Lords Sitting of 26 March 1849

MINUTES.
Took the Oaths,—The Earl of Clarendon.
PUBLIC BILLS.—1a Recovery of Wages (Ireland); Protection of Justices (Ireland).
3a Distraining for Rates.
PETITIONS PRESENTED. From Belfast, for the Adoption of a Measure for the Registration of Births, Deaths, and Marriages (Ireland); also for the Adoption of Sanitary Measures.—From Devonport, for the Immediate and Unconditional Liberation of the Rev. James Shore, M. A., from the Gaol of St. Thomas, Exeter,—From Wexford, Carrickmacross, Kildare, and a Number of other Places, against the Proposed Rate in Aid, and for Alterations in the existing Poor Law (Ireland),—From Bradford, Otley, and other Places, against granting New Licences to Beer Shops.—From the Province of Nova Scotia, for Inquiry into the Case of Mr. Fairbanks.

NOVA SCOTIA—CASE OF MR. FAIRBANKS.
LORD STANLEYpresented a petition from Nova Scotia, complaining of the case of Mr. Fairbanks, and praying that a constitution may be granted to that province. He said, that in presenting the petition he should have to trespass on the indulgence of their Lordships while he stated some details with reference to it. His excuse must be, in the first place, the great and serious hardship complained of by the petitioners inflicted on them individually—a subject which, he thought, would alone entitle them to their Lordships' consideration; and, in the next place, that that hardship involved, in his opinion, a decided violation of faith, and indirectly the whole system of administration in our North American colonies, and the relations which ought to exist between them and the mother country. The petitioners represented themselves to be good and loyal subjects of Her Majesty—warmly attached to British institutions, and anxious to maintain, in all its integrity, the relation subsisting between Great Britain and the colony. He believed that the noble Lord opposite would confirm the character the petitioners gave themselves, and that he would admit that, among all the dependencies of the Crown, not one of them was more anxious to maintain inviolable the connexion with this country than Nova Scotia. The petitioners stated that—
"Amid all the acerbities of party conflicts in this province—through all the animosities engendered by fierce political strife—your petitioners have ever been accustomed to regard the supervision of the British Cabinet, expressed through the Colonial Secretary, as a safeguard against the encroachments of those who should feel disposed to use oppressively the power with which the chances of polities had temporarily invested them. Your petitioners have ever contemplated with satisfaction the idea that between them and any injurious measure was placed the judgment of a British statesman, thoroughly imbued with British sentiment, and far removed from the suspicion of bias or predilection in any advice which he might give to Her Majesty upon colonial affairs. Petitioners have always considered the honour of the Crown as sacred, and the plighted word of a Member of Her Majesty's Cabinet as something too solemn to be doubted."
The petitioners went on to state—
"Your petitioners, therefore, have read with some alarm the despatches lately received from the right hon. Earl Grey, Her Majesty's Principal Secretary for the Colonies, in which that statesman declares his intention of advising the Queen's Assent to a measure which he has before pronounced pernicious and destructive to the interests of this province; which opinion he states
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himself, after most mature and repeated consideration, still to entertain; the said measure contemplating a direct violation of the most unequivocal reiterated pledges, given by the predecessor of Earl Grey in the Colonial Office, endorsed by those of his Excellency Lord Falkland, then Lieutenant Governor of this province."
He would now trouble their Lordships with a short detail of the circumstances. At the commencement of the year 1845, the office of treasurer of the province became vacant by the defalcation of the officer by whom it was then held; and upon that occasion Lord Falkland, then the Governor of the province, in writing to him (Lord Stanley), who then had the honour of holding the seals of the Colonial Department, stated that, in filling up the office, it was necessary he should be made aware of his (Lord Stanley's) opinion as to the tenure by which that office should be hereafter held, in order that the person selected to fill it might, at the period of his nomination, understand precisely the position in which he was placed. Lord Falkland then went on to advert to the circumstances under which the appointment was held, and proceeded to say—
"By my own observation and experience in the administration of the affairs of this province, and by reasons I will hereafter detail, I am irresistibly led to the conclusion that the financial interests of the country are likely to be injuriously affected by individuals engaged in the actual collection and management of the public revenue to so large an amount as both the collector of excise for the Halifax district and the treasurer must necessarily be, holding seats in the Assembly; and this will be the case to a yet greater extent if the term of their keeping their offices shall depend, not only on their having seats in the assembly, but on their belonging to a party having the majority in that body. After deliberately weighing all these circumstances I have it in contemplation, unless such a course should meet your Lordship's disapproval, to give the office of treasurer to some gentleman not belonging to the Assembly, with the understanding that he shall not enter the provincial parliament without the special sanction of Her Majesty; or, should I find it expedient to select any one now in the house, with the understanding that, on his seat being vacated (as according to law it would be by his acceptance of the appointment), he should not again become a candidate for the suffrages of a popular constituency."
Their Lordships would therefore perceive that the proposition to separate the office of treasurer from a seat in either of the branches of the legislature of Nova Scotia proceeded not from his (Lord Stanley's suggestion, but from Lord Falkland, upon his own experience and his own deliberate judgment of the affairs of the province. He had no hesitation in assenting to the

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general views of Lord Falkland on the subject; and on the 2nd of August he stated (having had occasion to reconsider his Lordship's despatch, and the answer thereto of the 18th June):—
"I have further to intimate to your Lordship, that although I place the most undoubted reliance on your judgment in the selection of a successor to Mr. Wallace in the office from which it has been necessary to remove him, I am of opinion that the public service would be essentially benefited by nominating to that situation some gentleman totally unconnected with the legislature. It may be possible that circumstances may prevent you from making your selection except from one or other of the two houses of the legislature; but in such case your Lordship will require from the proposed incumbent a pledge that on resigning his seat he should not again enter either house unless with the express sanction of Her Majesty's Government."
Now, before going further, he would take the opportunity of correcting a very popular misapprehension which prevailed in the public mind, that the Colonial Department was one vast depository of patronage, and that there was no department the occupant of which had such extensive means of gratifying his personal and political friends by their appointment to office. It was impossible for anything to be more unfounded. The vast majority of offices in the colonies were filled up from persons locally resident, and upon the recommendation of the local government. The almost single exceptions were the appointment of governor; the appointment, in some few cases, of judicial officers, where the bar of the colony was not sufficiently large to furnish eligible candidates; and sometimes in the case of colonial judgeships. With these few exceptions, as he had before stated, the whole of the patronage of the Colonial Office was exercised in favour of the colonist, through the intervention and on the recommendation of the colonial governors. He thought he could safely say, that during the time he held the office which was now filled by the noble Earl opposite, there were not sent from this country to all the colonies put together one dozen officers annually; and that with regard to the North American colonies generally, there was the single exception of governor; every other appointment, of every description and kind, being confirmed by solemn compact to the colonists, and upon the recommendation of the colonial government. In pursuance of this system it was that Lord Falkland, writing to him (Lord Stanley), desired to know the principle upon which
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the appointment in question should be made. He (Lord Stanley) concurred in the view which Lord Falkland had taken, and his Lordship entered into communication with a gentleman named Fairbanks, to whom the appointment was offered on these terms:—
"Should it comport with your views to resign your seat in the Assembly, and with your interest to abandon your professional prospects in Liverpool, to assume the duties and responsibilities of a Government office in Halifax, it will give me very great gratification to nominate you to the post become vacant by the dismissal of Mr. Wallace."
Mr. Fairbanks was desirous of ascertaining whether that communication conveyed the views of Her Majesty's Government. Lord Falkland's reply was—
"I have to acquaint you that I have received express instructions from Lord Stanley to make the secession from political life of any gentleman whom I may appoint as treasurer an indispensable stipulation to his taking office; and I, therefore, consider that the appointment will be from henceforward, as it has been heretofore, totally independent of political fluctuations, and that although you will hold it by the same tenure as that by which all other colonial offices are held—namely, Her Majesty's pleasure—it is not to be supposed that after the sacrifices you will have made for the purpose of devoting yourself to its duties, any course, short of what would occasion the dismissal of any other individual holding an office not looked on as political, can operate to your removal."
Upon that distinct declaration from the Governor of the colony, Mr. Fairbanks accepted the office; and, on the 15th of November, Lord Falkland wrote a despatch, which he (Lord Stanley) did not receive, having previously quitted office. In that despatch Lord Falkland said—
"My Lord—I am happy to have it in my power to acquaint you that after having exorcised the most careful discrimination in the selection of a successor to the ex-treasurer of Nova Scotia, I have appointed (provisionally) to that office Mr. Samuel P. Fairbanks, at present one of the representatives of Queen's County in the Provincial Parliament, and a practising barrister of reputation at the bar of Nova Scotia, on whom I had lately conferred the office of Queen's counsel.
"In obedience to your Lordship's instructions, contained in your despatch No. 242, dated 2nd August, Mr. Fairbanks relinquishes his seat in Parliament, and as a matter of course quits the legal profession, and I herewith transmit a copy of the correspondence which took place on my offering him the post of treasurer.
"Should Her Majesty think proper to confirm Mr. Fairbanks, I would request that the warrant under the sign manual, requiring that a commission to Mr. Fairbanks, as treasurer, may be issued under the great seal of the province, may be stmt as soon as possible; and I shall consider myself peculiarly fortunate in having secured the services of that gentleman to the public, as he is in

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every way qualified, both by business habits and a thorough knowledge of accounts, to discharge the duties of the office; and his high character for unimpeachable integrity will insure the confidence of the community."
He (Lord Stanley) was peculiarly glad that that despatch had not been received by him but by his successor, to whom the whole of the correspondence, the opinions of Lord Falkland, and the conditions attached by the acceptor of the office, were submitted for consideration and approval; and it was his successor (Mr. Gladstone) who confirmed the engagement into which he (Lord Stanley) had entered on the part of the Crown, and further confirmation was given by the warrant of appointment sent down with the Queen's sign manual. Their Lordships would agree with him that it was impossible for any one to have a more entire security, so far as words could go, as to the permanence of office to which he had been appointed, and for its exemption from all liability to removal, by reason of political changes and party fluctuations. He (Lord Stanley) would now go back a little to explain the circumstances of the case, and the manner in which they were connected with the system of colonial administration. The government of all the North American colonies was of the same kind—a Governor appointed by the Crown, a Legislative Council also appointed by the Crown, holding their seats for life, and a Legislative Council popularly chosen by the colony, and elected every four years. In addition to this the Governor was assisted by another body, the Executive Council, with whom, previous to 1839, it was understood he was to consult and advise. But the Executive Council had no responsibility whatever, and the Governor was not compelled to act according to their advice. A great change took place in the year 1839—an alteration which was afterwards sanctioned by law in Canada, but which he believed rested upon no law in any of the other provinces—whereby the functions of the Executive Council were materially altered, and so far from being independent of and unconnected with the legislature, they were henceforward to consist mainly of persons holding official situations. A government was introduced which had been variously called a responsible government, and a departmental government, by which the Executive Council became much more a political body than it had previously been, and acquired much more political influence than it had previously held, but which might be more properly called a party government
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than a responsible government. It was necessary for their Lordships to bear these distinctions in mind. This system was introduced into Canada in 1839; but it was not then introduced into New Brunswick or Nova Scotia. Up to the period at which the despatch was written, there was no such thing as administration by party government in Nova Scotia. The majority of the House of Assembly made frequent overtures to the leaders of the liberal party, for the purpose of carrying on the service efficiently, without reference to the peculiar views of parties. He (Lord Stanley) must do this justice to the liberal party to say that these advances were consistently repudiated by them—that they insisted upon a party government, and declined to take part in a system in which they did not possess the whole executive power. The noble Earl opposite succeeded to the Colonial Department in 1846, and in a despatch dated the 31st March, 1847, he stated fully his views on the subject. The noble Earl then laid down very strongly the doctrine of the responsibility of the government; but at the same time, he introduced into the despatch many qualifications of that doctrine; and he laid great stress on the fact, that in this country all, except a very small number of offices, Which are distinguished as political, are held independent of party, and that those appointed to them are not removed except in consequence of very obvious misconduct. He then proceeded to show the expediency of applying the same principle in the colony, and more especially, looking to the small population and limited revenue of Nova Scotia, as well as the general occupation and social state of the community, he said—
"These are, in my opinion, additional reasons for abstaining, so far as regards that province, from going further than can be avoided, without giving up the principle of executive responsibility, in making the tenure of offices in the public service dependent upon the result of party contests. I rely on your using your influence to resist that disposition which a party succeeding to power often exhibits, to throw open the various offices of emolument to their friends, without sufficient regard to the mischiefs thereby permanently entailed on the public service. And it is but due to what I have seen of the conduct of the principal advocates of responsible government in Nova Scotia, to express my reliance on their public spirit and sober estimate of their country's position and interests, as the most effectual safeguard against any abuse of power. There is another safeguard which, even with the less considerate members of any party, you will, I think, find sufficient to protect the public interests against any great disposition unnecessarily to place offices hi-

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therto held on what has practically been a tenure of good behaviour, on one of a more precarious nature. However desirous the people of Nova Scotia may be to establish the principle of responsible government, they would, I feel assured, shrink from effecting any reform, however just or unnecessary, at the cost of injustice to individuals. Now, when individuals have engaged in the public service, under a belief sanctioned by custom, that they obtained a tenure of their offices during good behaviour, it would be most unjust to change that tenure to one of dependence on a parliamentary majority, without ensuring them a provision that would make up for the loss of official income."
Now, although he (Lord Stanley) did not go quite so far as the noble Earl in strength of language, he was ready to admit, that in that despatch he had little to find fault with, believing the qualifications introduced to be judicious, although he thought their application might be mischievous. He would now point out the course pursued in Nova Scotia, under the sanction of the Queen's Government there, and the Secretary of State here, in the application of these sound principles to the responsible government then first introduced into the colony. He believed that a general election took place in the summer of 1847, and that the new legislature met early in January, 1848. The Governor addressed them as usual; but when the address in answer to the speech was proposed (without the smallest charge against the administration or the local government in regard to the administration of the affairs of the province) an amendment was carried by the party in opposition by a majority of 29 to 22, declaring, without any reason assigned or cause given, their want of confidence in the existing local administration, and thereupon that administration tendered the resignation of their offices, which was accepted by the Governor of the province, and a new administration was formed upon the principle laid down by the noble Earl. In the March following, the administration, with the consent of the Governor, introduced a Bill called the Department Bill, the object of which was to alter the character of the office held by the colonial treasurer, and not only to alter the character of the office, but to double the number of officers, and make their appointments political appointments. And without cause assigned or complaint made—on the contrary, with the most unanimous acknowledgment and avowal of the merits and abilities of the officer who was displaced—they displaced Mr. Fairbanks from the situation of treasurer, without giving him the smallest compensation for the loss of
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his office. The Lieutenant Governor (Sir John Harvey) thought that was a measure which—inasmuch as it carried to the full extent the principles of responsible government—would meet with the sanction of the Secretary for the Colonies, and he said—
"I shall regret very sincerely if any disappointment is experienced by Mr. Fairbanks, who is a very respectable man, and a very correct officer; but I humbly conceive that to impress the colonists with a belief that those important despatches, on which they fondly believe their right to constitutional government is founded, can be frittered away by my governor, or by any party, for no national or provincial object, but to provide for a single individual, would have at the present moment a most injurious effect."
The Governor, therefore, transmitted the Bill with his entire approval, confidently anticipating the approval of the Home Government; but, to his great honour and credit, the noble Earl dissented from that view of the colonial government. He stated, that the establishment of the office might be defective, and might require amendment—he proceeded to comment upon the Act itself for creating two distinct departments, the one that of receiver, and the other that of financial secretary, both being of a political character, and both requiring their holders to be members of the Executive Council or of the Assembly—and then the noble Earl said—
"I entertain a very decided opinion that the two officers in whose hands the present Act leaves the very important duties of controlling the expenditure of the province, should not both hold their places by a political tenure."
The noble Earl, after an analysis of the offices of Chancellor of the Exchequer and Comptroller of the Exchequer in this country—the one being a political office, and the other being dependent on the good conduct of the holder—went on to say—
"Now it is not alleged that there is any reason for removing Mr. Fairbanks on the ground of his unfitness or misconduct; and the sole reason that I can discover for his exclusion from office, would be, that he is not a member of your own government or of the House of Assembly. With reference, therefore, to the general views already communicated to you, I consider this reason to be unsatisfactory, and to be founded upon an erroneous conception of the best course to be adopted to ensure fidelity and efficiency on the part of officers taking any part in the management of public finances."
He then went on to say—
"Under these circumstances, Mr. Fairbanks resigned his seat, and accepted the office. I consider that he has now a strong claim to be maintained in his present position."
This despatch was dated the 23rd of June, The reply of the Governor was dated the

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21st of July, and he certainly did not appear to have acted in strict accordance with the views of the noble Earl opposite, because, from first to last he appeared to identify himself altogether with one party, when he ought to have been an impartial mediator; and, without saying anything disrespectful of Sir John Harvey, he (Lord Stanley) could not but consider it a most unfortunate circumstance, and one which placed the Governor of the province in a most unfortunate relation (more particularly under the system of responsible government), to the Ministry whom he had called to office, that at that very moment there was under the consideration of that very government a civil-list act, providing for the payment of all the functionaries of the Crown, and that there was a question pending before the legislature whether the salary of the Governor himself should be 2,500 l., 3,000 l, or 3,500 l. a year. He did not mean to say that these circumstances had influenced the conduct of Sir John Harvey; but he must say that the coincidence was unfortunate, and that so situated he could not exercise such authority on the members of the local government as was necessary. It was not necessary, he thought, to trouble their Lordships with the arguments by which the Governor and members of the Council defended their conduct. He believed that on the 15th of November, 1848, with the high sanction of the noble Earl, it was declared that having given the utmost attention to the subject, he found there was nothing to diminish the force of the objection contained in his despatch of the 23rd of June. The noble Earl directed that the whole correspondence should be laid before the colonial legislature, and repeated his conviction that the true interests of the province would not be promoted; that such determination on the part of the Council to persist in these views must necessarily be regarded as a departure from those considerations which in the despatch of the 23rd of March he had endeavoured to establish, and to which principle the members of Council on their first appointment had declared their unreserved adhesion. That opinion the noble Earl stated he had formed on their public spirit and moderation; but from this moderation these members of the Council departed, in not giving to Mr. Fairbanks any compensation on his removal from office. So far he (Lord Stanley) went with the noble Earl; and if he did not concur in every sentence contained in these des-
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patches, he admitted the fair and candid spirit in which he had framed the restrictions on which he had founded his own views. But from that point he unhappily felt compelled to depart from a general acquiescence in the noble Lord's proceedings, because after what he had read to their Lordships in the despatch of 15th March, from the noble Earl himself, he thought their Lordships would be surprised to find that the conclusion at which the noble Earl arrived, was, that as the honour of the Crown had not been pledged, he would not refuse to submit this act to the Queen in Council, if, after full consideration, the provincial legislature should signify their wish that that act should be confirmed; that he should then in such case advise Her Majesty's Government to confirm the act. Now he would beg their Lordships to observe the facts. Mr. Fairbanks had accepted office upon a distinct declaration from the Governor of the province, sanctioned by the authority of Her Majesty's Secretary of State for the Colonies, that he was not to be removed on account of any political change of parties in the colonial government. That was made the sine qua non upon which he accepted office, and when he abandoned his seat in Parliament he abandoned his profession, in which he had attained considerable eminence, and he devoted himself with an earnestness and honesty which obtained the general approbation, as well as the approbation of the noble Earl. Nevertheless, a Bill was passed, depriving Mr. Fairbanks of his office, in direct violation of the previous instructions given by the noble Earl himself, and in violation of the condition upon which the responsible government was conceded to that very party by the noble Earl. The noble Earl himself in the first instance objected to the Bill on the ground of principle, and that it would be Injurious to the best interests of the province; but, in the next place, he objected to it on the ground that it would inflict a gross injustice on an individual, that individual being entitled to the support and protection of the Government. And yet the noble Earl in this despatch notified that if (not by reference to a new Parliament, but if), upon consideration, the same party who passed the Bill should still persist in adhering to their proceeding, "thinking the faith of the Crown was not pledged," he would comply with the wishes of the legislature of Nova Scotia, and would advise the sanction of the Crown to a measure which he

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himself had declared would be injurious to the colony, and oppressive to au individual. But talk of the faith of the Crown not being pledged—if the faith of the Government was not sanctioned by the declarations of two Secretaries of State, and by a warrant under the Queen's sign manual, by the advice of those Secretaries of State—if these taken together were not pledges of the faith of the Crown, it was inconceivable to him how the Crown could give an assurance for the due maintenance of any pledge. Therefore, he contended, that under no circumstances was the noble Earl justified in abandoning his own views in deference to the judgment of a party whom he had invested with great political power; but had invested them with that power with his own views, in which they considered that Mr. Fairbanks was not to be removed upon the occasion of a political change of parties. Did the noble Earl sanction instructions to the colonial legislature to reconsider this case, and leave it to the Governor to press it strongly upon the local legislature? He did not see the Governor taking any such stops. On the contrary, all his language was in accordance with the party referred to. But on the second vote of the session, the legislature in the House of Assembly declared by a majority of 28 to 21—precisely the same majority by which the original Motion was carried—that notwithstanding the views of the Government they adhered to their own views; nor could this occasion any surprise, when it was remembered that the noble Earl had declared that if a majority of the Assembly adhered to the Bill, he would advise the Crown to give its assent to it. But this measure was submitted to the Legislative Council (he did not speak from official documents), and there, as he was informed, an amendment to that resolution was passed by a majority of 9 to 8; but the president of the Legislative Council, contrary to all practice, instead of giving his vote to the majority, gave it to the minority, and thereby it became a tie, and the amendment was determined in the negative, passing as a resolution of the Legislative Council, and thus complying with the address, to which the noble Earl had declared his intention to assent in the event of such resolution being insisted upon. These, then, were the circumstances of the case; and with regard to that of the individual referred to in the petition he had presented, he thought he had made out a case, and he could only
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say that he was sorry to have had to refer to so many details. He thought that Mr. Fairbanks had been harshly treated, and that he had not received from the noble Earl opposite that efficient protection which, in the fulfilment of the pledge of the Crown, he had a right to calculate would have secured him against that injury under which he was now suffering. He was also of opinion with the petitioners, who stated that independent of the injurious results to the individual which must accrue from the disregard of the pledges of Her Majesty's Government, guaranteed by the Colonial Office, the petitioners viewed with apprehension the policy of the Colonial Secretary in yielding his own opinion and judgment to a party in the majority of the colonial legislature. He (Lord Stanley) was also of opinion, that in a colony—and the smaller the colony the greater the difficulty in the application—not, as he had said before, of a responsible government, but that of a party—that party being made responsible for the acts of each other. That was a system which, if it were wise in this country, must be dangerous to the circumstances of a colonial dependency. He must remind their Lordships, that the principle of a Cabinet was comparatively a now principle in the constitution of this country. The Government, comparatively for a recent period, had been carried on by responsible heads of departments, without requiring that unity of action which was supposed to be necessary. Even in this country it was not easy to find a Cabinet so entirely united; and the difficulty had been usually found in the formation of a Cabinet embodying the Government in itself, and not possessing the confidence of the country; while, nevertheless, it had been able to maintain its position because of the great difficulty of getting a united Cabinet by any other combination. Then, if this difficulty was found in this country, how much greater must it be in a colony, where the number of qualified persons was comparatively small—where there was not only wanting a large number of properly-qualified persons, but where there were only a few such persons in such easy circumstances as to be enabled to devote their services to the State without making their political life a mere means of obtaining emoluments and political power. Even in this country, without the existence of that illustrious assembly which he had then the honour of addressing, with all their attachment to the institutions of the country, the

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business of the country could not be carried on by the other branch. The establishment of a republican form of government would be the absence of that assembly. Nova Scotia contained a population of about 250,000 souls. Fifty-one of the Legislative Council were appointed for life. But if the principle of responsible and party government were to be maintained, the Legislative Council then became the mere tool, agent, and echo of the House of Assembly, and there would cease to be any cheek on the proceedings of that body. The Governor was bound to act by the advice of the Executive Council, inasmuch as through the Governor and the Executive Council, the Legislative Council were to be appointed. Now, there was no efficient cheek on the Legislative Council, as the Legislative Council had no cheek upon the other bodies. The Governor equally had no check, because if he were bound to act by the advice of the Legislative Council, the Governor was as inefficient as the Legislative Council itself. What, then, was the remaining check? It was a check interposed by the Crown, through the responsible Minister of the Crown, who was bound to give protection to the minority of British subjects in the colony, and to prevent the successful and arbitrary tyranny of a small majority. If the colonists had not that protection to look to, it would be better to abstain from lending the name of the Crown to transactions which the Government might be called upon to repudiate. It would be better to declare at once the independence of the colonies, and to leave them to act on unmitigated republican principles. These were not his own views, but those of the petitioners themselves. In spite of the remonstrance of the noble Earl, the Legislature had passed a Bill for the dismissal, without compensation, of Mr. Fairbanks; and, notwithstanding the declaration contained in his despatch, in which he said that of course no removal from the judicial bench was to take place, except upon motives of necessity—the provincial legislature, acting on the advice of the Executive Council, bad already dismissed, without cause assigned, 100 justices of the peace. The petitioners said—
"Your petitioners will state to your honourable House, that one of the loading maxims of responsible government advocated by the present majority is, that the Lieutenant Governor must act upon the advice of the Cabinet; consequently his opinion is but a mere confirmation of that of the parliamentary majority, and can be no check
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against party oppression. His Excellency once stated in a public address, that 'as Her Majesty's representative, be would be no party to depriving any of Her Majesty's servants of the offices they hold;' notwithstanding which declaration, his Excellency has sanctioned the dismissal of about 100 magistrates, besides other irreproachable officers, without cause assigned."
These petitioners, then, had no resource but in appeal to the Imperial Parliament, seeing that his Excellency bad declared that he would be no party to depriving parties of their offices which they then held, but had nevertheless been a party to the removal of one hundred justices of the peace. There was one expression which he wished had not been used by the petitioners. He referred to the sentence in which they hinted a doubt as to whether the withdrawal and absolute surrender of all the functions of government into the hands of a temporary majority might not have the ultimate effect of severing the tie which bound the colony to this country, and might not ultimately lead the colonists to try whether a greater degree of practical liberty could not be enjoyed under the practically conservative institutions of a great neighbouring State. He did not appear before their Lordships as the advocate of any party. He entreated their Lordships to take into consideration all the circumstances—to look at what constituted the true bond between the colonies and the mother country, and he was satisfied that the objects of the colonists would be gained by his bringing the question before Parliament, and by showing that all that the colonists wanted was to have the privileges enjoyed by their other fellow-subjects, and that they should be protected from the proceedings of a despotic government. He did not undervalue the almost unsurmountable difficulties of defining and settling what was responsible government. But unless some stand were made—some distinct position occupied—by the Secretary of State, the authority of the Crown would gradually become null, and that, too, not alone in Nova Scotia; for it was painful to look, in the state of the neighbouring colony, to the consequences of the doctrine which held that the Governor in the colonies and the Crown at home, were irresponsible—that they could only act by the advice of Legislative Councils possessing parliamentary majorities—and that, however distasteful, however revolting, a measure might be to the feelings of the colonists, Parliament was to be powerless, and the Secretary of State dumb; while

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the majority of the Provincial Parliament was to be all potent, and the power of the Crown was to be given to the enactment of a law which—as in a case of which their Lordships could not he ignorant—stamped previous rebellion with the character of legality, and stigmatised the loyal inhabitants of a province for their successful and devoted resistance to that rebellion. He had already trespassed too long upon their Lordships; but he could not refrain from quoting the opinion of a man more entitled than almost any other to be looked upon as a great authority in matters of colonial government—of a man whose experience had been great, and whose wise and great and liberal policy would be long remembered in Jamaica and Canada. On this question of responsible government, Lord Metcalfe wrote as follows:—
"With reference to your views of responsible government, I cannot tell you how far I concur in them without knowing your meaning, which is not distinctly stated. If you mean that the Governor is to have no exercise of his own judgment in the administration of the government, and is to be a mere tool in the hands of the Council, then I totally disagree with you. That is a condition to which I can never submit, and which Her Majesty's Government, in my opinion, never can sanction. If you mean that every word and deed of the Governor is to be previously submitted for the advice of the Council, then you propose what, besides being unnecessary and useless, is utterly impossible, consistently with the due despatch of business. If you mean that the patronage of the Crown is to be surrendered for exclusive party purposes to the Council, instead of being distributed to reward merit, to meet just claims, and to promote the efficiency of the public service, then we are again at issue. Such a surrender of the prerogative of the Crown is, in my opinion, incompatible with the existence of a British colony. If you mean that the Governor is an irresponsible officer, who can, without responsibility, adopt the advice of the Council, then you are, I conceive entirely in error. The undisputed functions of the Governor are such, that he is not only one of the hardest worked servants of the colony, but has also more responsibilities than any other officer in it. He is responsible to the Crown and Parliament, and the people of the mother country, for every act that he performs, or suffers to be done, whether it originates with himself, or is adopted on the advice of others. He could not divest himself of that responsibility by pleading the advice of the Council. He is also virtually responsible to the people of this colony, and practically more so than even to the mother country; every day proves it, and no resolutions can make it otherwise. But if, instead of meaning any of the above-stated impossibilities, you mean that the government should be administered according to the well-understood wishes and interests of the people; that the resolutions of September, 1841, should be faithfully adhered to; that it should be competent to the Council to offer advice on all occasions, whether as to patronage or otherwise; and that the Governor
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shall receive it with the attention due to his constitutional advisers; and consult with thorn on all cases of adequate importance; that there should be a cordial co-operation and sympathy between him and them; that the Council should be responsible to the Provincial Parliament and people; and that when the acts of the Governor are such as they do not choose to be responsible for, they should be at liberty to resign; then I entirely agree with you, and see no impracticability in carrying on responsible government in a colony on that footing, provided that the respective parties engaged in the undertaking be guided by moderation, honest purpose, common sense, and equitable minds, devoid of party spirit."
He hoped their Lordships would forgive him for reading the language and the opinions laid down by Lord Metcalfe; but he would venture to ask, if those opinions had been acted upon by the legislature of Nova Scotia, whether Mr. Fairbanks would have been dismissed without compensation, and whether it would not have been impossible to dismiss a hundred magistrates not connected with politics, merely that their places might be filled up with violent partisans of a faction? He would ask, if such an attack had been made with Lord Metcalfe's system in operation, whether that would not have been the fitting time for the interference of the Governor? and if such interference had failed, whether it would not then have been time for the Secretary of State to step in, telling the colonists that while he wished to protect the liberties and recognise the constitutional rights of the Assembly, still that he was responsible to Parliament, to his country, and his own conscience, for the due protection of every subject of Her Majesty, and for the adequate defence of the honour of the Crown and the rights of the subject, protecting one and the other from being overthrown by the temporary power of a small dominant majority?
EARL GREY: The subject to which the noble Lord has called the attention of the House is one of such importance, that I regret that the duty of reply has not fallen to abler hands than mine. But however unable I may be to do justice to the general subject, I do feel that, in this particular case, I stand on so strong a foundation of truth and reason, that I am not afraid of encountering the arguments of the noble Lord. I think it will be for the convenience of your Lordships that, in answering the noble Lord, I should take the topics to which he has adverted in a contrary order to that in which he arranged them; and, instead of dealing with the case of Mr. Fairbanks first, and applying to that

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case any general rule, that I should try, in the first instance, to explain my views on the system of colonial administration, and, having done so, that I should point out their application to the case before us. The noble Lord, in the eloquent conclusion of his speech, succeeded in pointing out that there is a very great difficulty in reconciling the exercise of control by the Crown here, with the preservation intact by the colonies of those privileges of self-government which the colonists value no less highly than we in this country prize those similar lights which we enjoy. No doubt there is a difficulty in this; but I would direct the attention of your Lordships to the excellent observations upon this very point of my noble Friend Lord J. Russell, in a despatch written by him at the time when he held the office which I have now the honour to hold. This was the noble Lord's advice on the very question:—
"It may be said that I have not drawn any specific line beyond which the power of the Governor, on the one hand, and the privileges of the Assembly on the other, ought not to extend. But this must be the case in any mixed government. Every political constitution in which different bodies share the supreme power, is only enabled to exist by the forbearance of those among whom this power is distributed. In this respect the example of England may well be imitated. The Sovereign using the prerogative of the Crown to the utmost extent, and the House of Commons exerting its power of the purse to carry all its resolutions into immediate effect, would produce confusion in the country in less than a twelvemonth. So in a colony; the Governor thwarting every legitimate proposition of the Assembly, and the Assembly continually recurring to its power of refusing supplies, can but disturb all political relations, embarrass trade, and retard the prosperity of the people. Each must exercise a wise moderation. The Governor must only oppose the wishes of the Assembly where the honour of the Crown or the interests of the empire are deeply concerned; and the Assembly must be ready to modify some of its measures, for the sake of harmony and from a reverent attachment to the authority of Great Britain."
The same would be equally true if the case occurred in this country. If the Crown were to exert to the very utmost that power which, by our constitution, is vested in it, that of refusing assent to laws passed by both Houses of the Legislature—if the House of Commons were to push to extremities its right of refusing the supplies—if this House were to put into operation its equally undoubted right of rejecting every measure of which it disapproved—if all these powers were to be strained to the utmost, why, my Lords, it is clear that
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our balanced system of constitution would, in such a case, in the course of a month, be brought to a stand-still, and the whole complicated system of our constitution would be thrown into helpless disorder. But, my Lords, the remedy for this possible evil, to use the words of my noble Friend, is in the wise moderation with which the acknowledged constitutional powers of these several authorities are exercised. Each, in its turn, gives way; each in its turn submits to the other; and thus, by forbearance, by good sense, and the habit of adapting our conduct to circumstances, notwithstanding those theoretical difficulties by which it could be theoretically proved that our constitution will not and cannot work—notwithstanding those difficulties, that constitution has long flourished, to the great advantage of all who have the happiness of living within its influence. And so, my Lords, in the colonies—if the Governor will assent to no laws save those which, in his judgment, are sound and irreprehensible—if, on the other hand, the Assembly insist on always having its views carried out—if the Secretary of State for the Colonies is to consider merely what he thinks the best measures to be adopted, paying no attention to what the colonial public desire, or to what the colonial public require—if such is to be the conduct of the respective parties, then, undoubtedly, my Lords, such a system of government cannot work. But if, acting upon a different principle, the power of the Crown be used, not resolutely to resist and oppose, but judiciously to check and guide the public opinion of the colonies into proper channels, to lead and not to drive it—then I do say that the system may work with immense advantage to the interests of all parties—to the interests of the colony and of this country—may work smoothly and well. But all depends upon the discretion with which the powers entrusted to each are exercised. I scruple not to say, that our North American colonies have arrived at such a stage in their growth, that public opinion in those colonies themselves will, and must be, the supreme power to decide upon laws affecting their own internal interests. I believe it to be neither practicable nor desirable that any other rule should hold. I know no interest which this country can have in trying to force on the colonies any particular system of local and internal legislation. But, on the other hand, I am persuaded that if the powers of the Crown be judici-

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ously used in this country—if the limits of that power were distinctly laid down and recognised—if, clearly discerning how far we may go, and how far we may not go, those powers be exercised wisely and moderately—then I am convinced that they may be exercised with the greatest advantage to the interests of the colonies themselves. These opinions, my Lords, will be found in despatches of mine moved for in the other House of Parliament. In those despatches I have endeavoured, as clearly as I could, to state my views to the Governors of these North American colonies. I have informed them that they are not to consider themselves freed from responsibility; that, on the contrary, a great and heavy responsibility is laid upon them—that they are responsible for measures to which they assent. But, on the other hand, I have always stated, that, under the form of government which prevails in these colonies, we cannot shrink from the conclusion that in the end public opinion must decide upon all points on which the parties may be at issue. A few passages from one of the despatches to which I have adverted I may read. To Sir John Harvey I wrote as follows;—
"Of whatsoever party your Council may be composed, it will be your duty to act strictly upon the principle you have yourself laid down in the memorandum delivered to the gentlemen with whom you have communicated, that, namely, 'of not identifying yourself with any one party,' but instead of this, 'making yourself both a mediator and a moderator between the influential of all parties.' In giving, therefore, all fair and proper support to your Council for the time being, you will carefully avoid any acts which can possibly be supposed to imply the slightest personal objection to their opponents, and also refuse to assent to any measures which may be proposed to you by your Council which may appear to you to involve an improper exercise of the authority of the Crown for party rather than for public objects. In exercising, however, this power of refusing to sanction measures which may be submitted to you by your Council, you must recollect that this power of opposing a chock upon extreme measures proposed by the party for the time in the government, depends entirely for its efficacy upon its being used sparingly, and with the greatest possible discretion. A refusal to accept advice tendered to you by your Council, is a legitimate ground for its members to tender to yon their resignation—a course they would doubtless adopt should they feel that the subject on which a difference has arisen between you and themselves, was one upon which public opinion would be in their favour. Should it prove to be so, concession to their views must, sooner or later, become inevitable, since it cannot be too distinctly acknowledged that it is neither possible nor desirable to carry on the government of any of the British provinces in North America in opposition to the opinion of the inhabitants."
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My Lords, these are the views of colonial government which, since I have had the honour of a seat in either House of Parliament, I have ever advocated. They are views on which, if Parliament be not prepared to act, I believe the administration of our North American colonies cannot be carried on at all—they are the views which, with the full concurrence and support of my Colleagues, I have endeavoured to apply as impartially and fairly as I could to the administration of the important department over which I have the honour to preside. And, my Lords, I must take the liberty of saying, that whatever mistakes I may have committed in doing so—and I am not so presumptous as to suppose that, in difficulties like these, mistakes may not have been committed—still, I repeat, that, whatever mistakes may have been committed, the present condition of our North American colonies is the best proof that these principles are, in the main, sound and just. Let me, for instance, refer to the condition of Nova Scotia. The noble Lord has said that the principles which I have professed, I have abandoned and thrown away.
LORD STANLEY: No; I said that, according to the system practically entered upon, the power of the Crown appeared to be done away with.
EARL GREY: I am happy to have been corrected in this respect by the noble Lord; but certainly I am right in stating that in the latter part of his speech the noble Lord strongly insisted upon the duty and the necessity of the Government at home remaining firmly in opposition to the strongest feelings and the strongest opinions of the colonists and the colonial legislature, in their view of certain questions. That position the noble Lord stated so broadly, that it did appear to me that he rather lost sight of the principle of self-government; for to tell the colonists that they are to govern themselves, and that their Assemblies are to decide upon questions of internal and local importance, and then, when a difference of opinion arises between the Secretary of State and the provincial legislature to say that upon a question of purely local—purely internal importance, that the Assembly, and not the Secretary of State, is to give way; to say this—to lay this down as the rule to be followed, would indeed he to decide that the representative government of the colonies is representative government only in name. But while I do not shrink from acknowledging that in the end, a well-considered, just, and temperate

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public opinion must govern in Nova Scotia as it does in England—that our fellow-subjects in North America participate in our own feelings, and would tolerate in the long-run no other system of government—though all this he the case, still I am hound to assert the power and influence of the Crown are by no means to be ineffective or unimportant. For fifteen years the subject of the civil list in Nova Scotia has furnished matter for continued controversy between the Crown and the colonial legislature. The noble Lord opposite, during the five years in which he held office as Colonial Secretary, laboured with great talent, but without corresponding success, to bring the matter to a satisfactory conclusion. He insisted, and properly so, on the salaries of the existing judges and other civil officers being maintained, and on certain other points which he considered essential. The noble Lord was unable to bring these difficult questions to a settlement. Now, since I have had the honour of holding office, the question of the judges' salaries has been again revived. The measure on this subject originally sent home by the legislature of Nova Scotia appeared liable to such great objections, that I declined to submit it to the confirmation of Her Majesty. I stated in a despatch my objections to the measure, and referred it back for the consideration of the Governor and Colonial Council. Now, by the last mail, I have received a despatch from Sir John Harvey—a despatch which I now hold in my hand, and which I am ready to lay on the table of the House. In that despatch I am informed that an amended statute has been framed in accordance with my instructions; the arrears of the judges' salaries being paid up, and their full salaries continued; while by the same enactment the amount of the salary of the present, as well as that of future lieutenant governors, is finally settled. Now, when your Lordships consider the strong feeling on the point which existed in the province—when you consider the great objections to recognising the claims of the existing judges to their salaries—you will not fail to appreciate the manner in which the existing legislature has been brought to sec the propriety of settling the question upon the terms which I have mentioned. Again, since the date of the despatches which in 1839 were addressed by my noble Friend now at the head of the Government to the then Governor General of Canada—since that date there has been a strong desire
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manifested in many of the provinces to carry the principle of changing the holders of office, upon the change of an administration, further than appeared prudent or necessary. Now, the noble Lord opposite quoted a passage from a despatch of mine to Sir John Harvey, pointing out the importance, with a view to the interests of the colonists themselves, of not carrying this principle out too far—of confining the removability, in consequence of political changes, of those who hold office, within narrow limits. Now that principle was frankly adopted by the existing Council and Legislative Assembly of Nova Scotia. Even if that Act, against which the prayer of the petitioners is directed, should receive the confirmation of Her Majesty, which it has not received; but even if it should, the whole number of office-holders, who will change with a change of administration, is only six. Now, considering that it is necessary that certain functionaries should be changeable, for the purpose of substituting persons who enjoy the confidence of the Assembly and the constituency, I am bound to say, that I do not think six an extravagant number in such a colony as Nova Scotia. Again, I strongly urged on the Assembly, that in adopting the system which they so much favour, they should abstain from inflicting injustice on individuals, and that compensation should be awarded to all officers appointed without due notice as to the terms on which they held office. Here, again, the Assembly and the Executive Council have met my views, with the single exception of the case of Mr. Fairbanks, which is stated not to come within the general rule—with the exception of that case, no one individual has been removed from office without receiving some compensation. There may be questions as to the amount, but the principle has been granted. Now, my Lords, when you remember how strong public feeling is over the whole of the American continent, not only in our own colonies, but in the adjoining republic, to the grant of pensions—when you remember the strength, the intensity of this feeling, you will admit that this is no smal concession made to the views of the adviser of the Crown. Again, it is now found that the affairs of that colony are administered by persons enjoying the entire confidence of the Legislative Assembly, and an end may therefore be anticipated from henceforward to those quarrels and disputes between the Executive and the

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popular power, which has so frequently occurred in former periods. No doubt it is to be lamented that there are points connected with the affairs of the colony with respect to which a less satisfactory account can be given. The noble Lord has alluded to the great change which has taken place in the magistracy of Nova Scotia. I regret that that subject has been adverted to, and for this reason, that a correspondence on the subject is still going on—a correspondence which is still in a state which renders it impossible for me to lay it on your Lordships' table, but without a knowledge of which it is absolutely impossible that a sound opinion can be formed on the merits of the case. It is also impossible for me in my situation to express here in public an opinion on the conduct of the Government of Nova Scotia, without running the risk of exciting and stimulating that violent party spirit which is so deeply to be deprecated, and which it is my great study to soften down and moderate. Thus, then, I cannot enter into the question at this moment; but I can assure your Lordships that it is altogether unsafe to form an opinion on the matter. The individuals dismissed are upaid officers, and the reasons that have been assigned by the Assembly for the course which has been pursued, are reasons which are entitled to very respectful consideration. But at the same time let me say, that even were I prepared to grant—and which I am not at this moment—that in this instance the powers of the Executive have been stretched beyond the precise line which discretion and judgment prescribed—even if I were prepared to make that admission—still I say I am not aware that any great political party in this country would be able to say that it has at all times, when in possession of power, and in the heat of party contest, exercised the authority temporarily committed to its care within the exact line of moderation and prudence. No great party in this country could with truth make such an assertion as to their own conduct. If such be the case in this country, then ought we not to make some allowance for what may take place in the colonies, where, in such smaller community, political contests are apt to be carried on with much greater acrimony and eagerness? From all the information which I have received, I will not pledge myself to the fact that an error has not been committed; but it is something new, and as dangerous as it is new, that this House
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should be called upon to review the party contests of our North American colonies. I think that to fight these battles over again, upon this stage, will be attended with consequences most serious and most dangerous. It has hitherto been the practice for measures passed in our colonies to be occasionally the subject of Parliamentary discussion. It has happened, that when a difference has arisen between the Crown and the representative assembly of one of the colonies, that the case of the latter has been brought before Parliament, and argued with much effect as against the Government of the day. I think that, with regard to the unrepresented colonies, Parliament, as a rule, and as a check against abuse, is not only justified, but is absolutely bound, to keep an eye upon the conduct of officers of the Crown, and upon disputes between those officers and the colonists, and to see that in those differences the blame does not rest with the advisors of the Crown. In the same way, with regard to the represented colonies, it is the duty of Parliament to inquire into the causes of differences between the local legislature of the colony at large and the representatives of the Crown, and to see that the blame does not rest upon those officers, or upon the advisers of the Crown. But the case is very different when a complaint proceeds, not from the colony at large, not from the representative legislature, not from a majority, but from a small minority in the colony, who complain that they have not received that protection from the Crown which they ought to have against the representatives of the people. If your Lordships are to be called upon to pass an opinion in this manner upon the proceedings of majorities of the representative Assemblies of the colonies, at the instance of those against whom they have decided, it appears to me a course no less novel than inexpedient. Hitherto, every Administration in this country has endeavoured to give effect to the power which the Crown is entitled to exercise over the colonies, and to act towards the various political parties in them with the strictest impartiality and justice. They have endeavoured to show no leaning towards the one party or the other, but to use, as fairly as possible, the power of the Crown, and so to exercise it as not to aggravate, but to moderate, the rancour of these political contests. But if, when the responsible advisers of the Crown have not thought fit to interfere, to endeavour

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to control and overrule the decisions of the representative bodies of the colonies—if, in such cases, are they to be called upon to defend their conduct, and assign reasons here for their not choosing to exercise the authority of the Crown? It is hardly possible, if they do so, that they can avoid being drawn in as partisans into the quarrels of the colonies. Where free institutions prevail, all experience proves that party contests will take place. We know from the earliest history that such is the case. But if, in those party contests, the divisions that take place in the colonies are to be repeated here, and the present parties in this country are to adopt one side or the other in the colonial contests, you must consider what will be the unavoidable result. Suppose a change of Administration were to take place in this country, and no corresponding change were to occur in the colonies; suppose the noble Lord opposite, after bringing forward the case of one party of the colonists, and making it the cause of a political party in this House, thereby establishing for himself the character of being the organ of that party, were he to succeed to the office which is now confided to my hands—is it possible to conceive that, in the exercise of the powers so entrusted to him, some suspicion should not be entertained of his favouring those whose cause he had advocated? On the other hand, if I have endeavoured, by my answer to the arguments of the noble Lord, to state fully the reason why I thought the minority might be in the wrong, or, at all events, that it is not expedient to overrule the majority—if I am compelled to do so, is it possible that I shall not he, more or less, mixed up in the party views of those whose conduct I am obliged, in some manner to defend? And, therefore, I say it is a wholesome rule, and one which I am sorry to see now infringed, that those cases of colonial political contest should not be fought over again in the British Parliament. I have been led much further, my Lords, than I intended into this branch of the noble Lord's question. To return to my line of argument—I was defending the colonial policy, and alleging the proofs afforded by the present state of the colonies of the success which has attended the general rules for their administration, which I have attempted to lay down. Now, with respect to what the noble Lord has alleged regarding Nova Scotia and Canada, I regretted to hear him put forward the statement
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that a measure now in progress through the legislature of Canada, was one by which rebellion would be legalised and rewarded. If the noble Lord have, as he says he has, consulted the documents in this country which have led him to form such a conclusion, he ought to know that those by whom this measure has been promoted, entirely repudiate such a charge. [Lord STANLEY: I know the contrary from the official documents.] I can only say, then, that documents must have reached the noble Lord which I have not seen. I have seen the resolutions moved in the Assembly, and the amendments to the resolutions, and the resolutions are not yet decided upon.
LORD STANLEY: I am not in receipt of any later intelligence than the noble Earl; but I have seen the resolutions, the amendments proposed to them, and negatived, and the votes given by the Members of Government and of the Legislative Council. Amongst these amendments, the noble Earl does not seem to know that two were moved, the first declaring that all those who had actually aided in the rebellion should be excluded from all participation in the benefits of the Bill; and the other, that all those who had not aided in putting down the rebellion should be likewise excluded; and that both those resolutions were negatived by majorities of two to one, all the Members of the Government voting in the majority.
EARL GREY: That statement of the noble Lord I cannot help believing to be erroneous. However, with regard to the votes of the Assembly, it has not, unfortunately, boon the custom to forward them to the Colonial Office until the end of the session. I have endeavoured to put a stop to the system, and to have the votes forwarded immediately upon the conclusion of each question. But I have seen the reports in the newspapers, and by the latest newspapers it does not appear, so far as I can discover, that the matter is as the noble Lord says. Many resolutions have been passed, and many amendments have been considered; but it does not appear, so far as I can see, that all the resolutions have as yet been discussed, or that the Bill founded upon those resolutions has been brought in. But most undoubtedly the Bill, which must be founded upon those resolutions, has not been as yet considered in Committee, and does not consequently now stand in the shape which it will probably finally take. And again I

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say, that the noble Lord, in coming here before the Bill has been discussed by its authors, and raising a discussion upon it, has, in my opinion, adopted a course of proceeding doubly dangerous to the country. I say, the authors of the Bill entirely disclaim the intention of rewarding treason or indemnifying rebellion. What they say is this—that, with regard to Upper Canada, against their strong remonstrances a Bill was passed by the legislature of the colony, for compensating those who had incurred losses during the rebellion. They say that the Bill was expressly altered, in order that the classes of those entitled to compensation might include persons whose property had been destroyed by volunteers, under the belief that they were abettors of the rebellion. I believe it was whilst the noble Lord himself held office that the Bill was passed with the clause expressly to extend the compensation so granted; and that the compensation was obtained by persons whose property was destroyed by volunteers under the suspicion that they were abettors of the rebellion. The promoters of the present measure say that they strongly opposed that Bill; that the measure was a wrong one; but that if it were adopted for Upper Canada, in common justice it would be necessary to apply the same rule to Lower Canada. They say that their predecessors in office, and those by whom the measure was got up, issued a commission to inquire into the losses sustained; then when they were applied to by the Commissioners to know who were to be excluded from the benefit of the compensation, on the ground of having been participators in, or abettors of, the rebellion, the answer given was, that the decisions of the legal tribunals at the time were the only test to which they could look to determine who were rebels and who were not. They say further—and I must say I do not think it is unreasonable—that, in good policy it is advisable that this compensation should be granted to all who were not proved at the time to have been participators in the rebellion. At that time the French Canadians were extensively aiding the British Crown. I will not go into the history of the time, or say who was right or who was wrong. I think the veil of oblivion should be thrown over the transaction. But when the French Canadians are, as they now are, loyal to the British Crown, I think their loyalty should not be cooled or put down, nor that there should be, as they them-
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selves say, a Star Chamber inquiry now made into who have been participators in or abettors of the rebellion. This is the ground that they have taken. It may be right or it may be wrong. I reserve my opinion until the Bill in its final shape shall come before me for decision. But this I will say, that, looking at the speeches which have been made, and at the resolutions which have been passed, there is nothing unreasonable—nothing monstrous in these propositions. With regard to Lord Elgin, who now holds the government of Canada, and whom, before he was appointed to the government, I had never seen, and had no acquaintance with whatsoever—a nobleman whom I knew only by the reputation he had acquired for the able manner in which he had conducted the administration of affairs in Jamaica, and whom, for that reason only, I recommended to be appointed to the government of Canada—he not being even of the same political opinions, for he was the seconder of the Address in the other House, which put an end to the Administration of Lord Melbourne; as to that nobleman, it was only from the knowledge of the ability he had already displayed, that I recommended the Queen to appoint him to the government of Canada; with regard to that noble Lord I do say, that in administering the government of Canada he has acted with such uniform discretion, with such prudence, combined with ability and moderation, that, although he has refrained from reporting anything officially upon this subject—most probably, as I think, until what he considers the proper time—I have such unlimited confidence in him, that I have no doubt he has good reason for following the course he has adopted. I said, my Lords, that the state of things in Canada was a justification of those principles of policy which I endeavoured to enforce. I shall now read to you a short extract from a private letter which I received from Lord Elgin some time ago. After stating the various dangers and difficulties which he expected to encounter in Canada—the extreme danger which might have arisen when the news of the French revolution arrived there—the danger which would have resulted if, during the events in Ireland last year the numerous Irish sympathisers, as they were called in the United States, had been able to calculate upon any extensive support from the Irish inhabitants of Canada: after pointing out all those dangers, he goes on to describe

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the tranquil state of the colony. He says—
"Now, observe the contrast. We have had, it is true, our French Republican sympathy, soaring occasionally into the cloudy region of a sort of mystical sentimental treason; but this has only served to mark out Papineau and his adherents as a faction disconnected from the body of the French Canadians, who say, 'we are satisfied with things as they are; we do not intend to rebel; and if Yankees come across the border to revolutionise us in spite of ourselves, we will give them as good as they bring.' We have had, too, Irish excitement; but it has only given the body of the respectable repealers an opportunity of protesting against the introduction of Irish politics into Canada."
But, my Lords, this is not all. Nobody can forget the immense power and influence of Mr. Papineau formerly in Canada. Well, Mr. Papineau, on the day when the session of the Provincial Parliament was opened, proposed various amendments to the address; and on that and the three following days he made several speeches, not one of which was much less than three hours in duration. Yet, after all, when the division took place upon the amendments—which certainly implied in their language anything but a spirit of attachment and loyalty to the British Crown—they were rejected by overwhelming majorities, Mr. Papineau being able to induce only three members to support his views. Now, when you consider that that gentleman, a very short time ago, would, if he had proposed amendments of the same character, undoubtedly have commanded a majority of the Assembly, and that the body which rejected these amendments were elected both in Upper and Lower Canada upon the widest franchise, what I have just stated is a most satisfactory proof of the present state of the colony. I took occassion to mention last year that whilst the Canadians exercised the power entrusted to their hands of determining upon measures affecting their own local interests, yet that upon all those matters in which the interests of the empire were involved, they had shown the greatest readiness in listening to the advice given by the Governor General. Only by the last mail I received a proof of that. In the postscript to a private letter which I have received from Lord Elgin, he informs me that the Assembly had just determined upon reducing the tax upon immigrants, to which he knew great importance was attached by the Home Government. And although considerable doubt was entertained as to the safety of
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the policy in making the reduction, yet, in deference to the advice of the Governor, the Assembly had resolved to reduce the tax. I am afraid I have detained your Lordships too long already by these statements of the general principles upon which the government of the North American colonies has been conducted. I will now come to the particular case of Mr. Fairbanks. I will at once freely and frankly acknowledge that I think that gentleman has been somewhat hardly used; but, at the same time, I have to point out the peculiar circumstances connected with his case. And, in the first place, I must say that Mr. Fairbanks, up to the time of his being appointed treasurer, took a very active part in the politics of Nova Scotia, in opposition to those who are now in possession of power, and was a person not a little obnoxious to those who have now succeeded to the administration of the affairs of the colony. The noble Lord says that Mr. Fairbanks had the assurance of the Crown that his office was not to be considered moveable. So far as the Crown had the power, he certainly had a right to think the office should not he considered moveable. My Lords, I think so far as depended upon the Crown his removal would have been hard, except in so far as questions of misconduct might be concerned; but there was a very important point of consideration in the matter, which the noble Lord omitted to mention. Mr. Fairbanks was appointed to a place which, so far as the Crown was concerned, should be considered permanent. But in Lord Falkland's despatch—part of which the noble Lord has read, there occurs this passage:—
"The treasurer's salary is annually voted by the Legislative Assembly; and although no reduction has been made in its amount for several years, yet, from time to time, propositions to diminish it have been mooted in the House, and this very necessary officer has hitherto been dependent on the popular branch for his official income."
It was clearly, therefore, only in the power of the Crown to appoint the officer, subject to the decision of the Assembly if any part of his salary should be stopped. And Mr. Fairbanks, knowing that attempts had been made to reduce the salary attached to the office, was perfectly aware of the fact that the power existed. But, my Lords, that is not all. The noble Lord, in his answer, dated the 18th June, which he told you he would not read, wrote thus:—
"I concur with your Lordship in considering that it would be an improvement to introduce into Nova Scotia the system in operation in Canada,

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of excluding from the House of Assembly and the Executive Council all persons engaged in the direct collection of public money."
Now, here, I must say, the noble Lord had received very erroneous information; for there are two financial officers in the Executive Council and House of Assembly of Lower Canada. The noble Lord proceeded to say—
"I should, therefore, entirely approve of the enactment of a law by the legislature of Nova Scotia extending the same system to that province, and fixing permanently the amount of the salaries of the office of treasurer and collector of customs."
But what was the answer of Lord Falkland to that despatch? He had said that the office was held subject to an annual vote; and that it was subject to increase or reduction by the Assembly. And the noble Lord was quite aware that if that were the case, the tenure of office was at the pleasure of the Assembly, and not of the Crown; and he proposed that it should be made a permanent charge upon the revenue. What was Lord Falkland's answer? In his despatch, dated July 15, 1843, he said—
"However strongly we may both feel on this subject, I am by no means certain that the local government could at present carry a law in relation to it through the legislature, while I am well aware that the appointment of a treasurer by your Lordship's command on the conditions I have stated would enable me to effect the object—in great part—without difficulty, or inconvenient results."
Therefore Lord Falkland was well aware that the Assembly would not give up their power over the office, and that he could not safely make the proposal, and it was retained by the opponents of those now in power. Mr. Fairbanks was in Lord Falkland's Council, and he must have been cognisant of all the circumstances. I must say that so far as the legislature of Nova Scotia is concerned, Mr. Fairbanks had fair warning when he accepted office; for, in the discussions that took place in the Assembly, those gentlemen who are now in power made no secret of their intention, in case of a change in public opinion, and of their becoming ascendant, that they would insist upon the office of treasurer being regarded as a political one. I am exceedingly sorry that Mr. Fairbanks has, in the exercise of his undoubted right, presented a petition to your Lordships' House; because he has compelled me, very unwillingly, to make this statement, which I consider will very much injure his future prospects; for his case is not yet finally de-
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cided. It is perfectly true that addresses have been passed by the two Houses of the Provincial Legislature, requesting that the Act already passed should be confirmed. But I have received a communication from a distinguished member of the Council, and a despatch from the Governor, by the last mail, saying that at that late period before the despatch of the mail, it was impossible for him to accompany the addresses by an explanation, but it was his intention to forward them, with an explanation, by the next mail. In the absence of those papers it will be impossible for me to determine what advice I shall submit to Her Majesty upon the subject; but, having been challenged to state the actual circumstances of the case, I may be allowed to point out to your Lordships the course I have adopted. A measure was passed by the legislature of Nova Scotia remodelling the existing establishments in connexion with the receipts and expenditure of the revenue. Certainly, there can be no question of more purely local interest; and they were at the most perfect liberty to adopt whatever course they thought best concerning it. The arrangement which the legislature of the colony decidedly and deliberately thought best for their own purposes I confirmed, upon the principle which I have explained, that that which the colonists think best suited to their purposes ought not to be permanently refused by the Government of this country. When a measure came before me which I considered open to very considerable objections, I pointed out those objections, and I recommended modifications, directing the despatch containing those opinions to be laid before the legislature of Nova Scotia. I need not tell your Lordships that a great difference of opinion exists in the colonial legislature upon a matter of this kind, and such a statement of objections to a measure by the Home Government carries great weight with it. The best proof of such being the case is this, that having made similar objections to some payments from the civil list, relative to the salaries of the judges, notwithstanding the most energetic opposition on the part of some members, the objections were acquiesced in, and my advice has been adopted; and, therefore I say, that this was a course which gave Mr. Fairbanks very considerable advantages. But, in offering those objections, I thought it right to add—and I still think it right to add—that if the legislature should adhere to the view they

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had previously taken of the case, it was a subject which, under the rule, which I think to be a sound one, of colonial government, it would be an improper exercise of the power of the Crown to refuse acceding to. I see no reason to believe that in so doing I was acting wrong. Mr. Fairbanks held his office at the will of the House of Assembly. The Crown did not profess to have the power of continuing to him the enjoyment of his salary; and therefore, in allowing this arrangement to take effect, I certainly did no injury to him, since he would equally have lost his salary by the cessation of the vote which would undoubtedly have followed. But I allowed the legislature to make the arrangement with regard to the future management of the finances of the colony which they, in their deliberate judgment, have thought best. Had I, instead of doing so, determined on resistance, and compelled the Governor to refuse to allow such a measure to be brought in, and had so compelled him to lose the services in his Council of those gentlemen who possess the confidence of the Assembly—if I had thereby allowed the affairs of the colony to be thrown into confusion, as undoubtedly they would have been, I say it would have been an overstraining of the powers of the Crown. This, my Lords, is a simple explanation of this transaction. If, after this, your Lordships think I have acted erroneously, I must feel deep regret that such should be the result. But, after having given my best attention to the subject, I must say, that if I were again placed in the same situation, I should again repeat the instructions I have already given.
LORD BROUGHAMexpressed his satisfaction at the explanation that had been given by the noble Earl with regard to the appointment of Lord Elgin, and his utter denial, thereby, of the assertion that that appointment had been made in consequence of Lord Elgin being a family connexion of his (Earl Grey). He (Lord Brougham) well knew the contrary; but the public did not know it, and so the belief had got abroad that the noble Earl favoured the members of his own family. There was another charge made against the noble Earl, with regard to which he (Lord Brougham) was anxious to do justice. It was that relating to the appointment of a right hon. Friend of his to the governorship of Jamaica. He was constantly hearing his right hon. Friend called "one of the Grey family." Certainly his name was
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Grey; but the fact was that he was related to the noble Earl in somewhat the same degree that he was to him (Lord Brougham), that was to say, through their common descent from their first parents. His right hon. Friend had been first sent to Calcutta by the opponents of the noble Earl, Lord Liverpool and Lord Castlereagh. He had been, with himself (Lord Brougham), an active member of his Infant School Committee, and was taken from that to be sent as chief justice to Calcutta. From thence he was sent to Barbadoes, and thence to Jamaica, merely on account of his ability; and he was no more an adherent of the noble Earl in local politics than he was in general politics, or than he was any relation. He had listened with great pain and considerable anxiety to the defence of the noble Earl, with respect to Mr. Fairbanks. He must say that gentleman had been exceedingly ill-used, and he was not at all shaken in that opinion by the explanation which had been given by the noble Earl. The noble Earl had done his best, and had been a skilful, able, and zealous advocate. He had made the best of a bad cause, but he had left the case exactly where he found it; and he certainly had not in the slightest degree convinced him (Lord Brougham) that this was not a well-grounded complaint of ill usage made by Mr. Fairbanks. The noble Earl said that Mr. Fairbanks had received full notice that his office was a precarious one, and depended upon the will of the majority of the Assembly, to which he might be politically hostile. But this was no reason why the Government should allow that gentleman to be treated with hardship, which was only another term for injustice. It was said that his salary depended on annual votes of the Assembly. But the Judges of the Admiralty Court in this country, amongst whom was Dr. Lushington, were dependent for their salaries upon the annual votes of the House of Commons. Now, he defied Mr. Fairbanks to be more of a political party man than was Dr. Lushington; but if a new Government should attempt on that ground to withdraw Dr. Lushington's salary, the whole country would be most justly aroused against them. This shameful arrangement was recently changed, and the learned Judge's salary was now paid without yearly vote; but he spoke of what would have been the case formerly. Suppose a Bill were to be brought into Parliament to abolish Dr. Lushington's office, or divide it into two, and the two so created

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were given to conservatives. That was what had been done in Mr. Fairbanks' case. Not only was the vote not agreed to year after year, but a Bill was brought in dividing his office, and appointing two gentlemen, partisans of the opposite faction. That was what was complained of. If the noble Earl had offered the same resistance to that Bill that he did to the Civil List Bill, there would have been some show of justice to Mr. Fairbanks. In the one case the noble Earl said—"If you send over the Bill unmodified, I will throw it out—I will not obtain the consent of the Crown." But in the other case all he said was—" If you persist in this Bill, my reasons are against you; but still if you persist I will give in." Why, that was a direct temptation not to yield to his reasons. He gave them on the one hand strong reasons for giving in, and on the other very strong motives for not giving in. The result, as might be expected, was, that the parties did not give in, but held out. With respect to the dismissal of the 100 magistrates, he thought that was a still more important breach of duty. No pica of its being the will of the majority of the Assembly could be offered in that case, for it was simply the act of the Governor himself, who took upon him to dismiss, upon the advice of a factious council—for it was a factious measure altogether—to dismiss 100 magistrates, who had not only the ordinary jurisdiction of magistrates, but had four-fifths, as the petition stated, of the whole civil business of the country under their jurisdiction, while all cases under 10 l. were referred to them. This dismissal appeared to him (Lord Brougham) to be one of the most violent measures ever adopted in any colony. The magistrates by this course were turned into political traders and political agitators. He would like to know what would be said if a Lord Chancellor or a Secretary of State for the Home Department in this country, on coming into office, were to strike off the commission of the peace the proportion of 100 magistrates to every 250,000 inhabitants. Why, that would be somewhere about 7,000 or 8,000 magistrates dismissed in one morning. It had always been admitted in this country that a very grave case should be made out to justify the suspension or dismissal of a justice of the peace. Lord Eldon's rule was, never to dismiss without a prosecution and a conviction. He (Lord Brougham)
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did not go so far; but he clearly thought, and on this ground he had ever acted while he held the great seal, that a strong case individually could alone warrant a dismissal. Such things being done in the colonies called for a more rigorous control by the Government in this country over the local authorities. Agreeing as he did, with the admirable despatch quoted by his noble Friend of Lord Metcalfe, yet he deprecated any attempt at laying down general rules in the delicate relations which existed between the Government of the mother country and the colonies. Unless the Government at home did exercise a superintendence and an effectual control over the local assemblies—if they delegated great powers to the Governor, who, urged on by the party in possession of power in his assembly or in his council, admitted it to be a sufficient answer to all complaints of his administration that the Government at home were not to take part with the minority—it might be the minority of a very few hundreds, while the colony was oppressed by the overbearing sway of a bare narrow majority—if, in that case, protection were not given effectually by the Government at home, he must say, that there would be constant risk run of the greatest injustice and most impolitic government being practised in those important settlements.
EARL GREYsaid, the noble and learned Lord must not assume that everything was fact that was stated in the petition. In that petition it was alleged that 100 magistrates had been dismissed. Now in those dismissals were included the names of persons who had been dead many years. He believed that out of the hundred as many as 30 or 40 were the names of persons dead.
LORD BROUGHAM: Then that is a great misrepresentation.
EARL GREY: That was precisely what he wished to impress upon their Lordships, not to form a judgment upon these ex parte statements, in a case the facts of which they did not know. The real facts would no doubt come before Parliament, and it was unjust to the Governor, and unjust to the inhabitants of the colonies, to express any opinion now. With respect to Mr. Fairbanks, he would remind the noble and learned Lord, that there was a material difference between that gentleman's case and the Judges. With respect to the Judges, the Crown had the moans of placing them independent of the Assembly.
LORD BROUGHAM: I am talking of the English Judges.
EARL GREY: As regarded the Judges in the colonies, the Crown had the power of continuing to pay the Judges as they had been paid for several years; but in the case of Mr. Fairbanks, his salary had ceased by the act of the Assembly; and however hard it might be on Mr. Fairbanks, the Crown possessed no power of repairing that damage. He would say more: the Civil List Bill, which the noble Lord opposite had proposed to the Assembly to take, contained no provision for the grant of pensions, but fixed the salaries afresh. He (Earl Grey) would be very sorry indeed if his right hon. Friend Sir Charles Grey should be mortified by supposing that he was disclaimed, either as a political ally or as a relation, by him (Earl Grey). There certainly was a relationship—a distant one—but what it was he could not say, although there could not be a doubt that they had both sprung from the same family much later than the period referred to by the noble and learned Lord, namely, our common first parents.
LORD STANLEYsaid, he had stated the case as it was stated in the petition. The petition stated that 100 magistrates had been dismissed, and now the noble Earl said that 30 or 40 of these were dead. That left at least 60 magistrates dismissed; therefore, in point of principle, there was no difference.
Subject at an end.
House adjourned.