§ Order of the Day for the House to be again in Committee, read.
§ House in Committee.
§ Clauses 26 to 29 agreed to.
said: 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 1218 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, &cThe 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 1220 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 GREY
trusted 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 WHARNCLIFFE
said, 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 GRANVILLE
understood 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 HARROWBY
thought 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 GREY
observed, 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.
considered 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 LYTTELTON
supported 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.|
|Waldegrave||Say and Sele|
§ Clause agreed to.
§ EARL GREY
stated, 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.
said, 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 REDESDALE
also 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.
§ On Clause 31, empowering the General Assembly to make certain laws.
said, 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.
said, 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.
§ The EARL of HARROWBY
contended 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 GREY
observed, 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.
would 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 LANGDALE
suggested 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 HARROWBY
objected to the delegates from one Colony having the power to vote on the internal affairs of another.
§ The EARL of CARLISLE
contended 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 GREY
proposed 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.
said, 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,
suggested 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.