§ The Order of the Day read.
§ The EARL of DERBY said
My Lords, I received with very great regret an intimation that it is the intention of Her Majesty's Government to oppose the Motion which I now think it my duty to submit to your Lordships. I can assure the Government and the noble Earl opposite, at the head of the Colonial Department (Earl Grey), that, in bringing this subject under your Lordships' notice, I am actuated by no feelings towards them or him of public or personal hostility; that I have no disposition to increase the embarrassments in that department of the Government over which he presides, or in the colony itself; but that I bring forward this question with a sincere desire to mitigate and to relieve those embarrassments, and to offer every co-operation in my power, and to induce Parliament also to do the same, for the Solution of those difficulties, which I believe no other authority than that of Parliament can solve, and for the purpose of restoring peace and tranquillity to that portion of Her Majesty's dominions in which it is not too much to say, that there is prevalent a considerable amount of discontent, not to say disaffection, aggravated by the continuance of a harassing, and I am afraid a protracted, war carried on by the savage tribes on the confines of the colony.
My Lords, it will not be necessary for me to lay before your Lordships reasons and grounds for the adoption of the course which I propose, because the strongest arguments in its favour will be found in 695 the statements of facts which it will he my duty to lay before your Lordships, and which I will endeavour to bring under your notice as succinctly as I can, but which, from their complication and extent, will occupy, I fear, a considerable portion of time. There are many of your Lordships whose attention has not been directed particularly to the subject, and therefore I trust I shall be forgiven if I go into details which to those who have examined the subject may appear superfluous, but which are necessary for understanding the present position of the question, and the precise position in which the colony is now placed.
Your Lordships are aware that the colony of the Cape of Good Hope is one of those that are called "Crown colonies," which, having been originally acquired by conquest, are subject to the jurisdiction of the Crown, which has the right of framing or granting their constitution. But when I say this, I ought to qualify it by adding that the Crown possesses in those colonies the power of making a concession of a certain amount of political freedom and independence; but when that concession has once been made, the Crown has no power to retract the boon which has been granted; it has the power of extending, but it has not the power of withdrawing, the grant which it has in the first instance provided, and which becomes the inalienable right of the colony. The Government of the Cape of Good Hope was formerly carried on by the single authority of the Governor; he was afterwards assisted by a council of advisers, subsequently called an Executive Council, whose assistance he was entitled to ask, and who were authorised to give him advice, but by which advice it was not imperative upon the Governor that he should be guided. Subsequently a legislative authority was given to this Council of advice, which then became the Legislative Council. Into this Legislative Council was then infused the first germ of, I will not say popular institutions, but the first germ of freedom from the control of the Government, by the infusion of persons not holding office under the Government. It is true, indeed, that this step was one of very small extension, because the persons who were then admitted, although they did not hold office under the Crown, yet were exclusively the nominees of the Governor, who had the power of choosing those who should be admitted into that assembly. The colony had no choice in the 696 matter; and even although, as sometimes happened, those persons should exhibit a spirit of independence towards the authority which created them, yet, as they formed a minority of the whole Council, and the official servants formed the majority, the whole united force of those persons would be overborne by the compact body of the majority holding office under the Governor and the nominees of the Crown. This was the state of things, I believe, in the year 1834; and it is necessary for me, in introducing this question, to go back to the year 1842, when I had the honour of holding the seals of the Colonial department now held by the noble Earl opposite, and when a petition was addressed to me from the colony, praying for representative institutions. That petition prayed for the assimilation of the constitution of the colony to the constitution of the mother country, and—as they conceived—in the spirit of that assimilation, they prayed that the Government might be composed of a Governor appointed by the Crown, an Executive Council to advise the Governor, and a Legislative Assembly composed of representatives freely elected by the people. They also prayed that this petition might be referred for the consideration of Her Majesty's Privy Council. I mention this part of the petition, because it is the subject of, I am sure, an unintentional misrepresentation of my views and objects by Her Majesty's Government, founded on a misapprehension which I can hardly conceive how it should have been fallen into by a person so well acquainted with the subject as the noble Earl opposite. In my answer to that petition, I began by pointing out that that which the petitioners asked for was by no means an assimilation to the British constitution—that a Legislative Assembly exclusively composed of persons elected by the people, and having no check in any other deliberative body, was as wide a departure in point of principle as it was possible to conceive, not only from the constitution of this country, but from that which had been granted to any one of our colonial dependencies. I then adverted to the difficulties which I thought had not sufficiently attracted the notice of the people of the Cape of Good Hope—difficulties which, though it was necessary to surmount, yet could not be removed without considering as well the obstacles which presented themselves in the way of the proposed arrangement, as also the means 697 of overcoming them. The principal difficulties which occurred to me as standing in the way of the admission of a representative constitution into that colony were, first of all, the great extent and the extreme distance of a large portion of the colony from the seat of government at Cape Town; added to this, that the means of communication within the colony were exceedingly imperfect, that the population was very large and scattered, and that the means of communicating with their representatives were such as to render it almost impossible; that with regard to the distant portions of the colony, the occupations of the inhabitants and their distance from the seat of government would make it almost impossible to find persons who should be able to bear the expense of periodical journeys to the capital; that in cases of extreme emergency, those persons who served as representatives might be called upon to be present at the seat of government, when their presence might be equally necessary for the protection of their families and property at a distance so great as to involve a journey of many weeks. In addition to these considerations, I referred to another, arising out of the difference of race and origin of the inhabitants of the colony. Not to mention a large number of native inhabitants, of Hottentots and Fingoes, and the lately emancipated negroes who were set free in 1842, there were two European populations in the Cape of Good Hope—one a British population, which certainly formed a small minority in point of numbers, but, in point of intelligence, influence, and perhaps of wealth, superior to the Dutch population. This part of the population, in great measure, resided at Cape Town, and in the extreme districts of the eastern portion of the colony. The remainder of the population, consisting chiefly of persons of Dutch origin, formed a numerical and considerable majority, but their habits and feelings were, in many respects, essentially different from those of the English portion of the population. They had felt very acutely the alteration that had been made by the abolition of slavery in the colony, and they were exceedingly desirous to restore the state of things which should place the newly emancipated portion of the population again under the control of their former masters. I speak now of the state of things in 1842. I concluded my despatch by saying:—I have entered thus at length into this sub- 698 ject from a deep sense of its importance, and because I have been unwilling to dismiss with a slight or cursory notice a petition bearing such signatures as those before me, and supported by your recommendation. Nor indeed do I wish to be understood as meeting that petition by any irrevocable and fixed opinion against the prayer of it. I limit myself at present to the conclusion, that the proposal is open to many difficulties to which your despatch does not refer, and that the scheme is presented in a form too incomplete to enable the confidential advisers of the Crown to advise Her Majesty as to the acceptance or rejection of it. If, after weighing the remarks which I have made, you should think it desirable to prolong this correspondence, I shall be ready to resume it, on being apprised by you in what manner you would propose to obviate the objections which I have indicated, and to meet in detail the many difficulties which will, I am sure, present themselves to your own mind in the endeavour to give practical effect to the views entertained by the petitioners, and sanctioned by your approbation of the general principles.My Lords, I hope that that extract will be sufficient to satisfy your Lordships that though I could not agree that that form of representative government which the colonists asked for, judging from the analogy of the British constitution, could be adopted in the Cape of Good Hope, yet that my difficulty with regard to the principle was this, that before binding Her Majesty to a distinct principle, I thought it more prudent to consider both the obstacles that stood in the way of carrying out a representative constitution in this instance, and also the means of vanquishing those obstacles, before giving a decided and irrevocable assent to the demand that was made. That was in April, 1842. From that period no reply was made to the difficulties which I then stated, until an answer was specifically and directly called for by the noble Earl opposite, upon his accession to office in the year 1846. In the autumn of that year, the noble Earl, addressing Sir Henry Pottinger, stated that no answer had been given to this despatch of mine. He said that Her Majesty's Government entertained the strongest prepossessions in favour of the representative form of government in the Colonies, and he went on to say—I for the present confine myself to the statement that, on a question of this nature, some difficulties may be wisely encountered, and some apparent risks well incurred, in reliance on the resources which every civilised society, especially every society of British birth or origin, will always discover within themselves for obviating the dangers incident to measures resting on any broad and solid principle of truth and justice. On such a basis, as I am convinced, rests the policy of intrusting the remote dependencies of a metropolitan State with the largest powers of self-go- 699 vernment, in whatever relates to their internal and local affairs. I should, therefore, not be unwilling or afraid to act on that policy, even though I could not distinctly perceive how some conflicting interests could be adjusted under it, or how perfect arrangements could be made for the prevention of injustice to some members or classes of the colonial society.Now, I am not presuming to say whether the course taken by the noble Earl was more wise and prudent than that which I pursued. I confine myself to observing that after that declaration on the part of the Secretary of State for the Colonies, officially communicated to the colony—[Earl GREY: No, not officially.]—Yes. Because if the noble Earl wrote to the Governor of the colony—if he desired that an answer might be sent to my observations—if he said that the Government entertained the strongest feeling of prepossession in favour of that form of colonial government—and if he stated that he relied on the assistance of the Governor for the removal of the difficulties and inconveniences which stood in the way of the adoption of that form of government—then I can hardly conceive any more authoritative way in which the intentions and views of Her Majesty's Ministers could be communicated to the colony. What was the Governor to do? Why, he was to call upon the different members of the Colonial Government, and the persons in office, to send in their answer to the difficulties which I stated, for the purpose of enabling the Colonial Secretary to introduce a system of colonial policy to which he was favourable. This despatch was sent out at the close of 1846; and at the commencement of 1848 Sir Harry Smith, who had succeeeded to Sir Henry Pottinger as Governor of the colony, answered the despatch by forwarding the views which were entertained by the colonial officers on the subject. In a subsequent despatch, written in February, 1849, the noble noble Earl states—but, perhaps, my Lords, it is better not to interrupt the course of the narrative which I am giving, and that I should state regularly the course of proceeding on this matter. Upon receiving this intimation—and when the people of the colony of the Cape of Good Hope received this despatch, other circumstances had intervened of a very important and unusual character, which increased the difficulties under which that office which the noble Earl filled was placed, Sir Harry Smith; who had succeeded Sir Henry Pottinger as Governor of the colony, answered that despatch. The course which the Go- 700 vernor pursued, was to lay that despatch before Mr. Porter, the Attorney General, a gentleman in whose praise it is impossible to say too much, and asked him in what manner representative government might be best introduced into the Cape colony. The Governor also consulted Mr. Montagu, the Government Secretary, the Colonial Treasurer, the Chief Justice, and the Collector of Customs, and the two Puisne Judges. Now, I will say that a better course could not have been taken than that which was adopted by Sir H. Smith. I do not wish to state anything in the way of invidious comparison, but I may say that of those gentlemen whose opinions were consulted, there are two—Mr. Porter, the Attorney General, and Mr. Montagu, the Government Secretary—who, in point of ability, intelligence, and industry, are equal to any one amongst those whom I have now the honour to address. And what were the views of these able men, and of the Executive Council? The question as to whether a representative government should be introduced into the Cape colony was hardly taken into consideration. Mr. Porter says—"I should assume that, after weighing the reasons for a representative assembly, and the reasons against it, his Excellency considers the former the most powerful." Mr. Montagu says—"It appears to me that I shall best serve his Excellency by abstaining from all theoretic or abstract discussion on general principles of the good or evil likely to result from the establishment of a representative form of government in this or any other dependency." Another gentleman says—"It appears on the perusal of the documents transmitted to me, that the period is arrived at which a representative form of government can be safely sent to the colony at the Cape." And another gentleman remarks—"I cannot help regarding the proposed measure as a bold experiment. I do not, however, see how it can, under existing circumstances, be very well made." These able and intelligent advisers of the Crown were not required so much to give their opinion as to whether the colony was fit for representative institutions, but, assuming the necessity of affording representative institutions, what was the safest and most practical plan of introducing this new form of government. And I must say that, with regard to those two able gentlemen to whom I have referred, they entertain very serious misgivings, and do not consider the question 701 as lightly to be dealt with. Mr. Porter, a man of extremely liberal opinions, and the advocate for free institutions, closes his memorandum thus:—I have ventured to term a representative assembly at the Cape 'an experiment;' his Excellency, who knows the colony and the people well, will not, I think, consider the term misapplied. It is an experiment, and one which none but a very silly or a very sanguine man can contemplate without anxiety. It will be a trial in the settlement to ascertain how much of colonial self-government is compatible with a state of colonial dependence. And if even ordinary spectators must look on with some distrust whilst such a trial is being made, how much greater must be the misgivings of those who, as officers of the Executive, foresee no small embarrassment as the possible result of their new position between two different, and, it may be, conflicting authorities—Her Majesty's Government in England, and the House of Assembly at the Cape?Mr. Montagu, in whose praise I am happy to find the noble Earl concurs, concludes his memorandum with this expression:—In concluding this memorandum, I cannot refrain from expressing my doubts as to the likelihood of eliciting good government for some time, at least, from the exercise of representative institutions. To a greatly preponderating majority of the colonial population, such institutions are entirely unknown, and probably will be regarded an innovation. Like the jury system, it will, if efficiently worked, impose on many, from the character of the country and scattered state of its rural population, duties which cannot fail to be attended with considerable personal sacrifice and inconvenience, and from which, until better able to estimate its value and advantages, they may seek to be relieved, as in the case of jury service. Moreover, I cannot conceal from myself the fact, that few communities, from the isolated condition, the habits, and employments of a large amount of its members, are less qualified to act beneficially upon the Government and Legislature by the influence of an enlightened public opinion.These gentlemen, therefore, express doubts as to the probable success of the experiment they were called on to undertake, and they applied their minds with all the vigour and ability they possess, to the finding out of a mode in which the difficulties might be mitigated, and in which the experiment might be conducted with the least amount of danger. In the first place, the able memorandum of Mr. Montagu, the Government Secretary, combating in various points the obstacles and difficulties I had suggested, and stating in his opinion the weight of some of them had diminished from the lapse of time, says that the improvement in the internal communications of the colony had diminished some of the difficulties which exist- 702 ed four or five years before; that there had been municipal institutions introduced into the Cape, which had not been used for the oppression of the native races; that, as between the English and the Dutch portion of the population, he was not aware of any important subject of difference, except the law of inheritance in succession, which was prized by the Dutch, whilst the English population were opposed to it; but, on the whole, he thought the advantages of the trial sufficient to counterbalance the difficulties, and he recommended the adoption of a system of representative government. It was then necessary to consider in what manner the system of representative government should be introduced; and the members of the Council, while unanimous that there should be one legislature for the whole of that extensive colony, and that the sitting of the legislature should be held at Cape Town, with one exception they were also unanimous that the legislature should consist of two houses, and not of one—of a House of Assembly and a Legislative Council. The single exception was one of the Judges, who suggested that the principle acted on in New South Wales should be adopted, and that in the first instance an elective body should be infused into the Legislative Council; he doubting whether the Cape was able to furnish a sufficiently numerous body for a Legislative Council, and also for a House of Assembly. The other councillors, however, were all in favour of two houses, and with the exception of one—and I beg your Lordships' attention to this—they were unanimous that the Legislative Council should not be an elective body; but that it should be nominated by the Crown, and composed of a mixture of official and non-official persons; and the great majority recommended that the tenure of that office should he for life, There was one exception, the Chief Justice, who recommended that the elective principle should be partially introduced even in the Legislative Council; and with regard to the period of duration, one of the Judges was of opinion that the tenure.should not be for life, but during pleasure. I will not trouble your Lordships with the other important matters, which were very carefully considered, and on which a report was made and embodied in a draft ordinance, which was sent home to the noble Earl, in which these views of the advisers of the Crown were carried out. My Lords, having received that despatch, 703 noble Earl expressed himself upon one important point to the following effect:—I am of opinion that the views of yourself and the majority of your advisers, as to the form of the constitution to be established, namely, a Representative Assembly and Legislative Council appointed by the Crown, should, in the main, be adopted; but many of the details of the plan submitted in these papers may probably require modification.The noble Earl on that occasion did not take upon himself that responsibility which I think properly belongs to his office as Secretary of State and adviser of the Crown; nor did he proceed on the joint responsibility which attaches to the Cabinet; but he referred this recommendation to, no doubt, a very learned and very able and competent body, but at the same time a body possessed of no character to which responsibility attaches, and who, so far as names go, are at this moment an anonymous body. The petitioners in 1842 had requested I would lay before the Privy Council, and refer to them a petition upon which I conceived it was my duty as Secretary of State to advise Her Majesty, and not delegate to anybody the authority which belonged to my office. The noble Earl, in commenting on the course I pursued—and your Lordships will recollect the observations with which I concluded my despatch—observed:—In 1841 your predecessor, Sir George Napier, transmitted a petition from the inhabitants of Cape Town to the Queen in Council, praying for the estabiishment of, an Elective Assembly and Council. The form of government thus proposed appeared to Lord Stanley, who was then Secretary of State, altogether at variance with the ordinary legislative system of British possessions, and he consequently declined advising Her Majesty to refer the petition to the Privy Council.Any one would infer that my objection to refer the petition to the Privy Council arose out of the nature of the petition, and the institutions which it proposed to introduce; and if the noble Earl had copied accurately the terms I used, he would not have fallen into the misapprehension into which he did fall. My words were these:—I have not thought it my duty to advise the Queen to refer to the Privy Council the petition addressed to Her Majesty in Council, as I am aware of no reason why any such departure should be made, in the present case, from the established system on which the executive government of this kingdom and of the British colonies is administered.I said I saw no reason for departing from 704 the ordinary course of the administration of the Government, nor why, when a question rested on the responsibility of the Secretary of State, he should transfer his responsibility to the Committee of Privy Council. The noble Earl altered the words "executive government of this kingdom" into the words "legislalative system of British possessions," and thereby perverted the whole sense and meaning, and scope, and tendency of my words. I am willing to believe that the noble Earl did so uuconsciously; but, at the same time, I confess I cannot understand how a person of so much acuteness as the noble Earl could have fallen into so great an inaccuracy. The noble Earl then, unfortunately, I think, took the course which I had refused to take in 1842. He referred this measure to the Committee of Privy Council, who were to take into consideration the views and recommendations of the advisers of the Crown in the colony. I will not trouble your Lordships by going through any of the recommendations or opinions of the Committee of Privy Council; but in one respect they introduced at once, and upon their sole responsibility, if any responsibility there be, a recommendation of a character not only wholly novel, but which had never been contemplated by any one of the able men at the Cape, who, looking at the difficulties they had to surmount, had recommended a particular course of proceeding. They recommended, not that the Legislative Council ought to be nominated by the Crown, but they recommended instead a Legislative Council into which the system of election was not only to enter, but which ought to be exclusively of an elective character, to carry out which they proposed a totally novel scheme by which the votes of the inhabitants might be taken. If this had been sent out to the colony, and the opinions of the colonists had been taken on the merits of this system, something might have been said in favour of it; at all events, they would have ascertained whether the opinion of the Privy Council outweighed the opinions of the noble Earl, and the authority moreover of every individual adviser of the Governor at the Cape, and of the Governor himself. But the noble Earl transmits his opinion in favour of one system—a document which had the force of law, being sent under the authority which on the part of the Crown he exercised; and that legal document authorised the establishment of a Legislative Council and a 705 House of Assembly, which Legislative Council and House of Assembly were to be both elective. The point was not left in doubt, or to the deliberate consideration of the colony, but the Crown legislated so as to make both the Legislative Council and the House of Assembly necessarily elective, with the exception of introducing the Chief Justice as one of the Legislative Council, and constituting him the President of that Council; and then directing that the existing Council should be called together to fill up the details which it was necessary to fill up, but subject to the restrictions introduced into the Act of Legislature. He then proceeded as follows:—The various details of the machinery of the elections, the definition of the franchise of the electors, both for the Assembly and the Legislative Council, and many other particulars which will readily occur to you, are all subjects on which the necessary provisions will be made by ordinance, and not by letters-patent, and as to which, therefore, you may, with a view to expenditure, prepare at once the matter to be embodied in the ordinance, without waiting for the arrival of the letters-patent themselves, though, of course, until they reach you the subject cannot be brought under the consideration of the Legislative Council.When the document arrived at the colony it took not only all the advisers of the Crown, but the whole colony, by surprise. It was the introduction of a wholly new system, by persons who had no local acquaintance with the circumstances of the colony, and directly in opposition to the views of those who had the most extensive views and the largest amount of local information. Additional difficulties were in the way at the time the document reached the Cape. It was forwarded on the 29th of May, 1850. Letters-patent were sent out with it. When they arrived, the colony was in a strange position. It may be, and it is quite true, that the Legislative Council, as formerly constituted, had for some time been losing ground in popular esteem at the Cape; I do not hesitate to say that in 1846 I think the time had arrived when something of the elective system in some shape or other ought to have been introduced into the constitution of the colony, and it was no longer right that its affairs should be administered by an exclusively dominant body, the majority consisting of the advisers of the Crown. But when the document arrived at the Cape, a strange state of things prevailed. Between 1848 and 1849 had occurred that lamentable state of things on which I will not enlarge on 706 the present occasion, because I am unwilling to say anything likely to give unnecessary offence—I mean that which arose out of the anti-convict agitation in the colony. No man can condemn more strongly than I do the violent measures resorted to by those persons who resisted its introduction. I think the violence of their measures deprived them of the support and countenance of many here who felt that they had a just and legitimate ground of complaint, and who, had the complaints been more temperately urged, would have been willing not only to lend a ready ear, but to press on the Government the justice and righteousness of their complaints. But I do feel that upon that occasion a great error was committed—a great and grave error—namely, that when expectations had been held out, if pledges had not actually been given, that convicts should not be again sent to the colony unless their presence were demanded as a boon by the colony—and, properly administered, a boon they might have been—but pending the decision of the colony—nay, in the teeth of the declaration of the public bodies in the colony—without waiting for the result of their deliberations, convicts were sent out and pressed with extreme pertinacity on a reluctant colony, in which every man was bent on resisting their introduction. I think there is no error which can be committed more grave than to hold out, under the high name and authority of the Crown, expectations, and, far more, any pledges of boons to be granted, or privileges to be conferred on our colonial possessions, and then to recede from the entire and complete accomplishment of the letter and spirit of every such pledge. But the error met with a grievous punishment, which will fall upon the Cape colony and the other possessions of the Crown, and the authority of the Crown, for many a long year to come. A spirit of resistance and defiance was evoked, and in a good cause, although it was carried to an indefensible extreme; but a resistance was evoked in a just cause, and carried to such an extent, that, after an unavailing resistance, the authority of the Crown was successfully defied and resisted—the authority of the Crown was lowered in the colony—and not petitions, not memorials, but menaces, threats, acts of absolute violence, acts almost of hostility, were carried to such an extent, that to them the Government on the spot and the Government at home were com- 707 pelled absolutely and entirely to succumb. My Lords, to such an extent had that been carried, that by violence, as is stated by Sir H. Smith in a recent despatch, the Legislative Council was virtually dissolved. In the commencement of 1849 the anti-convict agitation was carried to such an extent as to deter any persons from assenting to take office in the Legislative Council on the part of the Crown, and those who had assented to take that office were not only menaced and threatened, but absolutely encountered positive violence, and injury to their persons and property, the consequence of which was, that by an act of violence on the part of the colonists, provoked by an act of injustice on the part of the Government, the Legislative Council of the colony was dissolved. The anti-convict agitation speedily led, as it was sure to do, to a political organisation and to other views, by the forming of a party maintaining their influence by this hold on the popular feeling. Therefore, when the despatch came out, calling upon the Governor to refer this new constitution to the Legislative Council as then constituted, the Governor was under the necessity of saying that in consequence of the anti-convict agitation he had no Council to which he could so refer it—that for the space of a year and more there had been no legislature in the colony. Every advance of public money had been illegally made—every expenditure was without a shadow of public authority—every step taken by the Governor was null and void, and it was only absolute necessity that compelled him to act despotically, because there was no legislature with whom he could consult. My Lords, what course then did the Governor take? I think he took a very wise and judicious course. He found that to fill up the Legislative Council with men, the mere nominees of the Crown, was a perfect impossibility, or at all events, that if he so filled it up, they must have been taken exclusively from one portion of the population; and at once one of those elements of discord which I foresaw in 1842, would have come, and has come into operation, namely, increased alienation and jealousy between the inhabitants of English and Dutch origin—between the inhabitants of the Cape district on the one side, and of the eastern frontier on the other. What, then, did the Governor do? Upon receiving his instructions it was necessary that he should re-form his Council. He found that the Committee of Privy 708 Council had reported in favour of a particular constituent body, which should elect the future representatives in a new Parliament. To that body, consisting of the municipality, and, in the country district, of the road-boards, he appealed, in order to ascertain who, in the opinion of the colonists, were the most desirable persons to form a portion of his Council. I must call your Lordships' attention to the terms in which the Governor announces his intention. The Governor's notice was to the following effect:—The commissioners and wardmasters of each municipality, acting jointly, and the members of each divisional road-board, are requested, after ascertaining as well as possible the views of the householders and ratepayers respectively, to select and transmit to the Secretary to Government, with the least possible delay, the names of whatever number of colonists, not exceeding five, such body of commissioners and wardmasters and such divisional road-board shall respectively propose to have appointed to fill the existing vacancies in the Legislative Council. From the names to be thus submitted to his Excellency he will be prepared to fill up the vacancies in question in such a manner as shall seem most calculated to secure the appointment of the five gentlemen willing to serve who shall appear best entitled to the confidence of the several classes and districts composing the entire colony.The result of the application was that no very large proportion of the inhabitants or ratepayers actually tendered their suffrages. I find there were in the municipality 4,560 ratepayers, and out of these 1,298 alone took the trouble of recording their votes in favour of the candidates. The course pursued by the Governor was that he did not select the five names with the largest number of votes, but the five names returned by the greatest number of the municipal bodies. But from that principle in one instance the Governor departed; and for that departure he met with very severe censure and reprehension on the part of the other four gentlemen, who in subsequent proceedings acted as a single body, and who had been the most active members of the anti-convict agitation. The reason the Governor departed from that principle in this instance was this:—Four had been returned by a considerable majority of the representative bodies. Between the other candidates there were some few votes, but none had more than seven. On looking at the names returned, it struck the Governor that three out of the five, at least, were from the division of Cape Town, and that only one, or at the most two, was from the eastern division of the country; and, that if he had adopted 709 the names highest on the list, there would have been, inasmuch as all the official members were from Cape Town, as representatives of the English population from the eastern districts, two only out of a Council of eleven; and one of them, Sir Andrew Stockenstrom, did not represent the feelings of the English population, but the views of parties in Cape Town. It appeared, also, that the returns had been obtained by the instrumentality of circulars from Cape Town, and that all the five representatives had been returned by the local influence of Cape Town itself, and it was 'only by accident that, one of the persons nominated having declined, no orders were given as to how the vacancy should be filled up, and considerable diversity of opinions prevailed. Here was another of the differences which I had foreseen in 1842—the predominating and paramount influence of that numerous and, perhaps, more wealthy body who, from being resident at the seat of Government itself, were able to exercise a very powerful influence over the legislature. And not only that, but it is admitted by Mr. Porter, that under any system of election, even with the improved communication now in the colony, it will not be easy to find persons from the country districts willing to undertake the labour and expense of attendance at Cape Town-, but that those distant districts will be compelled to elect as representatives persons not residing in the districts but in Cape Town itself. The Governor, however, in pursuance of the pledge he had given, and adopting what he thought the best course, selected from the lists the four gentlemen who stood the highest, and he added another gentleman of great respectability connected with the eastern district to give a more fair share of the representation to that population. From that time there was an organised opposition on his new appointments; and these four gentlemen acted together, consulted together, divided together on every occasion, and acted as an organised opposition in the newly-constituted Government; and I must say that I concur in the view of the noble Earl as to the mistaken opinion these gentlemen have formed of their duties. One of the subjects to which the attention of the Council was directed, was the framing of an ordinance to be submitted to the Crown. But that was by no means the single purpose of the Council. It was intended that the Council should carry on the ordinary necessary business 710 of the colony, and that the expenditure should be sanctioned by a regularly constituted and legally authorised body. But these gentlemen thought fit not to consider themselves in the light of ordinary representatives sitting by virtue of a precept from the Governor, although they had acknowledged his precept, and not as the representatives of the electors, such electors not having been constituted electors by any law whatever, and not having the power to give a single vote. But these gentlemen looked upon themselves, in short, as having been elected not as a representative but as a constituent body, brought together for the purpose of framing a constitution for the colony, and for nothing more. The Council met about the 6th of September, and continued sitting during the greater portion of the month, and they made some progress in their arrangements with regard to the new constitution. There were several points on which they were unanimous. There were some which were carried by a majority. But with regard to the number of electors, with regard to the qualification, with regard to there being two Houses, with regard to the seat of Government being at Cape Town, with regard to the payment of members, with regard to the exclusion from either legislative body of all officers connected with the Government and in the pay of the Government—of which I doubt the wisdom—with regard to many of these, there was a perfect unanimity. The question which ultimately led to the crisis was the defeat of these four gentlemen by the official members and by the non-official members from the east district, on some very important matters, namely, whether the qualification for a member of the Legislative Council should be the same as that for a member of the House of Assembly: whether the two Houses should be elected for the same period; and whether the Upper House should be elected by the entire colony as one constituency. Now this is a question of very great importance. Let the Legislative Council be elected or let it be nominated, if it be intended to be in any degree a check and control on the deliberation or want of deliberations of the House of Assembly, it can be no such check and no such control if the qualification of the electors and the elected be the same, if the duration of the session he the same, and if the period of their election and the nature of the electors be precisely the 711 same. They will be returned by the same body, will be under the same influence, and will be a mere repetition of the House of Assembly, and can exercise no real control. Being defeated on these questions, those gentlemen introduced a measure declaratory of their intention to take no further steps, and to legislate upon no question except for the establishment of a new constitution. They had therefore left the whole business of the colony precisely in the state in which it was before their election, although in consequence of the ordinance it was proposed to pass, and which required the approval of the Crown, a long period must elapse before any legislative body could be constituted in the Cape. The Governor was in a serious embarrassment in consequence of this state of things, and he took the course which had been condemned by the noble Earl, but which I think he was warranted in taking. He had no Legislative Council legally constituted, and for this reason, that by the letters patent constituting that Council, it was required to consist of not less than ten, and not more than twelve members, of whom six, including the Governor, should be official. By the resignation of four out of the six official members, the Council was reduced to eight, including the Governor, and consequently was not a legally constituted body, and had no power to act. But the Governor, seeing what progress had been made, thought it right to ask the remaining members, official and non-official, for their sanction to the formation of an ordinance in such manner as if they had the power of legislation they would be willing to adopt. The Council proceeded to execute their duty, and they transmitted through Mr. Porter, the Attorney General, the draft of an ordinance, which, if passed by the Crown, would have put an end to all confusion and difficulty in the colony. I do not mean to say that that draft ordinance is perfect, and that it might not be amended; but it is a basis for legislation kid by those who are best acquainted with the affairs of the colony. But I am bound to say that after the proceedings which have taken place, the difficulties of introducing representative institutions were greater than had been anticipated. In the first place, the overwhelming influence of Cape Town over the whole of the colony was manifestly and distinctly proved by the result. In the next place, this question of representative institutions has evoked, most unhappily, a desire for a 712 separation between the eastern portion of the colony and the western, upon the express ground that the eastern, consisting of a large majority of the British, would be overborne by the preponderating influence of the Dutch in the Cape district—thus introducing practically at the very outset another of the difficulties which, in 1842, I pointed out. Then, again, the Governor says—That he could not refrain expressing his opinion that when the proposals of the inhabitants, especially of the farmers, were considered, it was likely that, under a legislature purely elective, the coloured classes—being in all three-fifths of the population of the colony—would, by means of compulsory contracts for lengthened periods and vagrant laws, with severe punishments and penalties, be reduced to a state of virtual slavery.The Secretary of the Colony, who stated, in 1848, that with the exception of the law relating to inheritance by succession, there was no point on which the Dutch and English differed, goes on to state that, in 1851, the circumstances before adverted to have made these remarks, which were applicable in 1848, directly the reverse in 1851. The Secretary to the Governor further said, he was convinced sound policy required that due caution should be observed to interpose such a check as might afford opportunity for full consideration to the British Government, and proper protection to a British colony. Here, therefore, were all the difficulties which I predicted brought to bear before the new legislature was constituted, in the very appointment and first movements of the meeting convened for the purpose of establishing that legislature. Under these circumstances, the Governor expressed his opinion that, if possible, a nominative Legislative Council should be established, and not an elective one; and the Secretary to the Governor concurred in that view. The Attorney General stated an opinion, in which I confess I cannot but concur, that though it would have been desirable in the first instance to establish a nominative Council, yet, after the expectations that had been held out, and the quasi promise given, it will be hardly safe to recede, and that the question of a Legislative Council, principally elective, must still continue to be considered, at whatever risks. My Lords, I say that there is no risk equal to the danger of violating a pledge given, or expectation held out to the colony. The noble Earl (Earl Grey) strongly disapproved of the 713 course pursued by the Governor on this occasion. He said—With regard to the course taken by yourself in consequence of the difficulty in which you were placed by the resignation of the four Members who retired from the Legislative Council, I cannot convey to you the final judgment of Her Majesty's Government in the absence of the fuller information which I am led to expect; but I must not conceal from you that I am altogether unable to understand, from that which has already reached me, your reasons for having considered it necessary to interrupt the sittings of the Legislative Council on account of the resignation of four of its members. What was the obstacle to your making new appointments, or proceeding with the remaining Members to consider and to pass the ordinance for completing the constitution—though it seems to have been considered insurmountable by your Executive Council as well as by yourself—I am entirely at a loss to conjecture.The answer of the Governor was conclusive to the rebuke thus administered by the noble Earl. The Governor said the Secretary of State might be "at a loss to conceive" why he could not proceed; but the plain fact was, that he had no legal body—no Legislative Council in existence—for that, by the terms of the letters patent, the Legislative Council must consist of not less than ten or more than twelve Members, of whom not more than six should be official, and that the Secretary of State had fallen into the error of confounding the numbers sufficient for a quorum with the numbers requisite to constitute the legislative body; and with regard to the suggestion, that he might have filled up the vacancies by new nominations, the Governor added that he "could not find the means at that time of making up the Council, unless he filled it up from one portion of the community alone, thus tending to excite the apprehensions of those who hoped to see surmounted the apprehensions formerly entertained by Lord Stanley," as to dissensions between the English and Dutch colonists-differences which, of late, have very formidably increased. The advice of the Governor was, that if possible the principle of nomination should be adhered to; but that, if it were not possible, then as to filling up the present Council new nominations should be avoided. The Governor said—I could obtain Members only from the English community, and only two unofficial; and to resort to the English would be to aggravate the dissensions between them and the.Dutch colonists. But I cannot help thinking that, with the information before your Lordships, it would be practicable and preferable to provide for the in- 714 troduction of representative institutions by an instrument to be issued in England.There certainly is one error which the Governor fell into, or at least he omitted to think of one mode by which he could have obviated the difficulty—by refusing to accept the proffered resignations of the Members of the Legislative Council. [Earl GREY: Hear, hear!] Yes. The noble Earl cheers me. But that was not what the noble Earl found fault with the Governor about. The noble Earl found fault with the Governor for not making new nominations, or not going on with the old Members. But the suggestion as to not accepting the resignations of the Members of the Council who tendered them does not seem at all to have occurred to the noble Earl, and certainly is not to be traced in any of his communications. Upon the noble Earl receiving this answer of the Governor, he said—I cannot alter my views as to the course of proceeding. I am satisfied that you could have gone on with the present Council. It may be true that these resignations having been accepted, may have augmented the difficulty much. I recommend that you shall still go on with a diminished Council, and proceed to frame a new legislature, and in the meantime perform the functions of the Legislature. For that purpose, and as there may, perhaps, be some doubt as to the legality of your present proceedings, I transmit fresh instructions, authorising you to continue with six official members, accompanied by two unofficial members.Now the legal question I am incompetent to argue; but I beg to direct your Lordships' attention to the noble Earl's language, which is really amusing:—Instead of obtaining an opinion from the law officers of the Crown, I have advised the Crown to issue fresh instructions declaratory of the meaning of those which accompanied your commission.And these fresh instructions declare that though the original instructions bear upon the face of them that the Legislative Council shall consist of not less than ten, nor more than twelve members, of whom not more than six shall be official, the meaning is that the Governor shall carry on the government of the colony with any number of persons not exceeding six, and all of them official. And then, as if to show the power of contradiction, the noble Earl says that "when the time arrived for taking into consideration the constitutional ordinances, it was provided by the instructions that the Council should be reconstituted on its former basis." Why, if the 715 meaning of the original instructions was that there should be a Council of six members (though they said expressly from, ten to twelve), what can be the meaning of "reconstituting it on its former basis" when the time shall come for reconsidering the constitutional government? The noble Earl continues thus:—This is necessary in a legal point of view; for the letters patent expressly entrusted the task of forming new ordinances to the present Council, and the Council would not in a strict legal signification, certainly not in common intendment, satisfy these words.With respect, however, to the details of the question, I will refer to one point at least, just to show the pertinacity with which the noble Earl adhered to his own views in defiance of all admonition or experience. That the Chief Justice should he President of the Legislative Council was included in the letters patent—consequently it was not in the power of the Legislative Council to deal with the question, and they were compelled to enact it. But the whole of those who sat upon the Council signed a petition to the Crown, praying that the Crown would rescind that portion of the Royal instructions, inasmuch as they were unanimously of opinion that it was inconsistent with the functions of the Chief Justice that he should preside in the Legislative Council, and thus be brought into the political differences that might arise. They therefore prayed that this part of the patent might be repealed. "No," said the noble Earl, "it is awkward to make frequent alterations in such a document." My Lords, I concur in that opinion; but my inference from it is, that such instruments when first issued should be carefully considered, with a view to their being as much as possible irrevocable. The noble Earl only said, however, that he had "no reason for apprehending that the Chief Justice would not preserve a dignified neutrality with regard to party politics, and considered it essential that, in the first instance, the authority of the Crown should be maintained, by carrying into effect the grant of representative institutions in the manner which Her Majesty had prescribed.
I will trouble your Lordships with one word more as to the mode in which the noble Earl thought he had got out of his difficulty, by declaratory instructions, declaring the meaning of the former instructions, and declaring that ten meant six. Unfortunately for the value of these in- 716 structions, I hold in my hand a legal opinion, signed by names of no mean authority with your Lordships—Sir Fitzroy Kelly, Mr. Spencer Walpole, and Mr. Kenyon—to the effect that the instructions by which the noble Earl thought to mend the flaw in the former instructions, are in themselves illegal, and in excess beyond the power possessed by the Crown: that, the Crown having granted to the colony a constitution, in which there shall be at least four official and six unofficial members, it cannot be restricted and restrained by the same authority of the Crown in such a manner as to exclude from the Council all those persons but absolute nominees holding office under the Crown. My Lords, I have no power to argue the legal question, but I state this upon legal authority; and high as may be that authority on which it has been maintained out of this House, it is supported upon still higher authority in this House. Upon a question of this kind, however, in which the passions of the colonists are excited, and there is discontent from one end of the colony to the other, it is enough to say that doubt can he cast upon the legality of the proceedings—doubt upon the legality of the body entrusted with all legislative functions, and, above all, with the task of framing a constitution. But even if there were no doubt as to the legality of the Council, can your Lordships believe that such a body as at present constituted, with the feelings excited as they now are in the colony, when the Governor states that he could only fill it up by names taken from one portion of the community, and that portion a minority; assuming even that the Council was legally constituted, was it a body to whom at the present time, and under such circumstances, such a delicate and important function should be confided, as that of forming a constitution for the colony amidst so much discontent and excitement? My Lords, the Governor himself has pointed out, and with perfect propriety, the course of proceeding which I am led to believe would be satisfactory, and the only course which can be satisfactory to the colony—that of a final adjudication upon this important question by the intervention and the authority of Parliament. It is not merely that an ordinance signed by the noble Earl the Secretary for the Colonies should carry with it no legal weight, but I regret to be compelled to say, that after what has occurred in the colony, it is a hazard- 717 ous thing to try what may be the respect paid to the authority nominally of the Crown, but virtually exercised by the Secretary of State for the Colonies. We have seen, my Lords, the authority of the Crown, as so represented, set at nought with success; and I cannot anticipate that even with the high name and authority of the Crown, an unhesitating assent would be given on the part of the people of the colony to any constitution which may be sent out on the authority of that Secretary of State with whom unhappily a large portion of the community have for the last two or three years carried on an angry and hostile contest. My Lords, I believe that to the supreme authority of Parliament all sections of the community will bow, and that that authority alone can solve the problem which at present is threatening the whole framework of society in the colony with dissolution. To that authority, my Lords, all parties would cheerfully submit in the first instance, and more especially so if power were reserved to the Legislature to be constituted, or to a majority—or perhaps more than a mere majority—to alter, with the sanction of the Crown, the institutions which in the first place might be given to them. You introduced a provision of this kind into the Australian Bill which passed last year. But that which is of all things the most important is, that this agitating and exciting question should not long be hung up—kindling fresh animosities, and causing fresh difficulties. My Lords, I might have hesitated as to the introduction of so large a measure of representative government as is contemplated in the plan disclosed by these papers. But I say that, inasmuch as the question has been raised, and has been raised upon such high authority, and has obtained the sanction of so large a portion of the colonists, and the sanction of the Crown, I say that any risk is to be encountered, and I will not bate one jot of the extent of free institutions proposed to be conferred upon the colony, however much I may look with anxious apprehension to the working of these institutions—at all events in the first place. But for God's sake settle the question here—settle it here by dispassionate authority, to which due respect will be paid. Settle it by the authority of Parliament—and for that purpose I call upon your Lordships to interpose. You have ample materials before you—the scheme of the dissentient members of the Assembly on the one hand, 718 and on the other hand the scheme proposed and put into the form of an ordinance by the remaining members of Council, with the recorded opinions of the Governor and of such individual members of the Council—in short, all the information which your Lordships can possibly desire. The labours which would be imposed upon your Lordships and the Committee it is my object should be appointed, would be, no doubt, very important, but not necessarily of lengthened duration. But even if they were by a week or fortnight to protract the duration of the Session now drawing (at least, I hope so) to a close, I cannot but think that the occupation of a small portion of your Lordships' time and of that of the other House of Parliament, would be well bestowed indeed in assisting to confer peace on this distracted colony, now torn by intestine divisions at home and disturbed by a war, aggravated by the disinclination of some of the colonists to side with the Government, arising out of the disaffection caused by this very question. If your Lordships will interpose an authority which would be recognised where no other authority is recognised, and strengthen the hands of the Government by uniting the population on behalf of a form of constitution on which they have set their hearts, and thus combining them in defence of the country which is the native home of some, and the adopted home of all, I am sure there is not one among your Lordships who would not think the delay of a few days, or even of a week or two, amply compensated by the valuable results which would follow the interposition of your Lordships' authority in the colony, in the restoration to it of peace and tranquillity, and the restoration also of those friendly communications which it is most important to maintain, and which unhappily have been so interrupted, between the Government at home and the inhabitants of the colony generally. My Lords, I do not ask your Lordships to affirm this Motion for the purpose of any party triumph—[Earl GREY: Hear, hear!] The noble Earl cheers me; but I can assure him I am sincere. I do not mean to say I am not desirous of seeing the Motion affirmed; but that I desire it, not in order to obtain a party triumph, or to pass a censure upon the Government, but because I am anxious to see the friendly assistance and co-operation of Parliament tendered to Her Majesty's Government for the purpose of 719 strengthening their hands, and of effecting the object which we have in view in the only way in which it can be obtained, so as to give satisfaction to the colony, and to secure the good working of the institutions we desire to introduce. With these words, my Lords, I move that a Select Committee be appointed, to which the papers laid before your Lordships in the course of the present or the last Session, with respect to the colony of the Cape, be referred. And I state distinctly that the object I have in view is, with the least possible loss of time, to introduce a Bill for the purpose of settling at once and for ever this difficult and complicated question.
That the papers laid before this House during the present and the last Session of Parliament, relative to the granting Representative Institutions to the Cape of Good Hope, be referred to a Select Committee.
§ LORD LYNDHURST
rose, amidst loud cries for Earl Grey. His Lordship, having explained that his intention was to address the House on a point of law only, gave way.
§ EARL GREY
It is for that reason that I, who am incompetent to match the noble and learned Lord on the legal question, should now answer that which I am better able to answer, the general statements of the noble Earl. I think it is obvious that this course is for the convenience of your Lordships, and that it is also more fair to the Government that I should answer the general statement of the noble Earl, and that then the noble and learned Lord should deal with the legal question, and be answered by some noble and learned Friend of mine. My Lords, I confess I was surprised, after the very long and able speech of the noble Earl, that after having occupied your Lordships' attention for an hour and a half, the noble Lord should have, in a few sentences at the close of his speech, disposed of what seemed to me the most difficult part of the whole subject—the reasons in favour of his Motion. The noble Lord gave a very able and elaborate review, which however was not always correct, as I hope to show, of the transactions connected with this difficult subject; but when he came to the conclusion he called on your Lordships to adopt, he glanced only at the reasons in favour of his Motion; and I confess that I, who originally formed an opinion against the ex- 720 pediency of the Motion, am more than ever unable to concur in it, and am more than ever at a loss to divine the real grounds on which it is brought forward, unless indeed it be that which the noble Earl has disclaimed—the desire of obtaining a party triumph. The noble Earl's review of the whole subject will compel me also to refer in the course of what' I have to say to the transactions of former years bearing upon this question; but fortunately there are many points in which I concur with the noble Lord, and I shall not have to animadvert on much of the earlier part of the noble Earl's statement. But before I proceed to consider the general question, it is necessary that I should, in the first place, shortly notice the noble Earl's complaint that in my despatch I have misquoted one of his own despatches. The noble Earl says that his despatch of 1842 was not meant as a refusal of representative institutions to the colony. Undoubtedly it was not a refusal in so many words; it was not in the noble Earl's own words a final and an irrevocable refusal; but I must say, having read the noble Earl's despatch, and having heard the noble Earl's explanation, I cannot help considering the despatch as implying as strong an opinion as it is possible for a Secretary of State to convey—to the effect that, however desirable representative institutions might be, and however, ultimately, they might be established at the Cape of Good Hope, yet that the time for their establishment had not then arrived. In that sense I understood the noble Earl's despatch. I took that view of it in my own despatch, and it does not appear I was mistaken. The noble Earl said, my despatch to Sir Henry Pottinger, on the contrary, was meant to take away all discretion from the Governor and the local authorities as to the grant of representative institutions, and to express that a conclusion had been come to upon the point, and that really they were only consulted as to the manner in which that great change was to take place. My Lords, such was not my intention; and however badly I may have expressed myself, I confess I am unable to find that my despatch fairly bears such an interpretation. On reading the former despatch of the noble Earl, I found that he professed to feel anxious to introduce representative institutions as soon as it could be done with a prospect of success, even though the measure might be attended with some not incon- 721 siderable risk to the colony; coupling, however, with these expressions the intimation of great doubt whether the time was yet come for such institutions. Then in my despatch, afterwards, I said: "Since the date of Lord Stanley's despatch, the difficulty which before existed in a great degree has been much enhanced. I refer to the exasperation of hostile feelings towards each other among the different races, not only by the contest now in progress, but by the emigration of the boors, and their attacks on the north-eastern part of the colony." To all who attend to the subject, it is notorious that the real difficulty of giving representative institutions to the colony is, that that portion of Africa is inhabited by a great variety of different races, in different stages of civilisation, and some of them divided from the others by an inveterate hostility. The noble Earl spoke of my despatch as a public declaration of the intention to grant representative institutions. Nothing of the sort can be gathered from the publication of that despatch. My Lords, there is no direction to publish this despatch. It was designed for the Governor and his Executive Council, and beyond that body it was not seen by any person, that I am aware of, up to February last year, when it was included among the papers on this subject presented to Parliament. The noble Earl said, that the members of the Executive Council understood it to be decided that there should be some form of representative government, and that they were to be consulted only as to the mode in which it was to be constituted; and the noble Earl quoted the opinion of Mr. Montagu, who said, as every man of common sense would say, that it was a critical and arduous experiment, but that it was necessary to grant representative institutions. That gentleman, however, did not found his opinion as to the necessity of hazarding this great experiment on anything that had been said by the Secretary of State in the despatches, or on any decision of the Government at home, but upon the state of things then existing at the Cape; for he said—I have long held the opinion that there are only two forms of government that will practically answer in a colony—one, which concentrates all power in the hands of the Governor and his responsible advisers; and the other, a complete representative system. There is no safety in halting between those two cases. But for the last fifteen years we have had the system of half mea- 722 sures in the Legislative Council, consisting partly of official, and partly of nominated members—partly deriving power as the representatives of the people, and partly composed of persons holding seats for life, or during the tenure of official situations. This modified form has proved a failure in the colony, in so far as public opinion is concerned, and public confidence in the government, and that moral influence which is necessarily connected with it.That is to say, this gentleman considers representative institutions necessary, not on account of anything the Secretary of State had said, but because for fifteen years a modified system of government had existed, which had proved a failure as respected public confidence, and that moral strength which public confidence alone can give; therefore (he says) it is requisite to establish the system of representative government. My Lords, when Sir Harry Smith, the successor of Sir Henry Pottinger, found that these opinions were held by all the Members of his Government, and that there was at the same time in the public mind a great anxiety for a change in the system established, he made known to the colonists, by means of an answer to an address, that he had been instructed by the Secretary of State to ascertain whether representative government ought to be established at the Cape, and that he had come to the opinion that the change might safely be made, and had so reported. When this state of things was represented to me, I felt that when it was the opinion of an able and laborious public servant that the existing system could no longer work well, and when the Governor had declared that this, his opinion, had been reported to the Secretary of State; the question was praccally decided, and that there remained only to consider how the representative constitution should be established with the least chance of danger, and the greatest probability of success. My Lords, even this was a serious question, and so encompassed by difficulties that I should, but for what appeared an absolute necessity, have shrunk from it. But as that necessity seemed to have been established, and the question really to be considered was, how a representative government should he constituted in the colony, it appeared to tile to be far the best course that could be adopted, that Her Majesty should be advised to refer the question to the Privy Council. The noble Earl has objected to that mode of proceeding, and has asserted that the Secretary of State should have assumed the responsibility of the 723 measure. The noble Earl, however, should recollect that from the earliest period of our colonial system the Board of Trade, which still bears its ancient title, "The Board of Trade and Plantations," was the authority by which questions of this kind were considered previous to the ultimate decision of the Crown. Your Lordships must be aware that in the present state of this country, with the all but intolerable pressure of public affairs upon the heads of the great departments, it is practically impossible that the whole Cabinet should consider the details of a measure which requires minute and careful examination, and is the peculiar province of one department only. It is also clear that the Secretary of State, with the advice of those only whom he has in his own office, has not the advantage of all the assistance which is desirable in considering questions of this sort. It appears to me, therefore, that the return to the old system, of submitting the question to be considered by a Committee of the Privy Council, was attended by great advantage. I had by that means the very valuable assistance of my noble Friend the Vice-President of the Board of Trade; I had the assistance and advice of the noble Lord who was at that time a Member of the Cabinet, and who now fills a still higher station—I allude to the Lord Chief Justice; I had also the able assistance of Sir Edward Ryan, who is not a Member of the Cabinet, but who was possessed of great legal knowledge—of great knowledge in the affairs of our dependencies—obtained during his residence in India; and upon many of these questions, though not particularly upon the Cape of Good Hope, we had also valuable assistance from the late Under Secretary of State for the Colonies, Sir James Stephens, of whose abilities and knowledge upon these matters no man is more fully sensible than is the noble Earl (the Earl of Derby), and no man would bear more willing testimony to the great value of his assistance. He did aid us most efficiently in considering the subject of Australia, but other engagements prevented him from attending the repeated meetings which took place on the subject of the Cape. The assistance of the President of the Board of Trade was likewise of the greatest value. The report was agreed to after much care and deliberation, and after repeated meetings; but it was nothing until it was confirmed by Her Majesty in Council. And how was it confirmed? Not, of course, 724 until it had been submitted to the Cabinet, and approved by them. Therefore, when the noble Earl says there is no person responsible for this measure, I say the Cabinet, and the Secretary of State, are just as responsible for this as they are for any other measure which they adopt; and referring it to the consideration of the Board of Trade was only an additional mode of securing further inquiry and deliberation before a step upon a subject of extreme difficulty was adopted. I happen to know, from testimony I have received from various parties, that this mode of proceeding has given the highest satisfaction in the Colonies. We had adopted it previously with respect to the Australian Bill: that Australian Bill was founded upon a report of the Committee of Privy Council, and in the Australian colonies satisfaction with it was universally expressed: it was considered that this preliminary inquiry gave great additional security for the exercise of proper care and deliberation in framing that momentous measure; and, let me add, the consequence of having a measure thus thoroughly matured and sifted before submitting it to Parliament was, that of that Bill, which for many weeks was under the discussion of both Houses of Parliament, and though every clause was eagerly sifted, and there was hardly a line of it which was not discussed, yet the Bill was passed—the result of all that examination and inquiry—by large majorities, with not a single essential modification of the scheme originally proposed.
The noble Earl objects to parts of the Report of the Committee of Privy Council with respect to the Cape of Good Hope, and more especially with reference to the Elective Council. I am not going to argue that question now, for this very simple reason, that the noble Earl has himself stated that whether it was originally a prudent recommendation or not, still having been formally made, and formally announced to the colony, it ought not now to be withdrawn; but that this measure ought now to be carried into effect. I am glad to hear that admission from the noble Earl. I entirely concur with him; but I must also add, that after having read all the very able papers of the gentlemen forming the Executive Council in the Cape of Good Hope, I still adhere to the opinion expressed in the Report of the Committee of Council; and I think it quite consistent with attaching great value to the opinion of public servants in the colonies, not to concur 725 with or adopt all their views. In this country we have a wider experience and a more general knowledge of what has been the practical working of similar institutions elsewhere; and I believe there is no person who has carefully attended to the practical working of the constitutions of the British Colonies, who will not say that the constitution of the Legislative Councils in Colonies having Assemblies, is the least satisfactory part of these constitutions, and that which, on the whole, has worked the least well in practice. The original system in all the British Colonies was, that the Council should not be an independent body at all—it was, in fact, the Privy Council of the Governor. It is so to this day in Jamaica, the most ancient of our colonial possessions. The Council there can originate nothing; not merely no money bills, but no bills of any description whatsoever—they can amend, but they cannot originate. This Council is composed of a small number of members holding their seats during the pleasure of the Crown, and most of them holding offices in the Colonial Government. Such is now the composition of the Legislative Council ill Jamaica; and it was the universal practice up to the time of the passing of the Canada Act, in 1791, that in colonies having representative institutions, the Council should he of similar character. In that year, for the first time, the Legislative Council in Canada was put upon a different footing—it was made a body to remain for life, and practically independent both of the Government and the people. Before the union of the two Canadas, no person who is at all conversant with the history of that colony will say that that form of constitution had really answered. There was one perpetual quarrel between the Legislative Council and the Assembly—it possessed no hold on public confidence and support. I believe that when you have an Assembly elected by a very wide and extensive franchise, it is necessary to have a body possessing somewhat more authority than the Legislative Councils have hitherto generally possessed, to share the responsibility of legislation with the Government; and at the Cape, I am persuaded, from the degree of discredit into which the existing Legislative Council had fallen, even when there was no Assembly to take precedence of it in popular estimation, that if, when you gave it a representative Assembly, an attempt had been made to have a Legisla- 726 tive Council upon the footing which was recommended, namely, consisting of a limited number of members named by the Crown, the result would have been that you would have had a body possessing little of public confidence, and of that strength which public confidence gives, and, at the same time, you would have lost in the Assembly the service of some of the members who would have been most active and valuable in it. This, however is but a speculative opinion, and, therefore, one on which it is quite right that I should abstain from taking up any more pf your Lordships' time.
But, my Lords, I must now come to the history of the proceedings which took place when the despatches of 1850 reached the colony. The noble Earl has referred to those circumstances, and in many respects his statements are entirely correct. He has told you that at the time when these letters patent reached the colony, the Council was discontinued, or at least the Governor had not thought himself able to replace those members who had been driven from it by intimidation. He, therefore, adopted the measure to which the noble Earl has adverted, for the purpose of obtaining the opinion of the colonists as to the persons who should be appointed to fill the vacant seats. The noble Earl approves of the course pursued then. I will only say that I have no doubt that, under the very difficult circumstances in which he was placed, the Governor acted for the best; but I cannot help adding that I think the result has shown that it was an unfortunate determination, because the noble Earl has himself shown you how extremely unreasonable and factious was the conduct of those who were summoned to assist the Governor in Council in passing the ordinances. He has told you that the letters, patent distinctly contemplated that, until the first writs of the new Assembly were issued, the power of the existing Council should continue. Those letters patent were issued and made public for general information, so that those who accepted seats in the Council for the purpose of carrying those measures into effect, did so with a full knowledge of the facts. The noble Earl said the resignation of the four Members of the Council was occasioned not by the cause ostensibly put forward, but by their having been overruled on some questions of considerable importance by the other Members of the Council. So far I agree with the noble Lord as to think that there is 727 much room for entertaining that supposition; but I am not prepared positively to state that that was the case. But, if not, I think there was still less ground for the resignation. Because, what was the effect of the course which they took? An ordinance was proposed by the Attorney General, for giving effect to certain church regulations of the Dutch Reformed Church. This was an ordinance of a mere formal character, for giving effect to an unconfirmed ordinance of 1843. It appeared, that so long ago as 1843, when the noble Lord was Secretary of State for the Colonies, an ordinance passed which seemed to the noble Lord to be not quite perfect, but to require some amendment, and which, having been referred back for that purpose, was amended by a subsequent ordinance of 1845, which ordinance was confirmed; but, by some oversight, the original ordinance was not confirmed. This was brought to my notice, and I said the time for confirming the ordinance of 1843 was gone by, and that the course was to pass a new ordinance. It was a mere technical ordinance, and one the necessity of which was admitted by all; and yet it was upon this that the four Members thought fit to resign. When they announced their intention of doing so, the Attorney General moved a resolution, the effect of which was, that the consideration of the estimates only should be proceeded with, as being indispensably necessary for the public service, and that, with respect to all other matters, their being taken into consideration should depend upon their peculiar nature, and their admitting or not admitting of delay; the matters not of immediate and pressing emergency were to be reserved for the representative Parliament, and only those matters which could not, without great detriment to the public interest, be postponed, should be dealt with at once; and that, above all, the estimates for the year should be passed. It was in these words, "Estimates for the year," that the real secret of the opposition lay. It is perfectly obvious, from the papers drawn up by the seceding Members, that what they claimed was, that no pecuniary provision whatever should be made for the public service; that the Governor should go on until the Representative Legislature could be obtained, applying money by his own authority, subject to any question to be raised hereafter in the Representative Chamber, and that no provision whatever should be made for the future in the nature 728 of a Civil List. It is perfectly obvious, that if they had carried this point, and a new Parliament had been allowed to come into force, with no salaries for the Governor or any officers under him, not a shilling permanently appropriated to the civil services of the Colony, all power, without any check or control, would have been virtually thrown into the hands of the new Parliament, created for the first time to represent a population, a large proportion of which was confessedly in so low a state of civilisation as to make the introduction of representative institutions a somewhat difficult experiment. In granting representative institutions for the Colonies, no Administration or Government has acted upon such a plan. In the case of the North American Colonies, and, last year, of Australia, Parliament and successive Governments have always thought it necessary that there should be some provision beyond the annual estimate of the public expenditure. The principle whch Parliament adopted last year with respect to Australia, withuot a vote against it in either House of Parliament, was this:—We stated that we thought it a just objection on the part of the Australian Colonists, that a very large proportion of the revenue of the colony should be altogether withdrawn from the control of the local Legislature, by being permanently appropriated to certain purposes by Parliament, and we recommended a different principle. We thought it right that there should be certain fixed charges provided for by permanent appropriations, which might be altered by the Legislature from time to time as occasion might require, but only by laws to which, like other laws, the consent of the Crown would be necessary. The whole of the public expenditure not thus provided for would be left to be annually voted by the Assembly. The difference between the two modes of providing for different portions of the colonial expenditure is simply that with which we are well acquainted in this country between the charges on the Consolidated Fund, and charges on the annual Estimates. In this country a large sum is appropriated by Act of Parliament, and that cannot be altered without the consent of the three branches of the Legislature. Another and a very considerable sum is voted year after year in the estimates. We thought the same principle should be adopted in the colonies. We maintained that the civil establishments 729 should be provided for by permanent laws, to be altered from time to time by the Legislature; but in adopting this principle, was it proposed that we should use the power of the Crown to control and interfere vexatiously with the right of the Legislature to deal with the affairs of the colony, and make such reductions as they might think necessary? No. I refer your Lordships to the despatch which I wrote last year in transmitting the Act of Parliament with regard to Australia, which is on the table of both Houses and before the world, and that will show that the principle laid down was this:—We will not consent that the civil establishments shall be voted from year to year; but the Legislature are perfectly welcome to make such reductions as they think fit, subject to these two conditions—first, that the vested rights of existing holders of office, those who obtained them under the faith of the Crown, shall be respected; and, secondly, that the appropriation, whatever it may be, large or small, shall be a permanent appropriation not liable to alteration in the caprice of a moment, or the personal popularity or unpopularity of an individual public servant. While those principles were respected, I stated that there was no reduction which the Legislature could make to which I was prepared to advise Her Majesty to withhold her assent; that I thought it would be very bad policy for the colonies themselves to introduce a, low and niggardly scale of payment, but that it was their interest which was concerned, and that if they made a mistake in those matters, I must trust to its being corrected by experience. I feel convinced that your Lordships will concur with me in thinking that there is no just ground of objection to the proposed arrangement; yet no man can read the papers without seeing that this was the point against which the opposition of the dissenting Members of the Legislative Council was really aimed. They protested over and over again against any permanent appropriation of the money of the colony by a nominee and an irregular board, and wished to reserve the question as to the legality of the past expenditure, and thus ensure a certain quarrel between the new Parliament and the Executive Government. I would ask whether it was possible for the Crown to allow a representative constitution to come into operation, leaving a question of this sort unsettled. Hence, my Lords, I contend 730 that whether the resignation of the Members who retired, was really adopted for the reasons they assigned for it, or on those which the noble Earl believes to have actuated them, it was equally unjustifiable. But, however unjustifiable their conduct, the Governor, upon the resignation of the four Members, thought it impossible to proceed to pass the Ordinance which was required to bring the representative constitution into operation. The noble Lord has suggested a mode by which the difficulty might have been got over: the Governor, he says, might have declined to accept the resignation of the four Members. I am inclined to concur with the noble Earl on this point, and to think that the Governor should have declined to accept the resignations when, so long as he could command the presence of six Members for a quorum, there could be no doubt as to the legal competence of the Legislative Council to continue its sittings in order to pass the Ordinances. But as the Governor accepted the resignations tendered to him, the position of affairs was altered; and when this report was received, it became a serious question what should be done. The Governor had strongly recommended that the supplementary regulations necessary to give effect to the letters patent, should be enacted by Order in Council, instead of by Ordinances to be passed in the colony; but, on the other hand, I must say, that considering the mode in which those four resignations had taken place—believing that their real object was to create an impression in the popular mind at the Cape that the Governor was powerless in the hands of certain persons, who had from unfortunate circumstances been able in one case (to which the noble Lord has referred) to overrule the intention of Her Majesty's Government, their intention being to show to the people of the Cape that it was in their power to thwart the deliberate intentions of Her Majesty's Government—I did think, and my Colleagues concurred in the opinion, that, although if it had been a new case, there might have been no great reason for preferring a local Ordinance to an Order in Council, for the enactment of the various provisions subsidiary to the letters patent which were required; still under the circumstances it was important, when we were confident that the course taken was substantially right and proper, and the resistance perfectly factious and unprovoked, 731 to show that our deliberate determination was not to be overruled. I have no hesitation in stating to your Lordships that this was in my mind the main consideration. Accordingly we referred back the question to Sir Harry Smith, directing him to complete the Council, and pass, by its authority, an Ordinance, as was originally proposed. Unfortunately, when my despatch of the 10th December arrived at the Cape, the Governor was engaged in the contest with the Kaffirs which had recently broken out, so that it was impossible for him to act upon the instructions which were sent to him. He reported that in the meantime he thought it advisable that he should be enabled to legislate with a Council of reduced numbers—that it was obviously inconvenient that no legislative authority should exist in the colony—and he recommended that he should be allowed to proceed with a Council of six members instead of ten. That advice has been acted upon, and the Governor has been empowered to proceed with a Council of a reduced number. This was done by an instruction transmitted to the Governor in a despatch dated May 13. That is an instruction of which the legality is contested. I am happy, however, to find that the noble Lord does not lay much reliance upon the grounds upon which its legality is contested. He states, indeed, that he was not learned in the law, and that he should leave it to hands better qualified to deal with the subject, confining himself merely to the opinion given by three very eminent lawyers, and quoting a despatch of mine transmitting the instructions. I must so fat agree with the noble Lord as to confess that that despatch was hastily and carelessly composed. I must take blame to myself for this, that in the great pressure of public business, having received at the last moment before the mails had to be made up, the opinion of the law officers that the instructions proposed were perfectly legal, I did misapprehend the grounds upon which their opinion was founded, and in consequence of that the despatch was to a certain extent incorrectly and inaccurately expressed: but beyond that inaccuracy of expression, I believe that there is no fault whatever to be found with it. With respect to the law, I shall follow the course of the noble Earl, and not enter more than very slightly indeed into a question which I am sure is beyond my strength, and 732 Which, I am equally sure, will be well argues, by and by, by my noble and learned Friend on the woolsack. I will therefore make but one or two passing observations on this part of the case. First of all, I will say that I was advised by the law officers of the Crown that that instruction was perfectly consistent with the law; and having since consulted those upon whose judgment I have the greatest reason to rely, including some distinguished ornaments of your Lordships' House, I find that my opinion as to its legality is strictly confirmed. The noble Earl has quoted the opinion of three lawyers of undoubted eminence in their profession; but it is a very old maxim that there is very little weight to be attached to an opinion signed by any lawyer, however eminent, unless you can see the case upon which that opinion is founded. In this instance we have the advantage of having seen the case, and without making the slightest reflection upon the professional ability and character of Sir Fitzroy Kelly, Mr. Walpole, or Mr. Kenyon, I must say that their opinion, being formed upon a case in which the facts are entirely misstated, is completely valueless. The case beings by saying—It is clearly established that, by the law of England, a legislative constitution once granted by the Crown to a colony is irrevocable, except by the authority of the Imperial Parliament, or by the act of the local Legislature, with the consent of the Crown; and that it is incompetent to the Sovereign alone to suspend or in anywise to restrict of limit a constitution so granted, in derogation of the rights and privileges thereby conferred upon the people of the colony, or of the benefits resulting to them therefrom. In this case the letters patent of 1847 confer upon the colony a Legislative Council constituted in part of official servants of the Crown, and in part of independent Members selected from among the people; and there must be always at least four of such independent Members. By the letters patent of 1850 a further grant is made of a Parliament to be constituted according to the Ordinance of the Legislative Council then in existence.Now, with respect to the first point, I believe that it is quite indisputable—at least, I have no motive for disputing it. I believe that Lord Mansfield's celebrated judgment was, that when the Crown had granted a representative constitution to any colony, it was not competent for the Crown to withdraw it. But with respect to what the case said about the letters patent of 1847 conferring upon the colony a Legislative Council constituted so and so, I dispute the accuracy of the statement. In the case laid before Sir F. Kelly and 733 his Colleagues certain material words in the Commission issued to Sir H. Smith, in 1847, which were a transcript of the prior Commission of Sir B. D'Urban of 1833, were altogether omitted. The words were—And we do hereby give and grant unto you, the said Sir Henry George Wakelyn Smith, full power and authority, with the advice and consent of the said Legislative Council, to make, enact, ordain, and establish laws for the order, peace, and good government of our said settlement of the Good Hope and its dependencies, but subject nevertheless to all such rules and regulations as by your said instructions we have thought fit to prescribe in that behalf, or as by any further instructions under our signet and sign manual, or by our order in our Privy Council, or by us through one of our Principal Secretaries of State, we shall or may think fit to prescribe; provided nevertheless, and we do hereby reserve to ourselves, our heirs or successors, our and their undoubted right and authority to disallow any such laws, and to make and establish from time to time with the advice and consent of Parliament, or with the advice of our Privy Council, all such laws as may to us or them appear necessary for the order, peace, and good governmtnt of the said settlement and its dependencies, as fully as if these presents had not been made.Now, my Lords, Lord Mansfield's opinion was founded on this fact; a proclamation had been issued by the Crown for giving representative institutions in the island of Grenada, with assurances that the colonists should have the full power of taxing themselves. Subsequently letters patent were issued fulfilling that proclamation, and the Court held that, by the promises so given and fulfilled, the Crown had foregone its legislative power, and could not resume it. But in this case the Crown, instead of having foregone, reserves not only the legislative power of Parliament, which would be reserved without mention, but "the full and entire power of legislating by Orders in Council as fully as if these presents had not been made." Surely, upon a case laid before lawyers, in which this material clause is altogether omitted, their opinion is one to which little stress or little weight attaches. But further, the case recites that "the letters patent of 1847 conferred upon the colony a Legislative Council, constituted in part of official servants of the Crown, and in part of the independent Members selected from among the people, and there must be always at least four of such independent Members." Now, the letters patent do no such thing. The letters patent do this, and only this: After reciting that there shall be two Councils, one a Legislative Council and the other an Executive Council, they proceed— 734And we do direct that the said Councils shall respectively be constituted in such manner as in that behalf directed by the instructions herewith given to you, or according to such further powers, instructions, or authorities, as shall at any future time be granted to or appointed for you under our signet and sign manual, or by our order in our Privy Council, or by us, through one of our Principal Secretaries of State.The letters patent said nothing about official or unofficial Members of the Legislative Council. They simply said that there should be a Legislative Council, which should be constituted as directed by certain instructions sent herewith, or according to any future instructions that might be sent. So that here again the case before these lawyers is not only inaccurate, but the very reverse of the fact. With regard to this question, as it will be dealt with by far abler hands than mine, I may now pass it by, having said quite sufficient to show that the opinion professing to rest on a case, which on the face of it is altogether inaccurate, must itself fall with the case on which it is built. But, my Lords, allow me to point out what is the object of the instruction under the sign manual, reducing the number of members of which the Legislative Council is to consist. By this instruction, and the despatch transmitting it, the Governor is directed to use the power of that Legislative Council merely to pass such legislative measures as may be absolutely necessary, until the representative constitution can be carried into effect. I entirely concur with the noble Lord when he said it was absolutely necessary that the Crown should scrupulously adhere to carrying into effect promises given, and that a representative constitution having been promised, that it should be carried into effect with as little delay as possible. I entirely concur with the noble Earl in wishing that the legislative constitution should be brought into operation at the earliest possible period; and I say that, but for conduct unexampled for its factious and vexatious character, beyond all question that constitution would at this moment have been in operation. Nothing but the conduct of the four retiring Members of that Council has prevented representative institutions being at this moment in full and complete operation. And I say more—I have most full and complete and entire confidence, that in a very short space of time the necessary steps may be taken, and that that constitution may be brought into effect. The noble Earl urges that the question should be settled here, and asks, will the 735 Council named by the Governor have any real weight or authority, and will its determinations give any satisfaction to the colonists? I am much inclined to concur with the noble Lord, so far as to think it a case in which Her Majesty's Government should take upon themselves the responsibility of settling the question, and Her Majesty's Government are prepared to do so. But they will do so in a manner in which, under all the circumstances of the case, they think proper and fit. The papers sent home from the colony contain most complete information on all points on which information is necessary. With those papers before us I have no doubt little difficulty will be found in framing in this country the draft of ordinances sufficient to complete the letters patent already issued; and it is the purpose of Her Majesty's Government—a purpose which I believe has been communicated by my noble Friend at the head of the Government to persons interested in the colony—without loss of time to apply themselves to the consideration of those draft ordinances which may be transmitted, as soon as possible, to the colony for the purpose of being there enacted: I have little doubt the Governor will be enabled to assemble a Council, technically competent, according to law, to pass these ordinances, and that they will be passed I have as little doubt. I am sanguine, also, in thinking that with the means at his disposal, the Kaffir war cannot be of long continuance, and that the only obstacle to the completion of this constitution will be removed. The noble Lord urges that the Imperial Parliament should legislate on the subject. He says that nothing but the authority of Parliament can settle these questions. He does not deny—and it is very satisfactory to hear this—the legal competency of Her Majesty to bring this constitution into operation by virtue of Her own authority. He admits the letters patent to be good and binding—that the ordinances under them will be binding in the colony—and that the constitution may thus be established; but he says, in effect, that I have so entirely lost the confidence of the colonists, that it is desirable that an Act of Parliament should be had recourse to. If the fault is in me, it would have been far better had the noble Earl moved an address to Her Majesty, praying Her to place the seals of the Colonial Department in other hands, instead of taking what, I must be permitted to say, is an inconvenient 736 course—the giving up the proper and constitutional powers of the Crown, because those powers are entrusted to hands not capable of exercising them. If he entertains that opinion, the course I have pointed out is one which it is in his power to adopt. But let me point out to your Lordships, that the mode of granting a constitution which the Government have adopted in this instance, upon great deliberation and careful inquiry, and with the assistance of eminent legal advice, is strictly consistent with the oldest precedents and the oldest practice in the colonial history of this country. I hold in my hand a statement of the leading steps which were adopted when in the year 1664 the first colonial constitution was issued in the case of Jamaica. [The noble Earl here read the statement he referred to, to the effect that the measures taken in respect to Jamaica, were to direct the Governor to call a Council, and by its advice to establish a General Assembly; and in July, the same year, the Governor, by the advice of his Council, issued his writs for the election of two Members of the Assembly in each parish.] This precedent has been carefully followed in the letters patent sent to the colony of the Cape in 1847. We have settled that there shall be an Assembly and a Council; and not being able to fix the limits of electoral divisions and the number of voters with a given qualification, and other local details, we have directed the Governor to obtain the assistance, not of a Privy Council, but of a Legislative Council, which exists at the Cape, and did not exist at Jamaica, to make those arrangements. I am sure your Lordships will perceive how strictly and closely we have followed the precedent. Jamaica was not, however, near so complicated a case as that of the Cape. The population of Jamaica was composed of only two classes, slaves and planters; but as no one thought of giving slaves the right of voting, the question was narrowed mainly to the division of the island into parishes. In the Cape we had not slaves, but those who were very recently slaves, and a mixed population with very discordant feelings, which rendered it the more necessary to give a wider discretion to the local authorities. But, at the same time, the main and leading principles of the constitution are so clearly defined in the letters patent, that practically the points at issue are very slight—so slight that this remarkable circumstance has happened; the Attorney General has 737 sent home his draft of the Order in Council for approval, and the gentlemen who come as delegates in opposition to the Colonial Government, have urged on my noble Friend at the head of the Government, that they should take that constitution just as it stands by the Attorney General, as a document emanating from the Legislative Council, and pass it into law. The difference is so unimportant that they pray they may have the very thing they might have had in the first instance, but for their resistance to the measures of the Government—a resistance, as I say, designed for no earthly thing but to show their power, and the weakness of the Governor—to convince the colonists that to them they must look up for advice and direction, and not to the Governor. No other object but this has prevented that constitution being now in force; and I must say it does not appear to me that such a case as this is a case for the interference of Parliament. One word on the question of legislation. If legislation is the right course, Parliament ought to deal with this case; but if the Crown is competent, it was better for the Crown to do it without legislation. The right was invariably exercised by the Crown until 1791, when the Canada Bill was passed. I find no instance in which a constitution was established by Act of Parliament before that. Does the noble Earl find any instance? [The Earl of DERBY signified that he did not.] I believe that until that year, in creating representative institutions, the Crown invariably proceeded by commission, under the Great Seal, directed to the Governor. But in the case of Canada there were special circumstances which called for the intervention of Parliament. That lately conquered province was almost entirely inhabited by a Roman Catholic population, on whom, in the then state of the law, the privileges which the Crown wished to grant could not be conferred except by the consent of Parliament; it was therefore as necessary as it was wise to obtain the assistance of Parliament to enable the Crown to grant those privileges. Principally for that reason, the former practice was departed from, and a constitution was granted by an Act of Parliament. The same course has been adopted since in the case of Australia, for a similar reason, namely, that the Crown could not by its own authority accomplish what in that particular case was required. The Crown has no legislative power in a colony not obtained by con- 738 quest or cession, and in such a colony can grant a representative constitution, but can grant no other; and in Australia, the population, in the early days of the colony, consisting mainly of convicts, such a constitution was inapplicable. Therefore, the constitution of Australia was originally granted by an Act of Parliament; and when the form of government is established by Parliament, no less authority can make any alteration. Thus, it would be a departure from old practice to institute representative institutions at the Cape, where no such exceptional circumstances existed by legislation. But then the noble Earl says, that we should have a Committee. I must say a Committee would be a very irregular mode of proceeding, and surely would be very inconvenient. Here we are near the middle of July; and we know that last year the Australian Bill (on which, after all, questions of much less difficulty arose than would arise on the Cape of Good Hope) occupied the major part of the Session, occupied a greater portion of time than was devoted to any other public business in both Houses of Parliament. This Session, in consequence of the extreme urgency of certain Bills, we have been compelled to postpone a variety of measures which were of pressing interest; and I cannot help thinking that it is rather an extraordinary course, when measures of this description have been necessarily postponed, to call on the Government to introduce a Bill which would lead to discussions not much shorter than those which took place on the Australian Bill. I am sure, if that course is taken, the ceremony of proroguing Parliament will be almost needless, and we shall conclude this Session about the time when it is proper to open the next. But, my Lords, I am willing to assume that legislation is the right course. Is that any reason for a Committee? What have a Committee to do? Is there anything to inquire about? The facts of the case are all before us; and if the noble Earl thinks we (the Government) have done wrong, his course is to move an Address to Her Majesty to rescind those instructions, and humbly pray Her Majesty to dismiss Her Ministers. But, delay being the thing which the noble Earl wishes to avoid, of all courses he proposes a Committee! Now, I think, your Lordships must have been struck with one circumstance, which made a great impression on me. When the 739 noble Earl gave notice of this Motion, a fortnight ago, he laid the principal stress on the legal part of the question. In the notice, he implied that, as nearly as possible, the main object he wished the Committee to consider was, whether the instructions issued in May last were conformable to law, and whether or not it was necessary to pass a Bill of Indemnity to Her Majesty's Government. Remember, a Bill of Indemnity. For what was a Bill of Indemnity required?
§ The EARL of DERBY
To cover the acts of the Governor of the Cape of Good Hope, in having expended money for two years without any legislative authority.
§ EARL GREY
I am glad to know the grounds on which a Bill of Indemnity could be required. Without explanation, it was difficult to understand what those grounds were, and since the explanation it is still more difficult to understand them; because, by the noble Earl's admission, the power of the existing Legislative Council remaining intact until the first writs are issued creating a new Assembly, whatever Parliament did to cover the appropriation of money, the Colonial Legislature could do also, and it would be more convenient, because the latter would know what acts they were going to legalise. We do not know here what the Governor has done, against which he requires to be indemnified; but that is easily ascertained on the spot where the Bill of Indemnity is to be passed. I was saying, the intention of the noble Lord, gathered from his first notice, was, that a Committee should inquire into the legal question. Now, I must say, nothing can be more inconsistent with practice and precedents, than to delegate to a Committee any authority to inquire into the law. Why, this House itself has no right to pronounce on any question of law until the question comes before it in a regular course as a judicial tribunal. Sitting as a branch of the Legislature, this House has no such power, and no right to do so; but that a Committee should inquire and decide on a question of law, seems altogether unprecedented. Your Lordships must consider upon what grounds you are asked to appoint this Committee; because, although you may disapprove the policy of Her Majesty's Government, yet as the noble Lord has not taken the course of moving a vote of censure, it is still your duty not to agree to the specific Motion for a Committee until you are satisfied there are 740 good and valid reasons for it, and that your adopting it will conduce to the public advantage. The noble Earl, disavowing all party considerations, says he tenders to Her Majesty's Government a friendly assistance. I certainly do not see on the other side any strong symptoms that this is not a party question—I do not see any symptoms of strong wishes of friendly cooperation—a co-operation, if I may be allowed to express an opinion, which would be really useful to Her Majesty's Government, and conducive to the peace and safety of the Cape colony. I have shown your Lordships that the noble Earl has not been able to state any plain or intelligible object to be obtained by the appointment of a Committee. This alone, I think, would be a sufficient reason for objecting to it. But I should much deceive your Lordships if I were supposed to think it would be merely innocent. As respects this country I should say, take your Committee in welcome-name your own members—take all the papers—sit upon them as long as you please—present to Parliament such a report as you please. But it is my duty, and it is your Lordships' duty, to look beyond the walls of this House—beyond this country, and to what is going on in the colony; and I say, if you consider the subject in that way, it is impossible to adopt a course so full of danger, so full of injury to the public service, as the appointment of such a Committee as that proposed. What must be the effect of it? Clearly to throw doubt and uncertainty on the authority of Her Majesty's Government and all that has been done in the colony—to support the views and objects of those gentlemen who have come over to this country as organs of a particular party, in opposition to the local Government, and in opposition to Her Majesty's Government. It must be to give direct support and encouragement to them. They have taken the opinion of counsel on a case drawn up, as I have shown you, with singular inaccuracy, in order to prove that Her Majesty's Government have acted without due legal authority, and to drive Her Majesty's Government to alter a certain line of policy, deliberately adopted, after careful consideration. If your Lordships consent to appoint this Committee—if by taking that course you apparently support all these views, I ask if it can have any other effect than to weaken the authority of the gallant Officer 741 to whom is entrusted the difficult task of governing the colony, and to encourage the factious and unscrupulous party who have opposed him? Now, my Lords, I think you must be aware, even from what I have now said, how dangerous is the course proposed. But those who have not carefully watched the proceedings of the colonists, and do not know the true character of the party represented in this country by the gentlemen to whom I have referred, can only imperfectly estimate the evil which will arise from the adoption of such a course; and I think it absolutely necessary, therefore, before I conclude, to make known to your Lordships the true character and the true conduct of that party. In doing so it will be my painful duty to speak severely; but it is a duty which I feel I am bound to undertake, which I have deliberately resolved upon, and which I shall endeavour to perform as dispassionately as is consistent with clearly stating the facts to your Lordships. Now, my Lords, the party in opposition to the Queen's Government in that colony trusts for support mainly to two classes of persons, as the noble Lord opposite has stated; in the first instance to some of the Dutch farmers, and also to a party organised at Cape Town during the anti-convict agitation. With regard to the Dutch farmers, I am bound to say I attach great value to that class of colonists. I believe they possess many great and valuable qualities, dashed with some not inconsiderable alloy. Unfortunately to a great extent they are ignorant. Unfortunately they are too easily led away by designing men, whose objects differ from their own. This class of persons has been for several years in a state of great discontent; and I am bound to admit that that discontent was in its origin a just one, as it mainly originated in the measure of the noble Earl opposite for the emancipation of the slaves. I am perfectly aware that many for whom I have great admiration, were jointly responsible with the noble Earl for that measure. I know his intentions in proposing it were most praiseworthy and most excellent, but I will not the less state that I think now, as I thought in 1833, and as I stated in 1833 in my place in the other House of Parliament, that that measure was an unwise one; that it carried a great and holy object by injudicious means; that it was calculated to inflict great and unnecessary injury on the masters of slaves whom you emancipated, and was at the same time 742 not calculated to advance the true and best interests of the slave population, to which you gave the inestimable boon of freedom. Whether that opinion of mine is inaccurate or not, at all events the noble Lord will not contradict me when I say that the discontent of the Dutch boers dates from, and may be traced to, the Slave Emancipation Act of 1833. That measure created a disposition on the part of the Dutch population to withdraw beyond the reach of British authority into the interior of Africa. It is that measure, carried as it was, which has been the fertile source of all the difficulties with which from that time we have had to contend, and with which we shall for some time longer have to contend. My Lords, that disposition of the Dutch population to withdraw from the British authority, led, in 1842 or 1843, to their withdrawing to Natal. But the noble Earl opposite would not allow them to establish an independent power, and despatched a military force, and, after considerable loss of life, the attempt to establish themselves in an independent territory was frustrated. Now, my Lords, these persons are intimately connected by blood relations and ties of friendship with a large population living within the colony; and though I believe at one time much progress had been made in conciliating the population within the colony, unfortunately recent events have enabled designing men to mislead them as to the true objects and intentions of Her Majesty's Government. This republican party is one of those on which the opposition, led by Sir A. Stockenstrom, rest for support. The other party is the party which was organised at Cape Town during what is called the anti-convict agitation. The noble Earl has been very severe on what he thinks was a mistake made by Her Majesty's Government, and principally by myself (for true it is that in matters of this kind the principal blame rests on the person in whose department the error, if error it be, is committed)—the noble Earl was very severe on the error, as he contends, committed in sending convicts to the colony in 1849. I will not now repeat what I have formerly stated to your Lordships on this subject. It is very possible that may have been an error. All I can say is, it was a course taken at a time of extreme difficulty—difficulty left to Her Majesty's present Government in a great measure by the noble Earl opposite having brought Van Diemen's Land into such a state that 743 convicts could be no longer sent there. It was a difficulty of a very urgent character, in the then state of Ireland, how to dispose of a large number of persons who, during the pressure of famine, had committed offences. It is my firm belief that if they had been received, as I certainly thought they would, instead of injury to the colony they would have been of advantage to them, consisting chiefly of ticket-of-leave men who had been driven, during the famine in Ireland, for the preservation of life, to commit plunder. They had incurred punishment, and they could not be suffered to remain without punishment. They could not remain at Bermuda, on sanitary considerations—they could not be sent home. It was equally impossible to send them to Van Diemen's Land. The Government could do no other than send them to the Cape. But I have explained to your Lordships on a previous occasion, that it was the intention of the Government to limit the number of convicts sent to the Cape to that particular body. Whether the error was on the part of Her Majesty's Government in sending, or the colonists as to receiving the convicts, I am happy to find that the noble Earl has not justified the resistance which was offered to the Government upon this point. The noble Earl has not justified the measures resorted to by the Anti-Convict Association. I am compelled to say that the leaders of that association, acting on an honest and, as I think, a misguided feeling on the part of the great majority of the colonists, did contrive to establish for a time a system of mob government of the most dangerous description that ever existed. The noble Earl has doubtless seen a very remarkable pamphlet, written by a colonist and a settler, a member of the Scotch Church, and connected with the missionary institutions of the Cape—he was one of those who were originally parties to the movement against the importation of convicts. In that pamphlet the writer indignantly disclaims being any party whatever to the subsequent efforts and acts of the association, which, by having a monopoly of the press, and by carefully excluding all resolutions and speeches not coincident with their own views, and by a system of intimidation carried to the extremest length, established a power in the hands of a few persons of the most dangerous character. My Lords, you are aware that this power was used in the first place to endeavour to starve Her Majesty's troops and the civil 744 servants in the colony, by depriving them of the necessary supplies, and this after the Government had made a distinct promise that the convicts should not be landed. The Governor told them that he had no power to act without instructions from the Home Government; and he only asked in the interim that those unhappy men, whose health was seriously affected and broken down from their long confinement, as well as from the effects of a voyage under a tropical sun, should be allowed, pending reference to the home authorities, to have the supplies necessary for the preservation of their lives. This moderate request was resisted by every possible means. Intimidation was carried to the utmost extent, and, in order that you may understand what really was done by this association, I trust I may be permitted to state one individual case. There was at that time at the Cape a Mr. Stanford, who has been since knighted by Her Majesty for his services. He was formerly an officer in the Army, but he left the service and settled in the Cape, where, by remarkable energy and perseverance, he succeeded in acquiring a large landed estate and other property of considerable value. When he became acquainted with what was going on, he went to the Governor, and, although fully aware of the risk he ran, he said, "So long as I can furnish supplies, I will not allow that army of which I once was a member to be deprived of the necessaries of life; neither will I allow, as long as I have the means, the unhappy convicts in the Neptune to die a lingering death from the want of fresh provisions, nor permit the sick sailors in the naval hospital to be deprived of the supplies necessary for their recovery." Having a large supply of cattle and corn, he was able with great difficulty, in spite of the measures adopted to thwart him, to assist the Government in obtaining the supply required. What was the consequence? He became a marked man, and from that hour to this—because these measures of hostility have not been confined to the time of excitement, when the Neptune was in Simon's Bay, even although it is a year since the Order in Council was recalled by which convicts were sent to the Cape—that persecution continues. His servants were intimidated; no man was allowed to buy or sell with him; his crops of corn became almost valueless because they were nearly blown out of the ear, as he could not get labourers to harvest it unless he paid the 745 most extravagant wages; no bank dares advance him a single shilling without a certainty of ruin; his own most intimate friends dare not furnish him with articles of the first necessity; the apothecary who had the prescription of the medicine which was necessary for the health of his wife refused to make up the prescription. Nor is this all. This unmanly vengeance is extended to his wife and children. His farm is situated at a considerable number of miles from Cape Town. It happened that his eldest child was taken suddenly and dangerously ill. He hastened to Cape Town to take down Lady Stanford to nurse her sick child. These parties had the heartless barbarity to place him under such a ban that not a livery stable-keeper would furnish the distressed mother with horses to take her, or the physician whose aid she had called in, to visit her sick child; and it was not until late in the evening that, by the assistance of the Governor's secretary, a carriage was obtained, which had to be taken a considerable distance out of town before it could venture to receive them. But the vengeance did not stop here. The child died. It became necessary to inter its remains, which were brought for that purpose to Cape Town. The carriage in which Lady Stanford was travelling on this sad errand was obliged to stop at an inn on the road side, in order to obtain a change of horses. The innkeeper said that he had children himself, and that he had not the heart to refuse the request to the unhappy mother. What was the consequence? His inn was deserted; travellers then in his house left him in a body, and he has been ruined in his business. These are the means adopted for consolidating that power whose object was not merely to prevent convicts from being landed at the Cape of Good Hope—for the system is still carried on when all danger of such a measure on the part of the Government has been removed—but to consolidate the power of a party, to which the success of the present Motion would be a sanction and a direct encouragement. My Lords, allow me to inform you that the ringleader of the Anti-Convict Association is the owner and editor of the newspaper which, conducted in a vile spirit, is the ready, efficient, and detestable instrument of these atrocities—I say the owner and editor of that newspaper, and the prime mover of the Anti-Convict Association—who is responsible for this mean and paltry system of persecution 746 against an unfortunate woman in the deepest distress to which a woman can be exposed—the person who is the leader of this association is that Mr. Fairbairn, who is now in this country as the organ of the party whose views will be promoted if your Lordships, by agreeing on this Motion, throw doubt and uncertainty on all that Her Majesty's Government have done. It is not true that by referring these papers to a Select Committee you can advance the constitution, as has been alleged; it can have no effect of the kind; the only effect and the only consequence that possibly can result from it is to throw an implied censure upon Her Majesty's Government. If we have deserved censure I do not refuse to submit to it. If it is a just censure, I say, propose it directly, and in such a manner that Her Majesty's Government may resign to other hands the powers which they have shown themselves incompetent to employ usefully. But do not take this course, by which, without effecting any real change, you exasperate the existing divisions and animosities; and, while you leave the existing policy to go on, you deprive that policy of its real chances of success. I cannot believe that your Lordships will come to a vote calculated to lead to such a result, and I therefore do look forward with the utmost confidence to the rejection of this Motion.
§ The EARL of MALMESBURY
My Lords, I shall neither follow the noble Earl through the many extraneous topics he has introduced into the closing part of his address, nor shall I make any comments on the introduction of the persecution of Lady Stanford, which appears to have been done for the purpose of diverting your Lordships' attention from the real question before the House, and inducing you to forget the unanswerable arguments of my noble Friend behind me. The real question before your Lordships is, whether the constitution which it is universally acknowledged is called for by the Colony, should proceed from the hands of Parliament, or from the hands of the Executive Government. The whole of the arguments urged by my noble Friend who opened the debate have been entirely untouched by the speech of the noble Earl opposite. I have no wish to weaken the power of the Colonial Office; I have no wish to deprive it of the power the Crown has endowed it with; I have no wish to humiliate the noble Earl by depriving him even for a time of the executive power 747 he derives from his office. All I ask your Lordships is to do that which the noble Earl has voluntarily done of himself. The noble Earl has himself abdicated his power—he has abdicated his responsibility, by which he should have stood; he has abdicated his own judgment, and now, after having given into other hands the work which he should have done himself, he is so susceptible that he refuses to delegate to Parliament the performance of the task that he has himself refused to perform. The noble Earl has abdicated his power by delegating it to the Privy Council. The authority of the Privy Council was created in 1660, by Charles II., but it was shown that that authority was subservient to the authority of the Colonial Secretary when that office was created. The noble Earl has, however, adopted the contrary course, and he finds his excuse for the abdication of his authority in the advice of Sir Edward Ryan. He gave up, not only his authority, but also his opinion. From a letter of the noble Earl, dated February 12, 1849, he declared it to be his opinion that a nominated Council was the sort of Council that ought to be appointed for the colony. But it appears that the Privy Council ordered an elective Council for the colony, and the noble Earl abandoned his own opinion in deference to others; and I am myself satisfied that if the colony was allowed a greater latitude in their choice of a constitution, the dispute between the boers and the Government might have been softened down and ultimately arranged. It is remarkable that Sir Harry Smith did not reply to the noble Earl's letter for nearly two years. On a previous occasion it was four years before the colony made any reply to a communication of that noble Earl. In the reply to Sir Harry Smith not a word was said about a constitution; and from the unfortunate moment of the Government sending a convict ship to the colony after having promised that it should cease to be a penal settlement, from that moment they had no sort of confidence or faith in the Government at home, or in any one of the promises made by it. From that moment they manifested the greatest disgust towards the English Government, and from that moment they have thwarted every act of the noble Earl and his Colleagues. With respect to the conduct of the Governor, the noble Lord observed that Sir Harry Smith would have escaped the trap which was set for him if he had refused to accept the resig- 748 nations of these four gentlemen; but what were the facts? Why, Sir Harry Smith only accepted them provisionally; and it was the noble Earl who, in his letter of the 10th of September, 1850, after rebuking severely the Governor for giving up any of his authority, accepted the resignation. Now, what was the course that ought to have been pursued? The Governor General and the Colonial Office should have said, "After you have been elected by the people, and your election confirmed by the Governor, you must now do your duty, and attend the Council." It is certainly to be regretted that the noble Earl did not send back an answer to the colony, stating that Her Majesty refused to accept their resignation. He could not but be struck with the singular fact of how fully all the prophetic fears of the noble Earl near him (the Earl of Derby) had been realised since 1842. Remembering all that had occurred since that time, he could not but call to mind how often he had heard it said, or had seen it stated in print, in speeches, and in the public press, that his noble Friend was a rash, impetuous, and inconsiderate statesman, and how much the country was indebted for the change that had taken place; but he would ask with confidence who it was really deserved such imputations—the noble Earl, or his successor? Who had been the most impetuous and the most rash? Who had been the least blind, and the most gifted with foresight? The question now is whether is it better that the colony in its present state should receive a constitution from the hands of the Imperial Parliament which it still loves and respects, or whether it shall receive it at the hands of men with whom it has been for a long time in hostile collision—men whom the majority of the colonists declare to be unfit for office, and therefore, it must be presumed, unfit to legislate—from men against whom a bitter feeling of hostility exists, and from whose hands they would receive a constitution not as a gift or a boon, but as an act of decided hostility? Two of the inhabitants, delegated by a large body of the colonists, have come over to this country, and now we find that there are no less than four constitutions recommended by the Governor General or by the Executive. At all events, there are on your Lordships' table at the present moment seven different and distinct plans of constitution for the colony. It has been said that a Committee is not 749 the fit place for such a subject. I beg leave to differ with those who think so. Under the peculiar circumstances in which the colony is placed, I cannot conceive any tribunal more fitting and proper. We have the papers here before us, and they can be submitted to a Committee fairly selected by the House. We have the advantage of the experience of the noble Earl who has been many years Colonial Secretary, and of the experience of my noble Friend behind me, who has also held the office for a long period. We have the advantage of choosing out of this large assembly men of business, and accustomed on such occasions to act impartially—I might say almost judicially; and we have the power of obtaining the advice of eminent legal men to assist us. Is it not better to constitute such a tribunal, and obtain a report from it, which will be placed on this table—would not this be a more likely means of pleasing the colony, and to make the boon acceptable, than to issue a commission? I do not wish to use any harsh expressions, but I must say that I censure the haste of the noble Earl at the commencement of these transactions, as I censure his timidity now—that same timidity which induces him to give up his opinion as to the nature of the constitution that ought to be granted to the colony. I censure the vacillating policy that has characterised the noble Earl during the last five years—which has induced him to make promises that he could not fulfil, and which has created a hostile feeling in the colony towards him and his Colleagues. I should have wished the noble Earl to have acted upon the principle laid down by one of his Colleagues the other day. A naval officer having asked for a ship, the reply of the noble Earl's Colleague was, "We do not promise ships, we give them." And the officer in question got his frigate. In the same way the noble Earl should not have promised a constitution, he should have given it. I shall say nothing as to the result of the noble Earl's policy elsewhere—I shall say nothing of the discontent and almost rebellion in Van Diemen's Land—I shall say nothing of the former agitation at the Cape—but if the noble Earl is to be judged for his policy, I shall do so from the handwriting of his own subordinate agent at the Cape of Good Hope. That official describes the state of the colony four years since, and has shown that it has given rise to an anti-English feeling. Then we have the Governor Ge- 750 neral himself in his despatches lamenting the existing state of things. The colonies that are now agitated, were, when the noble Earl came into office, in a state of profound peace. In that colony there were to be found prevailing feelings of the utmost hostility against the Government, whether justly or unjustly it is not for me to say; but the question which your Lordships now have to decide is not whether you will put power into other hands, but whether you will not select from your own body men of experience—and the noble Earl of course should be one amongst the rest—to decide this much-vexed question, and from them there might be sent out to that colony a constitution which they wish for, and granted to them in such manner as they desire. Even though by so doing the Session might be prolonged a week or a fortnight—for a longer period I presume it would not be requisite—still, I say, that even if so much time were devoted to the subject, yet considering the present state of the colony, and what may be its future feelings towards this country, your Lordships' time never could be better spent than in attending to a Committee on this question, and in going through it in all its details.
§ LORD CRANWORTH
observed, that when the noble Earl opposite brought forward this Motion to the House, he said he had not done so with any desire to embarrass the Government, or with any party object, but rather to relieve them from a difficulty; and having said so, he (Lord Cranworth) was sure he need not say he believed the noble Earl desired to take the best mode to extricate the country from its difficulties. Those difficulties might be of many descriptions. One of them, and that which he had certainly understood to have been of the most formidable character, was certain legal difficulties to which the noble Earl alluded, and which his noble and learned Friend (Lord Lyndhurst), had he been able to have spoken, might have explained to them. Those difficulties were understood to have arisen from certain legal embarrassments in which the different letters patent and Orders in Council had placed the noble Earl (Earl Grey); and though he could not but sympathise with the anxiety of his noble Friend (Earl Grey) to rise immediately after the noble Earl (the Earl of Derby) had concluded, he regretted that course had been taken, as he was very anxious to hear from his noble and learned Friend (Lord Lyndhurst) 751 what was the ground of those legal difficulties. It might reasonably be expected that those who had attained their position in that House from their connexion with the law, should fairly, freely, and frankly state their views on a question of that description which arose in the course of their debates; and he trusted that under no circumstances, even if it were to support a party friend, would their Lordships think that he could state his view of the law differently from what he really conceived it to be. He would state what his views were, and to his noble and learned Friend opposite he would say, Si quid novisti rectius, let him impart it; and as he held it to be quite clear that there had been no slip made in point of law from the beginning to the end of those matters, he was anxious to know where lay the legal difficulties which had been mentioned. He did not think the noble Lord opposite (the Earl of Derby), or any noble Lord in that House, would be justified in passing over the question on account of any professional and legal difficulty in treating it, for the law was so plain as to require nothing but common sense and understanding to be applied to the question. There was no doubt, in the first place, with respect to the prerogative of the Crown in respect of a conquered province. When a country was obtained by conquest, it was perfectly well known that the Sovereign of the conquering country became absolute legislator for the conquered territory, subject to the law in the civilised country to which that Sovereign belonged. This was the law beyond dispute, and thus the case remained, till the Sovereign divested himself of that character by granting power to the dependency which interfered with his sovereign rights; and that was the question which was decided in the case of Grenada, when the question arose in the time of Lord Mansfield, whether the Crown had not deprived itself, by the grant of a legislature to the colony, of the power of levying 4½ per cent on goods exported from the island; on which occasion the law was perfectly laid down and established. He (Lord Cranworth) believed that where the Crown had absolutely granted the power of legislation to a colony, then the legislative power of the colony was the only power that could legislate for it. Let them apply that principle to the present case. By the right of conquest his late Majesty became Sovereign of the Cape of Good Hope, and became possessed of the power to legislate for it. 752 How had the Crown divested itself of the right to legislate since that time? It was said the Crown had done so by certain letters patent issued in 1847, in which it was thus enacted:—And we do by these presents declare our will and pleasure to be, that there shall be within our said settlement, two separate Councils, that is to say, one Council to he called the Legislative Council of the colony of the Cape of Good Hope, and one other Council to be called the Executive Council of the Cape of Good Hope; and we do direct that the said Councils shall respectively be constituted in such manner as is in that behalf directed by the instructions herewith given to you, or according to such further powers, instructions, or authorities, as shall at any future time be granted to, or appointed for you, under our signet and sign manual, or by our order in our Privy Council, or by us, through one of our Principal Secretaries of State. …. . And we do hereby give and grant unto you, the said Sir Henry George Wakelyn Smith, full power and authority, with the advice and consent of the said Legislative Council, to make, enact, ordain, and establish laws for the order, peace, and good government of our said settlement of the Cape of Good Hope and its dependencies, but subject nevertheless to all such rules and regulations as by your said instructions we have thought fit to prescribe in that behalf, or as by any further instructions under our signet and sign manual, or by our Order in our Privy Council, or by us, through one of our Principal Secretaries of State, we shall or may think fit to prescribe.Coincidently with these letters patent, instructions wore issued to the Governor that the Legislative Council should be appointed, consisting of twelve members, of whom not more than six, nor less than four, to be nominees of the Government. But it was clear that these very letters patent declared that the Council so framed was liable to be altered by the Crown—they reserved expressly all the rights of the Crown—he could not think there should be a doubt about it. From the moment the letters patent were issued, Sir H. Smith and the Council had a legislative authority; but the Council, constituted as had been stated, was clearly subject to be altered by an Order in Council. But was that all? No. The fact was, there was no grant of a constitution at all. That was no matter of idle speculation. To the letters patent there was appended this proviso:—Provided nevertheless, and we do hereby reserve to ourselves, our heirs or successors, our and their undoubted right and authority to disallow any such laws, and to make and establish from time to time, with the advice and consent of Parliament, or with the advice of our Privy Council, all such laws as may to us or them appear necessary for the order, peace, and good government of the said settlement and its depen- 753 dencies, as fully as if these presents had not been made.In that state of things what were the legal difficulties? It appears that the Council was constituted, but that four refractory Members chose to resign; and, without saying whether it was wise or politic on the part of his noble Friend (Earl Grey) to accept their resignation, he would call attention to the fact, that certain other letters patent having been issued for embodying a new constitution, but which had never yet come into operation, fresh instructions were issued by an Order in Council, exactly in the mode that was provided by the original letters patent, revoking what was done, but sanctioning the constitution of the Legislative Council in a different mode. The noble Earl might not concur in all that had been done by his noble Friend (Earl Grey); but he (Lord Cranworth) conceived that his noble Friend had made a defence so able, that it did not call for any indorsement on his (Lord Cranworth's) part to add to its weight; but if their Lordships did concur in this Motion, not with the view of embarrassing the Government, but simply to assist the State out of certain legal difficulties, he (Lord Cranworth) conjured their Lordships not to do that without first settling in their minds that there were legal difficulties, and without first distinctly learning what those difficulties were. If their Lordships acted on the notion that there was no legal validity in what had been done, he believed they would be creating a difficulty the full extent of which they would find it not easy to fathom. For the last twenty-five years Orders in Council had been made, granting or altering the constitution of bodies of the same kind, and the law officers of the Crown had never dreamed they were signing anything illegal when sanctioning such documents. He had stated what he thought necessary to enable their Lordships to come to a correct conclusion, and he was confident that they would do so.
§ LORD LYNDHURST
said, that he agreed with what had fallen from his noble and learned Friend with respect to the principles of law relating to the connexion between the Crown and its dependencies; and he believed that on a question of law his noble and learned Friend would state his views in that House with as much good faith as if he were sitting in a court of justice. When he before rose to address 754 their Lordships, he did not intend to occupy much of their time, or to enter into the general question of policy, which had been fully stated by his noble Friend near him, but was prepared to confine himself entirely to the one question, but that a very important one, namely, the legality or illegality of the Legislative Council now existing at the Cape of Good Hope. Doubts had been entertained as to the legality of that body; and his noble Friend near him (the Earl of Derby) had called their Lordships' attention to the opinion expressed by lawyers of great eminence in their profession, of great learning, and distinguished for their knowledge of the constitution, who, after long consideration, had declared that the constitution of the Council was clearly and entirely invalid and illegal. To invalidate the authority of that statement, the noble Earl (Earl Grey) stated that the facts of the case had not been fully stated to those learned persons, and he had referred to the letters patent of 1847, portions of which he had read to their Lordships, and which he stated had not been referred to in the case submitted. Now, he (Lord Lyndhurst) was authorised by those learned persons who had given the opinion alluded to, to state, that the representation of the facts made by the noble Earl was incorrect—that they had in view the letters patent to which the noble Earl had referred—and that, after having given them their full consideration, they did not think those letters patent at all affected the opinion they had given. The task he had undertaken was simply this—not to give any opinion of his own, but to state the grounds and the reasons of the opinion which had been expressed by the learned gentlemen to whom he had referred; and he regretted he had not been allowed to perform it at an earlier period of the evening, because from physical circumstances he could have then stated the case with more effect than now. The question was one of the greatest public importance, because, if it should turn out that the constitution of the Legislative Council at the Cape was invalid, a degree of responsibility would fall on all the persons who had acted under it. Many acts had been done by that body, and large sums of money had been expended by their orders, and therefore he called on their Lordships to consider most narrowly and anxiously the question before them. It was briefly this:—The Cape of Good Hope 755 was a conquered colony. The Crown, therefore, had power to make laws for it. After a certain time, and in consequence of the increase of the European population, it was considered prudent to give the colony a legislature, and a legislative power was given to them by the name of the Legislative Council. If they looked to the constitution of that body, they would find it consisted of two parts. It was constituted of not more than twelve nor less than ten members, six of whom were to be official persons dependent on the Crown, the remainder to consist of persons representing the inhabitants of the colony, and who were placed in the Council to form a check on that part of it nominated by the Crown, thus being a popular element in the body. It was evident that these persons had been so considered by the officers of the Government at the Cape, for when they came to discuss the propriety of extending or contracting the free element, they regarded it as an element to check the nominees and officers of the Crown. Thus the legislative body consisted of two parts, one arbitrary, the other intended to be a check on that arbitrary part, and representing the inhabitants. It had been stated that the Crown having once made a grant of the kind could not alter it, and that by the act of granting a legislature, the Crown parted with all its authority. His noble and learned Friend had referred to the well-known case of Grenada, and he would also refer to it, and their Lordships would see what he inferred from it, and why the learned gentlemen who had given these opinions dissented from the conclusions which had been drawn by the noble Lord opposite. In that case there had also been a conquest of the colony—the Crown gave a promise to confer a legislative authority on the colony, and issued a proclamation in October, 1763, which authorised the assembling of a Council in the colony whenever its circumstances admitted of its meeting. The Council did not actually meet till the end of the following year, and in the meantime the Crown issued letters patent, legislating for the colony; but it was held this legislation was invalid, because the Crown had not reserved to itself any power of legislation, as it was said to have reserved in the present case, and to which he would presently refer. The Crown by appointing a legislative body had parted entirely with the legislative power it before had. That case was decided in the time of Lord Mans- 756 field—that great and distinguished jurist and statesman; and many observations besides those which referred to the main point in issue, in the course of the discussion, had been brought under notice on the three several occasions when the case was argued by the most learned persons of the day, wherein the range of the power of the Crown, and of the relations between it and the inhabitants of its Colonies, was raised, sifted, and discussed most minutely, and when a most deliberate judgment was pronounced by the eminent Judge who presided. Lord Mansfield, in the course of that judgment, said, in terms that could not be misunderstood, that if such an element of freedom as was contained in a Legislative Assembly was conferred by the Crown on a colony, the Crown had no power to revoke the grant. That was the first matter to which he (Lord Lyndhurst) wished to call attention. But his noble and learned Friend opposite had referred to some general words contained in the instructions, as they were contained in all similar instructions, and said the constitution of the legislative body was to be framed according to the instructions creating the constitution, and by the words to which he alluded. They were to have a reasonable construction. But in the case of Grenada there were precisely the same words; there was the same power given; and what said Lord Mansfield? He said, that "if there be a popular right given to an Assembly, or to any part of the Legislature, if the Crown once parted with the legislative power, notwithstanding those general words, that grant could not be rescinded or recalled by the Crown." The Crown might remodel the other parts of the Legislature, might recall the Governor, displace the members of the Executive Council, but had no power over that branch of the constitution which represented in any way the popular element. That was an authority of the gravest kind; the same general words were used; the case would be found reported among the State Trials; the commission corresponded with this. Could these general words be interpreted as the noble and learned Lord contended? What! that the Crown should grant a free constitution to-day, rescind it to-morrow, regrant it again the next day, and so from time to come, according to the caprice and whim of successive Governments. It was extravagant and absurd; and, as far as related to that clause, upon which 757 the noble and learned Lord placed so much reliance, the reliance was not justified. But supposing there were any real justice in this point; what was the case afterwards? Letters-patent were issued declaring that the Legislative Council, so constituted, should continue to legislate for the colony until the writs for the election of Members under the intended new-constitution should be issued. Supposing the Crown could have exercised that power, here was an absolute grant that this Legislative Council should be continued in the form it then took, until a future period; here was an absolute grant of legislative power for that time: there was no qualification, no reservation, no restriction, but an absolute and entire grant for that time. Now, when the Crown granted a franchise or liberties of any description, whether to the inhabitants of a district or of a colony, the grant was irrevocable; it could only be put an end to by surrender, by Act of Parliament, or by forfeiture established by proceedings in a court of justice, and there was neither of these here. That grant, then, of May, 1850, by which the then Legislative Council was to continue for the period pointed out in the letters-patent, and not yet expired, whatever construction might be put upon other clauses of the commission, deprived the Crown of the right of interfering till the arrival of the period referred to. But the noble and learned Lord said, that there was a reservation of certain powers to the Crown. When there was a reservation of this description, the power could not be extended beyond the nature of the reservation. What was the reservation here? Why, it gave a concurrent power of legislating. It did not import that the Crown might rescind the Acts of the Legislative Council; the words did not go to that extent, nor would they admit of it. The manner in which the power was to be exercised was pointed out in the reservation—by the Privy Council or by Parliament. But, there was nothing of the kind here, nothing but instructions under the sign manual. [The noble Lord was here inaudible, but was understood to say to the effect that these instructions virtually deprived the colony of the rights which had been conceded to it by the grant of a Legislative Assembly.] Instead of a Council having a popular element in it, the popular element was taken away; instead of consisting of ten persons at least, the Council might consist only of six, and those six be 758 all official men. A free Legislature was turned into an arbitrary one. He (Lord Lyndhurst) had stated the reasons upon which the opinion was founded, and he submitted them to the consideration of the House. But to refer to another point; could it be said that this was not a doubtful case when such eminent men had given these opinions? And supposing out to what colony be placed; what difficulties the Government would have to struggle with! When the question was considered whether the Governor was authorised to legislate with a reduced Council, the noble Earl said that if it were a matter of doubt, it would be impossible, consistently with policy, to put that Legislature in motion. Could any man say that this was not a doubtful and difficult question, which ought to be in some way settled and got rid of? He (Lord Lyndhurst) hoped he had stated the case fairly. He was desirous of plainly exposing the grounds of these opinions. With regard to policy, he wished to say nothing himself, but he would cite the authorities at the Cape, and not factious parties, but high officials. A just compliment had been passed upon the talents and attainments of the Attorney General of the colony. The compliment was well deserved, for he was a man of intelligence, of great experience and knowledge. That gentleman (Mr. Porter) told the Government, "It is impossible for us to go back. We have had a popular element in our constitution." He considered the propriety of extending it. He said that people would always be jealous of a Legislative Council nominated by the Governor, though part of it might consist of official persons and part of independent persons in the colony, and then he said, with a kind of sneer, "There are some sagacious persons that suggest as the best course to be pursued, that we should get rid of the popular part altogether, and that the Government should consist only of official persons." He never would have said this with that sneer if he could have anticipated the course that would afterward be pursued by the noble Earl. But was that the only opinion which had been expressed on the subject? There was a gentleman with whom he had been acquainted, but who was now unhappily no more—a man of great experience and intelligence, and who had filled the station of Chief Justice of the colony. What did Judge Menzies say 759 on the subject? He said, that no wise and enlightened statesman could possibly have recourse to such a measure. It would cause the greatest dissatisfaction and discontent in the colony. The Chief Justice said it was impossible to retrograde in legislation. A Legislative Council, consisting only of official persons, would inspire such odium, not to say disgust, that no Government could stand against it. Such was the opinion of men of high station and great talent, and long experience, desirous of supporting the Government, but yet condemning unanimously and in the strongest terms the policy pursued by the noble Earl. What course ought now to be pursued? The noble Earl, with the assistance of some friends of his in the Privy Council, a pocket Privy Council, not the regular Members of the Board of Trade and Plantations, prepared the outline of a constitution, and he had done all that he could do to fill up the details without being upon the spot. He had, however, filled up the details to a certain point. The gallant Officer at the head of the Government in the colony had turned the Council into a sort of Commission, and the noble Earl had now gotten a complete picture of a constitution in his own hands. The noble Earl had gotten opinions, too, from other quarters; he was in possession of everything which was necessary to complete his work. Why should not he let measures be taken immediately for completing it? He would never have a better opportunity of framing a constitution adapted to the colony. Why this delay, keeping the colony in a state of fever and ferment? It was said, that while a war was raging on the frontier, this was not a proper time. Be it so; though he (Lord Lyndhurst) had his opinion upon that. What was done in the Grenada case? Why not send out the constitution to be proclaimed as soon as the circumstances admitted? It was to this constitution, these institutions, the people were aspiring. This simple course would restore peace and tranquillity. Then the noble Earl would be able, with self-gratulation, to repeat those beautiful lines, so often quoted, but never with more effect than by his distinguished Parent on a memorable occasion——quorum simul alba nautisStella refulsit,Defluit saxis agitatus humor;Concidunt venti, fugiuntque nubes,Et minax (quod sic voluere) pontoUnda reoumbit.
The LORD CHANCELLOR
expressed his regret at being obliged to differ in opinion from his noble and learned Friend, and he had never done so without the same feeling. His noble and learned Friend had always displayed great ability and eloquence upon all occasions; but he had shown more than his usual ability on the present occasion. Their Lordships might have observed how cautiously his noble and learned Friend had avoided stating his own opinions on the question. His noble and learned Friend, in the course of his speech, had let fall something like a personal opinion, but he had immediately corrected himself and explained the opinion. For his part, he did not believe that his noble and learned Friend could entertain a serious doubt on the question which had been raised; in fact, no lawyer to whom he had spoken on the matter, had a second opinion about it. His noble and learned Friend had referred to the opinion of Lord Mansfield, in Campbell v. Hall in the State Trials. Not knowing what turn the debate might take, he had brought down the 20th vol. of the State Trials; but that case was as different as possible from this. There was no such reservation as in the present case, and the absence of that reservation was remarked upon by Lord Mansfield. [At the request of Lord LYNDHURST, the judgment of Lord Mansfield was here read at length by the Earl of DERBY.] His Lordship then proceeded to observe, that as the judgment of Lord Mansfield on the case was not long, their Lordships perhaps would permit him to refer to it. The question which was then at issue was, whether the Crown had the power to levy, in Grenada, a duty of 4½ per cent on imports. It appeared that by letters patent, dated in 1764, the King had precluded himself from the exercise of legislative authority in the island of Grenada. The first instrument had been a proclamation—not a commission. What was it the King then said? Why, that for the better security of the liberty and property of the inhabitants of the island of Grenada, he had commissioned his Governor to call an Assembly to enact laws, &c, after the same manner as in the other island. By that means a complete and perfect constitution was given, leaving nothing to be done but to assemble the Parliament. Grenada had received a constitution similar to that of the other islands. The judgment went on to state, that it was done in 761 order to put liberty and property under a legislative assembly, as a safer sort of guard than a council only. In the proclamation which had been here made, there was no reservation whatsoever of any powers to be exercised by the Governor until the Legislature should be formed. There was no reservation of powers for the King to legislate in the mean time, before the writs were issued. No Assembly, however, had been called until the end of 1765, and then the proclamation before alluded to was followed by another, calling upon all persons to go and reside in that colony; and thereby it was shown that the colony was not under the power of the Crown, but its own legislature. So much for that case. Now, of the Cape colony, in 1847 the Crown having full power to legislate for the colony, issued letters patent directing the Governor to form Councils. Was that a grant to the colony? No; it was a mere authority from the Crown to its officers to exercise the power of the Crown to legislate, an authority capable of being revoked or recalled at any time. It was altogether different from a grant of a constitution to a colony; it was the Crown exercising its prerogative through officers appointed by itself. Such documents were always revocable by the Crown at all times. They were entirely foreign to the nature of a proclamation. His noble and learned Friend had said, that free elements had been introduced under those documents; but the Governor could suspend any of those elements. The letters patent simply announced to the Governor, that he was to form a Council according to instructions from time to time; the form of Council was not dictated, the number not prescribed, but the power was reserved, from time to time, to model the Council. The letters patent did no more than state that there should be a Council according to instructions from time to time to be given. At the present moment the colony was governed under the authority of the Crown by letters patent, revocable at any time. He would proceed to consider whether the Crown had parted with any of its powers. It appeared that in 1850, new letters patent were issued, which, after reciting the former letters patent, and referring expressly to the power reserved to the Crown to alter from time to time the terms of the letters patent, proceeded to declare that a Parliament should be held in the colony, consisting of the Governor and Commander-in-Chief, and a Legislative Council; 762 and which Council should consist of such persons as should be elected in such manner and form, and under such terms and regulations, as should be prescribed by an ordinance for that purpose passed by and with the advice and consent of the present Legislative Council. They then went on to provide that the Governor should have the power of suspending any ordinances until they had been confirmed by the Crown; and proceeded to state that the Crown reserved to itself full power and authority to alter such ordinances as might be passed by the Governor and Legislative Council. Here then was a declaration by the Crown, first that there should be a Parliament; in other words, a constitutional Government in the Cape of Good Hope—that that Government should be according to the form thereafter to be settled by the Legislative Council, such settlement to be subject to the approbation of the Crown. These letters patent, therefore, amounted simply to a promise that a Parliament should be thereafter given to the Cape of Good Hope, in the meantime reserving every power of legislation which the Crown then possessed. He had purposely emphasized the words "with the advice and consent of the present Legislative Council," because some observations had been made upon that point. Would any lawyer contend that the word "present" meant anything more than to refer to the Council according to its then constitutional form and vigour? They only meant the Council constituted under the Crown, in contrast with the Council which was afterwards to be established. There was not a pretence for giving it any other signification. No lawyer would maintain that the word "present" meant identically the same Council. But suppose it did? Prior to the letters patent of 1850, the Council consisted of six members and the Governor, and no more. In July the Governor made an offer to the colonists that four more persons should be appointed to the Council, to be recommended by them (the colonists) in a certain manner. Four persons were recommended accordingly in September, the letters patent being dated in May, when the Council consisted of six only. But although the Council had been increased by four members, still no alteration was made in its constitution. The Council existed as before, although four gentlemen had been nominated to it. Those four gentlemen afterwards resigned, 763 and left the Council in the same state in which it existed when the letters patent were passed. But even if there were any meaning in the argument as to the purport of the words "present Council," still it failed to he of any value, because the facts did not allow of its being used with any effect. Suppose these letters patent granted an interest instead of a mere authority. Suppose, for instance, it were a charter to form a corporation, the council of which was to consist of ten, and that the majority should have the power of exercising the authority under the charter, what would be the effect if four of those ten members should retire? Suppose the charter to give the majority a power, and a case of exigency occurred requiring them to perform some corporate act, would six members of that corporation be competent or not to exercise the powers conferred by that charter? What he desired was, that those who considered this point should bear in mind that these letters patent were not a charter prescribing the number of twenty or of ten as essential to the constitution of a legal council; but that those letters patent were merely a letter of instructions perfectly distinct from a charter. It was a document which, while it prescribed ten members for the Council, did so subject to a power reserved to the Crown of altering it from time to time according to its discretion. He would now refer to the opinion that had been quoted. The learned counsel said—It is clearly established that by the law of England a legislative constitution once granted by the Crown to a colony is irrevocable, except by the authority of the Imperial Parliament, or by the act of the local Legislature, with the consent of the Crown.Agreed: there was no doubt of it; but show that that bad been done in this case; don't assume it. They then came to the question, whether the Crown had reserved to itself a power of revocation. Mo lawyer would say, that the grant made by the Crown, with the power of revocation, was not revocable. Besides, the prerogatives of the Crown could never be taken away but by express words. The prerogatives of the Crown were for the interest of the public, therefore it was declared that the Crown should never be deprived of its prerogatives but by express words—never by intendment, by refined argument, or by construction merely. He contended that the only grant made to the colony by the Crown was the grant of powers for form- 764 ing the future constitution, which had not yet been settled and matured; and which was not yet capable of being used for any purpose. Now, the question was, whether in the meanwhile the Crown had parted with its legislative power? He contended that, in express words, the Crown had reserved to itself that power, and that there was nothing to he found in the documents before their Lordships which could be suggested as the foundation of a reasonable doubt on the subject. He believed the Council was perfectly competent to act with its six members, or any number of which six should form the majority of the original ten, independently of the Crown having reserved to itself the power of altering the constitution of the Council from time to time. He could not help thinking that the noble Earl who had introduced this Motion had been taken by surprise. The publication of the opinion which had been referred to in the course of the debate, had no doubt excited the noble Earl's attention, and thus he had been led to the conclusion that there had been some mistake committed by the Government in point of law. He (the Lord Chancellor) was strongly impressed with the opinion that the Motion was originally conceived under that idea. It seemed, however, in the course of the noble Earl's speech, that the noble Earl felt some misgiving as to the ground on which the Motion was first suggested to him; he therefore gave his argument another shape, and directed it against the general policy of the noble Earl at the head of the Colonial Department. There being no legal or constitutional reason for denying the legislative authority of the Crown in this matter, the question was, whether there was any other ground on which this Motion could he granted. The noble Earl had said, be had no party object in bringing forward this Motion, but that his desire was to assist the Government in getting over the difficulties attending the subject, and that he was not actuated in the slightest degree by any hostile spirit towards the noble Earl at the head of the Colonial Department. Still the noble Earl (the Earl of Derby) had gone through, very minutely, every act of his noble Friend; and their Lordships had heard that the late Secretary of the Colonies differed entirely from the present in the wisdom and policy of all the measures which the latter noble Earl had adopted. Well, suppose the Motion to he granted; what was the Committee to do? Was it to 765 frame a Bill, or to settle the question of law? Had their Lordships anything to lay before the Committee—any witnesses to examine; any facts to bring forward? What was it that had been stated as the grounds of the case into which they were to inquire? He again asked, was the Committee to frame a Bill? The Crown at the present moment had the prerogative to legislate for the colony of the Cape of Good Hope. Parliament would not interfere with that prerogative without having strong grounds for doing so. He did not deny the power of the House to so interfere. That was quite another thing; but every one looked to Parliament to exercise its authority in a constitutional mode, and that it would not interfere, except on the strongest grounds, with rights which were of the greatest importance. Although no party motive might have suggested the Motion, still, he would ask whether the effect of it would not be felt? A vote of that House held too high a place in every part of the Queen's dominions not to have great power and influence. A vote of the House of Lords never could, without some strange alteration, fail to command vast respect and confidence; and, in proportion as such a vote possessed that respect, so in proportion would it weaken the hands of the Government at a moment like this. But, suppose the Committee appointed, what could they do? Why, said the noble Lord, "Give the colony a constitution." Well, suppose the noble Earl the Secretary for the Colonies sent out a constitution, how would it be met? Having previously said that the constitution should pass under the review of the Legislative Council in the colony itself, would not the sending out of a constitution which was to be adopted without that previous revision, excite feelings of animosity, and give rise to numberless objections? It certainly was not unreasonable, therefore, that his noble Friend (Earl Grey) should choose to go on and render the constitution to the colony in that mode in which the Crown had already said it should be granted. His noble Friend said that when they had held out a promise to the colony, let it be performed in letter and in spirit; and do not, while advising the Crown to adhere to the letter, run altogether away from the spirit of the promise by adopting a totally different constitution. He (the Lord Chancellor), therefore, could not but feel that though the object of the Motion might not be, yet the effect of it, if carried, would undoubtedly 766 be, one of party triumph, of great embarrassment to the Government, and the occasion of strong feelings of animosity in the colony against the local Government, by which additional excitement would be given to that tumultuous spirit which had been already too much exhibited, and which it should be the object of every one to allay. Therefore, he trusted, since there had not been a shadow of ground shown why a Committee should be appointed, and since there was nothing to submit to the Committee, that their Lordships would not adopt the Motion of the noble Earl. If their Lordships chose to legislate, let them do it, but do not adopt a form of proceeding which meant nothing but the expression of a general disapprobation of the conduct and policy of the Government.
The DUKE of ARGYLL
did not believe this Motion had been brought forward in a party spirit, and for this reason—he held that no public man who had gone through these papers could fail to rise from them without the deepest pain at the distracted state of that colony, and a feeling of the deepest responsibility incurred by the vote of this night—a vote which must tend, one way or the other, to maintain or to derogate from the authority of the Imperial Crown. He felt unable to vote for the Motion of the noble Earl, for the reasons he would state. In the first place, this was one of those Motions which had in itself no absolute meaning. Its meaning was entirely derived from the circumstances under which it was brought forward, and more or less from the parties by whom it was supported. To a certain extent also it must derive its character from the observations with which it was introduced. He must confess, that having read the papers with the greatest attention, he must say that the narrative given by the noble Earl (the Earl of Derby) seemed most faithful; but although the noble Earl did not put forward the Motion as one intended to convey any vote of censure on the Government—although he said he wished to consider the question on its own merits alone, yet he must beg the House to recollect that the noble Lord who spoke third or fourth in the debate, did not fail to declare that the vote to which he was about to come was a vote of censure on the whole policy of the noble Earl the Secretary for the Colonies. That idea, he conceived, would be the idea which would be attached to the Motion in the minds of 767 others, and would necessarily attach in the colony to which the Motion referred. Not only did he object to the Motion of censure with reference to the affairs of the Cape, on the ground that such a vote was hardly sufficiently deserved, but he most distinctly declared his opinion that, with the one exception of the convict case, about which some mistake had been made, but afterwards corrected, the conduct of the noble Earl towards the colonists at the Cape had been marked by the most liberal spirit. He did not concur in the declaration that the noble Lord had been too precipitate in introducing representative government to the colonists. As to the mode of introducing that constitution, it was a question whether the censure did not really apply only to those who opposed the noble Lord's policy. With regard to the proposed constitution itself, he certainly did not approve of the proposal to make the Upper House an elective body—it was no doubt a bold step to throw open both Houses of Legislature to popular election—but on this ground alone he did not consider their Lordships would be justified in coming to a vote which would imply want of confidence in Government as to the whole question. Then with regard to the failure of the mode of carrying it into effect. At the time the letters patent were sent out, the Legislative Council did not properly exist. Now in what spirit did Sir H. Smith act towards the Cape colonists? He published a notice in the Government Gazette, requesting the various municipalities of the colony to indicate to him those gentlemen whom they thought best suited to fill the vacant seats. This was acting in a most liberal and conciliatory spirit; and he would ask their Lordships to observe the manner in which that liberality was met on the part of the colonists. Sir H. Smith did not bind himself to take those men who were at the head of the poll, but reserved to himself a discretion in the matter. In consequence of that notice, certain gentlemen were returned, out of whom Sir H. Smith selected four. On the first day on which the Council met, one of these gentlemen—one of those who had come over to this country to represent the grievances of the colonists (Sir A. Stockenstrom)—dared to address the Representative of the Crown thus:—I do not intend to sit here in any other capacity than as the representative of the people, although I have, as a matter of form, accepted a document in which it is said you appointed me.768 Could anything be more discreditable or ungrateful? He could not help expressing his regret that Sir H. Smith, an able and active officer, should have suffered such language in his presence, he being the representative of the Sovereign, and still more, that afterwards, when the same gentlemen objected to the return of one of his Colleagues on the Council (a matter over which the Members of the Council had no control whatever), the Governor should have assented to his Motion for an inquiry into the question. These four gentlemen, however, had banded together to defeat the operation of the constitution, and had resigned with that view. But for their conduct, the constitution would now be in full operation; and no one could deny that their conduct had been (he hoped they did not represent the colonists) most factious and disgraceful. It was plain, however, that the Governor had done wrong in receiving their resignations, and that it had not occurred to the noble Earl (Earl Grey) to refuse to receive them. The question then arose whether it was competent for the Crown to issue new instructions creating a fresh Council. This was a legal question, perhaps; but certainly to a non-legal mind there could be no doubt that the course taken was justified, since the original instructions referred expressly to "future instructions." He contended, however, that, though if illegality were clearly proved, legislation would be requisite, it was for those who alleged it to prove it; and that, as the illegality had not been proved, the interposition of Parliament was not called for. He believed that the intervention of Parliament, on the ground that the act of the Secretary of State had been illegal, would have a most disastrous effect on the minds of the colonists, who had already been encouraged to consider themselves able to defeat the authority of the Crown. Had the question been proposed for the consideration of Parliament at an earlier period of the Session, he might have been disposed to entertain it. But at this time of the Session, was it possible to do so? Sir H. Smith declared that if the present letters patent were withdrawn, and a new constitution framed, it would be disastrous to make it like the present one, and particularly deprecated an elective Upper House. But their Lordships were asked at that late period to go into the question, and to make up their minds as to what constitution the colony was to have. It must be recollected there were great 769 difference of opinion as to whether the Upper House should he elected or nominated. He should feel some difficulty in voting for an elective Upper Chamber, and as others would entertain different views, there was a possibility of not arriving at a conclusion for at least three months. Looking at the statements in the despatches—looking at the difficulty of voting a constitution while war was raging in the colony, and feeling that no practical good could result from the proceeding, but that it would invalidate and impair the authority of the Crown, already too much impaired, he was not prepared to come to a vote which promised no immediate advantage.
§ LORD WHARNCLIFFE
said, he felt all the difficulties urged by the noble Duke. He confessed, for his own part, that the terms of the Motion itself would have deterred him from supporting it. It appeared to him, apart from the noble Earl's (the Earl of Derby's) explanation, that the only meaning of the Motion must be to constitute a tribunal before which all the transactions of the last two years should be discussed; and a more prejudicial course for the peace of the colony he could not conceive. The noble Earl (Earl Grey) might have been wrong in some points, though his noble Friend (the Earl of Derby) had impeached his conduct' as little as possible; but there had been also faults on the part of the colonists, and it was not worth while to re-open and renew all these envenomed controversies; the only question worth a moment's consideration now was, how we could best preserve the peace of the colony for the future. He felt the difficulty, on the other hand, of voting for the noble Earl at the head of the Colonial Department; for the noble Earl had not given those most disposed to aid him in the pacification of the colony such assurances as they had a right to expect as to the mode in which the Government were likely to deal with this question. The great object was the fulfilment, and speedy fulfilment, of the pledges or promises made to the colonists of liberal institutions. Now, there was nothing in the speech of the noble Secretary for the Colonies to satisfy their Lordships that this consummation was likely to be brought about very soon. The noble Earl (Earl Grey) had great advantages for the settlement of the question: he had before him opinions from all classes in the colony; and he had the assurances of the colonists that they would accept such a form of 770 constitution as might be presented by the Government in fair fulfilment of their promises, being, in fact, the very plan which their own law officer had drawn up. Did the noble Earl, however, say that he was occupied in giving effect to such a constitution? Did the noble Earl state that within some short or reasonable time the Government would redeem their promises? No. All that the noble Earl said was, that the Government had not forgotten their promises, and were determined to give the colony free institutions as soon as they could, that is to say, as soon as they chose; at their own time and in their own way. Now, their Lordships were entitled to expect something more than such mere vague assurances as those. The noble Earl objected to legislation on the subject. There might be difficulties in the way of legislation; but he was not satisfied that they were insuperable; and sure he was that, if no other course could be taken under all the circumstances, considering the expectations raised and the declarations made, even at this period of the Session it would be wiser to attempt to settle the question by legislation, than to allow it to rankle on for another year with consequences doubtless more serious still. If the noble Earl objected to legislation, he ought at least to have stated what other course he meant to pursue. At the same time he did not see sufficient reason to believe that the noble Earl's course hitherto, however it might have been impolitic, had been illegal. As to settling the question by means of a Committee, he believed that course was not merely impolitic, but impracticable. In conclusion, he would say that the noble Earl (Earl Grey) should take an opportunity of giving to Parliament, who naturally felt no small interest upon this question, and to those who took a still deeper interest in it, the inhabitants of the colony—he should give all those parties every assurance in his power, that the Government had this question not only in their consideration, but that they were going into it in a spirit of determination to arrive, without loss of time, at a result that would be satisfactory to the colonies.
§ EARL GREY
said, he must have expressed himself extremely imperfectly, if their Lordships understood what fell from him as to the future intention of Her Majesty's Government in the same sense as the noble Lord who had just sat down. The noble Lord said, that all he (Earl Grey) had stated with reference to the fu- 771 ture intention of Government was, that they would, at their own time, and in their own way, but apparently not with any very great haste, proceed to bring into operation the legislation which was originally designed. Now, what he said was very much the reverse. He said, that he thought, after what had been done, and after the issue of those letters patent, that it was absolutely necessary that the form of constitution which was therein sketched out should be brought into operation at the very earliest possible period; and further, that he thought the diminished Council, acting under the instructions of May last, could only act for the purpose of transacting that necessary business which in the present state of the colony must be absolutely indispensable; that it was required to place some legislative authority within the reach of the Government; and, further, that entertaining these views, the course contemplated by Government was this: while they agreed as to the necessity of bringing the constitution into early operation, they thought that, in order to maintain the authority of the Crown, it ought to be accomplished in the mode originally proposed, that the letters patent should not be revoked, and that the ordinances should be passed by the Legislative Council at the Cape. He (Earl Grey) was not certain, under the present circumstances of the Cape, so different from those originally contemplated, but Sir Harry Smith had a right to expect that, with the full information now before them, Government should take upon themselves the responsibility of deciding upon the details of the constitution, which were left by the letters patent of 1850 to be filled up. He stated further, that he saw no difficulty, with the information now before them, in preparing draft ordinances to be passed at the Cape, which he hoped speedily to transmit to that colony; that the Governor, with these draft ordinances, would be relieved from the real responsibility of deciding on the matter; and that under these circumstances the Council of eight would find no difficulty in getting two additional members to give the Governor technical and formal power for the purpose of passing the ordinances. That was the course which Sir Harry Smith had been informed would be pursued, and as rapidly as the draft ordinance could be prepared, it would be transmitted to the Cape.
§ The DUKE of NEWCASTLE
said, he had always felt convinced that the only 772 way of settling this question was, by the Legislature of this country. He had come down fully prepared to state at length his opinion on this subject, but at that late period of the evening, and after the question had been so fully debated, he felt it would be wrong to do so. Nothing, however, which had occurred during the debate, had altered his opinion that legislation was the best, if not the only means of settling this important and now pressing question. He had been disappointed by the statement which had just been made by the noble Lord the Secretary for the Colonies. If the noble Lord could have given an assurance that by Orders in Council we could now send out to the colony not merely draft ordinances, but a constitution, then he would admit that it would be better that it should be left in the hands of the Executive Government, than that it should be taken up by a Committee of either House of Parliament. But he thought the plan which the noble Earl had explained, although somewhat different from what he understood him to state in his first speech, would merely be throwing another apple of discord into the colony, and at the commencement of next Session he greatly feared it would be found that the constitution was no further advanced, and that the feelings of the people were more rancorous than they had hitherto been. He was not sure that he would have risen at all at that late hour, but for some anxiety which he entertained as to the objects and intention of the Motion before their Lordships. It was a point which had been referred to by the noble Duke on his right (the Duke of Argyll), and his noble Friend on the cross benches. One noble Lord especially gave a character to the Motion, which it certainly did not admit of from the speech of the noble Lord in introducing it, or from the words of the Motion itself; but he (the Duke of Newcastle) was anxious to hear from the noble Earl (the Earl of Derby) some explanation of the course he intended to pursue, if the House should grant the Committee which he asked. He understood that the Committee was not for the purpose of reopening every question which had hitherto been agitated and debated in connexion with this subject. He understood the Motion to be solely for a Select Committee to give counsel to the Government, and to assist in framing a Bill which should be introduced, in the hope that it might pass without further debate, after 773 being so submitted to a Committee. One noble Earl supported the Motion upon totally different grounds, and, in what he (the Duke of Newcastle) considered a strictly party speech, said he should support the Motion as a vote of censure upon the Government. He did not intend to be drawn into giving a vote of a party character upon this occasion. He desired no vote of censure upon the Government. He desired nothing but legislation upon this subject, with a view to a settlement of the differences in the colony; and if he gave a vote for the Motion, it must be upon that sole ground. He (the Duke of Newcastle's) opinion, that legislation was the only safe and speedy mode of settling the question, was based upon the two grounds of law and policy. He would not be so presumptuous as to enter into any question of law, or to say whether his noble Friend (Lord Lyndhurst) or the noble Lord on the woolsack was right upon this question. But this he had a right to say, that when two men of such eminence differed so completely as to whether the steps recently taken by Government were valid in law or not—when, moreover, the law officers of the Crown took one view, and men like Sir Fitzroy Kelly, Mr. Walpole, and Mr. Kenyon, took another and totally opposite view, there was at any rate a grave doubt as to the validity of what Government had done; and it would be imprudent and all but suicidal to allow such a doubt to remain without some inquiry being made into the subject, otherwise every encouragement would be given to the inhabitants of the Cape to dispute the validity of the acts of the Legislature. But upon the ground of policy, legislation was the only safe way to settle this question. He had the assurance, not merely from the Commissioners in the colony, but of the Governor himself, who was well acquainted with the country and the persons there, that he believed it would be impossible to settle the matter in any other way; he stated, in as strong a manner as he could, that this question must be settled in England. He said it would be impossible to revive the Legislative Council, and that any attempt to do so would only expose the Government to fresh and aggravated defeats. Upon these grounds he came to the conclusion that we ought to legislate. The noble Lord the Secretary of State for the Colonies opposed the proposition, however, because he thought it most objectionable to give the people, who 774 had been carrying on, as he said, a factious opposition to the Government of the country, a party triumph. He (the Duke of Newcastle) concurred in this as a general proposition; but he believed the course proposed would have quite the opposite effect. There was now complete submission on the part of those people; and the noble Earl (Earl Grey) would most effectually attain his object, that of preventing a party triumph, by agreeing to the course suggested by the noble Earl (the Earl of Derby). But the noble Earl said—"If you want legislation upon the subject, move for an address to the Crown, beseeching Her Majesty to introduce a measure upon the subject." But they had the Bill drawn out to their hands, and submitted to them in the blue book laid upon the table by the noble Lord himself, in the same way that they were frequently submitted to Committees; and he thought the peculiar circumstances in which the Government was placed rendered this form of introducing legislation certainly justifiable, if not desirable. The Government was placed in this position, that, being obliged to submit to constant defeats in the other House of Parliament upon different questions of importance, it had not that efficient control either to prevent or to enforce legislation which under other circumstances would exist, and which no doubt was most desirable. If it was necessary that there should be legislation upon so important a point, the Executive ought to take the initiative. It was far best that legislation should emanate from individuals in authority; but if this is not to be, then it is better that it should be brought forward under the sanction of a Committee, than as a Bill introduced by the noble Lord, who stood in that House as the leader of a large party in opposition, or by any independent Member of the House. He could not but fear that the effect of the letters patent of May 13 would be exceedingly serious in the colony, as their effect was for the present to withdraw, if not indefinitely to postpone, the constitution promised to the colony. But if their Lordships that night came to a decision to legislate not in a party spirit, but to carry into effect that measure which our own Government and our own Attorney General in the colony had sanctioned and affirmed, and resolved to send out by the next mail a message of peace to the colony, tranquillity might be restored; but if they did not do so, the system of agita- 775 tion which had hitherto been pursued at the Cape of Good Hope might not only go on, but the state of the colony might become still more embarrassing, and probably the next time they discussed this question they might have to do it with a smaller number of colonists, reduced by secession to other lands—but amongst whom there would be a spirit of animosity and bitterness of feeling which it would not be easy to allay by any mode of legislation which we should then be able to adopt.
§ The EARL of DERBY,
in reply, said he did not know upon what grounds it had been asserted that his opinions had changed since he first gave notice of this Motion. No change whatever had taken place in his opinions. As to the mode in which the noble and learned Lord on the woolsack had answered the argument of his noble and learned Friend (Lord Lyndhurst), it was a mere play upon words, which they might have expected to have heard fall from some junior member of the lower branch of the profession to which the noble Lord belonged, but not from any one occupying the eminent position of the noble Lord. He should leave the noble Lord and the noble Earl opposite (Earl Grey) to reconcile their views of the powers of the Council—the one declaring that it was perfectly legal, and capable of performing all acts whatever; the other declaring that even in a technical point of view, in a strictly legal sense, the Council was not valid—not the then present Council. But it was not upon the legal question that he rested the Motion for a Committee. He did not come there as the advocate of any one party in the colony, popular or unpopular, for or against the Government. He had that evening expressed a very strong opinion on the factious course of the four Members who seceded from the Council. But he came forward because he felt that it was important that the colony should not be left to the anarchy and confusion it presented at this moment. He came forward because he thought no authority short of that of the Parliament could give a satisfactory settlement of existing disputes. He came forward because the Governor entreated that the matter might not be referred back to him, but that some authority in this country should settle that vexed question, the constitution of the colony. He came forward because the noble Lord (Earl Grey) had not intimated any intention by the authority of the Crown of supplying that which was necessary, the 776 enactment of a constitution for the colony. He came forward because he thought the course now adopted was full of peril; because the Government told them that the reconstruction of the Legislative Assembly was a matter of all but impossibility; and he came forward because for nearly two years the whole affairs of the colony had been directed by a body of at least doubtful legality, and because, therefore, the very source from which the constitution would issue in the colony, would not be looked upon as competent to legislate on so important a question. With reference to what had fallen from the noble Duke (the Duke of Newcastle), he must say, that he asked their Lordships to refer the papers to a Select Committee with a view to immediate practical legislation, because in those papers were to be found all the materials for submitting a new measure without delay to Parliament—a measure framed to their hands. He thought a few days would enable the Select Committee to lay before their Lordships a report, recommending the adoption of such a Bill; and he was far from thinking that either in this or in the other House of Parliament, in the present position of the colony, there would be any disposition on the part of any human being to look at this question in a party point of view, or to cause vexatious delay. On the contrary, he believed that, in Parliament and in the colony, the Bill would be received with that respect and attention to which it would be well entitled from the names inserted on that Committee, and he believed no constitution emanating from any inferior authority would meet with ready approval. He did not think that it would have been necessary again to disclaim any wish to obtain a party triumph. He did not intend this Motion to involve any censure on the Government, or on the noble Earl (Earl Grey), but, bonâ fide, to give the Government, as he had already said, the cordial co-operation of Parliament in carrying out those views which he presumed the Government entertained for the benefit of the colony. He believed legislation was indispensable; he believed that immediate legislation was most desirable; and he knew no manner in which it could be better adopted than upon the report of a Select Committee, such as that which he proposed.
§ On Question,
§ House divided:—Content 68; Not Content 74: Majority 6.
|List of the NOT CONTENT.|
|Gosford||Howard de Walden|
|Scarborough||Say and Sele|
|Strafford||Stanley of Alderley|
§ Resolved in the Negative.
§ House adjourned to Thursday next.