Lords Sitting of 14 June 1850

MINUTES.
PUBLIC BILLS.—2a Public Houses (Scotland).
Reported.—Distress for Rent (Ireland); Incumbered Estates (Ireland) Act Amendment; Sheriff of Westmoreland Appointment; Judgments (Ireland).

CHANCERY COURT OF APPEAL BILL.
Order of the Day for the Second Reading read.
LORD BROUGHAM: * I am now to solicit the attention of your Lordships
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while, according to my notice, I state the reasons which induce me to postpone the further proceeding with this Bill. I introduced it first in 1833, while a Minister of the Crown, and with the entire concurrence of my Colleagues. But I then stated that we were fully aware of the great difficulties which surrounded the measure, that we by no means pledged ourselves to abide by it after fuller consideration should be given by Parliament and by the legal profession, that we presented it as the result of the attention which we had been able to bestow upon the very difficult subject, and that we desired to have it stand over for more deliberate discussion during the approaching vacation, The other Bill which we presented in the following year contained new provisions; but the measure of 1833 is the one which I lately reintroduced, and which now stands for a second reading.
It was a deep sense of the existing evils, and a conviction that some remedy ought if possible to be applied, that influenced the Government of 1833 in bringing the subject before Parliament; and when the retirement of the Chancellor and the appointment of Commissioners to hold the Great Seal, seemed to give a favourable occasion for again considering this important matter, I was naturally led to press it upon the attention of the Government, in the hope that some arrangement might be made for meeting the great exigency of the case. This led to my reintroducing the Bill of 1833. I must now ask your attention to this subject—if it be possible, your patient attention. For I am well aware that it is none of the most attractive, although it is one of the most important. It is surrounded by none of the flowers which recommend other questions to the sense of public assemblies; it is unconnected with personal matter, unmixed with party topics, unadorned by amusing details—in a word, it is of a dry, of a forbidding, even of a repulsive aspect. It is only of vast importance to the country and to the constitution. It is one of those questions, therefore, which being of all others the most important, are exactly those, according to a well known pleasantry of Mr. Canning, which nobody at all ever cares anything at all about. As, therefore, I have nothing to recommend my subject but its intrinsic value, stripped of all outward charms, I have but a moderate chance of engaging your attention to

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its details. Nevertheless, it is my duty to explain those details; because at the present moment the greatest ignorance of them prevails both out of doors and within. The subject is known only to professional men; others are wholly unacquainted with it. Such of my noble Friends opposite, and such of the House at large as may honour me with their attention, will very soon perceive both the importance of the question, and the difficulties that encumber it; both the reasons for applying a remedy, and the obstacles in the way of its application.
The complaint is not of yesterday that the Lord Chancellor has more duties cast upon him than can be satisfactorily performed by a single individual. As long ago as the days of the Bacons and the Cokes, the same grievance was complained of, and loudly. Early in the seventeenth century, Lord Coke said that there was more for the Chancellor to do than could be got through satisfactorily by him and the Master of the Rolls, his helpmate. He spoke from observation; and Lord Bacon, speaking from experience, gave the same opinion. Yet in those days the claims upon that great officer's time, his industry, his ability, were not a fifth part equal to their present amount. First of all he presides nearly ten months in the year, and presides sole Judge, in the Court of Chancery; next he presides in the House of Lords as Speaker, in which capacity he is chief Judge of all appeals from England, Scotland, and Ireland—and I may observe in passing that the weight of the Scotch and Irish Appeals has been cast into the scale since the days of Lord Coke; then he is a Minister of the Crown, a Member of the Cabinet, with great authority and influence among his Colleagues, who accordingly expect, and justly expect, that he should with them give his best attention to the arduous concerns of the realm; again, he is the Minister of Justice, whose high office it is to select the persons fit for the Bench, and for whose learning, capacity, and integrity as Judges he is solely responsible. But further, upon all matters connected with criminal and civil jurisprudence he has to counsel the Sovereign, for it is to him that on all such questions the Crown and the Cabinet looks Lastly, as by a strange anomaly, this highest of the Judges, but that he exercises himself no criminal jurisdiction, is removable at pleasure, and as a member
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of a political party, the party in power for the time being, he must bear his share, and an ample one it is sure to be, in the contentious and not seldom fatiguing debates of this House.
Such are the various and heavy duties of the Great Seal; and hence the wonder is not great that working under the pressure of such a load, few Chancellors are equal to cope with the business of their courts and to keep down the arrears whether of Chancery or of the Lords. When I took the Great Seal in November, 1830, I found above 150 appeals that stood for hearing, with a heavy arrear, I believe of near 100 causes, in this House. By great exertions on my own part and on that of the Bar this heavy arrear was got rid of; 147 Appeals having been heard and determined in Chancery, besides other business to a great amount, and above 80 causes in the Lords. But not only had I to sit early and late, sometimes till past midnight, during those eleven months; from the controversy on the Reform Bill this House sat till the middle of October, and hence, after the Court of Chancery had adjourned for want of fresh business, I could sit for six weeks or more to hear causes in this House—I remember coming down at twelve o'clock on the 12th of October, having only left the woolsack at seven that morning, when the five days' debate closed on the Reform Bill. It is true that we thus overcome the arrear, and I was enabled to keep it down during the four years I held the Great Seal; but it is no less true that exertions like these cannot be often made either by the Bench or the Bar—they cannot be undergone twice by the same individual—and no individual expects to be called on to make them once. My noble and learned Friend (Lord Cottenham), not now present, ascribed my bad health in 1836, which prevented me from attending the service of the House, to these labours; but this was a mistake. I felt fatigued during the winter of 1831–2; but in 1833–4 I had completely recovered. However, the case is quite strong enough in its true colours and just proportions, and needs no exaggeration to prove how grievous a load the Great Seal lays on the shoulders of him who undertakes to hold it. The general impression on men's minds is, that something must if possible be done for his relief. But then arises the question—what is that something? How are you to apply remedy which will be

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both effectual and safe—will relieve the grievous pressure, without occasioning other evils yet more serious?
Having stated the mischiefs complained of, I am now bound to state the difficulties we have to grapple with in remedying it—difficulties which form my reasons for asking your Lordships to postpone the Bill on your table—difficulties which I shall do a good service to the State, by describing them in connection with the proposed remedies, not as believing them to be insurmountable, but as convinced that they must receive a calm and deliberate consideration from well-informed men, before any plan can be safely adopted for meeting the evil, whose existence and magnitude all confess.
The first expedient that presents itself, and which is supposed to be so easy as to be deemed quite a matter of course, is the division of the Chancellor's office into two—separating his purely judicial duties from his functions partly judicial, partly political, depriving him of his place in the Court of Chancery, confining him to his seat on the woolsack, and his duties as Minister of Justice. As the bulk of his labours are those in Chancery, and the arrear chiefly arises there, nothing can be more natural than this suggestion. As he is a sole Judge in Chancery, and therefore should be irremovable like all other Judges, nothing can be more plausible than the plan of a permanent Chief Judge in Equity, while the Speaker and the Minister, and the President of the Judicial Committee, continue removable—I say nothing of the anomaly of having a Chancellor minus the Court of Chancery—a Chancellor to sit every where but in his own Court—a Chancellor admitted to judge in the Lords and in the Privy Council, but expelled from the Court of Chancery—for all this I should not value at a rush, were there not more substantial difficulties in my way. But such unhappily there are, well known to Chancery men, easily apprehended by all the profession, and which I hope to make also comprehensible by your Lordships. There must be an appeal within the Court of Chancery. At present the appeal is from the Rolls and from the Vice Chancellors to the Chancellor; from him to this House. I say an appeal from these Equity Judges there must be. No one can have a greater respect than I have, in common with all the profession, for the Master of the Rolls—his great learning and long experience—for the profound knowledge and
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practical ability of the Vice-Chancellor of England—for the talents, assiduity, and learning of the Vice Chancellors Knight Bruce and Wigram—and the integrity of all these eminent Judges stands wholly un impeached and unsuspected. But no Judge, whatever be his accomplishments or his industry, can be safely trusted without the control of superintendence, to stimulate if tardy, to curb if hasty, to correct if mistaken. An appeal then there must be, were it only that each may sit and judge with the knowledge that his decisions are subject to review elsewhere. Nor can this appeal be to your Lordships' House direct, because many causes will not bear the labour, the expense, and the delay of this resort to the highest Court. Then motions often raise most important questions, and interlocutory orders made upon motions, regulate the course, and may determine the fate of the most important causes. Yet, though by law an appeal lies to this House on every interlocutory order, as well as final decree, I have hardly the recollection of above one or two motions, brought here by appeal in the last 30 years. Numberless motions are constantly disposed of with great forensic contention by the four inferior Judges in Equity, often being on mere points of practice, but important points, as I have shown. It is necessary that there should be a superintending power over the Judges who deal with and decide upon them. Hitherto appeal motions have come before the Great Officer at the head of the Law, first of all Judges, as well as first of Equity Judges, and clothed with the respect which distinguished eminence in various kinds is fitted to command. Such an appeal involves no inconsistency or absurdity—it is not from a Judge to his equal or co-ordinate, but to his superior. From one Vice-Chancellor to another—every one at once perceives an appeal would be preposterous: still more from the Master of the Rolls to a Vice Chancellor. Then so would an appeal be from the Judges to the new Chief Judge in Equity, whom it is proposed to create; for it is quite manifest that this new Judge will be only a kind of Vice-Chancellor—a Vice-Chancellor whose higher salary will not more than make up for his lower antiquity. Nay, certainly, he will stand in lesser estimation than an ancient officer who sits at the Rolls.
To meet this obvious difficulty, it has been proposed to have the Court of Appeal

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in Chancery composed in each case of three Judges, from whose decisions the appeal does not come, preserving the analogy of the Common Law, which gives to the Judges of the two Courts jurisdiction in writs of error from the third; so that the Common Pleas and Exchequer decide in error from the King's Bench, and the King's Bench and Common Pleas in error from the Exchequer. But then see the other difficulty to which this apparently plausible scheme leads. The experience of the last five and thirty years shows that there are always appeals in Chancery fully to occupy one Court. Since the Vice Chancellor was created in 1813, as Sir Samuel Romilly foretold, the Chancellor became a mere Judge of Appeal. I had full experience of this in the four years of ray office—exactly four years—for I took the Great Seal on the 22nd of November, 1830, and quitted it November 22nd, 1834. I heard no more than some eleven or twelve original causes, the rest were appeals. Many motions I heard no doubt, but chiefly appeal motions. There is, therefore, quite appeal business enough for one Court, especially since the creation of two new Vice-Chancellors. Thus the now Chief, sitting with two or three of the inferior Judges, would form a Court of Appeal all the year round; or, in other words, all the Courts but one would be closed against original causes; and the Great Seal would be permanently in Commission—an arrangement which would at once create an arrear far greater than ever en-encumbered the Court in the worst of times.
This difficulty throws us back on the House of Lords; but no prospect of relief from its appellate jurisdiction can be afforded, even if expense were out of the question, because the Appeal Court must be constantly sitting, at least for motions, and your Lordships only sit half the year. It has indeed sometimes been proposed to sit for judicial business during the Parliamentary vacation. But to this there are the greatest objections. If the House is sitting at all, though only for causes, how can you prevent any person having privilege of Peerage from interfering with questions and motions upon seeing the Chancellor in his place? And if a statutory prohibition of all business, except judicial, is enacted, it is plain that a very awkward division is, for the first time, made of the House's functions, and it can hardly any more be Said, either that the Lords are
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Judges indiscriminately, or that an Appeal lies in Parliament. An arrangement of this kind seems very much akin to a transition from our present constitution to a new and untried one; if it be not in itself an abdication of our judicial functions. However, I would by no means be understood to give a final and positive opinion, even on this part of the question. I avoid above all things speaking dogmatically. It is my purpose to express the difficulty, and suggest the doubts which experience and reflection have pointed out to myself and others. My noble and learned Friend (Lord Lyndhurst) now absent from, I rejoice in common with your Lordships to think, a temporary indisposition, has fully gone into all these questions with me; and our last conference upon them was aided by a most learned and able Common Law Judge, who had formerly exercised equitable jurisdiction. We felt the pressure of the difficulty; we did not wholly despair of being able, by apt provisions, to overcome it; we were only quite assured of one thing, that further inquiry and fuller discussion were absolutely necessary before a plan could safely, or, in any manner of way, usefully be framed and adopted.
But suppose this difficulty overcome, and by a satisfactory arrangement: I proceed now to one of a more general nature, and the extent of which, in all its relations, has formed the chief cause of postponing further proceedings for the present. The question which now occupies us is of a general nature, affecting not only the whole equitable jurisdiction, but the whole judicial system, the whole law, and the constitution itself of our mixed Government.
First, to sustain our judicial system, and to secure the due administration of justice, it is necessary that great powers, great learning, capacity and integrity on the Bench, should be met by eminent talents and accomplishments at the Bar. If the judge is the dispenser of justice, the advocate is its minister. And from among the practitioners at the Bar must the Judges themselves be selected. Now, if anything is more clear in our system than another, it is this—that the character of the profession at large is bound up with the dignity of the Great Seal, its powers, its privileges, its splendour—but, above all, the high character, the professional eminence, the transcendent qualities of him who holds it. If

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you do anything to lower that dignity, to obscure that lustre, you remove from the eye of the profession the great prize, the sight of which in prospect, remote and precarious though it be, quickens and invigorates every man who wears the advocate's robe—everyone who toils in the humble walk of the profession, the special pleader, the equity draftsman, the students who labour at their desks, the youths not yet admitted to share that toil; you veil from their eyes that lofty and dazzling summit, the view of which sweetens their daily and nightly toil, consoling them under all privations, cheering them in the disappointments to which our profession is peculiarly exposed. No longer do those laborious and deserving men proudly exult in feeling that they belong to a body from whom must be chosen, not only the ordinary Judges, but the supreme of all, the Lord High Chancellor, endowed with title, fortified with power, exalted by rank, strengthened with emolument, "by merit raised to that good eminence," because called to the discharge of duties which only the able and the learned can perform. The character of the profession is lowered with that of its chief; the body from which all the other Judges are chosen is deteriorated in quality; these Judges are lessened in estimation with the exalted functionary who stands at their head, whose fiat planted them on the bench, and whose name protects and sustains them. These Judges shine much by their own lustre, but much also by the splendour of their great chief, which they share while they reflect. It is a vain and empty error which they commit who talk of the useless splendour and expensive dignity of the Great Seal. I am here using no romantic fanciful language, when I describe the vast practical importance of its being clothed with the utmost splendour which exalted station and eminent merit can invest it withal. It is a matter of constant and actual experience that the whole profession of the law, as well Bench as Bar, is affected by the splendour and qualifications of its chief. But then both must combine, both personal merit and political attributes; individual eminence and official supremacy. It may be hoped, that by retaining great income, high station and ample power, the office of Chancellor, though stript of its judicial functions, will still hold out a dazzling prize to the legal body. That is not sufficient; if it no longer is held by truly worthy men, if it is either bestowed upon party zeal
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and subserviency, or upon mediocrity favoured by personal connexion with the distributors of favour—the name may remain—the substance is gone. The Great Seal may glitter, but it becomes a bauble. That which men revered, because a Bacon, a Nottingham, a Hardwick, an Eldon, had once held it, they will no longer observe with respect in the hands of a race, successors of Shaftesbury. They had been wont to fix their eyes on the great men themselves, at least as much as on their names and their robes. They will turn away from the externals of the office when no longer sustained by internal merit and enduring renown.
This it is that makes me hesitate to sever the Lord Chancellor from his proper functions and expel him from Chancery. I can no longer see any security against party zeal, or favoured mediocrity clutching the Great Seal. While no one can hold it without sitting continually in open court, alone and unassisted, to answer whatever motion may be made, often without the security of having both parties before him, in the face of an able, astute, jealous Bar, without time for consultation, without the possibility of applying in any quarter for help; while he must in like manner, though less suddenly, dispose alone of the most difficult cases, whether original causes or appeals; we have a reasonable security against any one venturing to seize the great prize by climbing to this perilous height, if he feels that he is likely to expose his incapacity, and be tumbled headlong by public scorn; but we have a perfect security against any Government consenting to elevate such an one, though his own blind presumption should tempt him to run the risk. Hitherto we have never seen any such promotion of known incapacity, and very rarely indeed, perhaps not above once in a couple of centuries, mediocrity, whether personal or professional, thrust into the place consecrated to eminent merit. But how will it be with the place of Chancellor stripped of equitable jurisdiction? I see nothing so very appalling in the Speakership of this House as would necessarily deter ambitious mediocrity from climbing or crawling to the woolsack. Different, far different from the functions I have feebly pourtrayed—functions that may stagger the boldest aspirants to office—are the judicial duties that devolve upon your President. He can never by any possibility have to dispose of any matter which has not been

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long before him, and with full materials for deciding it. Every cause has been printed in all its details, with all the arguments of counsel on either side, the cases relied on, and the opinions and reasonings of the Judges who have decided in the court below. All this has been in his hands for many weeks, generally many months. And in any case of the least difficulty he may have the assistance of the Common Law Judges (it is now proposed to give him also the aid of the Equity Judges) who not only fully inform him, but relieve him from the whole responsibility of the ultimate decision. It plainly requires very little of the courage which vaulting ambition is proverbially endued withal, to covet so safe an elevation—a position as little attended with hazard as it is greatly clothed with powerful attractions; it requires also but little firmness of purpose in a Minister thus to elevate his adherent, at once repaying servility with promotion, and securing the advantages of patronage for his other tools.
But the Chancellor is, by Lord Lyndhurst's judicious suggestion, ex officio to preside in the Judicial Committee of the Privy Council. I can assert that this will make no material difference in the question, and in no degree get rid of the difficulty which meets us in such formidable shape. By the rule which I originally laid down, when I founded that most important and useful Court, the course pursued is this: the four Judges take the causes in rotation, turn and turn about. All four thus work equally; for each assists, to the best of his ability, the one who is in his turn: but each in his turn prepares and gives the judgment which is written, according to a wholesome practice which I introduced also into the Court of Chancery and this House sitting in Appeals. The judgment is then revised by the other three; and so it is, when pronounced, the judgment with the reasons of all four. It needs hardly be observed that this course, though it is highly beneficial to the administration of justice by securing the fullest consideration of each particular in every case, a thing the most essential in a tribunal of the last resort, whose decision can only be altered by an Act of the Legislature, yet is calculated to remove all peculiar weight from the presiding Judge's shoulders, and to leave him with no greater individual responsibility than any one of his brethren. Hence I am, I fear, too well warranted in the ap-
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prehension that the newly endowed and commissioned Chancellor will have no material addition made to the difficulties of his position, the responsibility under which he is laid, the anxiety which he may feel on undertaking the office, by his Privy Council duties; and that he is still left in a very different situation in all these material respects from his present position of first Equity Judge presiding in the High Court of Chancery, as well as Chief Judge of Appeal, in this House. I dread the effects of this change, then, in lessening the security both that inferior men will fear to take the Great Seal, and that Ministers will fear so to bestow its great privileges. I look with much anxiety to the probable result that a very different succession of Chancellors will be found to bear the name of the high functionary illustrated by the great men who have presided over the law, aye, and over the Lords—a succession of Chancellors whose principal claim to the remembrance of after ages may be the office they held, peradventure, degraded by coming into comparison with their renowned predecessors.
Aye, and the Lords! For it well becomes you, my Lords, to give this topic your best attention. It is not merely the law and its practitioners that are deeply interested in the question. Tua res agitur, I say to this House. Whatever lowers the high judicial officer of whom we are speaking, lowers the Lords' House of Parliament in the most important of all its high functions. Let it not be supposed that I am romancing or declaiming—indulging in fanciful speculations, or in empty or unprofitable talk—when I express my apprehension of anything that can lower your estimation in the country, or your authority in the Constitution as the Supreme Judicature of this realm. On your judicial character mainly rests that estimation and that authority. Strip the House of its judicial attributes, you endanger its very existence. Judicature is to the Lords as important as money to the Commons. Strip either of their peculiar attributes, and the virtue has departed from it. But I protest I rather think the loss of those functions altogether is less to be dreaded than the lowering of the capacity worthily to perform them. If you are converted into an inferior Court of Justice, no longer looked up to with awful reverence, no longer declaring the law of the land with the universal acceptance of the people, you become worse than a blank—you may be a blot on

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the Constitution—instead of that venerable body, its strength and its ornament, in respect for which I have grown old, and of which I am proud to be a Member.
These considerations it was that induced me, with the concurrence of my Colleagues, to make a material addition in 1834 to the measure of the preceding year. The Chancellor was to be the Chief Judge of Appeal in Chancery, sitting with one other Judge and a Baron of the Exchequer, then a Court of Equity, which it afterwards ceased to be. But there was this unanswerable objection to that arrangement—it got rid of one difficulty in a certain degree, not entirely; it gave the Chancellor more duties to perform, and prevented his entire separation from his proper Court. But then in proportion as it effected this, it lessened the value of the change; for it failed to relieve the Chancellor, whose over burthened state is the very ground of all our attempts to new-model his office. The Court of Appeal in Chancery would have as much labour cast upon it as the single Judge now has cast upon him; and you would thus lessen his industrial responsibility, while you left him with the same amount of labour to undergo. I think, therefore, that the answer to the objections which press us is not to be found in this direction.
All the considerations to which I have adverted, will, I hope, indeed I am sure, meet with the attention their importance so well deserves in the proper quarter, both from your Lordships and from the Government. My noble and most esteemed Friend at the head of the Government has announced elsewhere that the subject now occupies its attention; and the moment for the inquiry is most opportune. The Great Seal is to be put in Commission. This will give ample time fully to discuss all the measures which learned and experienced men can propound for remedying the evils complained of. They are exceedingly ignorant of the subject who object to this Commission, and deprecate it even as a temporary measure—for temporary, of course, it only can be. The judicial force in Chancery is so greatly increased since 1835, when the last Commission continued for nine months, that no material inconvenience can now comparatively be experienced. In. fact, the creation of two Vice-Chancellors in 1842 makes a Commission of which two Equity Judges form part, exactly the same thing as the Court of Chancery without any Commission
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before that year. There are always three Courts of Equity sitting, only instead of one of them being under a single Judge, it is under three. Some practitioners may be injured to the extent of a few hundred pounds, by having, in 1850, only the same number of courts that they had in 1841, and fewer than they had in 1849—that is really the whole difference, and I am sure of that they will never be heard to complain. Compared with their gains in 1841, they have no shortcoming by possibility to lament. Therefore the Commission gives a very favourable opportunity for dealing with this most important subject, and examining it in all its bearings. The great object of our endeavours, the problem in jurisprudence to be solved, is, that the attributes of the Great Seal may be so moulded as to give the requisite relief to the officer who holds it, without lessening his just importance in the law and in the constitution; above all, without lessening our security that he shall be fully adequate to the discharge of his duties, including, among the most essential of these, his functions as Minister of Justice. The difficulties which beset this problem, I have endeavoured to describe; and very far indeed from despairing of success, when time shall have been taken for the investigation, I again express my satisfaction at finding it in the hands of my friends and former colleagues, from whom I expect a diligent care of the matter they have undertaken, but from whom I also exact a very anxious regard to all the difficulties of the question. For what I have shown in detail, though I am far indeed from despairing of success, is abundantly sufficient to warn against every thing like precipitate legislation—that great haste which proverbially is nothing like good speed.
Let the long vacation be taken for reflection, and deliberation, and, above all, due inquiry. Don't fancy you can strike out at a heat plans of judicial improvement, which the most practised lawyers of the largest and most varied experience, find the utmost difficulty in conceiving. Dismiss from your minds the vain notion that the difficulties don't exist which their well-skilled eyes perceive, obstructing each step of their progress; nor imagine that ignorant men, being blind to them, proves them easily overleapt. With the exception of one learned friend of mine, formerly high in office, whom, by a mere accident, I have not been able to consult, I

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have discussed this subject with all the leading members of the profession, as well as my noble Friend already named, and other Judges. I well remember the phrase of one learned and able person, also once a high officer in the law. "It would be less absurd and less presumptuous to think of extemporising a Reform Bill than a Bill for new modelling the Chancellor's office." It may be said that the Government can throw out a plan, and let it stand over for consideration. But I dread this, because when once committed, a Government finds it difficult to retrace its steps. Take then time; the long vacation approaches; that season is very much fitter for the consideration of such matters than the hurried weeks of an expiring Session—a Session peradventure expiring in the throes of a Government assailed from many quarters. But in the recess, the strife of party has ceased; the noise of debate is still; the contentions of this House are over; the hum of the Commons no more fills the ear. ["Hear, hear!"] I protest, my Lords, that I use the expression without the least disrespect. Nay, that respectable body may well regard it as highly flattering to be compared with the most ingenious and industrious of insects, which never wastes its time in empty noise, but ever perseveres in its work, and allows no minute to pass without storing up the valuable produce of its labours. Drones there will be in the best regulated hive; a wasp or two may find its way into the abode of work and of sweets; but profitable labour undisturbed by strife is the characteristic of that scene—and the word which escaped me betokened not only respect but a disposition to somewhat hyperbolic eulogy. In the recess, then, when all is still in the House, when the business of office is relaxed, the din of the courts, the strepitus fori is heard no more, and the agitators of the popular assembly cease to trouble, when their ordinary occupations do not press on Ministers to absorb, or the claims of their suitors to distract their attention, let my noble Friends prosecute their inquiries.
Another reason suggests itself to show that the delay is accompanied with no real loss of time; but I reserve the mention of it until I add a word on what seems to me the proper course of investigation. For I don't wish to deal in generals; I have stated in full detail the difficulty, and I will now suggest what appears to me the fit and the safe way of endeavouring to van-
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quish it. The course which I shall propose is plain and simple, yet I hesitate to propound it, lest, coming from me, my noble Friends opposite should have jealous scruples about adopting it. However, I will state my proposal. Let a Commission be entrused with the important inquiry—well composed of three, or not more than five competent persons, not being Judges of any court. Let them examine all the heads of the Courts of Equity, both at present presiding there and those retired from the bench, all the Masters in Chancery, the other officers of the Court, the chief practitioners at the Bar, and the respectable Solicitors, a body deserving of all praise from me who know their valuable aid to the cause of law amendment—for they are my useful and disinterested coadjutors. From the examination of all these persons, from discussing with them the various plans propounded, and from receiving their suggestions, I entertain very sanguine hopes that the greatest benefit will result to the question, and that a body of information will be collected, on which the Government may safely proceed to ground their measures. Even if it should—which God forbid!—be found that the evils complained of unhappily admit of no safe and effectual remedy, at least we shall have the satisfaction of reflecting that all means have been fully and honestly tried, and that the causes of our failure have been fully explained. Let then my noble Friends pursue this safe and rational plan, and not be borne away by ignorant clamour, by the impatience of thoughtless and uninformed men, rashly and presumptuously to devise schemes that will not bear the test of examination by a learned and practised eye. To yield to the pressure from without—never a very creditable course—is absolutely fatal on a subject like this, which only experienced men can even pretend to understand.
I have said that the delay will occasion no real loss of time, because of a consideration of which I postponed the mention till I had stated my plan. Even if all were ready before the Session closed, and if a measure had received the sanction of Parliament, ample time must be given for selecting the men to whom you may safely entrust the working of the new scheme. It may be, that the profession does not at present furnish them—above all, the great officer who is to come in the Chancellor's place. But at all events, great deliberation will be required to make the choice. For of this you may be well assured, that

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suppose two new functionaries are to divide between them the duties of the Great Seal, the success of the plan, aye, the whole success of it, will depend upon the first choice. Men must be pitched upon who unite in their favour, to the greatest degree possible in the present state of the profession, the approving voices of their brethren, and the respect of the country. Woe to the Government, if yielding to the clamours of party zeal or subserviency, or even to the feelings of personal attachment, still more of private connexion, they select for either place, but above all for the highest, any whose known and acknowledged station at the Bar, as testified by the confidence of numerous clients, whose capacity and learning by all confessed, and above everything whose untarnished purity of character are not such as to make every voice join in approval as soon as their names are pronounced. Yes, woe to the Government! but also to the new measure—for assuredly such a choice, be it rash and careless, or be it the dictate of impure motives, will be the utter destruction of the plan. Pressed on all sides by the current of strong prejudices adverse to every change, labouring in the cloud of public suspicion, buffeted by the gales of professional discontent—on the rock of which I have now made bold to warn you, it is absolutely certain to make a total shipwreck.
Before I close my observations, I must advert to one point, which I omitted when speaking of our Appellate Jurisdiction in this place. Friends, in whose judgment I repose much confidence, are anxious that I should broach before your Lordships the notion, once a favourite with Lord Eldon, of giving you in your judicial capacity the aid of a Scotch Judge—whether taken from the Courts of Scotland, or appointed permanently as your assessor on cases from that part of the island. It certainly is an anomaly of our system, that in the great majority of instances those cases are decided by men not of the Scottish Bar. In justice, however, to this House, I must add that some of the most important decisions ever given here were upon points of purely Scotch Law, the law of real property—and reversing the judgments below. One of them was Lord Mansfield's, another Lord Eldon's, the third my own; and it is right to observe that however dissatisfied at first, the Scotch Bar and the Bench ultimately confessed that we were in the right, and had restored the Scotch Law to
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its real and original position by our reversals. However, I cannot deny that there may be cases in which we, sitting here upon the law of a Foreign country, are apt to hesitate before we reverse, and that sometimes we affirm when we ought not. One instance I know of, where a very large sum was awarded to the wrong party, as I always thought, and as I had distinctly stated the Session before, in contemplation of the pending appeal—awarded differently from what it would have been had I assisted—and awarded (as I told the Scotch Judges afterwards, in discussing the subject), because in my absence my noble Friend, not bred to the Scotch bar, had been too slow to interfere with a decision on a purely Scotch Law point. There is therefore some reason for the complaint. We may say that the Scotch Appellate Jurisdiction works better than might be expected; that the want of aid from Scotland produces less mischief than might be supposed—but this is a moderate justification of the defect. I remember Lord Lyndhurt saying that he found the absurd mode of taking evidence in Chancery practically far less inconvenient than could be expected—the mode of putting questions one after another to a witness in utter ignorance of his answer to the preceding ones. But when I asked if therefore he approved of this absurdity, he only said it got out more of the truth than might be supposed—in other words, that it was not quite as bad as it looked. This is a poor defence or even palliation. But I am ready to admit, as I always was in Lord Eldon's time, that serious objections exist to the appointment of a permanent Scotch Law asessor. One is, that the judgments given by us who are not Scotch lawyers, would always be supposed our assessor's judgments, not our own—an objection to which our consultation of the English Judges is not exposed. However, this, as all other matters, may well be examined by the Commission, which I hope and trust will be issued.
Then the Order of the Day for the second reading was discharged.

AUSTRALIAN COLONIES GOVERNMENT BILL.
Order of the Day for the House to be again in Committee, read.
House in Committee.
Clauses 26 to 29 agreed to.
On Clause 30, which provides for the establishment of a general assembly of the

1217
delegates from the different colonies included in the Bill.
LORD STANLEYsaid: My Lords, this clause involves a principle which, to say the least, requires grave consideration. The noble Earl, as far as I know, as yet, has given no reason for the course to be pursued in this wholly new system of colonial government, and, in the absence of any such reason on the part of Her Majesty's Government, I confess that I am at a loss to understand why so extensive an innovation is to be introduced. It may be certainly true, with regard to the various colonies, that in the great continent of New South Wales and the adjoining-island of Van Diemen's Land, as there are with regard to the North American colonies, and also with regard to the West Indian colonies, there are several subjects of common interest, and in which it would be desirable that these colonies should have an opportunity of coming to a common understanding. But, undoubtedly, on the other hand, there will be subjects in which the interests of these different colonies will be widely different and separate, and whose interests the legislative assembly, constituted as the noble Earl now proposes to constitute it, may altogether overbear; and they may have inflicted upon them, thereby, a system wholly discordant from their wishes, and wholly opposed to their interests. I will take the liberty of reminding your Lordships that these colonies, immediately adjoining each other, occupy a territory no less than the whole expanse of Europe, and have districts as widely apart, climates as distinct, products as varied, and employments as different, as in any two countries upon the continent of Europe. Now, my Lords, here we are to have introduced into these colonies a supreme legislative assembly, the limits of whose power cannot be defined by this Bill, but which is to override the separate legislation of all these separate colonies, and that without any application from these colonies for the introduction of such a system. Such a proposal appears to me to be a most rash and perilous innovation in legislation. And, my Lords, the mode in which the experiment is to be carried out, is, I think, not less objectionable than the experiment itself. For it is proposed that when two or more of these colonies, even the most insignificant, shall signify to their Legislative Councils their desire to have a federal assembly constituted, it shall then be lawful for Her
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Majesty to constitute such federal assembly; and I beg your Lordships to observe that you do not by this alone give power to Her Majesty to establish such a general assembly, but you also usurp the functions of Parliament, as far as the constitutional character of this general assembly is concerned. The Bill provides that the members of the said assembly shall be elected, and all laws to be made and enacted by such general assembly—
"shall be so made and enacted, and the business thereof conducted in such manner and form, and be subject to such various conditions, as Her Majesty by Order in Council shall direct; and such general assembly shall consist of the Governor General and the House of Delegates; and such House of Delegates shall consist of such members, &c"
The whole constitution, therefore, of this legislative assembly—the whole manner in which it is to be constituted—is not to be settled by Parliament upon a knowledge of the facts, but prospectively to be delegated to the Secretary of State for the Colonial Department for the time being, who shall have absolute authority, by Order in Council, to constitute a most important legislative body in the colonies. Well, but then you say you reserve the power to that legislature, after it has been so constituted, to alter itself. Now, I must say, I think this is a most objectionable mode of proceeding. My Lords, have not some of the colonies protested against it? Have not some of them assured us that such a system would have a most mischievous and dangerous effect? Well, then, you say they are not compelled to agree to it. No, it is true they are not; but you may have three or four of these colonies calling for a federal league, and the necessary consequence will be, that the remaining colonies will find themselves drawn into that league, even against their will, and contrary to their true interests. But you appeal to the practice of the United States as a precedent in this matter. But the constitution of the legislatures of these States is wholly different from that now proposed. The truth is that this is an entirely novel and an untried system of government. Now, I want to know on what principle the delegates to this assembly are to be elected? The Bill declares that each colony shall appoint, in the first place, four delegates, and then for every 20,000 inhabitants there shall be an additional member. Why, my Lords, the consequence of that will be, that the influence and authority of a great colony will be

1219
overbalanced by the smaller colonies. For example, the colony of New South Wales will return four representatives in the first place as a separate colony, and in respect of its population of 220,000 it will return eleven; that is to say, fifteen in all. Well, there is another State which has only 20,000, and it, in consequence, will return five representatives. Then suppose there is another colony which has only 20,000 inhabitants—it will return five members also. Thus two colonies with an aggregate population of 40,000 only will return, as nearly as possible, as many representatives as the whole of New South Wales, with a population of 220,000. Now, my Lords, I do not see why such a system has been adopted. But, my Lords, it is not to the details of the plan that I object. What I object to is this—that, without knowing what may be the necessary extent of the counsels of this body, without attempting to define the limits of its authority. Parliament is asked blindly to commit itself into the hands of the Government in this matter, to enable any future Government by an Order in Council to deal with a most important question. Your Lordships are asked to walk upon wholly untrodden ground, without the least experience to guide you. As far as the experience of all nations and of all ages has gone, that experience is against the proposal of the Government. If the colonies think that their common good requires that they should have some common body to superintend their affairs, then let them make application for that which they know they want. Now, let us look what the noble Earl proposes to do. He says he shall not prevent the legislatures of the different colonies from legislating upon their own affairs. But he proposes that this supreme legislature shall step in and override the legistion of separate colonies. What are the attributes of this legislative body? If an appeal is attempted to be made from the overriding decision of that body to Her Majesty in Council, there must necessarily be a delay of two years and great expense. Now, I must say that this appears to me a plan altogether impracticable, unwarranted by experience, and, as far as our knowledge extends, not desired by the colonies themselves. I think, then, that I am justified in calling upon Her Majesty's Government to reconsider their proposition—to reconsider whether it is necessary, even for their own purposes, to press for the adoption of this clause without
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further information—without further knowledge of the wishes of the colonies—without farther experience as to the necessity of the case; and without intending to trouble your Lordships at greater length, having very shortly stated those grounds upon which I think this plan is objectionable in the first place, and wholly unnecessary in the next place, I shall venture to submit to your Lordships the propriety of expunging the 30th clause and the following clauses dependent thereon. I do not at present propose to include the 35th clause, because that is a wholly different question. I wish at present merely to reserve to each of these colonies in the Australian group, as in the West Indian group, and as in the North American group, independent and separate legislatures, and to leave the establishment of any superintending authority to some future Parliament, which shall have a full knowledge of the facts and information as to the steps which the colonies themselves desire to be taken on this subject. My Lords, I move that the 30th clause, and those which have relation to the constitution of the general assembly, be expunged.
EARL GREYtrusted that the House would not adopt this Amendment. These clauses were proposed under a conviction that there were common interests upon certain subjects among these different colonies which would require almost immediately to be considered by some common authority. For instance, an Act had just come home from New South Wales, by which, following the example of this country, a uniform low rate of postage—2d. or 3d. he believed—would be established over the whole of that colony; in the absence of any common authority, this would lead to embarrassing questions between New South Wales and Victoria, if there was any division upon the subject. The same remark would apply to an Act which New South Wales had passed, granting a sum of money for the encouragement of steam navigation; and, unless there could be some delegation from the different legislatures in order to the discussion of matters of this kind, and if every thing was to be done by correspondence, a settlement of such affairs would be almost impracticable. He was, therefore, fully persuaded that nothing could tend more to the advantage of those colonies than the establishment of such a general body as that proposed by the Bill. In the West Indies formerly there existed a general legislature

1221
for the Leeward Islands; and its re-establishment was highly desirable, but it had been prevented by circumstances. There was another object which made some general authority desirable, namely, the constitution of a court of appeal, there being no effective appeal except to the Judicial Committee here; and the expense and delay of a reference here in every case, had frequently been matter of complaint. Now, a single colony could hardly constitute an effective court of appeal; but if the colonies were joined together, so as to have some common authority, there would probably be no difficulty in establishing a system by which the chief justices of all should meet together and constitute a court of appeal for the whole, in the manner often proposed in reference to the West Indies, where, however, there was no mode of bringing the colonies together upon the matter. It would be observed that the general assembly was only to act for those colonies that desired it. He (Earl Grey) thought it probable that, in the first instance, it would act only for New South Wales and Victoria, which would have, in many respects, such intimate relations; in order to maintain a common tariff and the existing facilities of intercourse arising from the absence of intercolonial customs duties, it was probable that these two colonies might create some authority of this kind for themselves. It was only with certain subjects that this general assembly was to deal; and in consequence of the discussion the other evening, he had prepared an Amendment which he would move that evening, or on the report, if there should be previous notice of it, enabling any legislature applying to be included in this arrangement to require to be included only for certain purposes. Thus, with regard to Van Diemen's Land, it was improbable that the people there should wish to be included in a customs union with the other colonies, being separated by sea, and the productions being different; but, for postage, a court of appeal, and some other purposes, a union would be desirable. The noble Lord objected to the wide authority which was to be given to Her Majesty's Government. The mere formal regulations as to the manner of electing to the general assembly parties who, in the first instance, would probably be little more than commissioners from the different legislatures to regulate certain matters of common interest, might surely be left to the Government for the
1222
time being; certainly, if the noble Lord (Lord Stanley) should again succeed to the office which he (Earl Grey) at present held, much as he differed from the noble Lord on many points, he should not have the slightest objection to see these regulations determined by the Government in the first instance; and the moment the new assembly should be created, it would be empowered to revise and alter the regulations. With regard to the conflict of authority, it was scarcely possible to constitute a system of this kind without some danger of that; the only way of providing for it seemed to be, that the general assembly should decide in the first instance, and if they exceeded their power there should be a reference to Her Majesty in Council, which would be a reference to the Judicial Committee. If the general assembly should hereafter constitute an effective court of appeal, questions arising between the different colonies might be determined on the spot by that court, as similar questions were, he believed, decided in the United States. The noble Lord had objected to the mode in which the power was to be divided between the different colonies. It would be wrong to give entirely an equal weight in the united body to each province, whatever its population; and it would be equally unjust to go by mere numbers, in which case New South Wales would, for the present, have an overwhelming preponderance. In the United States the difficulty was met by having two houses—one elected in proportion to the population; while, to counteract the influence thus given, the other chamber consisted of an equal number of representatives for each State; so that, in the senate, the little State of Rhode Island had as much weight as the great State of New York. In this case, it would be inconvenient, from the distance, that a large number of persons should be deputed to the assembly in the first instance. In arranging the general assembly for the Australian colonies, they had endeavoured to combine these two principles as far as could be done in the case of a single chamber. They believed that the body would necessarily be very small in the first instance, and that it was, therefore, not desirable to divide it into two chambers; and, accordingly, with a view of not giving too much weight on the one hand to mere population, or on the other to the separate provinces, however small they might be, they had made a rule half way between the two

1223
principles, so as to give a certain weight to each colony, first, as a separate province, and, secondly, according to its population. In order that their Lordships might know the probable numbers that the general assembly would receive from each colony, he might state that, according to the latest accounts, the population of the several colonies was as follows: New South Wales, when Victoria was taken from it, would contain 171,000 inhabit ants, and would, therefore, be entitled to four members as a separate colony, and to eight members additional for population, or twelve members in all. Victoria had 51,000 inhabitants, and would therefore have four members as a separate colony, and two for population, or six members in all. South Australia had 49,000 inhabitants, and would also have six members. Van Diemen's Land had a population of 70,000, and would have seven members; so that it was clear that no colony would have an overwhelming influence in the assembly. Besides, it should be recollected that this provision would only come into operation at the desire of the local legislatures; it might very likely be limited to two or three in the first instance, but his firm conviction was, that for certain purposes some such common authority was necessary. Sir C. Fitzroy expressed an opinion so long ago as 1846, that this was a matter requiring to be considered. It was not unprecedented. The noble Lord said nothing of the kind had ever been heard of before; but there was a remarkable example of a similar institution being proposed in the early history of our American colonies. Long before the American war something of the kind had been adopted in that country; and Franklin had the following passage upon it:—
"In 1754, war with France being again apprehended, a Congress of Commissioners from the different colonies was by an order of the Lords of Trade to be assembled at Albany, there to confer with the chiefs of the Six Nations, concerning the means of defending both their country and ours. In our way thither I projected and drew up a plan for the union of all the colonies under one Government, so far as might be necessary for defence and other important general purposes. As we passed through New York, I had there shown my project to Mr. James Alexander and Mr. Kennedy, two gentlemen of great knowledge in public affairs, and, being fortified by their approbation, I ventured to lay it before the Congress. It then appeared that several of the commissioners had formed plans of the same kind. By my plan the general government was to be administered by a President General, appointed and supported by the Crown; and a Grand Council to be chosen
1224
by the representatives of the people of the several colonies met in their respective assemblies. The plan was agreed to in Congress, but the assemblies of the provinces did not adopt it, as they thought there was too much prerogative in it; and in England it was judged to have too much of the democratic. The different and contrary reasons of dislike to my plan makes me suspect that it was really the true medium, and I am still of opinion it would have been happy for both sides if it had been adopted. The colonies so united would have been sufficiently strong to have defended themselves; there would then have been no need of troops from England; of course the subsequent pretext for taxing America, and the bloody contest it occasioned, would have been avoided."
His (Earl Grey's) firm conviction was, that if these clauses were adopted, they might not make any extensive or very important alteration in the first instance, but they would be the beginning of a system which would swell and develop itself with the growing wants of these colonies, and tend to bind them into one great nation, intimately and closely connected with this, and subjects of the British Crown. He believed, that if we did not provide, before difficulties and disputes and questions arose, some mode of solution, we should have infinitely greater difficulty afterwards in bringing different parties to concur in some arrangement that would be fair to all.
LORD WHARNCLIFFEsaid, that notwithstanding his willingness to support the noble Earl (Earl Grey) in other parts of this Bill, he still thought there was great force in the arguments used by the noble Lord (Lord Stanley), though the alterations now made in the Bill had considerably mitigated the objections he entertained to this provision. It was not to be doubted that a considerable time must elapse before this part of the Bill could be brought into operation. He entertained a strong objection to such premature legislation as the Bill exhibited. He saw no reason for passing a Bill in 1850 for the regulation of points on which it would always be competent for the colonists hereafter, when the proper time arrived, to make application to the Imperial Government. But, besides its being premature, it appeared to him that the mode of constituting this assembly was objectionable in another and a very important point of view, inasmuch as their Lordships could scarcely know from the Bill what the fabric was they were about to erect. They were, indeed, about to provide that the delegates when appointed should proceed according to the regulations laid down in the measure; but

1225
where was it provided that to these regulations they should adhere? For so soon as they were assembled they might proceed to exercise the powers contained in the 31st clause, which provided that it should be lawful for the federal assembly to supersede or alter the rules, and to increase or reduce the number of its members. He was well aware the Colonial Secretary meant that the federal assembly should be elected according to the provisions of this Act; but yet he (Lord Wharncliffe) feared, from the manner in which the Bill had been drawn up, that their Lordships were about to establish, before it was needed, an assembly, which so soon as it was established would have the power of altering its constitution altogether. For these reasons he thought it desirable that this portion of the Bill should be postponed to some future period, when their Lordships might be better able to judge of the sentiments of the colonists on the subject than they were at present.
EARL GRANVILLEunderstood that some noble Lords objected to the measure as premature; but he begged to remind their Lordships of the topics to which the noble Earl (Earl Grey) had alluded—the postage question, and differing customs duties. He (Earl Granville) thought that uniformity in those matters would be highly desirable; and to secure this object alone proved the necessity for immediate legislation. The intention of the clause was to give the colonists the option of sending delegates to the general assembly. With regard to the power given to the general assembly by Clause 31, to supersede or alter the rules prescribed concerning the election of members of the house of delegates, and the conduct of the business of the assembly, he thought it would be impossible for the assembly to work unless it possessed powers of that description. The noble Lord opposite had on this and other occasions strongly objected to the proviso that no such law should take effect until it bad been confirmed by order of Her Majesty in Council; but he (Earl Granville) considered it advisable to leave with Her Majesty the power, acting under the advice of Her Ministers, of approving, or disallowing, or modifying any changes in the colonial constitution which might be adopted by the assembly.
The EARL of HARROWBYthought the objects proposed by the creation of a federal assembly would be attained as well by a meeting of commissioners from each
1226
colony; an expedient which, if adopted, might remove the objections brought against the present plan.
EARL GREYobserved, that Clause 32 very clearly defined the objects for which the assembly were to meet. He thought it would be unfair that New South Wales, which had three times the population of Victoria, should have no more weight than the latter colony in the representation. He was anxious that the Bill should as far as possible guard against local jealousies amongst the colonists, because jealousies of that nature would prevent any arrangements being come to which had for their object the general good.
LORD KINNAIRDconsidered that their Lordships had sanctioned a very dangerous measure in assenting to that clause of the Bill which established only one legislative chamber in each of these colonies; for ha believed that the very first thing the colonists would do would be to endeavour to alter that constitution. He believed the object of the colonists would be to get rid of the Government nominees; and if they succeeded in that object, and applied to the Home Government to confirm the new constitution, it might be found very difficult to refuse their request. He thought there would be great danger in passing the 31st clause, for it would virtually give the whole control of the government of the colonies to the Colonial Secretary for the time being. He believed that few of their Lordships entertained more liberal opinions than he did; but he had some fear of democracy, and especially when he considered the source from which the population of many of the Australian colonies had sprung. He feared that if this Bill passed, some of their Lordships might live to rue the day when they had given power to a convict population—for that was the character of the population in some of these colonies—to form constitutions according to their own views. He hoped, however, that his fears on this head might be groundless, not only for the sake of this country and of our colonial empire, but for the credit of the noble Earl at the head of the Colonial Office, whom he considered, from his comprehensive views, as a statesman peculiarly fitted for the present day; and he should regret that the name of that noble Earl should be coupled with any measures relating to the colonies which proved unsuccessful. The noble Earl had, in his opinion, effected a great improvement in the Bill by the alteration he had

1227
made in the franchise; and he thought the measure would not be damaged if the noble Earl would consent to postpone these clauses, if not to omit them altogether.
LORD LYTTELTONsupported the Amendment, and contended that the proposal for a federal assembly was contrary to the feelings of the colonists. They were evidently unripe for the creation of such a body. But it was said the creation of a federal assembly was merely permissive. This was by no means clear on the face of the Bill; but whether that were so or not, he contended that, in the circumstances of the Australian Colonies, an assembly of such a nature could not work well. He advised their Lordships to wait until there was a necessity for a federal assembly before they consented to its creation; let them wait until the colonists themselves said they wanted it—until they said they could not meet the case by voluntary delegation.
On Question,
Their Lordships divided:—Contents 23; Non-Contents 22: Majority 1.

List of the CONTENTS.

MARQUESS.

Limerick

Lansdowne

BARONS.

EARLS.

Byron

Carlisle

Dormer

Granville

Dunally

Grey

Erskine

Lismore

Eddisbury

Minto

Foley

Morley

Lovat

Oxford

Langdale

Shaftesbury

Overstone

Waldegrave

Say and Sele

BISHOPS.

Seaton

Down

Clause agreed to.
EARL GREYstated, that he intended, on the report being brought up, to move the addition of a proviso to the clause, enacting that when the Legislative Councils of any Colonies in their address for the establishment of a General Assembly desired that certain subjects, so far as these Colonies were concerned, should be excepted from the decision of that Assembly, the General Assembly should not have power to make laws on such subjects affecting those Colonies.
LORD STANLEYsaid, it was quite obvious that such a clause would introduce unnecessary complication. The General Assembly, under it, would be placed in this position, that with regard to some Colonies it would have the power of legis-
1228
lating only on post-office matters, in four or five on commercial affairs, and on all other matters with regard to the rest. From each of those Colonies gentlemen would be sent to the General Assembly, with powers to vote on some questions, but not on others; consequently, there would be perpetual doubt as to the subjects on which they were enabled to exercise their privilege. He would not, however, discuss the clause now, but on a future stage he would state his objections to it. At present he only called their Lordships' attention to the complication it would introduce.
LORD REDESDALEalso objected to the clause, and asked if the assent of the Governor General would be necessary to the validity of the acts of the General Assembly.
EARL GREY: Undoubtedly.
On Clause 31, empowering the General Assembly to make certain laws.
LORD STANLEYsaid, that one of the objects of this clause was, to give the General Assembly power to enact laws for the formation of roads, canals, or railways, traversing any two or more of the Colonies. Now, would the noble Earl say that, in the event of establishing a railroad between Victoria and New South Wales, for instance, the Colonies of Van Diemen's Land and Western Australia should contribute towards the expense of its construction in proportion to the revenues of each colony? In that case, the contribution of Victoria would be very small, whilst that of Van Diemen's Land, which would have no interest in the work, would be very large indeed. Surely the Noble Earl would not give power to the General Assembly to tax the whole of the Colonies for a purpose of that sort.
EARL GREYreplied, that that power would only be exercised for purposes of common interest.
LORD STANLEYsaid, that one of the powers of the General Assembly was the establishment of lighthouses upon the coast. Now, what advantage would Western Australia gain by the erection of a lighthouse upon the coast of Sydney, that she should be taxed for it? Their Lordships might as well say that this country ought to be taxed for the erection of a lighthouse at Constantinople. Yet it was proposed that for all works of this description the General Assembly should have the power of taxing all the Colonies to the full extent of a per centage upon their revenue.
EARL GREYdid not understand the clause quite in that manner. The General Assembly would have a power to appropriate from the revenues of all the Colonies all sums required for common purposes.
The EARL of HARROWBYcontended that there was no sufficient identity of interest to render such a power acceptable to the Colonies, and that it would be liable to abuse in various ways.
EARL GREYobserved, it was hardly possible, in creating a new authority like a General Assembly, to devise words which would prevent all abuses that might be suggested; but it was the general object of the Bill to create a representative power which would deal fairly by the whole country. The General Assembly would be empowered to make appropriations for the benefit of particular districts; at the same time, he admitted it might be necessary to add a proviso to the clause, to provide that, where all the Colonies did not derive an equal benefit, they should not be called upon for equal contributions. The clause, however, would be printed, and their Lordships would then be better enabled to consider its provisions.
LORD STANLEYwould suggest another point for the noble Earl's consideration. Suppose a railway was proposed to be made between New South Wales and Victoria. The principle laid down was, that each colony should be taxed in proportion to the interest they had in the undertaking; consequently the colonies not interested in it would not be taxed; but still the delegates from Western Australia, Van Diemen's Land, and South Australia would all vote aye or no whether the railway should be made, though they would bear no portion of the expense. In other words, the colonies which would derive no benefit from any particular undertaking, would yet have a voice in its construction.
LORD LANGDALEsuggested that the words "should be charged in such proportion in each colony, as shall be determined upon by the General Assembly," would meet the difficulty.
The EARL of HARROWBYobjected to the delegates from one Colony having the power to vote on the internal affairs of another.
The EARL of CARLISLEcontended that the objection just raised by the noble Earl might apply, if it had any reality, to the case of English and Scotch Members sitting upon an Irish Railway Bill. They
1230
had no interest in the construction of a line of railway in Ireland, yet they voted upon that question according to their convictions of public benefit.
Clause agreed to.
On Clause 35, which gives power to Governors and Councils, with the assent of the Crown, to alter the constitution of the Legislative Council,
EARL GREYproposed a verbal Amendment, intended to limit a power which he perceived the clause, as it at present stood, conferred upon the local assemblies, of excluding the nominee Members from their seats. He believed the wording of the clause extended further than he intended, and he proposed to alter it, so that the particular points on which the Colonies should be at liberty to make alterations in the constitution should be defined by Act of Parliament.
LORD STANLEYsaid, the alteration did not altogether remove his objection to the clause; but he should wish to have the opportunity of considering whether or not he ought, under the circumstances, to waive it. But by assenting to the clause now he must not be understood as precluded from raising the question on the report, when it was probable that the question would be again raised which had just been decided by a majority of one vote, as to the propriety of introducing the General Assembly.
In reply to Lord HATHERTON,
EARL GREYexplained that the effect of the clause was to give to all the Colonies a general power of reforming their own constitutions, but such reforms were not to come into operation until sanctioned by Her Majesty.
LORD STANLEYsuggested that as by this clause they were giving to each Colony the power of varying its constitution, it might make some difference in regard to the election of the delegates to the General Assembly. In one Colony there might be one legislative body, in another two. One set of delegates might represent one chamber wholly elected, another an elective body of two chambers, and a third might represent two chambers partly elected and partly nominated. How was this difficulty to be met?
Clause, with verbal Amendments, agreed to.
Remaining clauses agreed to.
House resumed.
House adjourned to Monday next.