rose to present a petition from certain persons interested in the Australian colonies against the Australian Colonies Government Bill, and 944 praying to be heard by themselves or by counsel against the said Bill; and to move that the petitioners be heard at the bar, as desired. The petitioners objected to the franchise, as fixed at too high an amount, and not sufficiently comprehensive; to the proposed legislative council, as vicious in principle, consisting of discordant materials, and alien from the principles of our constitution; to the proposed federal institutions, as premature, and likely to produce complexity, confusion, expense, and discord; and, finally, after stating their view as to confiding the management of the waste lands to a local authority, they complained of the management of local affairs by a colonial administration here as the greatest grievance of all. There were numerous exceptions to the rule of abstaining from hearing private parties upon public Bills: he could adduce at least a dozen; and some of them were upon general and most important and constitutional measures. There was one in 1808, where the noble and learned Lord on the woolsack (Lord Campbell) was heard, on the Peruvian Bark Bill. In 1810 the barley-growers and agriculturists were heard against a Bill to prohibit distillation from grain; and in 1811 the same parties and the distillers were heard against the repeal of the Spirits Drawback Bill. Again, the owners of horses, waggons, and carts, were heard upon the General Turnpike Bill. In 1818 there was another instance upon the Factory Apprentices Bill. In 1808 he (Lord Brougham) appeared for the merchants of London and other towns, upon the subject of the Orders in Council. The slavedealers and the slaveowners had been heard by their counsel. Mr. Burge was heard as agent for Jamaica in 1839; and so was Mr. Roebuck upon the Canadian Bill. Substitute "Australia" for "Canada," and the latter case would be the same as that now before the House.
Then it was moved—
That the said Petitioners, and also the hon. Francis Scott (whose Petition was presented on Thursday last), be heard by Counsel as desired.
§ EARL GREY
said, if it were consistent with the practice of their Lordships' House to hear counsel at the bar on a Bill in progress, he, for one, would not object to it on the occasion of considering the present Bill, even though it would lead to a considerable waste of their Lordships' time if the precedent were once established. But in matters of great importance, he thought 945 they ought to adhere to the long-recognised practice of that House; and if there were one point on which that practice was clear and certain, it was in not hearing counsel on general measures unless in cases where the particular interests of the petitioners were directly involved. In all the cases to which the noble and learned Lord had referred, the facts were so. In fact, in the case to which the noble and learned Lord had alluded, in which he had been himself heard as counsel, he admitted that he had been cautioned by Lord Eldon to confine himself to the point of the alleged injury done to the private interests of his clients; and yet, as he told them, even with this caution he had gone on for hours to declaim on every possible subject—a description which he (Earl Grey) had no doubt was perfectly accurate. A very important debate occurred in 1825, when Lord Carnarvon presented a petition from Members of the Roman Catholic Association, praying to be heard by counsel at the bar of their Lordships' House against the Bill for the Suppression of Illegal Societies, by which their association was sought to be suppressed. Lord Liverpool opposed the Motion; and one whose name he (Earl Grey) had the honour to bear, as well as others, strongly supported it; but on all sides the general rule was admitted and adhered to, that counsel should not be heard unless the interests of the individuals petitioning were directly affected. That rule did not, however, at all apply in the present case. In the Bill before their Lordships, not one single alteration was made in the existing laws that had not been petitioned for by the colonists themselves. It retained all the laws now in force, without making any alteration in them whatever, except with regard to points that had been repeatedly petitioned for by the colonists. Now, in the case of the Canadian Bill, where Mr. Roebuck had been heard as counsel, it should be recollected that the facts were entirely different. It was a Bill for the extinction of the Canadian constitution; and, besides, it was calculated to effect material and direct injury to the inhabitants of Quebec. It might be said that the Australian colonists had asked for more than this Bill contained; but that could not alter his argument; because all points not touched upon by the Bill were left as they at present stood. The small number of signatures to this petition was also a matter that could not be overlooked. Only five or 946 six were those of persons interested in the colony; while, on the other hand, it was to be recollected that there had not been a single petition against the Bill from New South Wales, though it was notorious to every one in the colony that the Bill had been presented and would be passed through Parliament this year. Notwithstanding this, there had not been a single petition from the colony praying that the Bill might be altered in any particular, or that it should not pass; but, on the contrary, several petitions had arrived from Port Phillip, praying that the Bill might be passed as speedily as possible. With regard to the other signatures to this petition, many of them were, he believed, those of most respectable individuals; but with the exception of three or four, they had no property in the colony; and altogether the petition contained only somewhere about twenty signatures. To take the contrary view, be held in his hand another petition that had been presented to their Lordships' House in favour of the Bill, and that contained the names of almost every great house trading with the colonies in the City, and so numerously signed as to cover four closely written pages. With regard to the question of hearing Mr. Scott, the agent for one of these colonies, there could be no doubt as to the propriety of letting him be heard at the bar, provided the Legislative Council had thought fit to instruct him to oppose the Bill. Accordingly, as soon as Mr. Scott's petition had been presented, he thought it right to have an application made to him, requesting that he would be good enough to inform him (Earl Grey) whether he had received instructions from the Legislative Council to urge any opposition to the Bill, or to suggest alterations in it; and stating that if he had any alterations to suggest, they would not fail to receive the immediate and best attention of Her Majesty's Government. The reply to that letter was that the petition contained the grounds on which he prayed to be heard against the Bill. [The noble Earl here read the letters.] On reading the petition he found, however, that it contained no statement of the petitioner having received any instructions whatever from the Legislative Council to make this application; and he felt, therefore, justified in treating the application as an entirely unauthorised act on the part of Mr. Scott, and, he would add, one which he was sure would not meet the approbation of his con- 947 stituents. So far had their Lordships' House carried this rule, of not hearing persons by counsel, unless they happened to be directly and personally interested as individuals in the measure, that in 1833, on the question of the abolition of negro slavery, their Lordships' House actually refused an application from the West India planters and merchants to be heard by counsel at their Lordships' bar. It was true that in the case of the Municipal Reform Bill counsel were heard; but then it was alone because the report of the Commissioners of Municipal Inquiry, on which the Bill was founded, contained allegations of very grave charges against particular parties connected with some of the former corporations. On the contrary, every change made by the present Bill was asked for by the colonists, or else would not come into effect until the colony formally applied to have them enforced. Besides, he believed that such an application was very seldom made to their Lordships, except in cases where a similar application had been made to the other House of Parliament also. On these grounds he should feel bound to resist the Motion of the noble and learned Lord.
§ LORD MONTEAGLE
said, he would meet the noble Earl on his own ground, and would undertake to show that, on the principles of justice and policy, the petitioners had a right to be heard against this Bill. He regretted, indeed, that the Colonial Secretary was not himself the party to present this petition, and he still more deeply regretted, that, when the petition was presented, his noble Friend should be the party to throw obstacles in the way of a compliance with its prayer. It should be recollected that this Bill affected the value of every acre of land in Australia; each landed proprietor had, therefore, the right to petition, which the noble Earl could not but hold to be essential to freedom. The noble Earl had compared the the two petitions, that which he had presented in favour of the Bill, and that which was now under discussion. That comparison, even if it had been justly made, furnished no argument whatever against the present Motion, because if the one petition had 1,000 signatures, and the other was the petition of a single individual, he having a locus standi before the House, their Lordships were bound to give to the latter equal consideration with the first, so far as permitting his petition to be heard. He had been 948 informed that the petition which the noble Earl had presented did not contain the signature of one single landed proprietor in the colony—
§ LORD MONTEAGLE
said, he stated what had been represented to him from good authority. On the other hand, the petition now under their Lordships' consideration contained the signatures of several most respectable landed proprietors in the colony, the first name to it being that of Mr. Lowe, an Australian landowner, and late a member of the colonial legislature, who had just arrived in this country, and who was distinguished for his station, his influence, and his abilities. With regard to the objection raised against hearing Mr. Scott at the bar, he would remind their Lordships, that this was no party question, and he appealed to them in their judicial capacity to consider what had been their previous practice. Mr. Scott was agent for the colony, Mr. Burge; as agent for Jamaica, had been heard; Mr. Roebuck, as agent for one branch of the Canadian Parliament had been heard. Why was Mr. Scott to be rejected? But it was denied that Mr. Scott had not been instructed to petition. How could he? The Bill before the House was not the Bill made known in Australia. How, then, could the Australians instruct Mr. Scott to petition against it? The Bill of the last Session, which was the only Bill of which the inhabitants of the Antipodes could be forewarned, differed essentially from the present. His noble Friend at the head of the Government had last year pledged himself to introduce clauses that would bring under colonial administration the whole of the land revenues of the colonies. There was no single point on which the colonists felt so deeply interested as that of getting the control of the land revenues into their own hands. Even in the present year, in the memorable speech of his noble Friend (Lord J. Russell) made on the 8th of February, it was distinctly promised that this privilege would be granted to the colonists. In that speech his noble Friend had stated, "To the general assembly we propose to refer the question so important to the colonies, the price of the waste lands." His noble Friend (Earl Grey) had not even hinted why this intention was abandoned. It was but a few weeks ago this amended Bill was introduced, withholding from the colonists those pro- 949 mised privileges which it was the highest object of their desire to obtain. Now, as it was impossible that such alteration could be known in the colonies was it fair for the noble Earl to lay any stress on the argument that no petitions had been forwarded from the colonies against the Bill of which in its present shape they were uninformed? Again, in respect to the functions of the federal assembly, it should be recollected that this Bill created a double, or he might say a triple, power of taxation, which, in itself, should justify the petitioners in applying to be heard against the Bill as affecting the value of their property. It was true the Bill made no alteration in the constitution of the Legislative Council, but it made very great changes in the functions of that body, giving the council a power even to alter the constitution of the colony. When such was the character of the Bill, were they justified in rejecting the petitions of Mr. Scott and Mr. Lowe? How could there be any sympathy or attachment between the colonists and the mother country if colonists were deprived of their just right of being heard? He cautioned their Lordships against the danger of applying a less liberal rule of construction to their ordinary practice, where a people residing so far distant as in Australia were concerned, than they would apply in their own case if a Bill were proposed to affect their rights over their own landed property. Suppose a Bill were brought in to deprive the country gentlemen of England who sat at quarter-sessions of the powers they now possessed, would the notion be tolerated for a moment that a Minister of the Grown should come down and deny them the right of being heard as petitioners? If their properties were endangered, would they be refused to be heard by counsel at the bar? He contended that no man would have the desperate rashness to offer them a denial. In the present instance the petitioners were landed proprietors. They complained of the wrong the Bill would do them. Among them stood his honourable friend, Mr. Scott, the agent for the colonies; and he (Lord Monteagle) asked their Lordships whether, under the circumstances he had described, they would press on the Bill without allowing the petitioners to be heard by themselves or by their counsel? He believed his noble Friend the Colonial Secretary had spoken inconsiderately and hastily; he could not have been aware that 950 the petitioners were landed proprietors; but now that he was acquainted with that important fact, he would probably permit them to be heard. He should feel bound to take the sense of their Lordships on this question; if the petitions were refused, it would strengthen his case in Committee; and if the House granted the prayer of the petitioners, it would bring before their notice facts and arguments which he believed would be irresistible. It would have a further advantage—it would show to our Australian fellow-subjects that even at this distance persons are no less disposed to fight their battles when they are right, than prepared to speak the truth frankly should they conceive them to be in the wrong. On these grounds he most earnestly supported the Motion that Mr. Lowe, Mr. Scott, and the other petitioners, be heard against the further progress of this Bill.
§ EARL GRANVILLE
regretted the opposition exhibited towards this measure, which had been brought forward by the Government in the belief that it was entirely consonant with the wishes of the colonists. The noble and learned Lord who had commenced the discussion had mentioned several cases as precedents in which counsel had been heard at their Lordships' bar; but in this instance, he (Earl Granville) considered that they ought to regard, not the interests of one class of individuals, but of the whole body of colonists collectively, and he thought they might as reasonably have heard counsel at the bar against the Reform Bill as against the Bill now before the House. If the Bill had been brought in for the first time this year, and there had since been no means of communicating with the colonies, then he considered those persons resident in the metropolis who were connected with the colonies might have fairly prayed to be heard by counsel against the measure, and it would have been only an act of fairness on the part of their Lordships to have assented to their request. But he might inform their Lordships that the report on which the Bill was founded, and the Bill itself as it now stood, reached the colony a month before the prorogation of the Legislative Council. He thought, then, that although in case of any sudden emergency the question of hearing the agent for the colonies might have been entertained, if the colonists had wished to offer any opposition to the Bill introduced last Session, they ought to have given 951 their agent some authority to represent their wishes. If he (Earl Granville) had entertained any doubt as to the feelings of the colonists on this question, it would have been removed by a speech which had been delivered the other day by Mr. Lowe, who, he was informed, was a person of great respectability and of some influence in the colony, who admitted that before he left New South Wales he had not been able to get up a petition against the Bill in consequence of the singular apathy and indifference exhibited by the colonists on the subject. The colonists had not expressed any feeling, by public meetings or otherwise, against this Bill, and he did not think any cause had been shown for assenting to the Motion of the noble and learned Lord.
considered that the colonists were entitled to be heard against this measure by parties who were independent of Parliament, and who were enabled to state the sentiments of the colonists on the question, and he therefore supported the Motion.
observed that a promise had been distinctly held out to the colonists that they were to have the management of the waste lands; and he believed it was in consequence of that assurance that the colonists had not opposed this Bill. The present case had been compared to that of the Reform Bill; but it must be remembered that the people of this country were represented in Parliament, while, unfortunately, the colonies had no representatives in that assembly; and he thought that, unless there was a fear of some exposure, the colonists ought to have the advantage of being heard against this measure. He believed it would be extremely desirable if the House were to avail itself of the circumstances of the owners of property being in London, to hear any representations they had to make against the Bill.
§ EARL GREY
stated that a newspaper published at Sydney on the 14th of September last contained a full report of the Committee of Privy Council, which was laid before Parliament in the previous May, and that the colonial legislature was not prorogued until the 16th of October. That report contained no recommendation whatever for any alteration of the Land Sales Act; on the contrary, the report was in favour of continuing that Act, and therefore the measure upon which the colonists had formed their judgment was the very mea- 952 sure with which the House now had to deal. It was true that Lord John Russell had undertaken that the federal legislature might amend the Land Sales Act; but that promise could not have reached the colony by any possibility until after the Legislative Assembly had been prorogued.
§ LORD MONTEAGLE
remarked that at the close of the last Session the noble Lord at the head of the Government had stated that it was intended to resign the control of the waste lands to the central authority to be created in the Australian colonies; and Mr. Scott having communicated that intention to the colony for which he acted, had received instructions accordingly. On the 14th of February last the noble Lord repeated this intimation in the other House; but the intention of Ministers had been abandoned in the course of the present Session, and it was only just that Mr. Scott should be heard at the bar against that part of the measure, or that it should be delayed until he could receive fresh instructions.
§ EARL GREY
The Committee of Correspondence could only give instructions to Mr. Scott during the sitting of the Legislative Assembly, and that assembly had been prorogued before the intimation that Government contemplated leaving the question of the Land Sales Act to the colony.
The EARL of WICKLOW
thought the discussion of that evening, in the infinite doubting, not to say ignorance as to facts, that it displayed, afforded a sufficient reason for assenting to the Motion. He trusted that the noble Earl would either consent to hear the petitioners, or postpone the Bill until next Session, so as to enable the colonists themselves to declare their views respecting it.
§ The EARL of HARROWBY
supported the Motion. It was clearly impossible for the colonists to express this Session their judgment upon the Bill as it now stood, and it was but justice, therefore, to hear their accredited agent.
said, it would be very unjust not to hear the agents of the colony, when it was remembered that the main provisions of the Bill were very different to those which had been originally proposed and approved by the colony.
§ The EARL of ST. GERMANS
thought an erroneous opinion would be formed in the colony of the purpose of their Lordships if they acceded to the prayer of the petition and heard counsel at the bar, on the part of the agent, against the Bill. The 953 expression of satisfaction by the colonists, which had been so much relied upon, had nothing to do with the declaration of the noble Lord at the head of the Government, in respect to the sale of the Crown lands, because that declaration had reached the colony after that expression of satisfaction.
, in reply, said, that the aspect which the debate had assumed, after the speech of his noble Friend on the cross benches, who had taken a new view of the question at the eleventh hour, and with not the most paramount judgment and discretion, had totally altered the ground upon which the subject had been placed, and compelled him in reply (Lord Brougham) to enlarge more than he otherwise should. He contended their Lordships were bound, as constituting the highest judicial tribunal in the realm, not to depart from former precedents, and refuse to hear persons who alleged that they were injured by the Bill then before the House. With regard to Lord John Russell's promise, he was sure that promise could not have reached the colonies before the prorogation of the Legislative Assembly; and with respect to the instructions to Mr. Scott, they could not have been forwarded after the prorogation, as all communications by the Committee of Correspondence were interdicted. So far, then, he (Lord Brougham) admitted that facts and dates were against his argument. But Mr. Scott was the representative in general and at large of the colony: he was the person who was to be their agent, and to represent them with the Government and in Parliament. That was his commission and authority, and yet we were to be told on this occasion that he had no special instructions. Were his general instructions, then, gone to the winds? Was he to throw those instructions into the fire; and was all general authority and commission to represent them on all occasions to signify nothing, because in a given case, however important, he had not been furnished with specific instructions to meet that particular case? That would be rather a strong thing to say relative to the instructions of an agent. Cases might arise unexpectedly requiring discretion to be applied to them, and it would be monstrous to say to Mr. Scott, "You are Member for Berwickshire, and we will not hear you upon this sudden turn of Lord John Russell's opinion." Would they say that Mr. Scott's general commission and duty went for absolutely nothing, because he did not hap- 954 pen to have got—because it was impossible for him to have got—these special instructions? His noble Friend talked as if everything turned on Mr. Scott; but Mr. Scott was not the only petitioner. Were there no landowners' names to the petition, and were they not to be heard? It was argued, that if they heard Mr. Scott at the bar, his speech would be admitted to be the speech of the colonists; and how could that be, if he had received no special instructions? But had he not his general instructions? And Mr. Scott had expressly stated that he is to be guided, as a Member of Parliament, by his own discretion; but he had not said that, as their agent, he would not be bound by their instructions. It appeared to him (Lord Brougham) that this colony had been very hardly used. The noble Lord at the head of the Government, towards the middle of July, gave a promise, and, as it were, pledged himself, that the Bill should contain a land clause. That pledge was received in the colony about November; then December, January, February—three months—passed away, leaving the colony under the influence of that promise. Of this there could not be the smallest question—that, had it not been that the colonists had placed confidence in the promise which had been given to them by Lord J. Russell, the table of their Lordships' House would have been crowded with petitions similar to that which he had now the honour to present; for why should not those living in the colony who thought the measure injurious, think and feel so as strongly as those who entertained the same opinions, but happened to be over in this country? Were the landowners to be treated in this way? It was not only their right, but their duty, to employ their own agents. Whether their Lordships heard Mr. Scott or not, was perfectly immaterial. For his own part, he did not think it would be Mr. Scott who would address the House, but Mr. Lowe. He could speak as a landowner, and for his brother councillors; and Mr. Lowe being heard could give rise to no mistake, because he had no instructions. What he was saying was not mere speculation. There were great authorities who had given their opinions on the subject of this Bill, not so much indeed as their own opinions, but their opinion of the reception with which the Bill would be met. These were not private and paltry persons, they were not insignificant landowners—if landowners could be called insignificant—they 955 were not people whose rank was little, and authority less. What if he should tell their Lordships that they were actually eminent, nay, paramount people, and from their condition having intimate relationship with all the inhabitants of the colonies—whatif they were the governors of colonies?—the very men with whom his noble Friend was in daily official intercourse, and from whose representations he learned the condition of the colonies and the state of public feeling which prevailed there? The fact was so. Sir W. Denison, Sir H. Young, and Sir C. Fitzroy, had severally, in their official communications as governors representing the Crown in those colonies, stated their conviction that the Bill as it now stood would not give contentment; but that, on the contrary, it would produce the deepest dissatisfaction in the colonies. These were surely strong reasons for pausing before they proceeded, and for hearing these petitioners. The very debate of that night appeared to his mind to afford powerful reason for granting such a request. There had been grave assertions of facts, and doubts existed as to those facts. It had been argued that the Legislative Council had not protested; but let their Lordships beware how they listened too much to that, for the Legislative Council did not consist of the great body of landowners, or represent the great wealth of the colony. There were no leaseholders there. Could there be any argument more powerful for hearing these petitioners? To make the position more striking, he would remind the House that the Legislative Council was the very body upon whom the constitution was about to be conferred, and therefore he (Lord Brougham) had a right to suppose that the Legislative Council were for the Bill. But did they represent all the wealth and industry of the colonists? The Legislative Council did not contain either these landowners, or the representatives of them, and that was a conclusive argument in favour of their being heard, for the leaseholders were at their Lordships' bar, and the Legislative Council was not.
§ The EARL of ST. GERMANS
explained, that what he had said was, that accounts had been received from the colonies, conclusively showing that the feelings of the colonists at large were at variance with the views entertained by Mr. Scott.
Oh, of course, as my noble Friend says he has seen these statements in a newspaper, they must be true.
§ On Question, their Lordships divided;—Contents 25; Not-Contents 33: Majority 8.
|List of the CONTENTS.|
|List of the NOT-CONTENTS.|
|Morley||Say and Sele|
|List of the NOT-CONTENTS.|
|Down||Say and Sele|
§ Resolved in the Negative.
§ Order of the Day for the House to be put into Committee read.
§ Then it was moved, "That the House do now resolve itself into Committee."
The BISHOP of OXFORD
rose to move that the Bill be referred to a Select Committee of their Lordships' House. He rested this Motion, first, upon the grounds that by adopting this course their Lordships would avoid all that the noble Earl seemed to fear, namely, the violation of precedent, and at the same time secure what the noble Earl had admitted was exceedingly desirable, the valuable information which the parties whom they had just refused to hear at their bar would be able 957 to give them in the capacity of witnesses. But this was not the only ground upon which he rested the Motion. And here he must take the liberty of stating to their Lordships in plain language, although it might he distasteful to those who were the authors of the Bill—the estimate he had formed, after patient study, of the real character of the Bill. He could not but say that the Bill appeared to him to be marked by a hasty and most injudicious handling of the great and permanent interests of the colonies. He said this in the first place, because it proposed to institute a single chamber composed of discordant elements, which it was impossible to bring together into harmonious and successful action. This alone ought to induce their Lordships to pause before passing the Bill in its present shape. This alone ought to lead them cautiously and carefully to weigh in a Select Committee an Act the principal and main provisions of which were calculated to sow the seeds of division and un-quietness in those great colonies. But it was said that a single chamber, although no doubt liable to many objections, was desired by the people of New South Wales, and that therefore it was the duty of their Lordships to pass the Bill in that particular shape. Now, he denied that a single chamber was desired by the people of New South Wales, and he was prepared to produce evidence before a Select Committee which he thought would distinctly prove that it was not desired by them. The noble Earl told them of what had appeared in the colonial newspapers; but this was a point which required close sifting. The fact was that in the case of a colonial dependency which was labouring under gross evils and inflictions, singularly hard to be borne by persons of the English race and descent, it was scarcely to be wondered at if, in a moment of unthinking enthusiasm, they received with considerable favour a Bill which proposed to remedy some of the evils which pressed severely upon them, although in other parts it contained provisions of which they could not approve. It was not fair, therefore, of the noble Earl to argue that, because the Bill was admitted to contain alterations which were a great improvement upon the present state of things, therefore the people of New South Wales must be held to be in favour of a single chamber. The idea of a single chamber was doubtless favourably entertained by a certain class in the colonies, who foresaw, as well as any man in this 958 country could foresee, that a single chamber, composed partly of nominees of the Crown, and partly of popularly elected representatives, would give rise to an unlimited series of angry contests between the two parties, which contests could end only in one way; namely, in the exclusion of those nominees, and the final constitution of the chamber on the merest democratic basis. They had been told by one who had tried it, that it was impossible for a nominee to take either side of a question without suspicion and reproach. The parties, then, who were in favour of a single chamber, looked forward to the time when they would use the power granted them by this Bill of reconstructing their constitution by making a single chamber, consisting solely of themselves. The noble Earl might say that that would be the time to propose a double chamber when an alteration was introduced into the single chamber. But he begged the noble Earl to consider what would be the state of social and political feeling at such a moment. At the conclusion of a multitude of angry political discussions, when the elected representatives had extruded the nominees from the chamber, when the leading members of the democratic party had just drank deep of the intoxicating draught of success, and were in the full enjoyment of political power, it was not in human nature to expect that in that moment of their triumph they would consent to lay down the power which the Legislature had put into their hands; in other words, that they would consent to constitute another chamber, and take from themselves the political influence which they had learned fully to appreciate, and just begun to wield. He maintained, then, that that part of the Bill which provided a single chamber would most undoubtedly lead to future internal political conflicts in the legislative body, and the establishment of a powerful and dominant democracy. This, he maintained, was a fundamental error in the Bill. It had been said elsewhere, that there were not materials in the colonies for two chambers. He thought he could prove, if their Lordships would send this Bill to a Select Committee, that this was altogether unfounded, and that, at least in New South Wales, there were abundant materials for two chambers. He did not moan to say that it contained materials for an upper chamber nominated as their Lordships were by the Crown; but he did maintain that there 959 were abundant materials for one of another I description. To this, perhaps, it was answered that such a constitution of the two chambers would subvert its own purpose. He could not allow the assertion. For why were two chambers desirable at all? The reason was this:—In every self-governing country, especially in those inhabited by persons of our own blood and race, there was a continual conflict and collision going on between two classes of minds—namely, those who were in favour of things as they were, and those who sought to improve them by advance and innovation. It was desirable therefore that the latter should be represented in the initiative chamber, and that the other should be represented in an upper and separate chamber. As the members of the upper chamber, which he would make elective like the other, he would take older men, or men elected by a higher franchise, and he would have them to consist of a smaller number of persons, and be elected for a much longer term, say nine or ten, instead of three years, besides providing that only a third part should go out at one time. These or such like provisions, would, he doubted not, impart to that upper chamber the character he desired it to possess. With respect to the allegation that the idea of a single chamber was popular among the people in New South Wales, he begged to say that, supposing it were true, which, however, he was far from admitting, it could not justify the application of that provision of the Bill to the other Australian colonies, for which it was singularly unfit, and in which there was not a shadow of evidence to show that it was popular. So much for a single chamber, with respect to which he held that a complete case had been made out for sending the Bill to a Select Committee, where, with the help of the necessary evidence, the question might be calmly, maturely, and udiciously considered by their Lordships. But there were many other points in the Bill which exhibited the same hasty and imperfect treatment for great and permanent interests. The way in which it dealt with the franchise was altogether improper. The simple fact that it excluded from the power of voting for representatives the best blood of the colonies, ought alone to prove fatal to the measure. He said the best blood of the colonies, because those who held large tracts of land under the Crown in the capacity of 960 leaseholders, and who from their intelligence were peculiarly qualified for legislative functions, would be altogether excluded from the legislative assemblies under the Bill proposed by the noble Earl. He held, too, that the franchise had been fixed a great deal higher than it ought to be under the present state of New South Wales. He feared, also, that the effect of the Bill would be to give the convicts and the descendants of convicts absolute power in the colonies. The principle upon which this Bill had been constructed, was one of the most singular conceivable. It was said, "Set the colonists a-going with a single chamber, and at the same time give them an opportunity of amending it, and they will do so." Was there, ever since the world began, a set of political philosophers who came down to a solemn deliberative assembly, and urged such motives for the adoption of a Bill? He thought it afforded a good ground for any one to oppose the Bill, when its very authors confessed that it could not last; who, when its errors were pointed out, replied, "Aye, but we give the colonists the power of altering it when they choose." The argument of the Government seemed to be this: "The colonists are not capable of using beneficially for themselves the gift of legislative powers. We will, therefore, give them a sort of political 'gocart,' in order to teach them the use of their limbs. This will give a practice to their young and inexperienced minds, and will help to teach them how to conduct themselves, and when they have been so taught, it can then be swept away to make room for a better system." Was this political philosophy? The effect of the Bill would be, not to produce a wholesome collision in a united and harmonious assembly in which the different powers of the State would try their respective strengths and practise their powers for future action; but it would give rise to a perpetual series of irritating and embittering contests between the colonists and the Imperial Parliament, and would separate interests, which they ought to sacrifice everything but principle to unite. Surely the manner in which we had formerly dealt with our North American colonies was written in characters too broad to allow such doctrines to pass current in their Lordships' House. What was it that led to the loss of those colonies, and to the hostility and settled distrust which followed, but the disastrous policy which 961 had been again traced out by the framers of this Bill? He lamented that this measure would perpetuate what he believed to be the mischievous influence of Downing-street upon the colonies. He claimed the sanction of the noble Earl to his views upon this point. The noble Earl in another place, and under another name, had commented in words which he wished He could perfectly remember upon the mischievous absurdity of supposing that any Minister sitting in Downing-street could satisfactorily and usefully govern all our fellow countrymen in the colonies—and how utterly irrational was the desire to retain such a power in hands so utterly incompetent to wield it. He did not wish to say anything against the noble Earl's peculiar administration of the colonies; he objected merely to the general principle. He objected that no separation was attempted to be made between two things which broadly and widely differed—between local and imperial interests. He maintained that it was wholly impossible that their Lordships could usefully and safely legislate for distant colonies unless they met that difficulty—unless they marked out what were local interests, which ought to be administered by a local legislature under a resident governor representing the Crown, and what were imperial interests, which ought to be settled at the seat of empire, at the heart of our widely-extended kingdom. It was said that it was very difficult to say what were local and what were imperial interests; and because it was so they would not attempt to settle them. He thought it afforded a strong argument for his Motion, that if they appointed a Select Committee to consider the Bill, they would have the advantage of the presence of noble and learned Lords, who from their great learning in the law would help them to come to a conclusion as to whether or not it was impossible to separate local and imperial interests. They were bound in justice to these numerous and distant dependencies to send the Bill to a Select Committee, in order to ascertain and mark off the boundaries that belonged to imperial and local legislation. The great object of England in settling colonies ought to be to reproduce herself—to send out representatives of her various ranks and orders. It was difficult at any time to induce persons belonging to the higher ranks to leave such a country as this; and it was therefore the part of wise 962 legislation to remove this difficulty, so far as it could be done. But was it to be expected that a race of our own blood would tamely bear such an infraction of their rights as was involved in a Bill which, in fact, placed ultimately the whole government in a Secretary of State residing in another part of the globe? The Bill proposed to give to Englishmen accustomed at home not to the name only of freedom and of representative institutions, but to their reality, a form of government which they knew to be peculiarly distasteful to the Anglo-Saxon mind. But the most monstrous proposition in the present Bill was the provision for uniting these four colonies in one federation. This was, he could not help thinking, the most ill-considered proposal ever made in that House. Did the Government really mean to give this central federative body the power now exercised in Downing-street? If they did mean to transfer to any colonial body the absolute control of imperial questions, surely they would, in so doing, sow the seeds of the dismembrance of our empire. For the unity of our empire, in fact, consisted in the reserve to the centre of dominion of these very questions. Again, it was surely the most absurd of fallacies to say that what suited one of these colonies would suit another, because they were all Australian colonies. That was to be, indeed, governed by a shadow and a name. Did they remember that the capitals of these two in future confederated States were as far apart as London and Constantinople—that they had different interests, different wants, and different means of supplying those wants—that they had not only different, but in many respects opposing, interests? To unite these Australasian colonies, comprehending an extent of territory larger than the whole of Europe, into one confederate State, was one of the greatest instances of hasty, capricious, crude, and ill-considered legislation that he could charge against this Bill. If their Lordships believed that the race who had colonised these distant lands would one day grow into a mighty power—if they believed that they were to sway the future destinies of that portion of the globe—if they had not failed to remark the patient energy, the habitual courage, the likeness to ourselves in every element of character that made England great, glorious, and mighty upon the earth, which distinguished that race—and if their Lord- 963 ships, remembering all that, would forecast the future, and hear in mind that they were now called upon to lay the foundation of those institutions which would form, mould, and frame the temper of the people—institutions which would influence them through all future time—then their Lordships must acknowledge that a greater subject for the statesman, the philosopher, and the philanthropist could not be presented to their attention. He entreated their Lordships to remember that the history of other lands taught them that they could never undo that which had been done in the youth of a nation. They might now be about to form a character that would rebel against after influences—they might now be about to plant vices from which the land might have been kept free, but from which they might never be able again to free it. They were about to give them political maxims and moral habits, and all the germs of social habits, and let them not doubt that they would reap the work of their hands. There was one matter in which he took special interest. Their Lordships no doubt would all agree that the moral character of any people would be in a great measure determined by the wisdom and judgment with which its religious institutions were formed. Now, let them mark the present state of things in New South Wales and Van Die men's Land. There existed in the mother country a great and richly endowed Church Establishment. They had inherited with this establishment a system which, in order as it was supposed to guard the religious liberties of the people of this land, continually restrained the action of that religious body with needful, or, as some persons believed, often with needless restrictions. Now, if they passed this Bill, they would transplant to the Australian colonies every one of these stout and heavy fetters and restrictions, and give with them no one of the correlative advantages enjoyed by the Church at home. They were about to give to the members of the Church of England in the colonies all the restrictions of the English Church, without its rank, its wealth, or its social position. The Romanist in our colonies was able freely and fully to work out his own religious system, and the Legislature threw no impediment in his way. The Presbyterian and the Wesleyan Methodist were able to meet together and consider the rules which might best befit their infant institutions in that new land of their adoption. 964 He did not grudge them one atom of their liberty; on the contrary, he rejoiced that they possessed it. He would not take away that full and free liberty which the Legislature had left them, and which was necessary to enable them to fight against vice and irreligion. But he had a right to ask their Lordships to do as much and no more for the Church of their fathers. It was laid down by legal writers that the law of the mother country became, as far as was practicable, the law of what were called occupation colonies, like those of Australia. Now, by the 25th of Henry VIII, and by many other Acts, it was enacted that whensoever the members of the Church of England met together, unless they had previously obtained the written sanction of the Crown, they became subject to fine and imprisonment, and also to the nameless and inappreciable penalties of the prœmunire laws. Now, he did not wish to see the Church of England established by law in these colonies. If he could do it by a stroke of his pen he would not. Such an establishment would be alien from the temper and habits of these colonies; but just because he believed that the way to give true power and effect to the Church for working out its own highest vocation, was not to establish and endow it by law in these lands, he asked, as a matter of justice, that they should not in the colonies burden those who held the form of faith, the liturgy, and doctrines of the Church of England with the shackles which she were at home. The Crown had given certain powers in the letters-patent appointing one of the bishops, which would have made provision for the exercise of some spiritual discipline; but it appeared that the Crown had exceeded its powers, and in succeeding patents the provisions were struck out. What then was the result? That all things were in a most anomalous position; for instance, the canons of 1604 were binding in the colonies, but there were no ecclesiastical courts, and no power of administering the ecclesiastical law, which was thus made binding, to substitute an autocratic and despotic power in the hands of the bishops. The result was that which was most earnestly regretted by the bishops in the colonies. This was most inconvenient. Thus, in one instance, a clergyman was known to have been guilty of great immorality, and to have seduced the governess of his own children in his own house. There was the 965 greatest possible desire that this person should be proceeded against; but the bishop had not the power of calling a single witness, and he was liable to be proceeded against if he had taken legal means to redress the wrong. The bishop was obliged to act with autocratic power, and to refuse to allow him to receive any further stipend; and such was the distaste of the Anglo-Saxon race to any act that savoured of tyranny, that public feeling became enlisted on behalf of the clergyman, although the feeling had been strong against him in the first instance, because he could not be punished except by a punishment against which the minds of the colonists rebelled. Upon this point he should be prepared to lay before their Lordships, if they went into Committee upon this Bill, which he hoped they would not do, a clause which should introduce powers and provisions such as the nature of the case seemed to require. The House, however, had aright to expect that the Government would undertake the responsibility of settling a question of so much importance. He called, therefore, upon their Lordships to refer this Bill to a Select Committee, as well for what it omitted as for what it contained; for it was most injurious to the highest interests of the community to leave questions like these open to all the evils which must spring from applying old and obsolete rules to new circumstances, for which they were wholly unfitted. Let their Lordships remember their home experience on this point. They had seen the evil of fond and fanciful men trying to force things back to the adoption of long past customs. They had seen a cathedral city almost in the hands of a mob, while the mayor had to petition a clergyman to abandon the performance of bygone customs which by their mere discordance with present habits had created so much ill-will. How could they wish to subject the rising energies of the Church of England in these colonies to an obsolete code of laws such as the canons of 1604, without the power of altering them? For these high considerations—on grounds of a political, moral, social, and, above all, a religious character—and not upon any considerations of mere party politics, he, as a Christian bishop, thought it not unbecoming in him to move that this Bill be submitted to a Select Committee of their Lordships' House.
§ EARL GREY
said, it would have have been more straightforward of the right 966 rev. Prelate, and far more candid, to have moved the second reading of the Bill that day six months. It would have been but the legitimate conclusion of his endeavours to prove that it was a mass of palpable blunders. The object of the right rev. Prelate was to obtain information on a great number and variety of difficult subjects; but such Committee could not possibly get through that inquiry before the close of the Session. But what was the principle of the Bill? Why, that, finding a certain state of things existing in New South Wales, they should continue that state of things as nearly as possible, merely carrying into effect such changes and improvements as the colonists themselves wanted. As to hearing counsel at the bar, he should oppose it as utterly useless. Counsel would have said nothing more than many of their Lordships were prepared to say. And as to Mr. Lowe, he happened to know that he had tried to get up a public meeting before he left, and had failed, for the reason as stated in one of the colonial papers, that the people did not trust him in consequence of his political tergiversations. He would no more admit that Mr. Lowe was expressing the sentiments of the colonists, than their Lordships would be prepared to admit Mr. Cob-den, for instance, to be their mouth-piece, if that Gentleman were to accept the Chiltern Hundreds, and go out to the colonies and state that he came there to express the opinions of both Houses of Parliament. The present system of government in New South Wales was exceedingly well adapted to its condition. He was fully convinced of this now, although he did not think so some time ago. But time had shown that it was well calculated for the colony. The Government of New South Wales had acted with more judgment and discretion, and with more enlightened views of the public welfare, than most of our colonies. They certainly stood very high amongst them; and as the constitution worked well, they wished not to have it altered without the consent or wish of the colonists. As the colony should become more opulent, and the society larger, he thought it would be well that a change to two chambers instead of one should take place; and no doubt it would. But his hope was that it would not take place immediately—that for some time things would remain as they were. What he contended for was, that when Parliament had once given a representative government to colony, it had no right to interfere 967 with that colony to produce any change whatever in the form of the constitution. He had never said that the people of New South Wales preferred the form of government in the Bill as an abstract principle. What he said was, that they were one and all opposed to any change in their form of government, to which they had not themselves assented. But the people of New South Wales, of South Australia, of Port Phillip, and even of Van Diemen's Land, had all declared themselves in favour of the present measure, and against any change in the system of government at present existing. The noble Earl proceeded to read extracts from a petition transmitted to Sir Charles Fitzroy, dated 7th February, 1848, and signed by 3,100 colonists; from a petition from the Penrhyn district, Cumberland county; and from one from the same county signed by the clergy and landholders; all of which protested against the alteration of their constitution without their previous consent. But he begged attention particularly to the resolution passed by the Legislative Council, in which they complained of the indignity with which they felt that the colonists were treated, by the announcement that a system of government, in which their destinies were involved, had been planned without an opportunity having been given to them of expressing their opinions upon it. And the division which took place upon that resolution in the council showed that there were—Ayes 14, Noes 5. And as a proof that the possession of office did not always destroy the independence of its holders, he might mention that the five "noes" were all members of the executive council. He had, therefore, pretty strong ground for asserting that the people of New South Wales were against alteration, be it good or be it bad, in the existing constitution, which had not been previously assented to by themselves. But the right rev. Prelate not only wished for an alteration in the existing constitution, he wished for such an alteration as had never before been tried in any other colony belonging to this country. The right rev. Prelate objected, and so did he (Earl Grey), to a second chamber composed of nominees; but he proposed that there should be a second chamber consisting of elected members, and he said there were various ways in which they might be elected different from the first chamber. They might be composed of older men, or they might sit for a longer time, or they might retire pe- 968 riodically at times different from those in the lower chamber. He was well aware of the invention of clever and ingenious persons in framing theoretic schemes of government. But there was one misfortune attending the whole of these plans, that they were all utterly unknown and unheard of in the colonies themselves. He could only say, that to impose such plans upon the colonies without their own consent, he would be no party. He would not be the Secretary of State to send out constitutions of an untried and of a novel kind to be imposed upon the inhabitants, without their consent. And what was the ground for advocating these schemes? Was it that the colonists desired them? The right rev. Prelate had abandoned that ground. But then the right rev. Prelate said, admitting that New South Wales is content with its existing constitution, why should they impose it upon the other colonies? But it so happened that New South Wales was the only colony which had not expressed a strong opinion on the subject. He had read to their Lordships when he introduced the Bill, resolutions agreed to at a public meeting in South Australia, in which thanks were voted to Her Majesty's Government and to himself by name for the measure, and praying that it might speedily pass into a law. At a public meeting held at Victoria, the only feeling expressed was that of regret that the measure did not pass last year. He now held in his hand an extract from a newspaper, which had arrived lately from Melbourne, containing a memorial adopted there, which he hoped shortly to receive officially, in which they hail with satisfaction and delight the intelligence that this measure is about to pass. In Van Diemen's Land the same thing had happened. At one of the largest and most important public meetings ever held in Launceston a petition was adopted and signed by 1,200 inhabitants, expressing their deep concern that the Bill of last year had been delayed, and praying that it may now be passed. He had not yet officially received this petition: but he supposed it was retained in order to receive more signatures. He had also received unofficial intelligence that another petition, to the same effect, was on its way from Hobart Town; and the evidence of this latter petition was the more conclusive, as as much as nine-tenths of it was couched in a tone of severe reprehension of Her Majesty's Government for continuing the sys- 969 tem of transportation. But, then, said the right rev. Prelate, the colonists were labouring under such gross inflictions from the present system, that they were grateful for anything that promised a mitigation of it; and he quoted speeches which he (Earl Grey) had delivered in the other House, to show that he was opposed to the interference of the Colonial Office with the local affairs of the colonies. Now there was no opinion he had ever expressed in the other House to which he did not adhere, and on which he had not acted steadily, regularly, conscientiously, during the time he had held office; and he challenged the right rev. Prelate to show in what way he had departed from those opinions. He said there ought not to be any vexatious interference with the colonies; but did he ever say that no authority whatever was to be exercised by the Imperial Government? Did he ever say that they ought to abdicate all Imperial authority? If that were so, he thought the sooner they got rid of their colonies the better, because they were liable to very onerous responsibilities for the defence of those colonies, while they would not be allowed to exercise any general superintending authority to prevent measures being adopted which were inconsistent with the general interests of the British Empire. But there was no occasion for running into either of these extremes. He thought there could be no difficulty, with the exercise of a little good sense and moderation on the part both of those who had to advise Her Majesty at home, and the legislative council in the colonies, to reconcile the most ample measures of self-government in the internal affairs of the colony, with the maintenance of as much authority as was required for the general interests of the empire. The right rev. Prelate said, they could not take such a simple step as the removal of slaughter-houses from the town of Sidney, situated in a semi-tropical climate, without first obtaining the consent of the Government at home. [The Bishop of OXFORD: Hear, hear!] Now really, if the right rev. Prelate chose to discuss colonial matters, at least he ought to obtain accurate information upon the subject. Did not the right rev. Prelate know that from the time this country had a colony with a legislative council, that the Governor had authority to assent to all acts passed by that council, with certain exceptions, which exceptions were practically reduced to the narrowest possible compass. But the Home Government re- 970 tained, and they must retain, if they were to retain the colonies at all, the power to advise Her Majesty to disallow the Acts passed by the Assembly, although, up to the period of their being disallowed, they came into immediate operation. It was absolutely necessary that this power of disallowing should be retained, for it was absolutely impossible to give a definition beforehand of the cases in which the Crown might give up, and the cases in which the Crown must retain the power of disallowing. He would give an instance in point. The Acts passed by the Legislative Council of New South Wales during the last Session had just come home, and there was only one of those Acts in which, so far as he had examined, he was afraid Her Majesty's assent must be withheld. Now, what did the House suppose was the character of that Act? It was an Act relating to vagrancy. Now, it would appear at first sight that a Vagrancy Act was one of the safest measures of internal regulation that could be entrusted to a local legislature; but the fact was, that it contained a flagrant violation of one of the acknowledged prerogatives of the Crown; and it did so happen, that on looking over the list of definitions which had been proposed in the other House, of what were to be regarded as Crown rights and what colonial rights, not one of the definitions of the prerogatives of the Crown there contained would apply to this measure. The violation of the Royal prerogative consisted in this, that all persons who had ever been convicts, though they might have received a conditional pardon, would be subjected in all time coming to very rigorous restrictions. He said, therefore, it was impossible to define with strictness beforehand what were the cases in which the powers of the Crown should, and in what they should not, be exercised. Further, he would add, that one of the most useful functions which he thought the Home Government could discharge to these infant States, was to give them the advantage of their greater experience, and, with all respect be it said, of their greater knowledge. But he contended that while it was necessary for the Crown to retain this power, no practical grievance arose from it. In 999 out of 1,000 cases, there was little difficulty in saying what Acts should receive, and what should not receive, the Royal assent. Since a representative legislature had been created in New South Wales, 127 Acts had been 971 passed by that Assembly, and of these 127 Acts no more than five had been disallowed; and of these five, if he was not mistaken, the majority were disallowed on technical grounds, and were substantially carried into effect ultimately. Five more had been sent back for amendment; but up to the period of their amendment they were continued in operation. Then they were told that it would be better to allow the Governor unlimited power than that he should be constantly checked and coerced by instructions from home. He supposed this referred to the appointments, for that was the only interference with the acts of the Governor which practically took place. He had the curiosity to inquire what the facts were with regard to appointments in New South Wales since his accession to office. There were four offices with salaries exceeding 200l. a year, which the Governor was bound to report to the Secretary of State, and which he could only fill up provisionally. Now, during the four years that he had the honour of presiding at the Colonial Office, he found there had been fourteen vacancies in these offices, and every one of them had been filled up, on the recommendation of the Governor, from among the colonists themselves, while not one of the recommendations made by the Governor had been set aside or overruled. Therefore, during his period of office he had literally not advised or appointed in the case of a single vacancy in the colony, and his only interference had been in approving the appointments made by others. He claimed no merit to himself for all this, beyond his predecessors, because he believed the noble Lord opposite (Lord Stanley) had been influenced by pretty much the same feelings as he was on this subject, and had felt as well as himself, that this country had neither the interest nor the right to interfere where it was not essentially necessary in colonial affairs. When, therefore, he heard so much about interference with the colonies, he should like to know in what the interference consisted? His own opinion was, that there were no people on the entire face of the earth who practically enjoyed so great an amount of unrestricted freedom as these colonists. He might be told that giving the appointment of one-third of the Legislative Council to the Crown, was practically a great exercise of power, but the fallacy of that argument was this: that ninety-nine out of every hundred of the laws of New South Wales referred 972 exclusively to local matters, of which nothing was known in this country until the act was received. Again, when the right rev. Prelate denounced the Government for giving so small a measure of freedom to the colony, he wished to know how divisions were practically carried in the colonial Assembly. In order to ascertain this fact, he had got all the minutes of the proceedings examined for every year except the last, for which the minutes had not been received. He found that there had been 272 divisions altogether, out of which 184 had been carried by a majority of the elected Members. On 73 divisions the majority of the elected members voted in the minority, and on fifteen divisions, the elected members were equal on both sides, and the majority was carried by the nominees of the Crown. He perceived that a gentleman who had lately come over to this country, and whose name had been repeatedly mentioned in the course of this debate, was frequently returned as in minorities of the elected members, converted into majorities by the votes of the nominees. In a very able speech by that gentleman, recently published, he found that one of the great complaints was, that there was so much of political apathy in the colonies. Now of all the tests of good government, be believed that this was the very best, and that when political apathy prevailed, no real misgovernment existed, especially in a country inhabited by Englishmen. But the right rev. Prelate said that one of his reasons for rejecting this measure was, that it contained a clause by which the colonists were enabled hereafter to alter the constitution; and the right rev. Prelate prophesied that embittered conflicts would arise from such a clause being introduced. He thought they might safely postpone this discussion until that particular clause was come to; but as the right rev. Prelate had laid so much stress on the point, he hoped he should be excused if he said a few words upon it. The clause merely reverted to the ancient policy of this country, which was to enable the colonies to work out their constitutions as experience pointed out. Was the right rev. Prelate aware that in no one of the British colonies was the constitution contained in the original charter as finally established; but that in all cases it was worked out by experience and by discussions between the Crown and the colonists? Of the thirteen American colonies, not one had the constitution ulti- 973 mately accorded to them in their original charters. In Jamaica they practically began with one chamber, because the council appointed to advise with the Governor did not at first sit as a separate chamber, and even at this day the council does not claim the power of originating any bill, whether a money bill or otherwise, though it may amend all bills sent before it. At this moment, with the exception of Canada, there was not one of the colonies that was not free to frame a new constitution for itself, acting in accordance with the Crown. What he had witnessed during the discussion on this Bill more than ever convinced him of the impolicy of tying up too strictly by Act of Parliament the terms of constitutions applicable to future times; and he might add that the grounds on which that policy was urged were very difficult to be comprehended when put forward by those who called themselves the advocates of self-government in the colonies. He did not wish at that late hour to trespass on their Lordships' time, by going through some of the other clauses objected to by the right rev. Prelate; but there were one or two points to which he might be allowed briefly to allude. The right rev. Prelate objected to a power being given to the colonies to summon a federative council. He freely admitted that this formed no vital part of the measure. [Lord STANLEY: Hear, hear!] The provision would only come into operation when desired by the colonists themselves, and on that ground he thought it a most useful one; but if struck out of the Bill he did not see that any very serious injury would be done, the chief evil being, as he conceived, that it would create the necessity of coming back, to Parliament at a future period. He thought, however, that it was better to defer the discussion on this subject until the clause came before them. The right rev. Prelate had referred to the provision for the Church in the colonies. With regard to this subject, he might say that he could conceive nothing more important than that they should avoid any false step. He entertained the strongest desire that they should do whatever was practicable to promote the interests of their own Church in the colonies. He was satisfied that to bring that Church into active existence, and to promote its extension and vigorous action, would be attended with the best possible effects; and certainly since he had been in office he had done all that in his judgment was best calculated 974 to promote that result. But if their Lordships really took an interest in the promotion of the Church of England in the colonies, he would call on them to be cautious, in a matter on which the colonists were particularly jealous and sensitive, how they interfered with their legitimate prejudices. If it could be shown that there were restrictions on the Church of England in the colonies, they should be removed, and he, for one, would be found most anxious to remove them. But he had never yet heard what these restrictions were, or how they could be remedied. The right rev. Prelate pointed out cases in which a prelate could not exercise his powers in holding an inquiry into charges against one of his clergy, because the inquiry would not be a privileged one, and those who gave evidence before him might be indicted in a court of law. But that grievance applied equally to the Church of Rome, or to the Presbyterian, or any other Church existing in the colony, none of which could hold an investigation with the protection which the right rev. Prelate thought desirable. But if such protection was to be afforded within the colony, then he would say that it ought to be granted by an Act of the colonial legislature. A very estimable, and, as he believed, very devoted clergyman from Van Diemen's Land now in this country, in writing to him on this subject, distinctly admitted that it would be a proper province for the local legislature to interfere in, but that even with the influence which the Crown possessed in the existing legislature, he did not think an Act with such an object could be passed. He feared that this description was true, and that the feeling prevalent in the colony partly arose, perhaps, from too much having been asked in the first instance. But, if public opinion was in such a state in the colony that the local legislature was not prepared to pass measures of this kind, then he believed their Lordships could take no course more entirely fatal to the interests of the Church of England in the colony than by overriding the local legislature in a matter that was peculiarly within its own province, by the Imperial authority of the British Parliament; and that they should do so at the moment of giving them representative institutions, and thus declaring a jealousy and suspicion of them, would be still more unfortunate and dangerous to the true interests of the Church. When the present system was introduced, a state of the ut- 975 most intolerance and religious rancour prevailed in the colony; but Sir Richard Burke succeeded in passing a law by which equal rights were, as far as possible, given to all religions. The consequence was, that the whole of the former religious animosities had been lulled to sleep, while a great increase indeed had taken place in the members of the Church of England. They had merely given the Church of England fair play, and since then it had taken a strong hold on the feelings of the people; and, for the sake of the Church itself, he would ask them not to reverse that policy. He doubted that there were restrictions in the case of the Church of England that did not apply equally to other religions; but if the fact were so, they must necessarily apply to all the colonies, and ought to be removed by a general Act, and not by a provision in a measure referring to the Australian colonies alone. It was a question of extreme difficulty, for it would be an aim of no easy accomplishment to conciliate the degree of liberty that was to be left to the Church of every individual colony, and the maintenance of union with the Church of England at home. If the right rev. Prelate would suggest a measure for the purpose he had mentioned, he (Earl Grey) could assure him that it would receive the earnest and deliberate attention of Her Majesty's Government, who would be extremely glad if they could relieve the Church of England in the colonies from any difficulties and embarrassments under which she might labour. But they should be very careful of establishing a distinct and separate system of ecclesiastical administration for each colony, or of severing the ties which united them with the Church of England at home. He should conclude by most earnestly entreating their Lordships not to throw out this measure by adopting the Amendment proposed, nor to dash away from the lips of the colonists the cup just held out to them, and at the moment they expected a measure on which their minds were most anxiously set, by postponing it to another Session.
I do not think there was any necessity for the noble Earl who has just spoken to apologise for having followed the lengthy and able statement of the right rev. Prelate opposite, or to apologise for the time which he has occupied in addressing the House; for, often as it has been my lot, and it may be again, to differ from the noble Earl, I cannot refrain from 976 offering the testimony of what I feel with regard to the ability, clearness, and temper of the manner in which he has just addressed the House. I am not about to allude to the details of the measure, or to the clauses which the right rev. Prelate proposes to introduce, because, not knowing the nature of them, I feel the difficulty referred to by the noble Earl, of inclausing in a Bill of this nature any provisions with respect to the Church of England in the colonies. I have, therefore, felt satisfaction in hearing that the Government are prepared to consider the question—for undoubtedly it is a most important one—in a spirit of friendly improvement. The noble Earl has been good enough to hand me some papers to which he had alluded, with the view of showing the favour in which the Bill is regarded in the colonies; but I find that the points which met the approval of the colonies are the separation of Port Phillip and New South Wales, and the establishment of a separate legislature for Port Phillip. And, my Lords, the papers go on to say that if, in the consideration of the subject, it should be found impossible in this Session of Parliament to deal with it, the colonists pray that the portion of the law may be passed which separates Victoria from New South Wales. They then go to another important point, omitted from the consideration of the Bill of the Government, I mean the consideration of the franchise. The original law in this respect has been defective, for persons owning a large amount of property in the colony have not the privilege of the franchise, because they do not happen to be freeholders. The qualification as it exists is a very high one. It was based upon the high prices of 1842, and has not been altered in consequence of the low prices which have since prevailed. The noble Earl who has the Bill in charge appears to be himself of opinion that the federal portion of it is not absolutely essential. [Earl GREY dissented.] Well, then, it appears that the noble Earl looks on every portion of his Bill with equal fondness; or, if there be any part of it which he regards with peculiar tenderness, it is—as in the case of parents who love with especial fervour the child whose person is the least attractive—that particular portion which everybody else is disposed to regard with the smallest favour. However, I am not disposed to offer any factious opposition to this measure. If the noble Lord will consent that Port Phillip shall be separated 977 from New South Wales—if he will extend to Van Diemen's Land and the other colonies the existing institutions of New South Wales—if he will not take out of the hands of Parliament the power to make such arrangements with respect to the institution of a double chamber as may hereafter appear desirable—if he will make such amendments in the existing law as experience may prove to be expedient—I do not see that there will be any necessity for referring this Bill to a Select Committee. On the contrary, I, for one, will give my concurrence to the measure without further objection. But I confess that I do see evils and defects in this measure, which, unless they be remedied, will be more than sufficient to counterbalance all that it contains of good. I object to the introduction, without adequate information, of the principle of a federal constitution. I object most strenuously against that provision of the Bill which will enable the Queen, or Her Minister for the time being, on the application of any of these colonies, to establish, at any moment he may think fit, a federal constitution and government, thereby abdicating, and altogether abrogating, the legitimate authority of Parliament. I object to the 35th clause from the beginning to the end, for I believe that nothing can be more unconstitutional in principle, or more mischievous in operation. Now, the power proposed to be given to the single chamber to be formed under this Bill, simply that of introducing trifling amendments in the franchise, or small alterations in the amount required, in order to constitute a qualification, I should not be disposed to take exception to it; but I certainly am not prepared to place in the hands of any single legislative body of any single colony in the world so extravagant a power as that of determining whether there shall be one or two legislative chambers, or whether the element of appointment by the Crown shall be set aside in the composition of the single chamber. This was a power which he would be unwilling to entrust to any single legislative body of any single colony in the world, but least of all would he entrust it to a legislative body confessedly imperfect—a body from whose ranks were excluded a large portion of the most respectable members of the community it represented. It is all very well to say that the single chamber shall be invested with a power to cause the formation of another chamber. I believe I am warranted in saying that there is no 978 instance on record of a single chamber having volunteered to abdicate its power for the purpose of interposing, if not a monarchical or aristocratic, at least a conservative check to the democratic tendency of the chamber itself. I do not object to the continuance for the present of the colonial constitution as it now works in Australia; and though I am free to confess I only regard it as in a state of transition, I look forward to a double chamber as an improved mode of legislation to be adopted whenever the colonists are fit for it; but for the present I am content that the present constitution should be continued, provided the Government and the Parliament be not deprived of the salutary control which they are now permitted to exorcise over it. This power should, I think, be reserved to future Parliaments as it is now left to the present; but I certainly do think that there ought not to be allowed to the colonists a power more formidable still than that of legislating for themselves—the power of legislating for their future constitution and fundamental laws. I am fully sensible of the difficulty of drawing the line of demarcation between local and imperial concerns; but the question, however difficult, ought to be examined and determined; and certain I am that it would be much better to give the colonies a more unrestricted freedom with regard to all matters of a purely local character than to allow them the dangerous and obnoxious privilege of altering their constitution. The noble Lord concluded by stating that, if the clauses from 30 to 35 inclusive were omitted, he would take the remainder of the Bill as it stood, and would endeavor to prevail upon his right rev. Friend the Bishop of Oxford not to press his Motion for a Select Committee to a division; but if it should be contemplated to pass the Bill in its present most unconstitutional shape, he should certainly feel it to be his duty to offer it an uncompromising opposition.
§ LORD LYTTELTON
said, he should wish to make some observations on the general principle of the Bill; but he should prefer postponing them until after the Bill had been committed.
rose and asked whether 979 the noble Earl opposite could not find it consistent with his duty to give him (Lord Stanley) such an assurance as would at least enable him to abstain from voting, if it would not preclude the necessity of a division.
§ EARL GREY
feared he could give no such assurance as that required by the noble Lord. On the contrary, he felt bound to maintain the Bill in its present shape. The proposal for expunging the clauses from 30 to 35 was a very serious question. The noble Lord had accepted the first 30 clauses. His (Earl Grey's) own opinion was decidedly in favour of retaining the clauses proposed to be omitted; but still if their Lordships were to overrule him in that opinion, he should not consider that as a necessary reason for abandoning the Bill. But as the noble Lord had proposed that five clauses be absolutely struck out, it would be more convenient, before the House decided on rejecting the Bill on account of those clauses, that there should be a discussion upon them in Committee. He would, therefore, suggest that their Lordships go into Committee.
said, that the noble Earl must not infer that he approved of the first 30 clauses of the Bill, for there was one provision, relating to which his noble Friend near him had given notice of an amendment, to which that would not apply; he meant the establishment of a double chamber in New South Wales. Until he knew the views of the Government, he could not give an assurance that he would not join the right rev. Prelate, and his conduct would be further influenced and altered with respect to the Amendment of his noble Friend, if the clauses from 30 to 35 were to be still retained.
§ On Question,
§ Their Lordships divided:—Contents 21; Non-Contents 34: Majority 13.980
§ Resolved in the Negative.
§ Then the original Motion was (by leave) withdrawn; and House to be put into Committee to-morrow.
§ House adjourned till To-morrow.