Lords Sitting of 31 May 1850

MINUTES.
PUBLIC BILLS.—1a Court of Chancery (Ireland); Elections (Ireland); Exchequer Bills; Incumbered Estates (Ireland) Act Amendment; Process and Practice (Ireland) Act Amendment; Sheriff of Westmoreland Appointment; Court of Chancery (County Palatine of Lancaster).
2a Sunday Fairs Prevention; Distress for Rent (Ireland); Australian Colonies Government.
Royal Assent.—Alterations in Pleadings; West India Appeals; Defects in Leases Act Amendment; Process and Practice (Ireland).

DISTRESS FOR RENT (IRELAND) BILL.
The EARL of LUCAN The EARL of LUCAN moved the Second Reading of this Bill. By an Act of the 53rd of George III. the power of distraining growing crops for arrears of rent was given to the landlords of Ireland. In the year 1843 that Act was repealed by another, which was passed on the 28th of August, when a majority of the noble Peers connected with Ireland had returned to that country. The object of this Bill was to re-enact the Act of George III., and to restore a statute which had seldom or ever been used, and which certainly had never been abused. That statute was, in point of fact, a dead letter; but the knowledge of its existence had been sufficient to secure the payment of his rent to the landlord. It was desirable that it should be renewed, for its repeal was uncalled for, and had been most injurious to the peace and tranquillity of the country. Tenants now reaped their crops on Sundays, and then removed them by night for the express object of robbing their landlords. He then read several extracts from the Irish papers to show the extent to which these depredations had been carried. The power of distraining growing crops was given to the landlords of England. Now, if such a law were necessary in this country, it was still more necessary in Ireland, where the landlord had to pay rent for his smaller tenants, and was liable for arrears of rates, which was not the case in England. In England, a landlord could get rid of a tenant who was six months in arrear. Not so in Ireland. The Irish landlord ought, therefore, to have the same remedy against growing crops as the landlord had in England.
The MARQUESS of LANSDOWNEwas not prepared to pledge himself to support this Bill in all its details; but it was only fair to the noble Earl who had introduced it to allow it to be read a second time. Some remedy, but he would not say this remedy, ought to be applied to the grievance of which the noble Earl justly complained.
After a few words from the Marquess of WESTMEATH and the Earl of GLENGALL in support of the Bill,
Bill read 2a, and committed to a Committee of the whole House on Tuesday, 11th of June.

SUNDAY TRADING PREVENTION BILL.
Order of the Day for the House to be put into Committee read.
The EARL of HARROWBY The EARL of HARROWBY moved that their Lordships should go into Committee on this Bill, and he proposed to postpone arty statement he might hare to make respecting it till another stage.
LORD BROUGHAMsaid, no man was more anxious for the success of a measure of this kind than himself, and his fear was that if they attempted to do too much—if they held the rein too tight—they would defeat the purpose which they had in view, and render the consecration or the duo observance of the Sabbath what it never ought to be—an unpopular thing. There were many details in the Bill which to him seemed somewhat inconsistent. Why was the operation of the measure to be confined to the metropolis? That was a limitation which he could not understand; for if it was good for London, it would surely be equally beneficial for other towns in the empire. If milk and cream were allowed to be sold, why should tea, coffee, and sugar be prevented? Then, with regard to shaving and hair-dressing, those operations were to be made lawful before ten o'clock in the morning, but after ten they were to be prohibited under a penalty. Why should the sale of newspapers be sanctioned on the Sabbath, while that of Bibles, Prayer Books, &c., was prohibited? Bell's Life in London might be bought, and people might read, to their great admiration, the betting on the Derby and the Oaks—people might buy that and welcome; but if they wanted to buy a Bible or a Prayer Book, to go to church with, they were prohibited. He hoped that these considerations would attract the attention of those who took an interest in these questions, and that they would see the propriety of reconsidering many of those points which appeared to him to have been hitherto very ill-considered, for he must remind their Lordships that this was only the beginning of these innovations. It was only yesterday that he observed, from the Votes of the House—which was incredible, but true—an Address had actually been voted, and by a large majority too, which was most incredible, if anything could be incredible, that all Post Office proceedings should be suspended for twenty-four hours, and that all mails should be stopped during Sunday. ["No, no!"] Yes; that was the object of the Address.
The EARL of MOUNTCASHELL: That has nothing to do with this Bill.
LORD BROUGHAM: Did the noble Lord suppose he was such an idiot as not
494
to know that? He wondered what was the measure which the noble Lord took o his understanding when he supposed that he did not know that. He knew it was not in this Bill. But his fear was that some measure to that effect would follow this Bill. If a majority of Parliament could be found to pass such a monstrous, such an outrageous, address—he dared to say the noble Lord thought lhs meaning-was that he had the greatest respect for these men. No! What he said was—the utmost possible respect; which meant the utmost respect that it was possible for him to feel for such men; and he believed that was as high as was entertained for them by any one of their Lordships. But if the mails were to be stopped, all ships must be stopped too, he supposed. There would be no occasion for their sailing. They must lay to during Sunday; for some men seemed to think that idleness was the best way of keeping the Sabbath. He must say that if they went on in that course of legislation, instead of keeping the Sabbath-day holy, nothing would tend more to its desecration. He would only state farther, that he had been in many parts of Scotland—he had been in Germany—he had been in many Catholic countries, and he would take upon himself to assert as a fact—after comparing notes with many of his friends who had travelled in these countries, he found they agreed with him—that there was no country in the world where the Sabbath was better kept than in England; and he would do the city where they were met the justice to say, that, except in some of the towns of Scotland, he knew no great city where the Sabbath was less broken than in London.
The EARL of HARROWBYadmitted that his noble and learned Friend was anxious to promote the object which he himself had in view, but asserted that his noble and learned Friend would not have used the language which he had used if he had received that information which he (the Earl of Harrowby) had received, and had listened to the complaints made by the tradesmen of the metropolis on this subject to their Lordships' Committee. Many of those who supported his Bill were not engaged in business, and supported it because they wished to go themselves into the country for recreation on Sunday; and because they wished to enable others to have the same opportunity. He could assure his noble and learned Friend, that among the labourers residing in the poorer

495
and lower districts of the metropolis, there was more business done on a Sunday morning than on any other day in the week. Referring to the observations which his noble and learned Friend had offered upon the clause excepting the sale of newspapers and some other matters on the Sunday from the operation of this Bill, he remarked that his desire was to err on the side of indulgence rather than on that of severity. The Bill was intended to put a stop to all that was useless, and to leave room for everything that was necessary. Even the publicans, on whom this Bill appeared to press with some severity by closing their houses till one o'clock on Sunday, had come forward to petition for this Act. He hoped, therefore, that his noble and learned Friend would withdraw his opposition to this Bill, and allow it to rest on its own merits, and not on the merits of another Bill totally unconnected with it. He hoped that his noble and learned Friend would allow him to go into Committee, in order that he might introduce certain clauses to amend the Bill.
The EARL of ELLENBOROUGHsaid, he was most anxious to prevent the desecration of the Sabbath as far as possible, but he was afraid the present measure was calculated to inspire a spirit of resistance that was likely to do considerable harm. He admitted the great grievance caused by these Sunday fairs; but if they passed this Bill, giving an arbitrary power to the police, under which any single policeman could, at his own discretion, seize any booth in one of these crowded fairs or markets, the probability was, that resistance and breaches of the peace would be the consequence. He had no doubt but that the root of all this evil originated in the late payment of wages on Saturday evenings, and, that if an arrangement were established by which workmen would be paid on Friday night, much of the desecration of the Sabbath which now prevailed would be prevented. When a man was allowed to remain in the public-house until twelve o'clock on Saturday night, and was then prevented from purchasing necessaries, it was obvious that breaches of the Sabbath would take place. He was quite sure that if they went into Committee on this Bill, they would find that considerable amendments were necessary, and that the Bill, as it now stood, would be found very defective.
The BISHOP of ST. ASAPHhoped their Lordships would not suppose that the Bill had been introduced incautiously, and without
496
mature deliberation. It was founded on the Act of Charles IL, the difference between the two Bills being, that the present one was to be carried out by the police, whereas the old Act was entrusted to the parish officers. With regard to the alarm of the noble Earl, lest riots should take place, he had only to say that the matter had been submitted to one of the commissioners of police, who stated that he considered there would be no difficulty whatever in carrying the law into effect. He had himself seen one of these fairs two years ago, and a scene more disgraceful and disreputable he had never witnessed. In some parts of Lambeth, Seymour-place, Camden-town, and other places, the thoroughfares were completely obstructed by Sunday morning traffic. He considered that the Bill would prove a blessing to the country, and it should be considered that it only gave the police the same power with regard to obstructions in these fairs which they already possessed in the case of obstructions in the fields.
EARL GREYsaid, he was disposed to view legislation of this kind with some suspicion, but he thought that a fair case had been made out for this Bill. The great body of the public appeared to be in favour of the Bill, and it was in evidence that many persons opened their shops against their own inclination. With regard to the dangers to be apprehended from the Bill, he thought they would be considerably diminished by its being placed in the hands of the metropolitan police.
The EARL of ST. GERMANSconsidered that Parliamentary interposition on this subject was absolutely necessary. At present markets or fairs were regularly held on the Sunday in different parts of the metropolis; and this practice was most detrimental, not only to the comfort but to the health of large numbers of tradesmen. There was no doubt as to the feeling of tradesmen on the subject, for in many parts of the metropolis meetings had been held by persons of that class, at which resolutions had been adopted calling upon Parliament to prevent Sunday trading. He considered that nothing was more likely to lead employers to pay their servants' wages on the Friday night or early on the Saturday than the adoption of a measure of this kind.
The EARL of MOUNTCASHELLobserved, that this Bill had not originated with the noble Earl by whom it was introduced,

497
but had been suggested by the shopkeepers themselves, and that it had met with no opposition, except from a small section of Chartists.
Their Lordships then went into Committee, and the first clause was agreed to.
On Clause 2,
LORD BROUGHAMdid not see why, in the list of perishable articles, the sale of which was to be permitted, cream and butter should not be included. Their Lord ships must be aware that Sunday's cream was the produce of Saturday's milk.
The EARL of ELLENBOROUGHobserved, that when he had suggested that the sale of bread and butter should be allowed on the Sunday, he was me* by the objection that those were not perishable articles. Now, he wished to ask the noble Earl who had charge of the Bill whether he considered a periodical newspaper duly stamped a perishable article?
The EARL of HARROWBYsaid, of all perishable articles a newspaper was the most so, for it died with the day.
Clauses agreed to.
House resumed.
Report to be received on Monday next.

AUSTRALIAN COLONIES GOVERNMENT BILL.
Order of the Day for the Second Reading read.
EARL GREYhoped he might be now allowed to call their Lordships' attention to the very great importance of the measure, to the second reading of which he had to ask their Lordships' concurrence. The object of the Bill was to provide for the future government of the colonies of Australia—colonies which were already becoming large and important, and which promised at no distant day to carry the language, the religion, and the civilisation of England over a large portion of the earth. In order that they might fully appreciate the importance of this measure, he thought it right that he should very shortly mention to them the extraordinary progress which these colonies had already made. They were aware that it was very little more than sixty years ago since the oldest of these colonies had been founded, and that for very many years afterwards the colony of New South Wales was merely a gaol or convict prison on a large scale. Van Diemen's Land was not a colony until the commencement of the present century; and the other settlements were all of still more recent date. The first settlers in
498
Western Australia landed in June, 1829. It was not until 1836 that South Australia was founded; while in the great district of Port Phillip the first land sale did not take place until 1838. These settlements had increased both in the wealth and number of the inhabitants, who now amounted to about 300,000 persons. But what was still more remarkable was the progress that had been made during the last twenty years. He held in his hand a return of the population of these colonies for the several periods of 1828, 1838, and 1848. He found that in 1828 the whole population of the British Australian colonies was only 53,500 persons. In 1838 the number had risen to 145,600; and in 1848 it had risen to no less than 333,910. The best test which they had of the wealth of the colonies was afforded by the exports, as the imports were partly fallacious, owing to the amount of necessaries required for the convicts and the Government establishments. He found that in 1828 the exports from New South Wales and Van Diemen's Land, the only two of the colonics then in existence, were 181,500 l. In 1848, after an interval of twenty years, the exports had increased in value to 2,800,000 l, or, in other words, considerably above fifteen fold in twenty years. It was also rather a remarkable fact that the whole population of New South Wales, in 1828, was 36,600, and that in the year 1849, which had just concluded, the number of emigrants who left the shores of this country for the Australian colonies, was no less than 32,000, or actually within 4,000 of the whole population twenty years before. He was sure that these facts would make their Lordships feel still more strongly the importance of a measure which was intended to promote the rapid progress of these colonies in the career of prosperity and advancement which they so steadily pursued, and which was designed to supply not merely the actual wants of the existing state of society in the colonies, but also to provide a constitutional government suited to the future condition of these rapidly growing States, and calculated to meet the wants of societies tending daily to become more numerous and more complex. It was the object of this Bill to endeavour to provide for the good government of these colonies. That being so, it became now his duty to point out to their Lordships the nature of the provisions by which it was intended that that object should be accomplished. In doing so, he wished in the

499
first place to observe, that it was the leading principle of this measure to avoid any great or experimental change. It sought to build—if he might use the expression—on the existing foundations, institutions suited to the wants of the colonies, and which they did not already possess. They were aware, that for a considerable period after the colonies were first established, no regular legal authority or government whatever existed. In fact they were governed by the absolute authority of the governors, just as gaols or prisons would be. Parliament more than once passed Acts to legalise the resolutions of those by whom authority in the colonies was exercised. It was not until 1824 that a more regular form was given to the Government. In that year, Lord Bathurst being Secretrry of State for the Colonies, an Act was passed creating a regular legislative body and jurisdiction in those colonies; and in 1828 this Act was amended by Mr. Huskisson, and subsequent Acts have been passed relating to those colonies. The principle of those different Acts, which have always been temporary, has been to confer legislative authority on the governors, assisted by a council nominated by the Crown. Such was the form of government established which still exists in all those colonies, excepting New South Wales. With regard to New South Wales, the noble Lord opposite (Lord Stanley), in 1842, brought in a Bill which obtained the sanction of Parliament, by which the constitution of the Legislative Council was altered, being composed of two-thirds elective members, and one-third nominated by the Crown. Though this was a government in which in theory it would be easy to point out many objectionable features, still, upon the whole, he thought it would not be denied that, practically, it had not worked in a manner otherwise than satisfactory; and experience had proved that it was not ill adapted to the state of society which existed in the colony. Such being the case, it appeared to him to be an obvious rule of prudence that they should not make any great or violent changes in a system which they found thus established. The working of a constitutional government depended so infinitely more upon its being understood and appreciated by those among whom it was established, than upon the abstract perfection of the different arrangements, and we had seen so much of late years of the manner in which paper constitutions had been
500
swept away, that it would not be prudent to disturb arrangements which on the whole worked well, further than to correct any defects or evils which experience might have pointed out, maintaining at the same time the main features of the system. Such was the principle of the Bill which he now presented to their Lordships. Adopting this course with respect to New South Wales, it seemed to him to follow almost as a matter of course that they should extend the same system to the adjoining colonies; or, to use the words of Sir William Denison, in one of the despatches on their Lordships' table—
"The reasons for doing so may be summed up in the simple fact, that this form of government is established in New South Wales, and that the Australian colonies are so identified with each other, as far as the practical habits of the people are concerned, as to make any changes in the existing system of administration applied to one colony a matter of very doubtful policy."
This seemed to him a good summary of the reasons for extending to the adjoining colonies the system established in New South Wales, and accordingly they proposed that the same course should be taken in their case; that was, the existing legislative councils would be invested with the power of making electoral districts, and taking all the necessary arrangements for bringing the new system into operation; and when these were completed, legislative councils would be summoned, two-thirds of the members of which would be elected by the inhabitants of the colony, and the remaining third nominated by the Crown. There was an additional reason for taking this course. When legislative institutions had been once granted by Parliament to a colony, it was very inexpedient, unless some strong reason existed, that those institutions should be altered without the express and declared consent of the inhabitants themselves; and the papers on their Lordships' table showed that this feeling existed very strongly. Having a constitution, and finding it to work on the whole satisfactorily, they wished no essential change to be made without their own concurrence. It was proposed, however, to correct some faults which experience seemed to have brought to light in the existing arrangements with respect to New South Wales. Of those defects he thought by far the most important was, that there was included under one government and legislature a vast extent of territory, different parts of which presented in many respects distinct

501
interests. Almost from the passing of the Act of 1842, this became a subject of complaint. At the first election for Port Phillip district, one or two members were returned for the legislative council after a short period of residence; but it was soon found that in those infant communities there were not persons possessing the time and wealth to be able to reside for months in the year at a distance from their now concerns. The consequence was, that members representing certain districts in the Legislative Council of Port Phillip, resigned; and at the end of 1845—the measure having only come into operation in 1843—the inhabitants complained that they could find no one of their own body who would consent to make a sacrifice in order to represent them in the council, and they consequently had been compelled to choose the whole six members whom they were entitled to return, from persons resident in the other division of the colony. They complained that the result of this was, that their interests were very inadequately attended to, and, therefore, prayed for the division of the colony. In the first instance this prayer for the division of the colony met with great resistance in New South Wales; but after a time the grievance was found to be so substantial a one that all parties were pretty generally agreed that it ought to be redressed. Accordingly, one of the principal provisions included in the Bill on the table, was for separating the district of Port Phillip from New South Wales, and constituting it into a colony by itself under the name of Victoria. The Bill further contained a clause enabling Her Majesty, on the petition of the inhabitants, to divide from New South Wales the district of Moreton Bay, lying as far to the north as Port Phillip did to the south. This district, of which Brisbane was the capital, was rapidly rising into importance, and no doubt would soon be inhabited by a very large and thriving population. Her Majesty was therefore empowered, by Order in Council, to separate from the colony of New South Wales the territory north of the 30th degree of latitude, being an extension of the existing law, under which Her Majesty was enabled to separate the territory north of the 26th degree. It was another objection to the Act of 1842, that it contained some provisions which were practically a dead letter. He alluded to those relating to the formation of district councils, empowered to administer various local
502
affairs, and provide for the expense of levying rates and assessments. The able and energetic officer who then presided over the Government of New South Wales (he alluded to the lamented Sir George Gipps), found it impossible to bring those clauses into practical operation; and the noble Lord opposite, then Secretary of State, acquiesced in their being allowed to remain in abeyance. He thought it obvious that any part of an Act of Parliament which it was found impossible practically to enforce, ought for that reason, if for none other, to be repealed. At the same time, the more experience we had, the stronger seemed our reasons for believing that some system of municipal institutions, some local organisation, was almost essential for the well-working of any form of representative government; and it was of great importance that, as speedily as possible, arrangements should be made which should prevent the concentration of all powers in the central legislature of those colonies, and give them the benefit of municipal institutions. It had been the opinion of some of the most profound writers on political questions, and the best observers of our own constitution, that much of the vitality of that constitution, by which it had been enabled to come to maturity through many centuries, and maintain itself through all the difficulties and dangers of this long period, was attributable to the way in which the inhabitants of this country had been trained to the duties of self-government by the management of their own local affairs in their counties, towns, and parishes. In America also, the first settlers of the United States carried with them a similar system from this country; and one cause of the prosperity of that great nation might be traced to the effect of those institutions in preparing the people for the exercise of the duties of entire self-government which devolved upon them after their separation from this country; and it was mainly owing to this that they had presented so different an aspect from the Spanish colonics, which, upon the dissolution of the tie that bound them to the mother country, had proved so unequal to the task of maintaining order and a well-regulated system of government. He thought, however, it would be highly inexpedient that the clauses on this subject in the existing Act should be simply repealed, and that was not the course they proposed. The Bill provided that the district councils

503
should come into operation only on the petition of the inhabitants of the district to be placed under their authority. In this particular they followed, as closely as possible, the example of this country. Their Lordships were aware that the charters of our corporate towns were issued by the ancient Sovereigns of this country upon the petition of their inhabitants; and the form which they bore was almost invariably to recite such petitions as had been made to the Sovereign. In the Municipal Re form Act of 1835 this principle was adhered to, and the Crown was empowered to grant charters, on the prayer of the peaceable inhabitants of the town, giving authority to levy rates. In the same manner the colonial governors would be authorised to issue charters to those districts which might apply for them; and he believed that this mode of proceeding would do much to remove the objections felt in New South Wales to such charters. There was something in the nature of Englishmen which made them a good deal easier to lead than to drive; and he believed the positive provision of the Act of Parliament, that such charters should issue, rather created an indisposition to avail themselves of their advantages. But this was by no means the whole extent of their propositions. The existing law required that half the expense of the police should be paid by rates levied on the inhabitants, and also provided that the property of the Crown should be liable to no rates or assessments whatever, the local legislature having no power whatever of interfering or modifying those enactments. In New South Wales the country was very partially occupied, settlers having obtained by grant or purchase the best land over a very great extent of territory, with considerable tracts which still remained the property of the Crown. The charge for the police, roads, and local institutions, being thus defrayed entirely by rates levied on lands alienated from the Crown, fell with great severity on the actual settlers, whilst the benefit to be derived from them was conferred on land in which they had no interest, and which might afterwards be purchased by other individuals. He believed this had been one of the main obstacles to the success of the existing Act of Parliament, and it was proposed to repeal the provisions of the Act which made it binding on the settlers to defray half the charge of the police by rates. He believed it was more judicious and fair, in the actual state of things,
504
that the police should be a charge on the revenue. It was also proposed to give power to the local legislatures to modify, in any manner they might deem expedient, the constitution and character of those bodies. There was also, subsidiary to those provisions, another to which he attached very great importance. Their Lordships were aware of the difficulty of levying rates except in the towns and the old settled portions of the colony. It was proposed to meet this by an arrangement to transfer the appropriation of the revenue derived from the sale of land to those district councils as soon as they should be established. By the existing Land Sales Act, half the proceeds of the sales was to be applied exclusively in aid of emigration from the united kingdom, the residue being set apart for expenses connected with the survey, and the welfare of the aborigines, and other necessary charges. Afterwards, it was intended that those receipts should be applicable to the construction of roads and bridges, and the building of schools and gaols, and for other works necessary on the occupation of a new territory, under the regulation of the district councils. He anticipated that great advantages would arise from this regulation. First, he had always held that the main object of the law which required that land should be sold at a comparatively high price, and not alienated in grants, was not to raise the price, but to transfer the possession of it to such persons as would turn it comparatively to the best advantage. Experience proved that if land were sold at a comparatively low rate, it was generally engrossed by persons who in the colony bore the name of land-sharks. These persons acquired, by one means or another, large districts, upon the speculation that the lapse of years and growth of population would turn them to great account. There was a sort of greed for land in colonies which he believed there was no effectual mode of dealing with, except by placing it at a high price, or subjecting it to very high rates. In America the best land was liable to very heavy rates; but in Australia insurmountable objections were entertained, for the present, at least, to rates. This being the object of the system of selling land, it seemed to him highly desirable that a settler purchasing land should obtain the full value of his money. That portion of the price of land expended on emigration, was undoubtedly thus returned to the settler; for it was population,

505
and population only, which gave value to land in those countries. The money spent on bridges, roads, and public works, was no less directly returned to the settler; and he had no doubt but the purchaser who bought his land at a pound per acre, that pound being spent in the manner he had described, would buy it more cheaply than if he paid 2d. an acre for it, with a general scramble. There had been, from the establishment of a free constitution in New South Wales, a constant struggle on the part of the legislative council against the appropriation of the proceeds of the land sales by authority of the Government. They had always contended, and with a considerable show of justice, that it was alien to the whole genius of representative government that so very large a revenue should be spent on objects over which they had no control whatever, by the mere authority of the Lords of the Treasury. But whilst he agreed that this was a grievance, he was also strongly of opinion that it would not be remedied by simply transferring the power of disposing of those funds to the central legislature. It was where the land sales had taken place that the proceeds of them should be expended for the benefit of the inhabitants of those wild districts—the first pioneers of civilisation—the bold and enterprising men who faced difficulties and privations in uncultivated deserts. They would thus also obtain the contingent advantage of removing the main obstacle to the erection of municipal districts in the colony, and hold out a strong inducement to the inhabitants to petition for the grant of charters. This was the recommendation of the Committee of Council, to which the subject of a constitution for Australia was referred. There was, however, no provision to this effect in the present Bill, because none was necessary, and it would be exceedingly difficult to frame any clause for carrying the arrangement into effect conditionally, or the formation of councils; and under the Land Sales Act there was ample power vested in the Government to carry the arrangement into effect. The Lords of the Treasury could authorise the governors to transfer those funds into the hands of the district councils, as soon as they were formed, and instructions to that effect would be issued. The next defect in the existing arrangements which had attracted much notice, regarded the expenditure of New South Wales. By the Act of 1842, no less a sum than 81,600 l. out of the total
506
revenues arising from taxation, less than 300,000 l. in all, was placed entirely beyond the control of the Legislature, being devoted to the support of religion and to different purposes of the civil government. From the first existence of representative institutions in those colonies, this had furnished a subject of complaint, and he could not but think with considerable foundation in reason. Accordingly they proposed by this Bill to empower the local legislatures tn deal with the whole proceeds of the taxes, reserving certain items which could not be interfered with. The principle on which the Bill proceeded was to settle a very considerable portion of the expenses of the Government upon the revenue, in a manner unalterable, except by acts of the whole legislature, to which, of course, the Crown must be a party. This would be analogous to the charges on the Consolidated Fund in this country, as distinguished from those which were annually voted on the estimates. The colonial legislature was not to be at liberty to alter the salaries of judges during the tenure of office of the existing judges. This showed the soundness of the principle for which Government contended in its dispute with Guiana and Jamaica. Even with respect to future judges, and also appropriations for the support of religious worship, the governor was not to be at liberty to assent to any Acts which might be passed by the colonial legislature, but would be bound to reserve them for the consideration of the Homo Government. He thought it essential, for the future peace and good government of these colonies, that the Executive Government should have the power of refusing its assent to hasty and inconsiderate reduction; but at the same time he was quite prepared to allow that a very wide discretion should be left to the representatives of the colonists in the local legislatures, subject to its qualification, that, as regarded the allowances of judges and public servants, respect should be paid to existing interests. He was convinced that to respect existing interests, would be found in the end the best economy for the colonists themselves. He thought, also, that the Crown ought not to consent to allow any of the more important salaries to be transferred, even after the expiration of existing interests, from permanent charges to annual estimates. In amending the Act as to New South Wales, he proposed to extend the same system to all these colonies; but with regard to Western

507
Australia, he should observe that the operation of this Bill was made contingent on that colony being prepared to meet the expenses of its civil government. He thought there could be no doubt of the justice of the principle that the advantages of self-government should be granted only when there was a disposition to undertake the burdens accompanying them. Another important provision was for the establishment of a general assembly for the Australian colonies, thus providing the machinery by which the inhabitants of those vast territories would be enabled to meet and combine for common objects. It was a curious circumstance that in the former history of our American colonies, the necessity of furnishing a general assembly was felt, even before the breaking out of those disturbances which ended in a revolution. So long ago as the year 1754, a sort of voluntary congress was called together; and the celebrated Dr. Franklin prepared a plan for giving greater regularity of form to that assembly. His own belief was, that if a regular congress had been at that time created, far from having had the effect which those who promoted the scheme expected, of hastening the period of the separation from the mother country, it might have been the means of averting that which afterwards took place, or at all events of giving it a manner less repulsive than that which produced a disastrous and expensive war. His belief was, that if on the one hand such a policy had been adopted with regard to those colonies, the Home Government would not have taken an unreasonable and violent course, which could lead to nothing but separation; and, upon the other hand, if they had been ruled upon a system of moderation and wisdom, all motive for separation upon their part would have been taken away. But be this as it might, he was persuaded that a necessity existed for the creation of some such joint authority. It might not, however, come into immediate operation, and upon the whole he was inclined to think it would not; for some considerable period must elapse before the necessity became so strong as to overrule all the local interests, prejudices, and passions, which, in the first instance, he knew would be arrayed against any such scheme of union; but in the nature of things no very great length of time would pass by before circumstances would cause such a system to come into operation. It was highly desirable, therefore, that Parliament should now provide for a necessity
508
thus foreseen. At the same time, whilst it was desirable that this necessity should be provided for, it was equally right that the formation of any such general assembly should not be rendered imperative upon the colonies. For the same reason that he had stated with respect to the district councils, he believed that prescribing such an assembly, and making it imperative, would rather tend to create resistance; and it was, therefore, proposed by the Bill that it should be entirely voluntary. All that was proposed was, that Her Majesty should be empowered to commission the governor of one of the colonies, as Governor General of Australia; and the officer so commissioned would be enabled, upon receiving an address from two or more colonies, to call together an assembly with authority to legislate upon certain points for those colonies which concurred in the address. This was the extent of the provision; and he trusted that the House would see the propriety of sanctioning it. The Bill contained one provision of a novel character, as compared with the Act of 1842, to which it was necessary he should call attention. It was the clause which enabled the legislatures it was proposed to create, to be enabled to make, if they thought fit, subject to certain conditions, changes in their new constitution. He was fully aware of the importance of such a clause; but, without it, he had no hesitation in saying that the Bill was most materially imperfect. [Lord STANLEY: Hear, hear!] The noble Lord cheered the expression, by which no doubt he meant the opinion that such a provision was novel in its character; but he would find the same view and the same opinion most distinctly expressed in the report upon which the Bill was founded. He (Earl Grey) adhered to the opinion for this reason—that whilst the form of government now existing in New South Wales, which it was proposed to extend to the other colonies, was well adapted to the existing state of society in those Colonies, he could not doubt they were advancing with giant steps in wealth and population—that society was becoming every day more numerous, more comfortable, and more wealthy; so that no long time could elapse before it would be necessary to modify the arrangements to the growing wants of such a growing society. He firmly believed that the power of making these modifications might safely be left to the colonies themselves. When free institutions

509
had been once recognised in the colonies, they ought not to be lightly altered by Parliament without the desire and sanction of the local legislatures. Reforms should not be pressed upon them unless they were absolutely required. Party considerations might have influence at home; and there were many reasons why the intervention of Parliament to effect such modifications as might be required from time to time, might, in the highest degree, be inconvenient and imprudent. But Parliament, he thought, should retain a check over such alterations, and the Bill was drawn in such a manner as to maintain that principle. It was provided, for example, by one of the clauses, that no Bills making constitutional changes should come into operation at once by the assent of the governors. The governors would be bound to reserve them for the express signification of Her Majesty's pleasure; and Her Majesty was not empowered to signify Her pleasure until the Bills had lain for thirty days upon the tables of both Houses of Parliament.
LORD STANLEYasked what power of interference either House would have under such circumstances?
EARL GREYreplied, the same power which the House of Parliament now had of interfering upon every subject disposed of by Her Majesty, with the advice of Her constitutional advisers. They would have the power of interposing a check by an address to the Crown. [Lord STANLEY: Oh, oh!] The noble Lord might think that mode of intervention insufficient; but, in his opinion, it would be ample, and it ought not to be carried further. He had already urged that modifications of constitutional arrangements could best be made in the colonies themselves, and this was obvious from the clear impossibility of Parliament being able to judge so well as the colonists themselves upon what the wants of society might be. And this inconvience would be specially felt—that the distance of the colonies, and the length of time required for communication with them, rendered it quite impracticable for modifications of the constitution to be decided here without great danger. But if he entertained this opinion originally, at the time when he concurred in the report of the Committee of Council upon which the Bill was founded, his views had been greatly strengthened by recent proceedings since the measure had been under the consideration of Parliament. He could not but perceive that
510
even among those who were the greatest sticklers for what they called colonial self-government, there was a great disposition—with regard to the manner in which self-government should be carried on, and the form of institution under which it should be worked—to impose their own peculiar theories (ho might almost say their own peculiar crotchets), upon the colonies, with extremely little reference to the wishes and opinions of their inhabitants. He had now completed what he feared had been a somewhat tedious explanation of the main provisions of this important measure; and he had, before he concluded, but little more to add, except that he felt himself justified in assuring the House that the Bill had been accepted in the colonies with a proportion and degree of general assent far beyond what he had ventured to anticipate. Their Lordships were aware it followed very closely, indeed, the recommendations in the report of the Committee of Privy Council, which was laid upon the table last year. That report, and the Bill itself (which had been before the other House of Parliament last year), had been sent to the colonies and there published. They naturally excited a very great amount of discussion and much interest among all classes; and he was enabled to assure the House, from a careful examination (as far as it was possible to judge) of public opinion in all the usual modes of ascertaining it—from the proceedings at public meetings, and the language of newspapers in the greatest circulation, that in general the measure had met with almost unanimous approbation. It was true that upon various points contained in it, there had been differences of opinion. Some had recommended alterations in one direction, and some in another; but, taking the measure as a whole, he was authorised to state that it had been received with general satisfaction. It had not been loss well received by persons in this country who were closely connected with the Australian colonies. The petition he had that night presented, which was precisely similar to another presented to the other House, was signed by all, he might say, of the most eminent mercantile firms engaged in the Australian trade. At all events, it was signed by a large number of persons deeply interested in the prosperity of those colonies; and those petitions had been called forth by apprehensions, from some proceedings in the other House, that the Bill might not pass in its present shape. The

511
prayer of the petitions was, that the Bill, as it now stood before their Lordships, might pass into a law. That they would assent to this prayer from such a body, he would not for a moment permit himself to doubt. He was convinced, if they now read the Bill the second time—and he knew the second reading was not to be opposed—they would likewise pass its details without any alterations affecting its principle. He was sure, too, they would enter upon the discussion of its details with an anxious desire to promote the efficiency of the Bill; and that, in its main principle, it would become law, he could not bring himself to doubt. By so passing it, he confidently and earnestly hoped that, with the favour of Providence, they would be providing for the unborn millions who, in future ages, were, no doubt, destined to people the wide-spread regions of Australia, still unoccupied by civilised man, and secure to them the blessings of order and well-regulated freedom, to be by them long enjoyed under the protection of the British flag, and as subjects of the British Crown. EARL FITZWILLIAM, in allusion to the remark of the noble Earl that it was better that important subjects should be discussed in a thin House, and that they could then be better discussed than when their Lordships' benches were filled, said that undoubtedly the noble Earl could have had no better House than that now assembled in which to unfold this great measure. [There were less than twenty Members pre sent.] In his opinion, this was the most important measure that had ever been submitted to this reformed Parliament; and he said "reformed Parliament," because be believed that reform was so important that now", viewed in its results, and in what had passed elsewhere, it was evidently a necessary revolution rather than an Act of Parliament. But, with that single exception, of all the Acts in which this British Parliament could be engaged, there could be none more important than the discussion of the measure so ably and so candidly unfolded to their Lordships by the noble Earl. He agreed with the noble Earl that it was a measure calculated to lay the foundation of free government for millions yet unborn of the Anglo-Saxon race; and he rejoiced to see those foundations laid in these distant regions; but he must, at the same time, express his deep regret that the Bill was not framed in some respects in a different manner. He should have thought, from the manner in which
512
the noble Earl concluded his speech, that the measure should not have been submitted to Parliament in what seemed to him to be an imperfect form; but he considered that it was the duty of Her Majesty's Ministers to have rendered the measure as perfect as was possible. Their Lordships were told that there was no opposition to be made to the second reading of this Bill; and he undoubtedly agreed with its principle, if that was merely the giving of free institutions to our brethren in the southern hemisphere; but he altogether condemned such a mode of discussing the principle of a measure, as the most unphilosophic he could conceive. He could not discover the principle of a measure from its details, although it was by the details that life and vitality were given to the principle. There was one point to which he must allude—one which the noble Earl had kept out of sight as much as possible. Did the noble Earl think it was the perfection of wisdom and of British legislation to establish a constitution in New South Wales, of the successful establishment of which we had no example in the civilised world? What the noble Earl designed to establish in New South Wales was neither more nor less than "a constituent assembly." He was not about to form an assembly to govern the country, but a "constituent assembly," out of which he hopes, by some means or other, a better constitution may be formed by the colonists themselves. If they looked around them, east or west, north or south; if they searched the pages of ancient history, or the records of modern instances, they would not find one single country which had over enjoyed outward peace, internal tranquillity, or prosperity under such a government. If they went to the American republic, they would find there that congress consisted of two houses; and in every individual State in that republic, the same principle was repeated. There was nothing like the system proposed by the noble Earl anywhere now in existence, or ever had been in past times. The noble Earl had shadowed forth some sort of an argument on the ground that it was not advisable to change the institutions now existing in the country; and if those institutions were coeval with its existence he could have understood it; but little more than seven years had elapsed since the present Government was established, as the noble Lord opposite (Lord Stanley) could attest. If the persons who framed this Bill bad not possessed minds

513
capable of taking a wide and farseeing view of the question, he should not, perhaps, have been so much surprised at the numerous apologies with which it was ushered in. Those apologies proved that the framers of the Bill were conscious of the imperfections of their own work. They said that there were no materials for a second chamber. He admitted that there were not materials for an hereditary Peerage, like that of the House of Lords in this country, in a community which had only existed sixty years; but that was no proof that a second chamber might not have been established another way. He looked upon this "constituent assembly" with great jealousy and alarm. He did not very much care whether it succeeded or whether it failed—in either case it would be equally bad. If it failed, it annihilated one moral influence in the colonies. It was not desirable to launch these youthful communities as self-governing States, and then to have them coming back to the parent country to complain of our giving them a bad constitution. That was not the way to increase or even to perpetuate their attachment to this country. He liked as little what might be called "success"—a term in respect to the meaning of which he might probably differ with many. If this "constituent assembly "governed that country well, there were those in this country who would immediately be for trying a little experiment here. Thus he liked neither alternative, and was alike fearful of success or failure. Another part of this Bill he considered a great error—he alluded to those clauses which related to the formation of electoral divisions. They ought most certainly to begin with the system matured by this country, and have had two members, and two only, for each electoral division. There were evident misgivings also, on the part of Government, with respect to the conduct of the "constituent assembly;" and he agreed with them in thinking there were good grounds for such misgivings. The consequence was, that they had provided that one-third of the total number should be nominated by the Crown. This was, however, a most objectionable expedient. There would be two elements in the assembly, the popular and the governmental; and the elective and the nominative parts would thus be in opposition. How much better at once to have another chamber, for the purpose of counteracting, if need be, the popular influence!
514
The great advantage of a second chamber was to prevent hasty legislation. The great advantage of their Lordships' House was, that it operated as a sort of drag on the other House of Parliament, and prevented its going faster than was consistent with safety. If that were found advantageous, and, indeed, necessary here, à fortiori it would be equally advantageous and necessary there. It was not, however, that their Lordships' power of throwing out Bills passed by the other House constituted their greatest benefit to the country. Public opinion changed rapidly, and, although the House of Commons might be acting in accordance with public opinion in February, their Lordships, if public opinion changed, might reject that Bill in May; and thus the public opinion always had time to get rid of its first ill-considered and crude notions. If they looked at what had taken place in Prance during the last two years, they would find that every man in that country, whose opinion any man here would value, voted in favour of the double chamber. That was a strong point in favour of his argument. It would appear an extraordinary specimen of legislation if England should proceed deliberately to establish that in her colonies which she condemned, and which every civilised nation, whether a royalty or a republic, repudiated. He did not object to the second reading, as he approved of the measure generally. He trusted, however, their Lordships would give these particular details the fullest consideration, and, notwithstanding the expectation expressed by the noble Earl at the conclusion of his speech, he trusted the House would not be deterred from amending the Bill in those particulars, for it would not be safe to send out the Bill un-amended. Such a course, he was satisfied, would be a dangerous experiment.
LORD MONTEAGLE, whilst he agreed with his noble Friend who had just sat down, that the principle as well as the details of the measure before the House were most important, could not forbear admiring, in the speech of his noble Friend, the frankness with which he admitted the importance of the Bill, and yet manifested an admirable dexterity and a resolute determination to exclude from consideration all the difficulties of the subject. His noble Friend had opened the Bill as a great measure of imperial legislation, which was to develop views of colonial policy now for the first time, realised. But those

515
who heard his noble Friend's speech must admit that rarely had more ability been exercised for the purpose of explaining what by his own description would appear but a very common-place measure. His noble Friend had endeavoured to justify his shortcomings by a determination to avoid changes, and to stand in the "old ways;" but this part of his noble Friend's argument was inconsistent with his enunciation of principle, in which he pointed out the necessity of abandoning those "old ways." This contradiction could not be reconciled. If his noble Friend was desirous of adhering to the old system, he had at least a singular mode of doing so. It was extraordinary, too, that he should now, in 1850, find out the necessity of holding to a legislature consisting of a single chamber, when, in his capacity of Colonial Secretary in 1847, he had recommended, and even endeavoured, to enforce the establishment of a double chamber. His noble Friend had also given a constitution to New Zealand, in which he introduced the principle of two chambers; and even in the present Session he adhered to the same principle in relation to another colony, the Cape. Why then abandon it in the present Bill? The noble Lord then challenged the Government to produce any successful precedent in colonial history colonies for such a constitution as this. When the measure was postponed last year, he was in hopes that if the Bill were again introduced in the same form, some local approval or authority might have been brought forward in its favour. But all those who were best acquainted with the facts, were opposed to this most dangerous scheme. What were the despatches from Van Diemen's Land, New South Wales, and South Australia? Was Sir William Denison in its favour, or Sir Charles Fitzroy, or Sir Henry Young? No one person of the slightest authority had declared in favour of the Bill. His noble Friend, in recommendation of his proposal, had, indeed, alluded to the unanimity which prevailed on its behalf among the Australian newspapers: it was most disinterested, though somewhat strange, that the noble Lord should rely upon such authority; for those very newspapers were filled with vituperation against his noble Friend and his principles of colonial policy, and with reports of meetings of colonists, at which resolutions were passed equally condemnatory of the Government and of their mode of dealing with our dependencies.
516
He (Lord Monteagle) denied the impossibility of finding materials for a second chamber in the colony of New South Wales, or Victoria, and argued that if the best and most respectable persons were elected by their brother colonists, they would have infinitely more weight and influence than they now possessed, as mere nominees of the Government. The condition of the Australian colonies was now very different from what it had been but a few years since; the proportion between the convicts and the other classes of the population was greatly changed. A few years back the proportion between the bond and the free, was 35 per cent of the population. It is now but 5 or 6. Persons of high character and of good family and education are now resident in Australia; the materials for an electoral second chamber could be found if the Government desired to seek them. Such must have been his noble Friend's opinion in 1847, when he himself proposed a double chamber. The facility is greater, in 1850. Nor was he liable to be reproached with inconsistency, in maintaining this opinion. It was true that he had supported the Bill of 1842, introduced by his noble Friend, Lord Stanley, because in the state of the Australian population, eight years ago, he was of opinion that that Act was the best measure that could then be passed, and that it would become the foundation of a better measure at a future period. That period had arrived. Could it be denied that Australia, considering the increase of its population, its exports, and commercial prosperity, was not as capable of furnishing materials for two chambers as the infant State of California? and yet the experience of the United States had led to the adoption of a double chamber even among the gold diggers of San Francisco. Another point which the noble Earl had conveniently evaded was the state of the franchise, which in New South Wales was most unjust and most unsatisfactory. He had lately presented a petition to that effect, and, on that occasion, had obtained an admission from the noble Earl that the complaint of the petitioners was well founded. The franchise had been based upon an exaggerated idea of the value of colonial property, which had since been greatly depreciated. Yet it was to a council returned by so imperfect a constituency that an unlimited power of making constitutional changes was to be entrusted. He would press his noble Friend to answer one simple question: Supposing that the Government nominees were defeated in the

517
council, and that the colonists were to adopt a constitution without nominees, and based upon a single democratic chamber, how would he act? [Earl GREY: They could not do so.] He (Lord Monteagle), on the contrary, contended that, under Section 35, they had the full power of doing so. But if the case were otherwise, and the council were intended to be restrained in this particular, it would be evident his noble Friend had a distrust of his own constituent assembly, for he appeared to deem it so probable they would go wrong, that he placed these restrictions on them. The question of disposing of the waste lands of the colony was one upon which the greatest anxiety was felt, and he wished to know why the Government had changed their minds upon that subject. In 1849, and even in the present Session, they had proposed to leave this power to a local authority. Why had they changed their intention? How could they reconcile their inconsistency, when, after affirming in the most unqualified manner the doctrine of self-government, they now denied to Australia that privilege in a matter in which, of all others, it was the most important? It was proposed to make the municipal institutions the means of applying the funds received from land sales; this was founded on an expressed mistrust of the Legislative Council; but if his noble Friend distrusted the central authority, as he seemed to do, and would neither confide to his legislative councils nor to his general assembly a control over the land fund, how was he justified in permitting that land revenue to be appropriated for roads and bridges by the municipal institutions? If the colonial legislatures were unequal to make their own roads and bridges, they surely ought not to be trusted with the more difficult task of framing a new constitution. The 35th clause gave the constituent assembly an unlimited power of altering the construction of the council: there was not one word of restraint in it which would prevent their exclusion of the nominees of the Crown, and their creation of a complete democracy. He objected to the power so given to the colonists, of making a democratic constitution for themselves. He objected to the power, because he believed that such a government by a single chamber was inconsistent with good government and sound legislation. His noble Friend denied that the Bill created such an authority; but he reasserted it, and therefore
518
he wished to see words introduced in the Bill restricting them from so doing. The Government had been asked in another place whether they would refuse the Royal assent to such a democratic constitution; but they gave no answer. The noble Lord concluded by giving notice of an Amendment in Committee, to provide that there should be in each of the colonies of New South Wales and Victoria a legislative council as well as a representative assembly, for the purpose of bringing the question of a single or a double chamber fairly before their Lordships.
EARL GRANVILLEsaid, that after the lucid statement of his noble Friend, it would be unnecessary for him to occupy much of the time of their Lordships; and as it was understood that no division should toke place on the second reading, he should content himself with offering one or two remarks upon the objections which had been urged by the two noble Lords against the Bill. The first objection was, that the legislative council to be created by the Bill was nothing more than a constituent assembly. Now he apprehended that a constituent assembly had been generally appointed for a limited period, and the only analogy between such an assembly and the legislative council contained in this Bill, was, that Her Majesty's Government proposed to give to the colonial legislature that power which the Legislature of this country themselves exercised in amending their constitution, and adapting it to the growing wants and requirements of the country. The next objection was, that the legislative power was to exist in one assembly instead of an upper and a lower house. No one, at least in that House, would deny the great advantages of a House of Lords; and he believed that there was hardly a man in this country, or on the whole continent of Europe, who would deny that the House of Lords was a firm component part of the constitution of the British empire. If wealth, leisure, and historical associations had been found to the same extent in Australia as in this country, the Government, having their hands unfettered, would, without hesitation, have given to the colonists a constitution comprising two chambers. But the same analogies and associations were not there to be found. In 1842 a constitution was given to New South Wales, consisting of one chamber only; and he had never heard that there was any understanding on the part of either the Government or the

519
colonists that the duration of that chamber was to be only temporary and limited. In giving a constitution to such a colony, it was of great importance to shape it in accordance with their wishes, and not to force upon them something which might be theoretically more perfect. The Bill was founded upon the recommendations of the Committee of Privy Council, to which the matter had been referred; and he did not know of any objections that had been urged at the time against those recommendations. As for the elective franchise, it was deemed desirable to leave that to be dealt with by the local legislatures, instead of sending out a specific form to be adopted. With regard to the Amendment of which the noble Lord (Lord Monteagle) had given notice, it would be premature then for him to go into the principles involved in them; but he had no doubt when the proper time came, he should be able to show sufficient reasons to induce the House not to sanction them. He would only add that the Government, in proceeding with that Bill, thought it was better to give the inhabitants of New South Wales that with which they were acquainted and were now satisfied, than to force upon them a constitution against which they might entertain the strongest objections.
LORD WODEHOUSEwished, as this was a question which affected the whole of our colonial empire, to make a few observations on it. This measure was the turning point of our colonial legislation. This was the first time on which they were called upon to discuss the principles by which must be regulated the relations of the colonies with the mother country; and they should well consider whether these principles tended to the promotion of mutual goodwill and to the extension of the mutual interests of both. The problem which they had to solve was, how to reconcile colonial freedom with the Imperial Supremacy. Now, they were all agreed that the colonies were entitled to a certain control over their local affairs, and that all colonies, the inhabitants of which were of British origin, were entitled to representative assemblies. It was a matter of satisfaction to hear the noble Earl, on the part of the Government, enunciate such sound and liberal principles of colonial government as he had on that night, and it was calculated to produce a very good effect on the minds of the colonists. But if they were not followed up in practice, the disappointment
520
would be productive of the greatest harm; and he feared that the present measure would by no means realise the expectations that might be excited by the enunciation of those sound and liberal principles. Although he cordially agreed in the principle of the Bill, as far as it proposed to give a constitution to the Australian colonies, he objected to some of the provisions in it, as not laying the foundation of a wise and safe government in these colonies. It might be said that the British Parliament should not take upon itself the responsibility of legislating for these colonies, as it was not acquainted with all the local circumstances affecting the question; and that it therefore would be better to leave it to the colonists to form constitutions for themselves. This would be at least a consistent course: if, however, they took upon themselves the responsibility of sending out a constitution ready prepared, they were bound to perform the task in the best possible manner. In his opinion, the British Parliament ought to establish the ground-work of constitutions for those distant countries, and having marked out the general principles, ought to leave the colonists to modify them, and fill up the details as they might best adapt them to their peculiar circumstances. It was proposed to give as a constitution a single chamber, composed of two-thirds elected members, and one-third Government nominees; just such an assembly as the House of Commons would be, if about 220 Members were nominated by the Government. It was also proposed to extend similar institutions to the four other Australian colonies. If they looked to France and other neighbouring States which had had only single chambers for their legislatures, he did not conceive that the working of the system had been such as to justify any confidence in it. On the other hand, they had long had the experience in this country, and in the United States of America, of the beneficial working of a constitution with two chambers. They had been told that the single chamber was the old constitution of the colony of New South Wales; but it appeared to him to be absurd to call this an old constitution, when they referred to the date of its introduction in 1842. No doubt in 1842, when New South Wales contained so large a convict element in its population, such a constitution might have been necessary for the first introduction of representative institutions with safety, but was it not for that very reason ill-suited to

521
the New South Wales of 1850, which had taken up its position amongst the free colonies of the British empire; still more was it not ill-suited to Port Phillip, or South Australia, which had never been convict colonies at all. The colonists also had expressed their opinions against several parts of this Bill, and more especially to the provisions which gave such powers to the governors of the colonies. It appeared also most inconvenient that there was no provision in the Bill for an elective franchise in these colonies. The franchise which was established by the Act of 1842 provided that a person to be qualified as an elector should be possessed of a freehold of the value of 200 l., or a house of the rental of 20 l. Since that time some remarkable changes had taken place in the value of property in New South Wales, which had produced an effect upon the franchise which was not contemplated at the time the Act passed. It was now a much higher franchise than was ever intended. Circumstances also had operated in such a way as to give a most powerful influence, under the present state of things, to that class of the population who were formerly convicts. He also wished to make one or two observations on that part of the Bill which proposed the formation of a federal assembly for these colonies. He was at a loss to understand the principle on which this would be formed, and also how such a system would work. With the exception of New South Wales all the Australian colonies had expressed opinions against a federal union, and it was supported in the former on the ground that it would give great influence to that colony as the Federal Assembly would meet at Sydney. He could not understand what beneficial object would be gained in giving concomitant powers to this Federal Assembly with the local assembly. His own opinion was that the whole plan was premature, and that it would be found most dangerous in operation. He did not believe by pursuing such a course they would be adding to the stability of our colonial empire. As it was, disputes were often occurring in the colonies which led to considerable difficulties; and he believed they would be increased if they persevered in needless restrictions instead of leaving all local questions to be dealt with by the colonial assemblies, observing only that control which was necessary to secure the supremacy of the mother country. In conclusion, he would ask the House whether it would not be incurring great responsibility in passing this measure
522
in its present shape, for they were legislating for colonies which must hereafter become great countries? The population of these Australian colonies was essentially English in their prejudices, their feelings, and their attachments; why, therefore, did they not extend to them those institutions under which this country had been able to maintain so long and so successfully a government which combined liberty with order more than any government, of which history made mention?
LORD STANLEYsaid, there were one or two points in the Bill, on which he wished to say a few words. He acknowledged himself to be the father of that venerable constitution of New South Wales, which had been reverenced and regarded on account of its great age. With reference, however, to the establishment of a single chamber in New South Wales, he never looked upon it as other than suited to a transition state—as a mere introductory measure for the enjoyment of a more perfect state of freedom. He might mention a case in point, to show the suitability of the single chamber under certain circumstances. About the same period at which the single chamber had been established at New South Wales, the Parliament of the Island of Newfoundland thought they were bound to imitate the Imperial Parliament in matters of principle, about which they were perpetually squabbling—the speaker of the lower house imprisoning members of the upper house, and the speaker of the upper house imprisoning members of the lower house: the result of which was, that the business of the legislature was brought to a complete stand. He was then Colonial Secretary, and he ventured to put a summary end to the difficulty, by prevailing upon Parliament to pass an Act, by which the members of both houses were brought together in the same chamber, and conjointly transacted the business which in separate chambers they had failed to accomplish. The experiment had the best possible effect in bringing them to the performance of the legislative business which they had previously failed to effect. He could easily imagine that in an infant society the institution of a similar principle might very likely produce, in the first instance, beneficial results. He thought, again, that there was always an obvious objection to the constitution of a supposed popular assembly, consisting of a very limited number of members; and that a supposed popular assembly consisting of twelve or fourteen members, and a supposed

523
non-popular assembly, consisting of five or six members, would not perform the functions of two legislative bodies satisfactorily or advantageously. In the condition in which New South Wales was in 1842, and very probably in the condition of some of the other Australian colonies now, there was not, in his judgment, a supply of men sufficient to form two legislative assemblies, each of them numerous enough—the one to be a popular assembly, and the other to represent sufficient of the interest and the wealth of the colony, and to take upon itself the responsibility which it ought to bear. But by the union of these two branches there was an infusion—not, perhaps, the most satisfactory that could be devised—but there was an infusion, nevertheless, of the popular and the governmental principle, and, practically speaking, it had worked beneficially to the present day. Still looking to the very rapid extension which had taken place in the population, the resources, and the wealth of New South Wales, he could not say that the time had not come when it would be expedient to separate that body, and divide it into two legislative assemblies. There appeared, however, to be a conflict of opinion in the colonies upon this subject as well as in this country; but if the materials for constituting two chambers did exist—if there were a sufficient number of persons in the colony to form a popular assembly and a legislative council, which should carry weight with it, both by its numbers and its responsibility, clearly and undoubtedly the principle of two chambers was the principle which all previous theory, practice, and constitutional history, pointed out to be the most desirable; and he frankly and freely admitted that the adoption of a single chamber was a merely temporary expedient until a more perfect system could be introduced. Whilst he expressed a doubt, then, as to whether the other Australian colonies were ripe for the double chamber, or that they should pass through the same process as the colony of New South Wales, he was clearly of opinion that Parliament should reserve within its own hands the power of giving at some future period that it should see fit, the further extension of freedom which, as he conceived, was involved in the constitution of a second chamber. The noble Earl had said, and he (Lord Stanley) altogether concurred with him, that when representative institutions had been granted to a country, it did not come within the legitimate functions of Parliament or the Crown
524
to control or abridge them; but, on the other hand, he (Lord Stanley) did not see that it was necessary in the first instance to give to a colony the full measure of representative freedom and constitutional independence that they might desire to confer upon it. On the contrary', he thought it was useful to retain in the hands of Parliament the power of extending those rights and amending and improving that constitution; and, above all, he was convinced of this, that if they were to give to any constitution the power of amending itself, they ought to intrust that power—the highest and greatest power that could be exorcised—to the most perfect machinery which in the first instance they could devise. He, for his part, was not prepared to intrust to the Legislative Assembly of New South Wales, as at present constituted, to the single chamber of that colony, elected by a constituency from which was excluded—and this was the most important part of the question—at all events the wealthiest, and, he believed, the moat intelligent and best-educated portion of the people of New South Wales—he was not prepared to give to that single chamber so constituted the extensive power of amending or altering its own constitution as was proposed by this Bill. The noble Earl had alluded to the 35th clause of the Bill; but he could not see how the power of the legislative assembly was checked or controlled by that clause. True, it was necessary that the assent of the Crown should be given to the measures of the assembly; but supposing a Bill were passed for constituting a single chamber, to be elected by universal suffrage, it would be most difficult for the noble Earl, with his views, to withhold the assent of the Crown from a measure even so extensive as that. If the noble Earl had felt a difficulty with regard to the restriction, in the first instance, upon the powers to be conferred upon the assembly, infinitely greater would be the disgust of the colonists when they found that, though ostensibly they had had given to them the full power of amending their constitution, yet that power was not to be practically exercised, but was to be vetoed by the single veto of the Crown, applied by the Secretary of State for the time being. The noble Earl had stated that it was important that questions affecting the colonies should be subjected to the possibility of being considered in the light of party conflicts in this country. He was sure the noble Earl had not had reason to complain of this, at all events, in reference to the present measure. But supposing a

525
case did occur in which a Bill of this description were sent home from New South Wales, and that the Minister, having laid the Bill upon the tables of the two Houses of Parliament, intimated the intention of the Crown to give its sanction to the measure; then he asked whether, if a discussion were to arise for an Address to the Crown not to give its assent to that Bill, it would not he a question in which the policy of the Government was concerned, and of necessity, which of all things ought to be avoided, give rise to a political and party struggle, in which the Government would be bound to stand by the view they had taken, and the opponents of the Government be bound to persevere in their opposition to a measure which, from the first, they had thought to be objectionable. Thus, the very thing which the noble Earl was anxious to avoid, was introduced by the provisions of his own Bill. With regard to the check which Parliament was to exercise, that check consisted only in this—that an Address to the Crown might be moved in either House of Parliament within thirty days after the Bill had been laid upon the table, praying the Crown not to grant its assent to the measure. But even after one or other of the Houses of Parliament should have sent up that Address, the Crown, acting by its constitutional advisers, might disregard that Address. It might rely, perhaps, upon the support of one House in opposition to the opinion of the other, and in the meantime the Government would act on its own discretion; and thus the question became immediately a question of confidence in the Government of the day. But, whilst he objected to this extensive power being given to the single chamber of New South Wales, or the single chamber of any other colony—of altering the constitution according to its own good pleasure—there were other parts of the Bill to which he entertained yet stronger objections. The whole of this Bill had been founded upon the necessity of preserving a uniformity in the constitutional system of the various Australian colonies. Yet, in the presence of this uniformity of system, the noble Earl had introduced a provision by which each of the colonial legislatures might make a separate and a distinct alteration of its constitution. In short, whilst the noble Earl set out with a strict adherence to uniformity, he took the greatest possible pains to introduce the possibility—nay, the probability—of an endless diversity of constitutions throughout the several Australian colonies. But
526
the point to which he (Lord Stanley) entertained the strongest objection, was the perfectly novel and wholly unnecessary, and, if unnecessary, certainly mischievous introduction of the machinery of a federal government. In his opening speech the noble Earl stated that he thought it was most dangerous and most objectionable that any portion of an Act of Parliament should become a dead letter; consequently he proposed to rescind a portion of the Act of 1842 relating to the district councils, inasmuch as for a considerable time that had become a dead letter. But whilst the noble Earl said this, he proposed to introduce the federal system into the Australian colonies—he (Lord Stanley) was going to say with all the machinery complete; but that he had not done, for he had introduced it without making provision as to the constitution of the federal government, and believing all the time that for a considerable period it would not be adopted at all. The noble Earl had introduced it by giving absolute and entire power to the Crown—that was to the Minister of the day, with regard to this federal government, which would override all the local governments in dealing with questions of the highest constitutional import. The whole framework and constitution of the federal government were left by the Bill to the undisputed control of the Minister of the Crown, whenever any two colonies might petition for the establishment of that system, He (Lord Stanley) contended, then, that in adopting these provisions of the Bill, Parliament would be abdicating its own proper functions. Let the colonies themselves point out the nature of the combination, the species of concert, and the mode in which they desired to effect that combination or federative system of government; and upon their petition and advice let Parliament—not the Crown—by an enactment passed in concurrence with the wishes of the colonies, give effect to that which upon experience they found to be necessary, and impart to that federal government precisely those powers which the colonies themselves, and no others, should find it necessary to be exercised by somebody acting in concert or combination for those different colonies. He would not now enter further into the details of the Bill. He had alluded to the main points upon which he thought it required very serious consideration. He had spoken with some doubt and hesitation as to the propriety of an immediate introduction of two chambers by a positive resolution of this

527
House. He was quite clear that Parliament should reserve in its own hands the power of dividing the single legislative chamber in whatever colony it might he constituted. He was sure that they should not give to the local legislature, as at present constituted, the extensive power of altering its constitution, which was proposed by this Bill. And he was still more confident that it would be most unwise, in their present state of absolute ignorance and blindness, to agree to the wholly novel system of a federal government, acting perhaps in concert with, or else overruling the local legislature of the different States, though controllable to a certain extent by Parliament, without knowing precisely what were the functions which they intended to confer upon that government—without leaving to Parliament the opportunity of performing its proper functions, and defining the powers which they intended to intrust to that government, and not leaving the definition, the restriction, or the extension of their powers at the absolute disposal of the Minister of the Crown for the time being.
EARL GREYsaid, he would not then undertake to reply to the various criticisms that had been made upon the Bill. But he must correct a misapprehension into which more than one noble Lord appeared to have fallen when they spoke of this constitution as one under which the representatives of the colonists were to be summoned together only to alter it. That was not his opinion. He conceived that in all probability a considerable period would elapse before any of the colonies would think it expedient to alter the constitution now about to be established. In proof that the existing constitution of a single chamber in New South Wales was working well, he quoted a summary of the last session from one of the local newspapers, stating that the result of the labours of the chamber had given general satisfaction. If they were to discuss the question of a double or single chamber in Committee, he did hope that the noble Lord (Lord Monteagle) would be prepared to say how the second chamber was to be constituted. That problem, he believed, still remained unsolved; and it would be the height of rashness if their Lordships, with their inexperience of colonial society, were to attempt to solve it for them. With respect to what the noble Lord (Lord Stanley) had stated of his establishment of a single chamber being intended merely as a preliminary step to a second chamber,
528
he was bound to state that, in his Lordship's despatch constituting the single chamber, there was not a single hint of a second chamber being afterwards deemed advisable; and farther, he would add, that the population of New South Wales, with Victoria taken off, was less in 1850 than the whole population of New South Wales in 1842, when the noble Lord did not think there were the materials in the colony for a second chamber. The noble Earl then quoted the opinions of the various colonies, which, as far as they had been ascertained, he said, were in favour of the Bill; and concluded by proposing that if the Bill were read a second time to-night, he would propose to go into Committee on it on Monday, the 10th of June; and he hoped that noble Lords who intended to move amendments would have them printed before that time, that they might be considered. He would also state, that before that day the report on the land question would be laid before their Lordships.
On Question, Resolved in the Affirmative.
Bill read 2a, and committed to a Committee of the whole House on Monday, June 10.
House adjourned to Monday next.