Lords Sitting of 4 July 1839

MINUTES.
Bills. The Royal Assent was given to the following Bills:—Sugar Duties; Exchequer of Pleas; and a number of private ones.—Read a first time:—Supreme Courts; Copyholds Enfranchisement.
Petitions presented. By Lord Kenyon, from two places in Gloucestershire, against the Ecclesiastical Courts Bill.—By the Bishop of London, from several places, for Church Extension in Canada.—By the Earl of Aberdeen, from several places, for Church Extension in Scotland.

BIBLE IN SCOTLAND.
The Earl of Haddingtontook the liberty of asking the noble viscount opposite (Viscount Melbourne) a question relative to the commission to be appointed in reference to printing the Bible in Scotland. An impression had got abroad, and an apprehension was entertained among members of the Established Church, that it was the intention of the government to place some dissenting ministers upon the board or commission to be appointed. He desired to be informed whether such was the intention of government or not? It was understood, that the board was to consist of the Lord Advocate, the Solicitor-general, two divines, and also two learned laymen, members of the Church of Scotland. Was it intended that the divines, as well as the laymen, should be members of the Church of Scotland; or, if not, was it the intention of the Government to place any Dissenter or Seceder on the commission, and if so, of what denomination?
Viscount Melbournewas not aware that any such intention existed.

GOVERNMENT OF JAMAICA—SECOND MEASURE.
On the order of the day for bringing up the report upon the Jamaica Bill.
The Earl of Harewoodrose and said, that he had been considering the question involved in this bill, and he would state, with the permission of their Lordships, the opinion to which he had come. He thought, that the matter upon which this subject was hung was the Prisons Bill. Now, he would state the truth. When that bill was brought in during the last Session of Parliament, it was at a very
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late period, and on that account, and on account of the absence of many noble Peers from their places, and of, what would always give rise to difficulty, inattention to public business until the moment when it was absolutely necessary, the bill passed through the House without any observation. It passed through the House of Commons as a matter of course, without any observation, and he verily believed, that in truth Parliament was not aware at the time, that it was passing an Act which touched upon the privileges of the House of Assembly, or upon the constitution of Jamaica. If that, then, was really so, and he thought it was, it appeared to him that the great difficulty which attended the subject was removed. It certainly was somewhat disparaging to the Parliament, that it should not have given the subject due and proper attention, because if it had been discussed then as it had been now, as touching the privileges of the House of Assembly, it would have been adopted, if it were adopted at all, with their eyes open. If, however, under existing circumstances, the governor of the island had only been told to offer an explanation to the effect he had mentioned, there would have been no difficulty at all; and even now, if the governor going out were to offer the same explanation—he did not mean in the shape of an apology—he had no doubt that all difficulty would be removed at once. They must recollect, that in fact there had been no opportunity given to the Assembly of knowing the truth. That body was prorogued at the time the bill went out, and was so still; and if what he had suggested were done, he could have no doubt that it would go on to discharge its legislative functions. If, however, the House of Assembly was not prepared to proceed to business, then he would be as ready as anybody to adopt measures to deprive it of the power of legislating for the colony. His wish was to put an end to all those sources of discontent which at present existed, and which would go far towards delaying the great object they had in view of civilising the negroes. This, however, could not be accomplished without the withdrawal of the measure before the House; and, in asking the noble Viscount to adopt this course, he begged to assure him, that he did not desire to impeach or object to his measure in any clandestine or improper manner.
Lord Broughamsaid, that in consequence of what had been said the night before last in Committee, he was prepared to give their Lordships an opportunity of expressing their opinions upon the second, now the only remaining clause of this unfortunate bill. He had already stated his objections to the clause. His noble and learned Friend (Lord Lyndhurst) who had so powerfully opened the debate in a statement in his manner as to the laws, which was luminous to the greatest degree, and which left no doubt as to the scope of his opinions, or as to the arguments on which they were founded, applied himself to the second clause as well as to the first; but as he understood his noble and learned Friend only on this ground, that this clause comprehended within its provisions all expired laws, of which seven or eight were money bills, properly speaking; and he drew the distinction between those money bills and others of an ordinary description. Now, he conceived, that for obvious reasons involving the faith of the mother country, and the honour of Parliament, this distinction must be observed, and, therefore, he besought her Majesty's Government to reconsider this matter among themselves, and to draw the distinction by means of a proper proviso, leaving the enactment not to apply to money bills, but to the other common acts. He was fain now again to make the same appeal to his noble Friends who were intrusted with the management of the affairs of the Government. They had brought forward this bill, and this clause contained a most general sweeping power, and he put it to the noble Lords to withdraw that part of the bill. He had argued this question at so much length the other evening, that he did not consider it necessary to say much in support of his proposition. The bills to which he alluded were in every respect money bills. The renewing them when expired was to all intents and purposes bringing in a new money bill, and the passing it was imposing a new tax; and he could not but say that he was surprised to hear any doubt expressed upon that point. In the case of the income-tax, with which this country had been so long burthened, it had been determined, that it should be looked upon only as connected with the war, and it was therefore repealed. It was now therefore an expired tax, by means of a clause precisely similar to that
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under discussion, and if any one were to bring in a bill to renew that tax, could any one doubt that according to common sense, that would be imposing a new impost? He knew that there was a difference between the imposition of an original tax, and merely renewing a tax which had been once approved of by the representatives of the people. He objected to the whole of this bill, but he waived his objections to the greater part, because he was told that on one point, at least, it was necessary; but for the money parts of the bill there was no necessity. He was authorised by the agent of the House of Assembly to say, that he was ready to prove at their Lordships' bar, that there was no necessity, that money was in abundance, and that in the courts of Jamaica the construction put upon the words "faith with the public creditor," used in the resolution of the House of Assembly, would make them cover the claims of all public officers, whether civil or military. The great corner-stone of the constitution, on which depended all the rights and liberties of this country, was the doctrine, that none should be taxed without their consent. He knew that it had been held formerly by a learned lawyer—he hoped that no such lawyer would at the present day be found within that House—but it had been held formerly by a learned lawyer in the other House of Parliament, that though this general doctrine was true, yet that the colonies might be taxed; for that the colonies were virtually represented, because they, for some legal purposes in this country, were said to belong to the manor of East Greenwich. That doctrine, however, was scouted at the time, and the law, with respect to the taxation of the colonies was most clearly and distinctly laid down as he had described it in the declaratory act of the British Parliament. He was addressing their Lordships on the 4th of July, and it was the first time that any Member of either House had been obliged to address that House against an attempt to revive that right, which was abandoned at the American war. It was strange that he should be thus addressing them on the anniversary of the declaration of American independence on 4th July, which was directly caused, and was bottomed in distinct terms, on the right assumed by this country to tax the colonies. He knew also that the English Parliament was a

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powerful body; it was because it was powerful, because it was just, because it loved justice, and because it preferred the exercise of mercy to the oppression of the weak, that he called upon that House to abstain from lending itself to oppression. He would not discuss the plea that might be put forward, that they were not taxing the colony, merely because they did not do it in direct terms by a bill, which, if it were to be done at all, would be the wiser, and would be the better course, but appointed a dictator devoted to the purpose. This was the first time since 1778, that the declaratory act of that year was abandoned, and let them not flatter themselves that the country would not give them the credit, or rather the discredit, of having abandoned that act, of having broken faith with the colonies, and of having broken faith with the people of this country; when they were aware that they would not attempt the same experiment against the strong, and would only try it against a weak settlement like Jamaica. It was not a safe course for their character, for their honour, it was not safe for their credit with the country to take this step. He protested that their honour, that their character, and that their credit would be more damaged by an oppression of the weak, than if they were to succeed, after a gallant struggle, in subduing a powerful antagonist. They should especially protect the feeble—they should carefully abstain from oppression. He was not one who would advise them exactly to adopt the Roman eulogy, but at any rate he begged that they would not reverse it. Do not trample on the feeble, for those who did so would be most likely to crouch before the powerful. He would propose the following proviso:—"Provided, that nothing herein contained shall enable the said governor, with the assent of the said council, to continue or renew any acts for the raising or appropriating of money." But whatever determination the House might come to, he would enter his dissent from any vote in favour of this bill in the very words of his protest against the Canada Bill.
Viscount Melbournesaid, that he only rose to answer the questions that had been put to him. In reference to the appeal that had been made to him by the noble Earl opposite, he assured the noble Earl that he would be most happy to accede to his suggestion, if he thought
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that it would have the effect of ending amicably the unfortunate differences which had arisen, or if there were any possibility of expecting such a result consistently with the course the Assembly had hitherto pursued, or consistently with common sense. It was impossible for him to agree to the suggestion made by the noble Earl on his mere expectation; for the noble Earl had stated no reason whatsoever, he had stated no authority whatsoever, that by his own course they would succeed in producing the result that he expected. What was the noble Earl's proposition? That the Government should withdraw the present bill, and offer an apology to the Assembly for the bill that had passed; to say that it had been passed in a hurry, that it was passed in ignorance, and that the Parliament did not know that it would overrule the authority of the House of Assembly. He could not say that. Other noble Lords might say so, but he could not. It was not the truth with respect to himself. He perfectly well knew what he was about; he knew perfectly well to what the Prisons Act would lead; he knew perfectly well that it was a matter providing for internal regulation; he knew that it was necessary; and some noble Lords felt a little more eager about it last year than they appeared to be now—that might arise, however, from the different course of legislation pursued during the last two years; but when the Prisons Act was passed, he felt perfectly certain that the House of Assembly would consider it an attack upon their privileges, and an interference with what they thought to be their own peculiar functions. Noble Lords now said that the bill was passed sub silentio; it did pass without much speaking, but it did not follow from this that no one was acquainted with its provisions or with its operation. As it was thus passed, it seemed that every one agreed to it, that every one knew its provisions, and that every one thought them to be proper. That was the inference he had a right to draw from the manner in which that bill was passed. It was impossible, then, for the Government of this country—with any regard to its honour, with any regard to its dignity, and with any regard for the success of measures which might be passed for the future welfare of the colonies—to accede to the suggestion of the noble Earl. Neither could he accede to the suggestion of his noble and learned Friend

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on his right. He agreed with the general principles laid down by the noble and learned Lord, that there should not be taxation without representation; he agreed with the noble Lord that, to renew a tax which had expired, was the same thing as imposing a new tax, although the noble Lord supposed that opposition would be given to his statement, and had evidently prepared an elaborate argument in case a different course was taken. He agreed with the noble Lord, that it was wise, that it was generous, that it was just, not to use any oppression; he agreed with the noble and learned Lord, that it was worse to oppress the weak, to oppress the ill used, to oppress the feeble, than to attack the strong. He agreed in the sentiments, in the feelings, and in the policy of the noble Lord. But the fallacy of all this argument was clear. Were they oppressing? The Government contended that this bill was not an act of oppression, but that it was a measure called for by necessity. Unquestionably, to oppress the weak was base, was unmanly, was inexpedient; but the Government contended, that this Act was rendered necessary by the misconduct and by the contumacy of the House of Assembly themselves. He considered that a power of legislation was absolutely necessary. Many duties would expire if they were not renewed, and the appropriation was absolutely necessary to be renewed, and he contended that such a power was as necessary as the power given in any other part of the clause. Therefore he could not agree to the suggestion of the noble and learned Lord.
The Earl of Wicklowsaid, that after the agreement expressed by the noble Viscount in the principles laid down by the noble and learned Lord, he was surprised at the resolution to which he had come. The answer given by the noble Viscount to the noble and learned Lord's argument was anything but convincing. The noble Viscount said that they were justified in maintaining these enactments, because the Government considered that they were not doing an act of injustice, but were benefiting the colony. Might not any act of any Administration be justified by such an answer? They were about to depart from the rule laid down in the declaratory Act of 1778; they were about to establish a new precedent, and to act in a case against the weak and impotent in a mannner which at some future
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day, against the powerful, would be drawn into a precedent most objectionable. They were causing an interference which was not justified by the necessity of the case. Aware that their Lordships' House would hesitate in violating the great principle of taxation, the House of Assembly had taken great pains to show that there was no necessity for the interference of the Imperial Parliament. He trusted that the Government would give way to the proposal of the noble Lord, and, at any rate, that they would not consider it expedient to refuse concurrence in the amendment now proposed. If the same arguments as had been addressed to their Lordships had been advanced in the Commons, he was sure that the other House would never have consented to the clause as it now stood. Indeed, there was not one noble Lord who did not know that this clause was a violation of a great principle. He would support the amendment of the noble and learned Lord, and if he should be unfortunately defeated, he would enter as strong a protest as he could against this unjust and iniquitous proposal.
Lord Cloncurryhad experienced great pleasure in hearing such constitutional doctrines advanced by the noble Earl. He supported the present bill because he considered that he was carrying out a most humane act, for which the people of this country had paid a very large sum, and for which they were now heavily taxed. Twenty millions of the public money had been voted to the planters on condition that the negroes should no longer remain in a state of slavery. The first part of the agreement had been fully performed by the people of England, but it appeared that there was difficulty in procuring a fair performance of the condition on the part of the planters. It was necessary, therefore, that something should be done to carry out the agreement, and to further the great cause of humanity. He would not, however, have spoken on a subject not immediately connected with that part of the empire to which he belonged, if he did not perceive a great similarity between the refusal of the representative House of Assembly in Jamaica to remove the inflictions on the negroes, and the manner in which a certain party in his own country endeavoured to prevent the intentions of the Legislature in giving to all persons there the rights of fellow-subjects from being carried into effect. He had been

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named on the committee appointed to inquire into the state of crime in Ireland; but he objected to be so named, because he thought that it was only intended to preserve in Ireland the very system he condemned in Jamaica. The people of England and of Ireland had covered themselves with honour and glory in making the great sacrifice to give freedom to the negro, and he, for one, would insist on all the conditions being performed.
The Marquess of Normanbysaid, that the noble Earl opposite (the Earl of Wicklow) had repeated the statement of the noble and learned Lord, that this was the first time this country had interfered with the Colonies in the shape of taxation since the declaratory act of 1778, and certainly there had been no direct money-bill. But the House of Assembly did not consider that there had been this abstinence, for they objected to the Act in Aid Bill of last year. When it was stated that this was the first time such a course had been taken, it must be observed that it was the first time any similar necessity had arisen; it was the first time that any body trusted with such functions had declined to exercise them, not from any objection they entertained to any of the bills that were annually passed, but from some alleged affront. Under the circumstances, therefore, it was necessary to revive the taxes, the distribution of which the Assembly had approved of in former years; and he could not conceive that an interference to this extent was so objectionable as a general interference. With reference to the statement that the terms "providing for the public creditor," meant more in Jamaica than they did here, he must remark, that even in Jamaica they did not mean providing for all the public servants. He believed that a great number of these public servants were as necessary servants as could be employed. Under the terms of the resolution of the House of Assembly, no provision was made for the army pay, the army lodgment, the commissioners of correspondence, the commissioners of public acts, the deputy martial, the militia, or police. The whole annual deficiency to supply these was 42,840 l. sterling. Most of these offices were included in separate acts. But the deputy marshal, an officer necessary for the due administration of justice, was put into the bill for what was formerly called the "poll-tax," but now the tax on stock. The army pay and the army lodgment were provided for by sepa-
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rate bills. In short, the whole contingencies provided for by these bills were 61,000 l. and there was not enough money to be raised by 42,840 l. The proportion of revenue which might be collected under the acts now in force was 117,000 l., and the account was taken at the time when 56,500 l. was in the hands of the receiver-general; the whole amount at that time was 174,000 l. But on the year the deficiency would be as he had stated. To raise this they must revive the tax on stock, producing 18,000 l., and other taxes. The contingencies last year were 50,000 l.; some of the contingencies might be casual; but still many would be to be provided for. To revive the tax on stock alone would not raise sufficient to meet the demands for the public servants, and such contingencies as there would be: 16,000 l., too, was raised by a tea duty, and further sums by other taxes on foreign commodities; and if these were not revived, they would be entirely lost to the colony. Their Lordships must bear in mind also that there appeared to be no provision for the repayment of the debt of 200,000 l. due to this country, which became due within the next two or three years. The police tax was for a very necessary expenditure; the army pay and the army lodgment was a fair appropriation of the public money of the colony; it was an addition made by the colony to the pay of the soldiers serving in the colony, and for extra lodgment, and had always been considered proper. But the provision for the deputy marshal was the most important of all, and without it many of the expenses connected with the administration of justice, independently of the salaries of the judges, would be thrown away in some measure. The amendment of the noble and learned Lord said, that no money should be raised "or applied." Now, all the acts applied money—the Process Act, the Police Act, and other acts, all contained applications; and, in point of fact, the amendment then before the House, with the exception of the Clergy Bill, struck out every one of the expired acts from the operation of the Bill. For these reasons he trusted their Lordships would not agree with the motion of the noble and learned Lord, which, in the shape in which it at present stood, would exclude from this clause the expired acts altogether, and would not afford any means of satisfying the public service of the colony.
Viscount St. Vincentsaid, that the noble Marquess was mistaken with regard to the

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army payment. The army payment was a purely gratuitous act on the part of the colony. The present bill, would, therefore, have the effect of making that which was now voluntary become compulsory. He very much regretted that the noble Marquess would not agree to the motion of the noble and learned Lord, because he (Lord St. Vincent) thought it might be considered a great boon, and would be received as such by the colony of Jamaica.
Lord Broughamsaid, that he certainly should not withdraw his amendment, although he was not anxious to go to a division. The noble Viscount at the head of her Majesty's Government had made some very singular remarks the other day as to the noble Lord's voting from party motives. "I (said the noble Viscount) am an independent man, and, therefore, I vote from party motives." Those who voted disinterestedly were not, according to the notions of his noble Friend, independent men. Now, it was quite clear to him, that if their Lordships divided, noble Lords on the Opposition side would vote with his noble Friend, for they would vote from party motives. And if it were his disposition to act from such motives, he would have abstained from proposing any amendment at all, and have left the bill as it now stood, for it was no longer the bill of the noble Marquess, but the bill of Sir Robert Peel. It was precisely the measure which Sir Robert Peel proposed to substitute for the bill of the Government. This, indeed, might be a very good reason why some noble Lords should vote for it. He should not withdraw his motion, but would leave it in the hands of his noble and learned Friend opposite.
Amendment negatived, and report received.
The following protest was entered:
Protest against the Report of the Jamaica Bill.
Dissentient,

1. Because acts of this kind set all considerations of sound policy, of generosity, and of justice at defiance, and will most likely be regarded as indicating a design to crush what ever spirit of opposition to the Executive Government may at any time, and for any cause, show itself in any portion of the colonial provinces.

2. Because it is the fundamental principle of the British constitution, which was intended to be established in the chartered colonies by the common law of the constitution, and was finally promulgated in 1778, that no taxes whatever shall be levied, and that no part of the taxes levied upon the people shall be ap-
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plied to any purpose whatever, without the consent of their representatives in Parliament; and this control over the revenue ought, in an especial manner, to be vested in the people of the colonies, seeing that it never can give them the same unlimited influence which it confers upon the people of the parent state; for if supplies are withheld by the Commons of England on account of grievances, the Crown has no other resource, and the grievance must be redressed; whereas, if the Commons of the colony withhold the supplies for the like reasons, the Crown cannot by this proceeding be obliged to redress the grievance as long as the Parliament of the mother country is willing to furnish the funds required.

3. Because the interfering with the revenue placed by the British Parliament at the disposal of the Colonial Assemblies without their consent is wholly subversive of the aforementioned fundamental principle, and directly contrary to the wise and salutary provisions of the act passed in 1778, nor does it at all signify, that this is said only to be done upon the present occasion, and that the rights of the Colonial Parliament are represented as left unimpaired. The precedent of 1839 will ever be cited in support of such oppressive proceedings as often as the Commons of any colony may withhold supplies, how justifiable so ever their refusal may be, or in whatever designs the Executive Government may be engaged.

4. Because the spirit in which these proceedings are conceived is avowedly adverse to the opinions and desires of a vast majority of the inhabitants of Jamaica, and the no less plainly avowed object in bringing them for ward is by the authoritative declaration of Parliament to put down the principles and to thwart the inclinations so generally prevailing among the people of that colony.

5. Because these proceedings, so closely resembling the fatal measures that severed the United States from Great Britain on this day threescore years and three, have their origin in principles and derive their support from reasonings which form a prodigious contrast to the whole grounds, and the only defence of the policy during later years so justly and so wisely sanctioned by the Imperial Parliament in administering the affairs of the mother country. Nor is it easy to imagine the inhabitants of either the American or the European branches of the empire should contemplate so strange a contrast without drawing inferences there from discreditable to the character of the Legislature and injurious to the future safety of the State. When they mark with what different measures we mete to 300,000 inhabitants of a remote province, un represented in Parliament, and to 6,000,000 of fellow-citizens nearer home, and making themselves heard by their representatives, the reflection will assuredly arise in Jamaica, and may possibly find its way into Ireland, that the sacred rules of justice, the most worthy feelings of national generosity, and the sound-

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est principles of enlightened policy, may be appealed to in vain if the demands of the suitor be not also supported by personal interests and party views and political fears among those whose aid he seeks, while all men perceiving that many persons have found themselves at liberty to hold a course towards an important but remote province which their constituents never would suffer to be pursued towards the most inconsiderable burgh of the United Kingdom, an impression will inevitably be propagated most dangerous to the maintenance of colonial dominion, that the people can never safely trust the powers of Government to any supreme authority not residing among themselves.

6. Because nothing can be more contrary to the spirit of the Emancipation Act than taking the earliest occasion of suppressing the constitution of a colony chiefly inhabited by emancipated slaves, and thereby depriving the negroes of the constitutional privileges which all free men have heretofore enjoyed as soon as they became themselves for the first time free.

7. Because, if any such were justified by being shown to be necessary, which this is not, the mode pursued in the bill is the worst that could be devised, the fitter and safer course being an appeal to the wisdom of Parliament, and not the devolution of dictatorial power to a Governor and Council.

BROUGHAM.
KENYON, for the Third and Seventh Reasons.
WICKLOW, for all the Reasons, except the Sixth.
COLVILLE, for all the Reasons except the Sixth.
ST. VINCENT, for all the Reasons, except the Fifth and Sixth.
July 4,1839.