, he had written to Sir Lionel Smith, desiring that some measure might be recommended to the House of Assembly for putting a stop to these abuses, and intimating that, if something were not done by the Assembly, a bill having that object would be proposed to the Imperial Parliament. In November, Sir Lionel Smith announced this to the Assembly, who referred it to the same committee. And Sir L. Smith told him (Lord Glenelg) that though he could not communicate officially what was the decision of the committee, their report not yet having been then made, that there was very little hopes of coming to a decision favourable to the wishes of the Government at home. And so it turned out. The committee recommended no measure. The House adjourned in December until the 20th of February, which was tantamount to putting off the settlement of the question till then, as the Committee could not report sooner. Indeed, according to the established usage, it might be questioned whether they could report at all, not having reported before the adjournment; for the House was in the habit, on making recommendations of subjects to the consideration of committees, never to re-ap- 1120 point those committees after adjournments. In this case, too, the committee had met in November, and sat great part of December without making any report. The House separated for the holidays, and not one word was heard of this bill. In 1838, the Imperial Parliament passed the Prisons Bill, and then it was, according to the noble and learned Lord, that a committee of the House of Assembly was appointed on this very subject. But, in fact, not one word was heard about it. Last year, when they met, the House of Assembly then for the first time discovering it, expressed hostility to the Prisons Act—then for the first time transpired the state of their feelings as to that statute. Then Mr. Jordan, the chairman of the committee he had mentioned, to the surprise, he believed, of the House, stated that he had, in consequence of what had taken place in the committee, prepared a bill; that it was nearly completed; but that he met with so many difficulties as had greatly retarded him and rendered it impossible to present the bill before the succeeding Session, when he was resolved to bring it forward. That was precisely the course which the House of Assembly had pursued from year to year. Under these circumstances, he should have been negligent of his duty, if he had deferred any longer to press upon their Lordships, as he did, the necessity of interposing to take effectual measures for carrying out the Emancipation Act. He was not aware that there was any other topic to which he ought to refer, except it were the subject of the proclamation of the Prisons Act. The proclamation, according to the noble and learned Lord, did not take place till November, the House of Assembly having met on October 30th. But Sir Lionel Smith said, in his despatch of the 25th of September, that he had received the Act on that day, and the proclamation bore the same date.
The Marquess of Normanby
said, that when he gave way to his noble Friend, he was not aware that he would have confined himself so exclusively to what was immediately connected with the transactions which occurred during the time he was in office. After the indulgence which their Lordships had given him last evening, he should not feel it necessary to enter at any considerable length into the topics touched upon by the noble and learned Lord opposite; and he felt absolved also 1121 from making any remarks upon that portion of the subject which had been since so largely answered by his noble Friend— he meant as to the Prisons question, which had been suffered to remain stagnant by the House of Assembly, and to which little effect would ever have been given but for the active intervention of the British Parliament. The noble and learned Lord had alluded to the tone in which he had advanced those arguments which he had thought necessary to address to their Lordships. Now, he never did conceal that he thought the best remedy, during the most important crisis of the great experiment now at issue in Jamaica, was, not what the noble and learned Lord had said—a complete, absolute, and perpetual change in the constitution of Jamaica— but a suspension of the legislative functions of the House of Assembly till that experiment should be carried out to its legitimate extent, and until the emancipated population should have obtained due protection, and have formed those habits which were adapted to their altered condition. Three attempts were made to induce the House of Assembly to adopt the necessary course of legislation to secure protection to the negroes under their altered circumstances; but they absolutely refused to take into consideration any of those measures which were immediately requisite to the success of the great experiment of emancipation. He thought that the bill first proposed in the House of Commons would have been the best for effecting the objects desired. That having been known to be his opinion, he thought it necessary, in justification of the measure first proposed by the Government, to state what had been the different acts of the Assembly, and what had been their general conduct with reference to the general question of emancipation. The noble Baron opposite (Lord Ellenborough) had said, that in doing this, he (the Marquess of Normanby) had exhibited a degree of warmth and intemperance. It was possible he might have assumed a more hostile feeling than was usual, but after reflecting on what he had said, he could not accuse himself of having used any one intemperate expression. But was not the language of the House of Assembly intemperate? Was not their protest, were not their resolutions, couched in terms that must convince every one of the intemperance of that Assembly? The 1122 noble and learned Lord alluded to the protest, and said that it did not immediately apply to the question under consideration. He only quoted that protest with a view to show the temper in which the House of Assembly regarded the Prisons Act. It was said, that the House of Assembly referred the Prisons Act to a committee. Why that was the very thing of which the Government complained—a reference of the bill to a committee was the result of all the appeals made to the Assembly. Again, the noble and learned Lord said, that the House of Assembly was well informed upon all those matters to which the Prisons Bill related. Was it so? Then it must have been well informed of all those horrible atrocities and cruelties which had been detailed to their Lordships. He would not hurt their Lordships' feelings by again alluding to them; but in the papers on the table there would be found details of acts of cruelty practised in the gaols in Jamaica, not only towards men, but towards women, which, if recited to their Lordships, would harrow up their inmost feelings. The flogging of females was then well known; and surely it did not require any very lengthened deliberation to determine whether it were proper or not that such a system should continue. It could not be necessary for the House of Assembly to suspend all legislation for four years to determine whether the practice of flogging within a workhouse in Jamaica was proper or not proper. He would now address himself to the amendment moved by the noble and learned Lord. The noble and learned Lord stated, that he could not, in the first place, admit that these laws were so absolutely requisite, and if so, why not leave it to the House of Assembly to pass them? How did they know (said the noble and learned Lord) that the House of Assembly would not pass them? Now, in the first place, he knew they would not, because the House of Assembly had said so. They had told their Lordships in their resolutions, that they would not enter into any of these topics, or any points, however urgent, until their Lordships and the other branch of the Legislature had done that, which, he trusted, they never would do—namely, own themselves to have been in the wrong in adopting that legislation which his noble Friend (Lord Glenelg) had shown was absolutely, immediately, and urgently 1123 necessary. But he had another reason for knowing, that the House of Assembly would not, at least, pass such a contract-law as would be satisfactory to this country, or give that protection to the newly-emancipated population which those who originated that great measure deemed it right so see secured to them. He had this admission from the learned gentleman who spoke so eloquently and ably on behalf of the Legislature of Jamaica at their Lordships' bar. That learned Gentleman declared, that the House of Assembly would never pass any law for regulating contracts which should allow of any interference on the part of the stipendiary magistrates. Upon that point the Government and the House of Assembly joined issue. He longed for the day when such interference should be no longer necessary; but he felt, that he was speaking the opinion of all the generous people of England, who had always evinced so much sympathy for that unhappy population, that the time was not yet come when the negro could be abandoned to the care of those who were interested not in his case, but who had an interest directly contrary to his. For his own part, he certainly would never, when touching upon this subject, endeavour to separate the interests of one class from another. On the contrary, he felt the utmost conviction, that the interests of all parties must henceforth be the same. But it was essential, that, in making a law of contract, the emancipated population should have confidence in the tribunal to which they must appeal. Without doubt a security for continuance of labour was necessary for the interest of the planter; but that security could not be obtained without some system of legal contract being established. But there was proof on their Lordships' table, that the negro would not now enter into any such contract, because there existed no law on the subject on which he could place confidence. It was, in consequence of the absence of a good contract law, that labour at the present moment was so irregularly performed in Jamaica. This being so, then, if the House of Assembly would not pass a law which would give confidence to the negro, he contended, that a case was at once established which not only justified but called for their Lordships' prompt interference. As to the manner in which protection and security were to be given to the negro, 1124 whether by some individual authority, or by the existing stipendiary magistrates, or otherwise, he should be quite satisfied to take that question into consideration, after receiving the report of that able and excellent person whom he had been fortunate enough to induce to undertake in the present crisis the government of Jamaica. As to any other point, he would only observe, that it was not necessary in passing any law in pursuance of this ordinance, that it should be in totidem verbis, but that provisions should be framed in accordance to the ordinance so far as local circumstances made them applicable. He trusted a lime would come when all these transactions might be left to their usual mode of action in all settled communities; but till that time arrived, he would not consent to abandon that power which the constitution gave the Imperial Parliament. Besides, there was no hardship in making such an interposition. It was but just, that, on the part of an uneducated and ignorant population, the stipendiary magistrates should have a power to interpose their authority and protection. With respect to the observations of the noble and learned Lord on that part of the ordinance relating to artificers, and to the necessity of making their contracts in Jamaica, he would say, that it was a point fairly open for subsequent consideration. It was not necessary, that he should now enter into a reply to the arguments of the noble and learned Lord on the subject of the second clause. He rather expected that some motion would be made in reference to that clause when it came under consideration; but he completely dissented from the opinion, that the present fund would be sufficient for the public service in Jamaica, especially when items which could by no possibility have been provided for by the Assembly were taken into account. He alluded particularly to the sums due to the public creditor. There were many other items of great importance unprovided for, and which the people of this country would have to pay, unless special provision were made for them in Jamaica. He would only say one word on the subject of the phrase used by the noble and learned Lord when speaking of Sir Lionel Smith. The noble and learned Lord said, that Sir Lionel Smith was a violent partisan.
§ Lord Lyndhurst
The expression I made use of was, that he was certainly not a partizan of the Assembly.
§ Lord Lyndhurst
I beg to say, I do not know any thing of Sir Lionel Smith, and if I used an expression too strong on the occasion, I readily retract it.
The Marquess of Normanby
was perfectly ready to accept what the noble and learned Lord stated. All the evidence that had come before him proved that Sir Lionel Smith had discharged his duty most efficiently, and most zealously, while in Jamaica. He was not to continue in the administration of the Government of that island, a person in the civil service, and of great eminence, having undertaken that task; but he did hope, that the country would still be able to avail itself of the services of Sir Lionel Smith, and he had no doubt that that Gentleman would acquire, in such service, the same degree of credit he had hitherto acquired.
was sure, that if any noble Lord had entered the House after his noble and learned Friend had spoken, and had thus lost the satisfaction of hearing the whole of his speech, in the same way as his noble Friend behind him (Lord Glenelg) said he had entered the House while his noble and learned Friend was speaking, and had thus lost the satisfaction of hearing a great part of his speech; and if, consequently, he had only heard the speech of his noble Friend, he would have said it was a most impressive, a most eloquent speech upon a subject of great importance, but which was all over some years ago—a speech upon what had passed in Jamaica, in 1834, and in England in 1838. For it consisted of an attack on the proceedings of the Assembly of Jamaica in 1834, and of a defence of an act of the British Legislature in 1838; but his noble Friend had not said one word on the present question—on the bill, the details of which they were discussing in committee. At the same time, he did not think it at all unnatural, that his noble Friend should have entered into those subjects to which he had addressed himself. He having reprobated the Assembly for passing of an insufficient act in 1834—which he (Lord Brougham) entirely 1126 agreed with him, seemed defective for not having an executive principle in it, and also having brought in a supplemental act to supply that defect, by introducing the Prisons Bill of last year—nothing was more natural than that he should have adverted to those measures; but undoubtedly he agreed with the noble Marquess, that the speech of his noble Friend did not touch the present question, except very remotely. The noble Marquess having no connection with the act of 1834, and very little with the act of 1838, after hearing a most impressive and powerful attack upon the present bill, upon almost every point of constitutional law, and upon almost every point of fact, addressed himself exclusively to a vindication of the measures with which he had no connection, and said not a word in reference to the proposal now under the consideration of the House. He did not think that the noble Marquess had succeeded in giving any tangible reason in support of the present measure, or even in justification of it. Their Lordships now came to the question, whether the first clause of this bill, left wholly without defence by its propounders that night, was one which merited their Lordships' approbation, and ought to receive the assent of that branch of the Legislature? To which question, as related to the first clause of the bill (being by far the most important part of the whole measure)—to which question, as disposed upon all occasions to limit his assent to measures of this extreme nature, of this unconstitutional character and hateful aspect—measures which were begun, continued, and ended in illegal violence and usurpation; to which question, as limiting his assent to, nay his tolerance of, all such measures to the absolute necessity of each case, he felt bound, to answer, No. When a measure came up to that branch of the Legislature adopted by a majority of the other—when the Representatives of the people, who ought to have as great a care of constitutional principles as the Peers of the realm, had acceded to a measure—when he found the clear and decided opinion of the other House of Parliament expressed in favour of any particular measure, he would not say, that he should feel his opinion bound by theirs, but, at all events, he should approach the subject with deference—with respect—with more than tolerance, even if it were an unconstitutional proposition; and with reluctance and hesitation 1127 should he ask their Lordships to record their dissent from the opinions of the Representatives of the people. So it was when large majorities of the other House had sent up bills as heretofore in the years 1833 and 1834; so it was even when bills came up recommended by only a small majority of that House, as in 1835; so it might be when other measures should come up, if under the present dispensation their Lordships should ever see measures sent up from the other House with large or even respectable majorities—with such majorities as would entitle him to say that the House of Commons had pronounced its opinion decidedly—as would induce him to believe that the measure had received the sanction and authority of the Commons of England—as would lead him to know that he had to grapple with a case which was supported by the decided, the unequivocal, the clear, the plain, the intelligible opinion of the Commons of England, expressed by anything like a fair, reasonable, undeniable, essential, clear, indisputable majority of its Members, and not as it were by a mere chance medley, by an inconsiderable—might he say by a contemptible?—majority; in such a case—when he found the opinions of the Commons clearly and decidedly expressed, he might not feel bound to give up his own opinion, but at all events he should consider himself bound to speak upon the question with deference and respect, to examine it with delicacy, to attack it with hesitation—if possible to agree with it—not lightly or inconsiderately to differ from it. He should not feel justified in treating a question backed by the authority of the House of Commons as if it were a new question propounded in their Lordships' House for the first time. But how was it with a measure which should have been agreed to by the narrowest possible majorities—by chance medley—by circumstances which seemed almost, if not entirely accidental—where the turn of the scale was obtained by the lightest dust flung into the balance; wavering, quivering, shaking in the air, so that the eye could hardly see which scale preponderated—when neither kicked the beam. How was a measure so passed by the Commons to be regarded? With what weight did it come before their Lordships? Take, for instance, the first clause of the present bill. How had the 1128 Commons dealt with it? Were they unanimous in its support? If not unanimous, was there a strong majority in its favour? Far from it. The Commons had carried the clause by a bare majority—by a majority so small as scarcely to deserve to be called a majority at all. The bill came up to their Lordships as if the Commons had expressed no opinion upon it—had given no decision—interposed no authority. It came before their Lordships as if the opinion of the other House upon it had been hardly decisively formed—hardly intelligibly expressed—hardly distinctly communicated. It came backed by a majority so slight as to be almost imperceptible, except to the strongest organs of vision—supported by arguments so vaguely, so unintelligibly, so feebly expressed, as to be inaudible, except to ears of rarest acuteness. It came to them in a shape and under circumstances which left it in doubt whether the other branch of the Legislature had formed any opinion whatever upon it. [laughter.] This might appear ludicrous; but it was no fault of his. He stated the case—he stated the fact; and if there were in it anything ridiculous, anything exciting laughter in quarters which ought always to command serious respect—if there were anything ludicrous in legislation carried on, or affected to be carried on, in such a way as that, it was melancholy to think that such was the mode of disposing of the interests of a great nation. It was next to a positive negation of the legislative functions of the Imperial Parliament—it was next to an abdication of Parliamentary power and privilege—it amounted to an absence of all government which deserved to be called government, or at all events to the prostration of all government which ought to command, by deserving to receive, the respect of the people of the country. It was no light or laughing matter that they should be placed in such a situation. Or, if it became laughable and ridiculous in statement, it was melancholy, grievous, lamentable, and serious, upon reflection and in contemplation. The practical inference which he deduced thence, as bearing upon the present functions of their Lordships' House, was of high importance. In proportion as he should be slow to urge their Lordships into a conflict with the other House of Parliament where there was a clearly expressed 1129 opinion of a decided, commanding majority—in proportion as he should be slow to touch a work (the workmanship of lawgiving) supported by a firm and steady hand, and guided by a firm and steady purpose, by the co-ordinate branch of the Legislature, the representatives of the people; in precisely the same proportion he had a right to call upon their Lordships not to regard a measure which came up to them backed by so small a majority as had supported the bill in the present instance—not to regard it any more than if the other House of Parliament had never formed a determination, or pronounced a judgment, or interposed any authority upon the question at all. With all possible respect for the House of Commons, he considered that he had a right to approach the discussion of this first clause of the bill just precisely as he should have done—as freely, as unfettered as if it had now been proposed to that House for the first time by a Minister of the Crown; and as if it were backed solely by the authority of that Minister instead of the authority of the House of Commons. He came now to consider the question and the grounds upon which it was proposed. He had already stated that the noble Lord behind him (Lord Glenelg), in arguing upon the Act of 1834 and the Prisons Act of 1838, had argued a question which had only a limited bearing upon the present measure. He did not deny, that it had some bearing upon the measure, because it appeared from the noble Lord's statement that it was the conduct of the House of Assembly in passing the Act of 1834, then refusing to pass the Prisons Act, and subsequently, when that measure was pressed upon them, suspending, or, as it was justly and properly called, abrogating their legislative functions during the late Session of 1838—it appeared from the noble Lord's statement, that that conduct on the part of the Assembly was made the pretence, the apology, for suspending the constitution of Jamaica. Now, he would admit, for argument's sake, every thing that had been said against the Assembly in reference to its conduct upon the measures of 1834 and 1838. His objection to the Prisons Act of last year was, as he stated when the measure was under their consideration, not to the Act in general, not to its interference with the legislature of the island, but to that particular section 1130 of it which, by compulsion, forced the Jamaica Assembly to raise money for certain purposes. But now, for the sake of argument, he would waive all objection to that Act—he would suppose it to be expedient—to be wholly unexceptionable. Neither of those admissions, as must be perceived by every one, could be regarded as a sufficient justification for the suspension of the constitution of Jamaica. Those two admissions involved only this—that the Imperial Legislature was right, and the Colonial Legislature wrong in that one particular instance; but instead of justifying the Imperial Legislature in suspending the constitution of the colony, it only justified the Imperial Legislature in taking a totally different course—namely, the course taken upon the Prisons Bill—that of doing in this country what the colonists refused to do for themselves—performing duties which they refused to perform—applying the wisdom of the British Parliament to matters which the folly or obstinacy of the Colonial Parliament refused to consider itself. Then it was said, that the House of Assembly in Jamaica had gone a step further; that they had performed an act of abdication, because they had come to a determination not to pass any laws except those which keeping faith with the public creditor required. Now, as a general proposition he did not mean to maintain that no refusal to legislate on the part of the Jamaica Assembly, or of any other Colonial Legislature, would justify the Imperial Parliament in providing a substitute; in supplying another Legislature for them. He could fancy a case of misconduct—of non feasance or mis feasance on the part of a Colonial Legisture—which would justify such a proceeding on the part of the Imperial Legislature; but all depended upon the fact whether in the present instance such a case had arisen as bound the Imperial Legislature to take that extreme, violent, and unconstitutional course. He maintained, that they would not be justified in resorting to such a step until the actual state of things in Jamaica left no man of rational understanding any power of denying that it was absolutely necessary. And here he must again advert to the narrow majorities by which the present bill had been carried in the House of Commons. If it were a case upon which 600 rational men had no doubt in their own minds; if it were a case upon which 1131 a great majority of 600 rational men had no doubt, the matter would come before their Lordships in a totally different shape. But if the necessity for adopting a measure like the present were so extremely doubtful; if the opinions of 600 rational men were poised in such equal scales, necessity in the one scale, needlessness in the other, that the scale of needlessness was almost on a level with the scale of necessity; if he found of those 600 rational men only a majority of ten, of one sixtieth part of the whole, who thought that a case bad been made out against the colony, was he then to consider himself justified in violently and despotically suspending the constitution of that colony? God Forbid! If these 600 men were not only rational men but Representatives of the people of England, it made the necessity stronger, that the expression of their opinion should be clear, distinct, and unequivocal. But there was another circumstance which ought not to escape their Lordships' attention. Most of these 600 men, who said that there was no necessity for the adoption of so severe a measure towards Jamaica, were those very men, who, upon a former occasion, had shown that they were disposed to listen most readily to a proposition for suspending the constitution of a colony, upon the ground, that the local Legislature, the provincial House of Assembly, had refused to perform its legislative functions. What if he found, that 300 of those men, who, a year ago, at the bidding of the Government, were so ready to suspend the constitution of the Canadas—who showed so little of intemperate zeal in support of Canadian and colonial rights—so little of indisposition to listen to statements of misbehaviour on the part of colonial assemblies—what if he found that 300 of those very men who, one short year ago, had so little hesitation upon the case presented to them in suspending the constitution of Canada, were now without exception of opinion, that no sufficient proof had been given of misbehaviour on the part of the Assembly of Jamaica, and that there was no ground whatever for suspending the constitution of that colony? Surely, whatever his (Lord Brougham's) own individual opinion might be, he must regard such a circumstance as affording sufficient ground to induce him to pause before he assented to such a proposition 1132 as that involved in the measure then before the House. Surely their Lordships must regard it as affording the strongest conceivable argument against the extreme' necessity which was alleged to exist in this instance. Surely it must convince them that the condition of the colony, and the conduct of the Assembly, were not such as to demand the adoption of so severe, so arbitrary, so despotic a measure. So stood the fact. He did not mean to say anything in vindication of the conduct of the Jamaica Assembly, He knew that aforetime their conduct was not such as to entitle them to respect. He did not say, that he approved of their conduct in the present instance. It did not form any part of his argument to hold that the Jamaica Assembly had in all respects acted temperately, wisely, and discreetly. Far from it. But there was a wide difference between that admission and saying that they had so entirely abdicated their functions, so inflexibly resolved not to resume them—so irrevocably expressed their determination—as to warrant the Imperial Legislature in taking them at their word, abolishing their legislative powers, and transferring them to an officer appointed by the Crown. It was of the nature of such assemblies, from their very composition, that they were not always actuated by the same enlarged, enlightened, calm, and temperate views which guided assemblies differently originated and differently constituted. He must be a most romantic man and a most unreasonable judge of human conduct, who, taking into consideration the extreme difference of circumstances between a colonial assembly and a Parliament of imperial structure, should expect from the former anything like the consistency, the temperance, the enlarged wisdom, which he might reasonably and naturally look for in the latter. Colonial assemblies would ever and anon be causing such conflict, now with a governor, now with the Home Government, now with one another, now even with themselves, now with the mother country, and, lastly, with the Imperial Legislature. These things must be expected—their Lordships must lay their account in hearing of them—they must overlook the occasional ebullitions of local and provincial temper—must not regard with a severe and threatening brow the parish vestry views which local legislatures would sometimes take, 1133 nor listen with a jealous and offended ear to the intemperate and unbecoming language in which those views might be advanced. Their Lordships must lay their account with these things; and remember the wise lesson given to the Parliament of England by the mature experience, the enlarged and comprehensive sagacity, the genius for affairs which adorned and distinguished the first Lord Chatham—a lesson which thus given, and coming thus recommended, was in an ill-fated hour rejected by Parliament, and thence the evils of the American war, and the severance of those mighty provinces from the British Crown:Be to their virtues ever kind,Be to their faults a little blind,Let all their acts be unconfirmed,And clap a padlock on their mind.Such was the lesson read by Lord Chatham. He knew, however, that the reputation, the genius, the sagacity of Lord Chatham were a matter of ridicule amongst the greater statesmen by whom one was surrounded in the present day; but he (Lord Brougham) had an old-fashioned respect for Lord Chatham, whom the country used to venerate, and to whom he believed it was still indebted. He thought that Lord Chatham's advice was founded upon statesmanlike wisdom, and was strictly applicable to the colonies at the present day. He thought also that the recommendation of his noble and learned Friend opposite ought to be attended to; he thought that the Imperial Parliament ought to adopt and pursue, as long as it possibly could, a temperate and conciliatory course towards Jamaica. What was the provocation in the present instance? One act—one resolution referring to one subject, arising out of one mortification, the result of one expected slight—was all that the Imperial Legislature had to deal with—was the only ground, the only pretended ground, of the present measure. Was there, on the part of the Jamaica Assembly, a refusal to legislate altogether? No such thing. They agreed to pass all laws which the public credit required; and only suspended their functions in other respects until the pleasure of the Crown might be known upon the matters in dispute. Was this a general abrogation of their functions? Was there any reason to suppose, that if the present bill were refused, the House of Assembly would not come back to a sense of their duty, having 1134 time for reflection, and feeling that there was a disposition to treat them with kindness and conciliation in this country? If his noble and learned Friend (Lord Lyndhurst), upon a former occasion, did not, as now, agree with him, he had reason to lament it. All his noble and learned Friend's dislike to suspending constitutions—all his aversion amounting to constitutional horror of any measure which proposed lo transfer to a single dictator the powers which properly belonged to a legislature—all that he had last year ventured to express with respect to Canada—less strongly, no doubt—certainly much more feebly in point of effect, than his noble and learned Friend had that night expressed with respect to Jamaica; he confessed, however, that he could not for the life of him, perceive—he might be mistaken—his noble and learned Friend would set him right if he were wrong—he could not, for the life of him, perceive, why there should have been such a facility in taking away the constitution from 580,000 whites and freemen in Canada last year, when there was this year so great a reluctance to take away the constitution from 300,000 whites and free inhabitants in the island of Jamaica:—that he could not understand. Perhaps his noble and learned Friend would explain the matter to him. He never could discover that the House of Assembly of Canada had done anything worse than the House of Assembly of Jamaica, and yet his noble and learned Friend certainly did not support him last year when he endeavoured to preserve to the former the rights which his noble and learned Friend was now so anxious should not be taken from the latter. [Lord Lyndhurst: I do not think I was in the House at the time). He greatly lamented his noble and learned Friend's absence; and he also greatly regretted, that all the letters which his noble and learned Friend wrote to his Friends, urging them to come down to support the Canadian question, and to support him in the proposition which he then made upon the subject, had no effect. Not one of them gave him a vote. He protested against the present bill upon precisely the same grounds and in precisely the same words as he had last year protested against the Canada Bill. Every word of the protest which he had entered upon their Lordships' journals against the Canada Bill would apply with equal force 1135 against the measure then under their consideration. He found, however, that a distinction was attempted to be drawn—a distinction embodied in the speech of the noble Marquess last night, who spoke of the badness of the constitution of Jamaica, and mentioned as one of its chief defects the exclusion of the population from a voice in the representation. He said that the House of Assembly represented the property, not the population of the colony. If the noble Marquess advanced that as an argument against the existing constitution of the House of Assembly, he was undoubtedly putting forward a doctrine which did not savour much of finality. If population, as represented or not represented in a legislative assembly, or a body calling itself a legislative assembly, were the main test whether that body had a right to call itself by that name or not, then what became of the House of Commons of Great Britain and Ireland? It represented property; but as to population, 99 out of every 100 of the inhabitants of the country were not represented; yet nobody spoke of suspending the legislative functions of Great Britain and Ireland. Property, no doubt, was sufficiently represented in the Imperial Legislature; but population was trampled under foot. The honest, industrious, ingenious, intelligent artisan—the hard working, well deserving, well thinking labouring population, whether in London or in the great manufacturing and commercial towns of Liverpool, Manchester and Birmingham, were as entirely without a vote in England as the emancipated negro was in Jamaica. Yet it would not be denied, that the English artisan was as free as the West India negro, for whom so much sympathy had that evening been expressed at the expense of his while fellow citizens. Was he then to turn his back upon the Jamaica House of Assembly, which was just as much part and parcel of the constitution of the colony as the House of Commons was an integral part of the constitution of Great Britain and Ireland? If the evil to which the noble Marquess alluded really existed in the colonial constitution, he hoped that the present bill would be withdrawn, and that another would be substituted in its place, extending the elective franchise to those branches of the population which were now excluded from it, and thereby preventing the House of Assembly from deserving any 1136 longer the name of a borough Parliament. But whence came this new born anxiety for the vindication and assertion of the rights of the negro—whence this new born distrust of the Jamaica Legislature which had come over their Lordships' House, including her Majesty's Government upon a recent occasion? Was there ever a time when it was more imperatively necessary to interfere for the protection of the negro than in the last Session of Parliament? Was there ever a moment when there existed a greater or more urgent necessity for stepping forward and rescuing the negro from the tyranny of his master, than in the last Session? Had their Lordships an opportunity afforded them of doing so? Again and again he (Lord Brougham) had brought forward question after question upon the subject; but never upon anyone occasion was he supported by those who were the framers of the present meas re. There was no objection to leave every thing to the Jamaica legislature last year; no objection to leave to that Assembly, hardly to be called a body of legislators, seeing that they represented only property and not population, the settlement of the most important matters. The reply to all his (Lord Brougham's) importunities was "Oh leave it to the Colonial Legislatures —no doubt they will deal honestly and fairly with all these matters." His predictions upon that head had to a certain degree been fulfilled, and now the tone of the Government was completely altered. The argument of his noble and learned Friend (Lord Lyndhurst), as applied to the present bill, was this: "Wait till the Colonial Assembly is clearly and indisputably in the wrong—keep yourselves indisputably in the right—then you will have the people of this country with you, and the House of Assembly of Jamaica would yield as they did under similar circumstances in 1838." He (Lord Brougham) fully concurred in that argument; he for one entertained no doubt that the House of Assembly would do so—he had no manner of doubt of it; but if he were not certain of it, this was not the manner in which he would interfere. He took leave to lay this down as a proposition that would admit of no dispute: that a constitution once given, but especially if it had been enjoyed for two hundred years, ought on no account to be suspended. Let it be altered, modified, improved in any way that it might seem to require; let it be adapted 1137 from time to time to existing circumstances; but let not the Government or the Legislature interfere to suspend it altogether, to abrogate it in toto, except in case of absolute, extreme, over-ruling, undeniable necessity, a necessity about which no two men could entertain a doubt. What signified it to him that there were defects inherent in the constitution? What signified it to him that it was not popular enough? At all events it was much more popular than the constitution which it was proposed to substitute in its stead. At all events an assembly elected by a part of the people was more popular than a Governor in Council appointed by the Crown. That was clear. Whatever the faults of the existing constitution might be, it was, at all events, the constitution of the colony, and the people of the island were friendly to it, and it the present differences between the assembly and the home Government, took part with their Representatives. He admitted, that the Assembly was not as well constituted as it might be, but it was an elective body, and must to a certain degree be taken as representing the feelings, the wishes, and opinions of the people of the colonies. Now, as to the conduct of the House of Assembly on the Prisons Bill, he admitted that they were wrong, and we were right. He admitted that they were so altogether for the sake of argument, and, to a degree, in point of fact. But what happened on that occasion? What was the majority which rejected the measure? Was it a small one? Was this step taken in consequence of the preponderance of a single vote? No such thing. The opinion pronounced broadly, clearly, definitely, and distinctly, was confirmed by a majority of twenty-five; a majority resembling rather our majorities of 1833 and 1834, than those of 1839. The minority, who did not adhere to the constitutional ground relied upon by the rest of the Assembly, consisted only of five. The Governor, invested with the undoubted authority of the Crown, determined on an appeal to the constituent body, a course which (he might remark in passing) proved that he did not think those elections such farces as some of our statesmen had described them to be. Otherwise, why should he appeal to the people? He expected that the people would give a different verdict from the Assembly, and thus appoint another Assembly more suited to his views. 1138 What happened? As in Canada, the minority was, on a dissolution, changed into a majority; instead of the minority in Jamaica increasing it was lessened fourfold. That minority, which was five before the dissolution, after the appeal to the people, and as the result of that appeal, amounted to just one! Instead of dividing twenty-five to five, the Assembly carried the vote by twenty-nine to one. So that the Governor having appealed to the sense of the country, what was before carried by a great and overwhelming majority was now carried with one single, solitary, dissentient voice. It was no light matter to treat a community in the way in which he imagined they were now disposed to treat the people of Jamaica. It was a course not to be recommended. It was, on the contrary, one infinitely to be deprecated, anxiously and by all possible means to be avoided, and only to be embraced in the last instance, and after every means of delay, conciliation, and negociation had been tried and exhausted in vain. It was said, that we were not legislating for the colonies ourselves, but delegating our legislative functions to another body. This was his objection to the measure. If the Assembly did not do their duty, we could do ours and theirs for them by one and the same act, and at one and the same time. If they did not pass proper laws of regulation and police, such as the Contract Bill and the Vagrancy Bill, we might make such laws; and that he should like infinitely better, or rather disliked far less, than the course now proposed. For he must observe, that he differed from his noble and learned Friend (Lord Lyndhurst) who had laid down more widely than he thought right, and who, in appearance rather than in reality, pushed his opinion too far, when he said that we bad no internal right of legislation as regarded the colonies. He maintained, that we had an undoubted right of legislation over all the colonies of the Crown. If there was the least doubt on this point, he could remove it by referring to the declaratory Act of the 4 George 3rd (independent of the common law) which said, "that Parliament has, and of right ought to have, full power and authority to pass laws and statutes of sufficient force to bind all colonies and plantations subject to the Crown in all cases whatever," internal as well as otherwise. That Act had never been repealed; 1139 it had never been doubted; and the only solitary instance in which it was at all departed from was the 8 George 3rd, which confined the abrogation of the power to taxing exclusively. He, therefore, held that our right to legislate for the colonies was clear and undeniable. It had been exercised over and over again; and if any evidence were wanted of the fact, be should refer to the most important, and (independent of the Prisons Bill) the most recent Act passed by the Home Government—he meant the Emancipation Act—as a proof of our entire and absolute right to legislate internally for the colonies. Now, then, his proposition was this —instead of delegating powers of this sort to a dictator, we ought to legislate for the colony ourselves. And why could we not do so? What difficulty prevented it? Oh, said the opponents of this course, "there are details connected with the subjects of legislation which cannot be entered into by persons living at the other side of the Atlantic." This was utterly unfounded; it could not be set forth as true in point of fact. Look at the preamble of the Act. It contained in its bosom the contradiction to this proposition. All the questions with regard to which we were about to delegate our authority, the Vagrancy Bill, the Squatting Bill, the Contracts for Labour Bill, had been the subject-matter of detailed and anxious legislation, by orders in council issued to the other colonies; and if they must be applied in this colony, we could put them into the form of a British Act of Parliament, and pass them after having submitted them to the wisdom of the Legislature. Why did he prefer this course? First, because it was less offensive to the colonists than that which they now adopted, which was a course most galling, grating, and insufferable in their eyes; by which their Governor was made a tyrant, and which gave them, who, as freemen, had a right to be governed through their own representatives, over to absolute and despotic authority. That was one reason, and what was the other? He did not like to entrust absolute power to any man. He knew how corrupting was its influence; how it turned the steadiest head and steeled the tenderest heart. He would not trust to the feelings or judgment of any man who was long armed with a dangerous, noxious, uncontrolled despotism, as bad for him who wielded it 1140 as it was painful to those against whom it was enforced. He would then, in the first place, confide in the wisdom of Parliament. He would infinitely rather have any measure which was to be enforced on his fellow subjects in the West Indies brought into Parliament, discussed by the representatives of the people, undergo the scrutiny of the Peers of the realm, with all the lights of information, experience, knowledge, and liberal attainments which belonged to such assemblies, than put it in the hands of a single man, always liable to error were he the wisest; and if he were the wisest, and armed with despotic power, the chance of his abusing it innocently and unintentionally, but unavoidably, through the weakness of human nature, would be infinitely greater than if so many persons less accomplished, less instructed, and less sagacious, were, after discussion and deliberation, to adopt the same course of proceeding. Let it not be supposed (though he had given these several reasons for preferring that course to this, though he had stated these grounds of his opinion that that course was the best, or rather the least bad), that he meant to argue that they had any right to adopt even that course unless a case of necessity was clearly substantiated. He did not think that that necessity existed in the present case. He might have some doubt about that; but no such necessity could be justly alleged to exist as would justify the suspension of a representative assembly, and the substitution of a despotic form of government. These were the grounds (he wished that justice to his feelings had permitted him to state them more short) on which he came to the opinion that it was impolitic, unjust, highly inexpedient, and altogether unwarranted to adopt the first and leading clause of this measure. One word as to the point adverted to by his noble and learned Friend. This act did not work out its own purposes: it professed to do one thing, while it did another wholly different. It professed to suspend the constitution of Jamaica. And until the legislature of Jamaica passed certain acts, it professed to arm the governor with a despotic power, and this, only in the event that the assembly continued to abdicate its functions. But suppose the Assembly said, "we are willing to retrace our steps; we repent what we have done; we will no longer persist in the applica- 1141 tions we have made; we are willing to resume our functions, and to pass the laws which you require;" does it follow that the governor will cease to have despotic power? The Governor had only to refuse his assent to the bills which had passed, and whatever were the ground of his opposition, were it general, or confined to a single particular, if it did not pass into a law, the power of the Governor was attacked, and he was invested with an absolute control over legislation. Or, if he feared to undergo the entire responsibility of such a course, he might share the odium with his council; and thus this preposterous and ill-constructed act gave him a despotic power in every case, though it was meant to confide it to him only in case the Assembly persisted in its present disposition. One word more as to the limited extent of this measure. If the story were true that the composition of the Assembly was such that it represented nobody, and that the representatives were not persons of weight and respectability in themselves; and if this bill were passed only to help the emancipated negro and not to help the master, they ought not to select one colony for its operation. Was Barbadoes so differently circumstanced from Jamaica? Was its Assembly so much more respectable? He believed there were a few more resident proprietors representatives, but there was not such a difference as to justify the distinction which had been taken. But what became of all the smaller islands?— Nevis, Mountserrat, and Antigua, where by far the greatest atrocities were committed under slavery and the slave trade, and where the inhabitants, instead of taking part with the victims of the masters' cruelty, took part with the masters themselves, where jurors refused to find bills in such cases as those of Huggins and Hodges, and where the planters and their wives and daughters associated with the murderers? There was no such bill for Nevis; there was no such bill for the countrymen of Hodges, for the countrymen, the patrons and patronesses of Huggins; and yet this confined, casual, accidental, capricious legislation was adopted, with the professed object of demonstrating our resolution to act on an enlarged, enlightened, and liberal policy, for the sake of benefiting the negro, and not of injuring them. I trust (continued the noble and learned Lord) whoever may 1142 have neglected their duties, that your Lordships will do yours, and that you will refuse to suspend the constitution of Jamaica because we have come once into collision with the Jamaica Assembly; but that if you see in point of fact, a ground for resorting to an extreme remedy, you will take one which is a specific for the mischief which is acknowledged (as this is pretended to be designed), and interpose by the wisdom of Parliament, instead of the appointment of a dictator. I hope, too, you will teach my noble Friends behind me, the Liberal Whig constitutional Government, this memorable lesson—to let the suspension of a constitution—to let the abrogation of the people's rights—to let the extinction of representative government, not be on every occasion the easy remedy to which, to save trouble, they have recourse, but to reserve such proceedings for extreme cases of absolute, overruling, and undeniable necessity.
§ Viscount Melbourne
The noble and learned Lord has addressed your Lordships at great length. The noble and learned Lord opposite (Lord Lyndhurst) has also fully, clearly, and distinctly stated his objections to the bill, the first clause of which he proposes to omit. There has been much debate in the other House of Parliament on the subject, and there has been cast on your Lordships' Table a great variety of papers, and a vast mass of information relating to it; and yet I declare that I never knew offered to the consideration of Parliament a more short, clear, simple, distinct question than that now submitted to your Lordships' consideration. I entirely, utterly, absolutely, and completely, deny the assertion of the noble and learned Lord, that there is on my part, or on that of any of my noble Friends any disposition whatever to abrogate and abolish the Jamaica Assembly, or to interfere with the rights of individuals or of bodies either in this country or in any part of the colonies. I say that what we have done we have done with the utmost regret and concern. It was with the utmost regret and unwillingness we made the proposition which we before made; it is with great concern and sorrow we make the present; but I say that this course which we now call on your Lordships to pursue is forced upon us, is absolutely forced upon us by the conduct of the Jamaica Assembly; and I declare before God that if any other 1143 body, aristocratic, or democratic, be it where it may, acted in the same manner, I would not hesitate to advise the same sort of measures in order to supply those functions which were left unfulfilled by it, those duties which it had abandoned. My Lords, I respect the rights of all parties—I respect the rights of all individuals—I respect the rights of all bodies, whether elective or hereditary. I respect these as I respect and reverence all constituted authorities in every country; but my Lords, all constituted authorities, whatever dignity, whatever weight, whatever powers and privileges they enjoy—hold them by the tenure and on the condition of performing the duties which they are bound to discharge; and if they utterly desert, and completely abandon those duties, they commit suicide on themselves. It is not we who put an end to an assembly, in such a case; it is not we who suspend their constitution—it is they who put an end to it themselves. It is they who have imposed on us the necessity of fulfilling duties which they have left unsatisfied—of acting on powers which they have neglected to exercise—of guarding against exigencies and necessities which they admit to exist; and I say that this is a duty which we cannot shrink from: it is a duty which is absolutely imposed on us: it is a duty which it is absolutely necessary for us to perform; and for the measures which are taken under this necessity it is not we who are responsible, but those who by their acts have made this conduct absolutely necessary, and called forth the remaining powers of the State for carrying on the duties of the government. Why, my Lords, this House of Assembly has stated distinctly, in its address to the Governor, the absolute necessity of legislating on those very points provided for by this bill under the present circumstances of that country; and then they go on to say that they will not legislate on that or any other subject, with certain exceptions, until their privileges are respected, or until Parliament has in point of fact withdrawn from the course which it has already adopted. Now, that that is an abdication of their duty, an entire disregard of their functions, a complete neglect of the whole interests of the state, it is impossible for any one to deny. And if they will not perform the duties incumbent on them—if they will not take those steps which they admit to be abso- 1144 lutely necessary—I ask your Lordships how we can do otherwise than provide for the necessity thus occasioned, or at least supply the means of meeting the deficiency. The noble and learned Lord says, that their refusal to perform their functions was limited in extent. What right have they to say that they will perform one part of their duties and neglect another? The whole interest of the public, the whole care of the community, the entire respublica is committed to their care, and they have no right to withdraw themselves from that duty or from any part of it. By abrogating their functions in part, they abrogated them altogether. Then it is said that their resistance is conditional, that what they say is," if you give up your Act of Parliament, if you withdraw your attack on our privileges, then we will persist no longer in the opposition to the measures which you deem necessary." What right have they to make the performance of their duties conditional? Is that the course which your Lordships mean to sanction—is that the spirit which you desire to cherish? Your Lordships seem almost prepared actually to submit to this Assembly, actually to agree to the conditions proposed, and to condemn your own Act for the regulation of prisons, and that in a very strange manner. In speaking on the Prisons Bill, the noble and learned Lord (Lord Lyndhurst) though highly interested in it, was not present at its discussion. The noble Duke also did not attend during its discussion; he, according to his own acknowledgment, was so far remiss in his duty? His noble and learned Friend (Lord Brougham) was present when the bill was debated, but he was ignorant of the circumstances which called for the bill, and his strongest objection to it was urged in a conversation across the Table. Now will this do. Is this fit, is this suitable, is this becoming? Is this the manner in which you mean to uphold your own dignity, to maintain your own authority, to stand by your own acts; to say that you have legislated without knowledge or thought, and that you are as ready to abandon your acts of legislation as you were originally careless in adopting them. When the most eminent men in point of talent, weight, and authority, make such statements, the colonists may fairly conclude that this is your usual and general mode of legislation. I really think that 1145 it is not fitting that persons of weight and dignity, in order to serve a present argument and a present purpose, should come down and make such admissions with regard to bills which they themselves acknowledge to be of unquestionable importance. But if I understand your Lordships' intentions, you are not prepared to give up the Prisons Act. Your intention is to retain the Act which has been passed. I don't exactly know that you are taking the wisest course, and the most effectual course, for securing your object; but the question appears to me to be the plainest in the world. Those matters which the House of Assembly admits it to be necessary to provide for, it is incumbent on us to dispose of; and I do think your Lordships will take a great and serious responsibility on yourselves, if you act in that way which you conceive will answer the fancy or choice of the House of Assembly, instead of pursuing a course which you feel and know to be absolutely indispensable. How can you expect that the House of Assembly will give way? How can you expect it, when they find themselves supported, maintained, encouraged, and defended by a large party in this country? I should think them quite children if they did. The noble and learned Lord has adverted to the state of the other House, and the small majority with which this bill has been sent up to this House; I shall not make any observations on the nature of the majority, or on the circumstances which may have caused it. The noble and learned Lord dwells upon the present state of things as a matter for deep concern and melancholy. I entirely agree with him; and there is nothing which more deeply affects the interests of this country than that we should recollect, that with respect to the great colonial matters now pending, it is of the utmost importance that something like unanimity should be observed. How can you expect measures to be successful, how respected, if they emanate from collision and difference? My Lords, I make no allusion to party views—on this question, I know of none—party feelings have been loudly disclaimed on this occasion. It has been often asserted, that the opposition to this bill has not proceeded from any party or personal motives—I fully believe it, perhaps too much so, for however much party motives—the desire of power, are 1146 to be condemned, if they are even culpable, let it be recollected, that though the absence of such motives may render the conduct of parties who object to such measures, less blameable, makes it more senseless and unintelligible. The object of party, one perfectly understands. But if that object is disavowed, what motives can be conceived, except mischief and folly? ["No, no."] Of course, I cannot impute this to your Lordships, but without such motive I am utterly at a loss to account for the opposition which has been given to this measure. My Lords, the noble and learned Lord who spoke last, said, that even if the Assembly showed an inclination to resume their functions, the Governor would still have the right to exercise his arbitrary powers. My Lords, it is all very well to talk of the corruptibility of human nature, and the probability of power being abused; but is it at all likely, in the present age, with the superintendence of Parliament—is it likely, that any governor would dare, if the Assembly appeared willing to resume their functions—is it likely that any governor would dare to retain these arbitrary powers? I really see no danger of such an event. My Lords, I do at once admit, that this bill is, pro tanto a superseding of the House of Assembly; but I say the conduct of the Assembly has rendered the measure absolutely necessary. And I feel confident, that if this bill be not adopted, as it now stands, great risk will be incurred, and ultimately a measure like this, or a much stronger measure will be had recourse to.
, in explanation, said, my Lords, as to the charge of "mischief and folly," I really wonder that the acuteness of my noble Friend who has just spoken, did not enable him to discover, that it was just possible that English statesmen and legislators might have some other motive than "mischief and folly," in refusing to suspend, without cause, the free constitution of one part of the colonial dominions of the empire. And I must further say, my Lords, that I heard, with amazement, the threat uttered by the noble Viscount—not against Barbadoes, or Montserrat, or Nevis, or Jamaica—but against the Lords and Commons of England. "If any Assembly," said the noble Viscount, "do what they ought not to do;" that is, do what be does not wish them to do, "for their mischief and folly, I will treat them 1147 just as I propose to treat the Assembly of Jamaica." How? By passing a bill enabling the Crown and Lords to legislate without the Commons? The Lords would probably not agree to that. Oh, that is "folly and mischief." Well, what will he do? March grenadiers into the House of Commons. Nothing else will do. And your Lordships are included in the threat, too; the the noble Viscount said, "Any body, elective or hereditary," now your Lordships are the only hereditary legislators in Europe, since the French Chamber ceased to be hereditary, where, by-the-bye, the noble Viscount possesses as much power as he does here. Thus does the noble Viscount threaten us for refusing, forsooth! to pass the bills he offers us; and such bills, in truth, I don't expect we shall pass. My Lords, I will not say, that the noble Viscount was guilty of folly in uttering such threat—mischief most assuredly there was none—for anything more absurd I never heard.
§ Viscount Melbourne
What I meant to say was this, that every constituted body in every State is bound to perform the duties assigned to it, and if any such authority of the State, whatever it may be, abdicates or declares that it will not perform those functions, then the other authorities of the State are bound to interfere and supply the deficiency. "Si non vis judicare cessa regnare," were the memorable words once addressed to a high potentate, and they have ever been considered as announcing a very just constitutional doctrine. I see nothing in any legislative or hereditary functions less open to this necessity, and the application of this principle, than those of the sovereign power itself, and if any legislative body, hereditary or otherwise, neglect or refuse to perform their duties, they may depend upon it they will lose their power.
The Earl of Mansfield
had heard nothing to reconcile him to passing the present measure. If it underwent a considerable modification, of which, however, he had no hope, he was not prepared to justify the conduct of the House of Assembly, at the same time that he thought it admitted of some excuse. As to the right of Parliament to legislate on such a subject as the present, he never for a moment entertained the least doubt. With regard to the Prisons Bill, he certainly must say, that he amongst others of their Lordships look blame to himself for not 1148 having paid sufficient attention to that bill; at the same time, from no information that he had received had he had any reason to suppose that it would have given such offence, and have created the suspicion, perhaps the natural consequence of that offence, that it had been sent out for the purposes of irritation, and in order to further the views of those who wished to see the Legislature suspended. Now, the opposition which had been given to the first of the two bills brought forward this Session had been grounded on the propriety of allowing the Assembly to retrace their steps; but he would appeal to what had fallen from the learned counsel at the Bar, in asking whether the present measure was not, if possible, more objectionable than the former; and whether, if the opposition to the first measure was well grounded, they should not be equally strenuous in opposing this. The bill before their Lordships was nothing more than a pretext for continuing the powers of the Legislative Assembly, while it in fact suspended them. It empowered the Governor to indicate not only what measures the Assembly were to pass, but what were to be the minutest points of those measures If, then, the Assembly were to accept and pass such measures, in defiance of their own opinions, what would that be else than the mere mockery of legislation, the mere appearance of deliberation without the exercise of any such power? It would be better to have their functions entirely abrogated at once. With such a measure as this he despaired of their being able to proceed with success, and therefore hoped it would undergo considerable modification. He trusted their Lordships would evince some spirit of coolness and conciliation in dealing with it, and with equal sincerity did he hope, that when it should come into operation it would meet with no resistance, or give rise even to any intemperate expressions.
§ Lord Seaford
wished briefly to state the reasons which induced him to support the present measure, and why he conceived that the arguments of the counsel at the Bar were most fallacious. The most correct, as well as authentic statement, was to be found in the resolutions of the Assembly themselves, in which they declared that the Prisons Bill was a violation of their inherent rights as British subjects. Now, the whole question appeared to him to rest upon that point— 1149 namely, whether the rights of the Assembly had or had not been violated. If they had not been violated, then was the refusal of the Assembly to discharge their legislative functions an unprovoked dereliction of their duty. The first thing to be considered was the nature and extent of those rights which they conceived themselves to possess inherently as British subjects. In their protest against the bill for the amendment of the Abolition Act, they stated—Jamaica is dependent on the Crown of England, and she admits the right of the English Parliament to regulate the commerce of the empire, but she rejects with indignation its claim to make other laws to govern her.Now, notwithstanding what had fallen from the noble and learned Lord opposite, he was disposed to think that there was a connexion between that protest and the third resolution of the House of Assembly. If they had correctly stated their rights in that protest, the Prisons Bill was undoubtedly a violation of those rights; and although their Lordships had all agreed as to the principle of that bill, when it passed, no point of honour should prevent them from repealing it if they believed the statement contained in that protest. When he considered that the highest legal authorities and all the eminent statesmen in both Houses of Parliament had supported that bill, while not a single Member in either House had offered a word in opposition to it—when he contrasted the apathy that had been evinced towards it with the hostility which was shown against the present and previous bill, he thought he was justified in saying, whatever might be their opinions now, that when the Prisons Bill was before them they did not consider that Parliament, in passing it, would be exceeding their constitutional powers or violating the inherent rights of the colony of Jamaica. There appeared to be but one opinion among all parties as to the expediency of not repealing the Prisons Bill. But if the House was not prepared to repeal that Act, it refused to make the reparation which the House of Assembly specifically demanded. He was aware that it had been said that such a demand was not made, that such words as a repeal of the Prisons Act were not to be found in the resolutions; that they were not in the bond. He must, however, say, that he saw very little force 1150 in that argument, which was entirely refuted by the tenor of the resolutions. In them the Assembly set forth, both positively and negatively, the conditions upon which it would consent to resume its functions. It sated, that it would not do so until her Majesty's gracious pleasure should be made known, whether her subjects of Jamaica were thenceforth to be treated as subjects with the power of making laws, as they bad previously had, for their own Government. Now, what was meant by the power of making laws? Why this, that they should have the power of making laws as a Legislature holding directly from the Crown, and independently of the British Parliament, whose right to make laws for them they rejected with indignation. Then was the House prepared to admit their right to legislate to that extent? If it was not, it refused the condition which was annexed to their resuming their functions. Then look at the other alternative mentioned in the resolutions; it was this,Or whether they are to be treated as a conquered colony, and governed by Parliamentary legislation, Orders in Council, or, as in the case of the late amended Abolition Act, by investing the Governor of the island with the power of issuing proclamations having the force of law over the lives and properties of the people.That was precisely the power which was given to the Governor by the Prisons Bill, and therefore the repeal of that Bill was necessary in order to satisfy the requisitions of the House of Assembly. If these conditions were not complied with, what reasonable ground was there for expecting, that the House of Assembly would resume its functions? And would the House, without any such expectation, consent to run the risk of prolonging the evils arising from the absence of all legislation in the island? He believed, that many of their Lordships had been induced to go into committee upon this bill in the expectation of being able to render it palatable to the House of Assembly. He firmly believed, that all such hopes and expectations were illusory. The counsel for the Assembly had told the House, that the present measure was a more obnoxious and offensive violation of the constitution of the colony than the former bill. The Assembly, through their counsel, objected, not to the details, but to the principle of the measure. Their objection would not be removed by the 1151 proposed omission of one clause, and the result of the amendment would be, that the British Parliament would incur all the odium, while it would not accomplish half the good that would arise from passing the bill in an unmutilated state.
Viscount St. Vincent
said, that with reference to many of the evils which had been alleged to exist in Jamaica, they might have been corrected if the Colonial-office in this country and the Governors of Jamaica had fully known their duty and powers. It was not a fair interpretation of the language used by the House of Assembly to say, that that body intended to set up a claim in opposition to the authority of the British Parliament.
The Marquess of Normanby
explained. He had expressly given an answer to the question of the noble and learned Lord near him (Lord Brougham), why the provisions of the present bill had not been applied to other islands, for he had said, that in Jamaica there existed an assignable cause for the interference of Parliament, while no such cause existed with regard to the other colonies. One island to which the noble and learned Lord had referred, Barbadoes, had proceeded to legislate in a satisfactory spirit; and from Tobago and St. Vincent accounts had been received to the effect, that the legislatures of these colonies had adopted measures in conformity with the Orders in Council.
had applied his observation only to one particular argument of the noble Marquess, which was to the effect, that the House of Assembly of Jamaica was so badly constituted as to make it desirable to take any opportunity of abolishing it as a sort of nuisance. In answer to that argument he had referred to other colonies, as falling equally within the scope of it.
§ Their Lordships divided on the question that the clause be expunged:—Content 149; Not-Content 80: Majority 69.1154
|List of the CONTENTS.|
|Eglintom||Gloster and Bristol|
|Selkirk||Willoughby de Broke|
|Hereford||Stuart de Rothesay|
|List of the NOT-CONTENTS.|
|Argyll||Saye and Sele|
|Yarborough||Stuart de Decies|
|Leven and Melville||Kinnaird|
§ Clause expunged.
§ Upon the second clause being proposed,
objected to the clause, as giving an unconstitutional power to the Governor. It could not surely be any sound principle of legislation to give confidence to a Governor, because they did not believe that he would abuse it. The old principle of the constitution was to withhold confidence, where it might possibly be abused. He proposed to take the sense of the Committee as to whether they would delegate to any Governor the power of inflicting taxation on a colony. The clause was plainly in violation of the spirit of a solemn declaratory act—the 18th George 3rd. They did not even retain the usual ceremony of reciting that act in the preamble. He would therefore move as an amendment the insertion of the following words:—"Provided always, that nothing in this Act contained be construed to enable the said Governor, without the assent of the said council, to continue or renew any bill for the receipt of money or the appropriation of the same which may have heretofore been passed by the Assembly, and expired in its operation in the colony."
§ Viscount Melbourne
said, that the proper course for the noble and learned Lord to pursue, in conformity with his argument, would be to move, that the clause be omitted altogether. If they meant to concede any powers to the Governor for the renewal of bills, he did not see why bills of this description should be excepted.
desired to have the whole of the second clause remodelled. It was his real belief, that this portion of the bill would rankle more than any other in the minds of the colonists. He felt assured, that it would be looked upon as the very sting of the measure. With the omission of the first clause and the modification of the second, he entertained a most confident belief, that they would attain to the satisfactory conclusion for which all parties were so desirous.
The Marquess of Normanby
said, that from a communication which he had had with a Gentleman most intimately acquainted with the state of Jamaica, he felt 1155 convinced that the revival of some of these laws was absolutely necessary, with a view to the maintenance of the civil and military service. If they threw out this clause, they would throw the burden of maintaining these officers upon the mother country.
observed, that this burden would be inflicted on the mother country for not more than a month or two, and that it was better to incur this risk, than to violate a great constitutional principle.
§ Viscount Canterbury
did not think, that such an alteration in the clause as that proposed by the noble and learned Lord (Lord Brougham) would be considered in the House of Commons as fatal to the bill, because, looking at the clause itself, he found that it was extremely general, and that it did not give any person any information as to the number or character of the acts which were about to expire. But he also found, in the clause which had been sent up from the House of Commons, and which had just been expunged by their Lordships, the following proviso, "that no such ordinance shall impose any rate, tax, or duty, save only in so far as it may be necessary to impose any fine or forfeiture to enforce the observance, or as a penalty for the non-observance of the provisions of any such ordinance." He contended, that the fair inference of the second clause, however vaguely it might be drawn, was, that the drawer in the House of Commons never had in contemplation the renewal of any tax whatever. Under these circumstances, he would venture to suggest that, at all events, it would be rather premature to come to a decision at this moment, either as to the rejection or adoption of the amendment of the noble and learned Lord. He would much rather have a little more time to consider the point, which was important, as affecting the privileges of the House of Commons.
said, the noble and learned Lord opposite (Lord Brougham), in the discussion on the first clause, had said he dealt with that clause with freedom, because it had been adopted only by a majority of ten in a large House. The second clause (that now under consideration) came before the House under very different circumstances. No objection whatever had been taken to it—no division took place upon it—not a word was said 1156 against it, and it passed the House of Commons unanimously. Then, if this House dealt with the clause in the way suggested by the noble and learned Lord, could it be supposed that the House of Commons would at once wholly change their mind, and agree to this amendment? They might consider the clause as connected with their exclusive privilege, and the consequence would be, that the amendment would be unanimously rejected, and if their Lordships persevered in that amendment, the result would be, the loss of the measure. That he thought ought not to be. It was necessary that something should be done. He did not think the House of Assembly justified in the position they had taken up, and he was ready—nay, he thought it necessary, in justice to their Lordships, and their own dignity and authority, but also in mercy to the people of Jamaica, to give them an intimation, that the British Parliament were determined to exercise their right of superintending the whole government of that colony, and that though the House of Assembly might, the British Legislature would not, abrogate the duties it had to discharge. He, therefore, would not altogether lose the measure, and with that view, he hoped the noble and learned Lord would postpone his amendment for further consideration in another stage of the Bill.
§ Amendment postponed.
§ The remaining clause agreed to.
§ The House resumed, and bill reported.