Lords Sitting of 15 June 1854

MINUTES.
PUBLIC BILLS.—2a Middlesex Industrial Schools; Witnesses; Legislative Council (Canada); Excise Duties.
Reported—High Treason (Ireland).

WITNESSES BILL.
LORD BROUGHAM, in moving the second reading of the Witnesses Bill, said, it was intended to remedy a defect in the law of the United Kingdom in respect to the power for compelling the attendance of witnesses in civil suits. It was probably known to all their Lordships that a subpœna issued in England had no power to bring here, to give evidence, a witness from either Scotland or Ireland; and vice versâ, that a subpœna issued in Scotland or Ireland had no power to compel the attendance of a witness from England, however necessary the testimony of that witness might be for trials pending in those several parts of the United Kingdom. This, however, was confined to civil writs; for very nearly fifty years ago, by the 45 Geo. III. c. 92, in criminal cases, subpœnas operated reciprocally in the three parts of the United Kingdom; that was to say, for a criminal trial in England a subpœna issued here could bring a witness from Scotland or Ireland, and, vice versâ, a subpœna issued in Scotland or Ireland could compel the attendance of a witness from England. Upon looking at the present Bill, which was introduced into the House of Commons by an hon. and learned Friend of his, an eminent Irish barrister (Mr. Butt), he found that it had been drawn after the analogous provisions of the Act passed by Lord Eldon in 1805, with one exception, wherein he thought the present Bill was a great improvement over the former Act; although he was bound to state that the new provision, while it was perfectly adapted to a civil suit, might not possibly have been fitted for every criminal case. He referred to that provision of the Bill by which it was provided that it should not be at the option of either of the parties in a suit to carry a witness from England to Scotland or Ireland, or from Scotland or Ireland to England, but that there should be a discretion vested in the Judge, upon cause shown to
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him, to give leave to the party to take a witness from England to Scotland or Ireland, or from Scotland or Ireland to England. He highly approval that addition to the Act of 1805; and if he wanted an instance to show the propriety some such check upon parties in summoning witnesses, he should remind their Lordships of the case of a noble Friend of his (Lord John Russell), who, having hen subpœnaed to give evidence in Ireland, was on the point of being obliged to go over for that purpose, though at his own very great inconvenience, and it might be said also to the very great inconvenience of the public, he being then in a high office, when he was told that he need not go, and that his evidence would be dispensed with. That was in a criminal case, and his Lordship was subpœnaed under Lord Eldon's Act; but the same thing might happen in a civil suit; and, therefore, he thought it was exceedingly well advised on the part of the framers of this Bill to have introduced that check, and to require that no witness should be summoned from Scotland or Ireland to England, or from England to Scotland or Ireland, without the fiat of the Judge placed upon the subpœna. He hoped and trusted that in acting under this Bill, should it be passed into law the learned Judges of the three kingdoms would not consider that their consent was to be given as a matter of course, but would really and truly exercise that sound discretion which the provisions of the Bill were intended to vest in them. The necessity for sonic such Bill was so obvious that it hardly required to be mentioned. It constantly happened when a witness was wanted to give evidence—no party being able to compel his attendance—that recourse was had to the roundabout and unsatisfactory proceeding of issuing a commission to take his evidence in private, and to transmit the written deposition. What was the consequence? The evidence of the witness was given in private and not in public; under no check of the inspection of the court or the public, and miler no check of a sufficient cross-examination, he made his deposition very repel as he or the party who examined him chose to have it; and then that deposition went before the court with this additional defect—which accompanied all written evidence—that one Judge or one Commissioner examined the witness and took down his deposition, and that another, who had

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not seen him, decided upon it. It was to remedy that evil that this Bill had been proposed; and he hoped and trusted that their Lordships would now give it a second reading. He should take occasion in Committee to supply what he thought was a great omission in the Bill—namely, a clause providing for the payment of the reasonable and proper expenses to be allowed to a witness for his journey both ways.
THE LORD CHANCELLORwas understood to give his sanction to the second reading of the Bill, and to express the opinion that it was not necessary to provide for the payment of the expenses of witnesses, who would be remunerated in the ordinary way.
LORD BROUGHAMsaid, that he heartily wished for another improvement in the law, giving compensation to witnesses for loss of time. He had known men taken from Liverpool to Manchester, leaving the most important business in which traders could be engaged, and kept in Manchester three or four days till the cases came on, not receiving one farthing of compensation for their loss of time, and in many instances protesting that they would willingly rather pay the debt upon which they were called as witnesses than remain absent from their business during those three or four days. He would like to see some provision introduced into the Bill to amend the law in that respect.
Bill read 2a, and committed to a Committee of the whole House.

LEGISLATIVE COUNCIL (CANADA) BILL.
Order of the Day for the Second Reading read.
THE DUKE OF NEWCASTLE, in moving the second reading of the Legislative Council (Canada) Bill, said, it will not be necessary for me to trespass at any great length upon your Lordships' attention in explaining the objects of this measure, and the circumstances under which I have thought it my duty on the part of the Government to introduce it. Many of your Lordships will recollect that at the time when the affairs of Canada occupied very much more of the time and the attention of the Imperial Legislature than I am happy to say they have done of late years, the question of the constitution of the Legislative Council of that Colony was one of the most important of the subjects which were then discussed. For a long time it
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had been felt by many were connected with Canada that the constitution of the Legislative Council, by means of nomination Ly the Crown, did not fulfil those objects for which second House of legislation exists, both in this and other constitutional countries, as well as in many of our Colonies. The chief object of a second legislative body I apprehend to be that, under whatever form it may be constituted, it should operate in some degree as a check upon the more popular body, and should prevent that hasty legislation which, under circumstances of excitement, is apt to be introduced where one body Only exists, and that one popularly elected. But those who have considered that a nominative Upper Chamber fulfilled pretty nearly the duties which attach to the House of Lords in this country—who believed that there was a close analogy between such a nominated body and the House of Lords—must, I think, many years ago, have been disabused of that impression, and must now be prepared to acknowledge, from their experience of the state of things in Canada, that there is little resemblance between a body nominated by the Crown and the House of Lords. I will not now enter into a discussion upon this question. It has been repeatedly debated in this House before; and I recollect that only a few years ago I was myself a party, when sitting on the opposite side of the House, to argue in favour of an elective as distinguished from a nominative Upper Chamber, in the case of the New Zealand constitution, which was at that time under the consideration of the House. Without discussing, then, the question of how little a nominative body in any of our Colonies, under any circumstances, can resemble such a body the House of Lords, I think it is only necessary to call your Lordships' attention to the position in which the Legislative Council at present is, as regards Canada. I apprehend that nobody acquainted with that Colony will deny that the present moment, although many of the Members of the Legislative Council are among the most highly respected inhabitants of the Colony; nevertheless the body of which they form a component part does not exercise that due influence in the Colony or in the Legislature which it ought to possess, and that, from circumstances over which the Members of that body, in their individual capacity, had certainly no control or influence,

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they have, as a corporation, to a certain degree fallen into disfavour with the colonists—to such an extent, indeed, that I believe it is an undeniable fact that those who are most distinguished in the Colony, and who must be considered by any Governor of Canada best fitted to be placed on the Council, have frequently expressed their great repugnance and unwillingness, and in many instances their positive refusal, to enter into the Legislative Council. I think the statement of this single fact might almost be considered as conclusive against any determination on the part of the Legislature of this country to insist upon the maintenance of the existing system. I will come immediately to the course which I propose to take to remedy the present state of things; but even if it were considered requisite that the Legislature of this country should take upon themselves to change the existing form and constitution of the Upper Chamber in Canada, we should not be acting without a precedent, or doing in favour of Canada, and in behalf of the popular body in that country, that which we have never done in other of the colonies of the Crown. In the constitution granted to the Cape of Good Hope last year, the Upper Chamber in that Colony was made an elective one. It is unnecessary to go into any details as to the mode of election or the privileges attaching to that body; suffice it to say, that both Houses in the Cape of Good Hope are elective. With regard to Australia, by an Act passed a few years ago, for introducing a new form of constitution in the various Australian Colonies, power was given to each to reform its own constitution, and under that provision ordinances have been sent home —some of them having been received within the last few days — undoubtedly proposing different forms of constitution, but some of them choosing the elective form for the Upper Chamber. About the close of the last Session of Parliament, or shortly afterwards, I received a memorial from the Legislative Assembly of Canada —by no means the first memorial which has been addressed to the Colonial Office on the subject — praying that measures should be taken for effecting this long desired alteration, and bringing the Legislative Council of Canada into a better state of accordance with the public feeling in the Colony as regards its constitution. Subsequently to the receipt of that memo-
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rial—about the close of the last year, or the beginning of the present—I received a further communication from Canada, suggesting the form of a Bill by which the Legislative Council could be changed from a nominative to an elective body, and embracing all the details which those persons in Canada who had looked into the subject considered necessary for carrying that object into effect. After receiving this draft of a Bill, which I was urged to introduce into the House of Lords, or to get some other Member of the Government to introduce into the House of Commons, for the purpose of effecting the desired change by means of the Imperial Legislature, agreeing, as I do, in the object desired to be effected, I felt that it was necessary to consider how the object could best be carried out. Three modes of doing so presented themselves to my mind. The first was, to adopt the draft measure which had been sent over to me from Canada, by which course the House of Lords and the House of Commons of England would have settled the question for Canada; the second was, to invite the Parliament of Canada to send home a Bill prepared and passed by themselves, which would have required an Act of Parliament in this country to confirm it; and the third was, to repeal those portions of the Union Act of Canada which at the present moment prevent the Colonial Legislature from making the desired alteration itself. Perhaps I ought previously to have stated to your Lordships that by certain clauses in the Union Act of Canada the Legislative Council is constituted in the nominative form, and the Colonial Parliament has no power to effect the proposed alteration, even with the approval of the Crown. Certain other restrictions are put upon the Canadian Legislature, one of which, I am glad to say, was removed last year by an Act, which I was fortunate enough to induce your Lordships to pass, for placing the clergy reserves under the control of the Colonial Parliament. As regards the first of these modes—that of adopting the draft Bill sent over to me from Canada—I undoubtedly felt that it would have this advantage —that it would settle at once a question which had for sonic time been one of discussion and dispute in Canada, and would obviate the possibility—I hope I should not say the probability—of a difference of views between the existing Houses of Legislature in Canada, which might perhaps

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last for some years; but whilst I saw that, I likewise felt that this plan would also have this great disadvantage — that of being at variance with those principles of colonial government which I have long advocated, and which I endeavoured, I humbly hope, to carry out during the time I held the seals of the Colonial Office. I felt, I say, that to legislate in this form would be at variance with those principles which I believe to be the only sound principles of colonial legislation, and at variance with the views and intentions of that enactment which your Lordships passed last year with reference to the clergy reserves. My opinion is, that in this and all similar matters, it is desirable that the Colonial Legislature should itself be allowed to decide—and therefore I discarded this first mode of effecting the object in view. As regards the second mode—that of enabling the Legislature of Canada itself to pass a Bill which would subsequently have required an Act of the Imperial Parliament to confirm it—I felt that the principles to which I have referred would be violated, although to a lesser degree, by that mode, whilst, at the same time, it would not have accomplished the good that might reasonably have been expected from the first, namely, that of settling the question at once and for ever, and of obviating discussions that might arise between the two Houses of the Legislature in Canada. The third mode, the one which I have adopted, is this—I propose to repeal those clauses in the Union Act of Canada which prevent the Colonial Legislature from reforming its own constitution, to refer to it the question of changing the Legislative Council from a nominative to an elective body, and to leave it either to effect the proposed alteration or to pass such other measures as it may think fit, subject, of course, to confirmation by the Crown—or to leave the matter as it stands. I propose, in short, to remove those hindrances to the free action of the Colonial Legislature which at present exist. That is the sole object of the present Bill, to which I now ask your Lordships to give a second reading, with the exception of the last clause but one, which refers to a subject that was brought under discussion by the noble Lord the Chairman of Committees when the Clergy Reserves Bill was before the House last year. The noble Lord at that time suggested that it was exceedingly unfair that while, we removed, as re-
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garded the clergy reserves, the necessity for ordinances passed by the Legislature of Canada being laid on the table of this House forty days before they were confirmed by the Crown, we should retain that restriction with respect to all other subjects of a cognate character. I stated on that occasion that I entirely concurred in that view, and that in all probability it would be my duty before long to introduce a measure—referring to the present Bill—in which I should certainly propose to remove that restriction altogether. I apprehend it is a restriction without much meaning, without any utility, and with considerable inconvenience. So inconvenient is it that it is exceedingly questionable what are the Bills which come to the Colonial Office which require to be laid on our table forty days before they receive the confirmation of the Crown; and I believe it has more than once occurred, since that restriction was imposed, that measures have inadvertently received the confirmation of the Crown without having been so laid upon our table. The result is, that any litigious person who chooses to raise a question as to the validity of those Acts—many of them involving questions of private rights, and affecting land and religion—may at any moment create immense excitement in the Colony, and cause very great personal inconvenience and loss. Seeing, then, that we have in the case of the clergy reserves removed this restriction, and believing that it would be highly expedient and advisable to follow the same course in the case of such questions as those now under discussion—and indeed as regards questions of any other description—I propose, by the 6th clause of this Bill, to do away with the necessity of ordinances passed by the Colonial Legislature being laid in future upon the table of this House forty days before they are confirmed by the Crown; in short, I propose to assimilate the ordinances from Canada in this respect to the ordinances received from various other dependencies of the Crown; and I propose likewise, by the wording at the end of the clause, to render valid such measures as may have been passed and have received the confirmation of the Crown, without having fulfilled the obligations which they ought to have fulfilled, of being laid upon our table. I do not Wish to trespass upon your Lordships' time further than I have already done; and I will conclude by asking your Lordships to give a second read-

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ing to this Bill, believing it is in entire accordance with the soundest principles of colonial legislation, and that it is calculated to remedy what I must call a great and practical grievance.
Moved, That the Bill be now read 2a.
THE EARL OF DESARTregretted that his noble Friend (the Earl of Derby) was not in the House upon the present occasion. The noble Earl, who had himself held the seals of the Colonial Office, took a warm interest in the affairs of Canada; and it was highly desirable that the noble Duke should postpone the second reading of the Bill till such time as the noble Earl should have an opportunity of discussing it. Besides, it was of the utmost importance that their Lordships should be put in possession of the copies of the draft Bill sent home from Canada, in order that they might see how the colonists themselves propose to carry out the desired change of making the Legislative Council elective. In 1850, a similar proposition was made by the Legislative Assembly of New Brunswick. The reply of Earl Grey, who was then Colonial Secretary, was that, although he saw no primâ facie objection to the proposed alteration, yet he could not pledge himself to sanction any such scheme until he ascertained what the provisions of the Bill would be, because he entertained the most decided objections to making the Legislative Council a more counterpart of the Legislative Assembly. Such was the view of Earl Grey; and for his own part, it appeared to him that there was considerable danger in giving to the Legislative Assembly of Canada power to make whatever regulations it pleased for the election of the Legislative Council. He confessed he had strong doubts as to the expediency of giving an elective Legislative Council at all, excited as they knew those colonial bodies were by strong party feelings and dissensions. He ventured to ask the noble Duke to postpone the Motion for the second reading, in order that the noble Earl, who was now absent, might have an opportunity of expressing his feelings in respect to the proposition.
LORD WHARNCLIFFEsaid, that the Bill was one of considerable importance, and he should like to be informed whether it was the Bill of the noble Duke, or whether it had been recommended by the Governor General when he was in this country a short time since, or was the result of a correspondence between the Colonial Office and the local authorities. If any
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such correspondence had taken place, he hoped it would be laid before the House. He thought it was better to allow the inhabitants of a colony to deal as they pleased with grievances of which they complained, as most of them related to matters upon which it was impossible that the Parliament of this country should be as competent to form an opinion as the local Legislatures; but he was afraid that this measure would lead to results which the House would not willingly contemplate, and he was of opinion that extensive legislative changes ought not to be made in the government of a colony without the sanction of the Crown and of the Imperial Parliament.
THE EARL OF ELLENBOROUGHsaid, he did not rise to oppose the second reading of the Bill, but to express his opinion on a matter of much greater importance. We had in the course of the last few years made such progress in the work of concession to Canada, that the question now was, not whether we should stop in our career—not whether we should attempt to go forward or to go back—but whether we should not, in the most friendly spirit towards Canada and the other Colonies of North America, consult with the Legislature of those provinces on the expediency of taking measures for the complete release of those colonies from all dependence on the Crown and the Parliament of Great Britain. He recollected, in 1828, during the time that Mr. Huskisson held the seals of the Colonial Office, having a conversation with him, in which that Gentleman intimated most distinctly that he thought the time had already arrived for a separation between Canada and this country; and Mr. Huskisson had even so thoroughly considered the matter that he mentioned to him (the Earl of Ellenborough) the form of government which he thought it was for our interests to leave to Canada when our connection with the Colony should cease. It must be borne in mind that during the last few years a complete change had taken place in our relations with the North American Colonies. In 1846 we repealed the Corn Laws, without any provision for reserving and retaining for the benefit of the North American provinces those advantages in the duty levied on the export of corn from those provinces to this country, which were highly valued. At a subsequent period we repealed the Navigation Laws, which had entailed great inconvenience and loss on them, and which was considered as con-

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ferring on us great advantages in matters of trade and navigation. We had, further, altered to a great degree—if we had not entirely abolished—the duties—formerly to a great extent discriminative duties—on the article of timber, which was the staple produce of the North American Colonies. Thus we had deprived ourselves and the North American Colonies of the advantages which each formerly derived from the connection subsisting between them. But, more than that, we had for several years, in dealing with the Legislative Assemblies of the Colonies, acted on a principle diametrically opposed to that which had been formerly recognised. We had established what was called responsible government, or, to speak more intelligibly, we had given them practically an independent government; and he could really hardly imagine a situation more inconvenient than that of the representative of Her Majesty in Canada. He almost wondered that any British gentleman would consent to hold such a situation of nullity, unless, indeed, he had full confidence in his own abilities and resources, and was able to make himself what Lord Metcalfe was, practically the Minister of the Colony. What, he would ask, were the practical advantages of continuing our connection with Canada? There might be some advantages in it to the Colony in times of peace; but, on the other hand, let their Lordships consider the great dangers to us and to them arising from that connection in matters relating to war. There could be no doubt whatever that the chances of a collision between this country and the United States were greatly increased by our connection with the North American Colonies. On the other hand, there could be no doubt, in the event of a war taking place between this country and the United States, on grounds totally unconnected with Canada, that Canada and the other North American provinces would of necessity, from their connection with us, be drawn into the war, and be exposed, from the extent of their frontier, to the greatest calamities. Under these circumstances it appeared to him a matter worthy of the most serious consideration whether we should not endeavour, in the most friendly spirit, to divest ourselves of a connection equally onerous to us and to them. He would ask his noble Friend (the Duke of Newcastle) what hope he could have of a successful defence of Canada in the event of a war? He would recommend the right hon. Gentleman who
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had succeeded to the Colonial Office to read a despatch, which he (the Earl of Ellenborough) had now in his recollection, and which was received from the late Lord Metcalfe in 1846. We were then, it was supposed, on the eve of a war with the United States—a war connected with a matter with which Canada had no concern —a war of which the danger suddenly arose from an object the value of which would not equal the expense of one week of hostilities. He would recommend the Colonial Secretary to consider what Lord Metcalfe said, as to the amount of military expenditure which would be necessary for successfully defending Canada. He (the Earl of Ellentorough) thought that that estimate was extravagant at that time. He did not attach any very great weight to any unsupported opinion of Lord Metcalfe on that subject; but Lord Metcalfe was an able man, he had been for a considerable period in Canada, and it was to be presumed that he would not have given an opinion upon that subject without conferring with persons of military knowledge and experience. If what Lord Metcalfe said on that occasion was correct, it was perfectly beyond the means of this country to afford the necessary amount of military aid by which that country could be successfully defended. It might be said that we did successfully defend Canada in 1814, and no doubt Canada had made very great progress, and that we also had made very great progress, in wealth since that time. That he admitted; but he wished he could add we had made great progress in military strength. But considering, on the other hand, the progress made by the United States in their innumerable railroads—considering their great advance in military resources—considering that they had now a well-disciplined army, as contrasted with the army with which they fought the war of '14, which was a more rabble—considering all the increased means and appliances now at their disposal, he could not conceive it possible that any defence of Canada could be conducted with success. He would not say that success in war was at any time impossible, for there was nothing that might not be achieved by genius and by courage well directed and sustained; but were we sure that there would be that union of sentiment which could alone carry us through the contest; and, if we had that assurance, where could we find the military genius by which that sentiment could be directed? The argu-

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ment that he had always heard against severing our connection with Canada was, that we should not depart from our rightful position as the head of a great colonial system, and that we could not give up that connection without disparaging ourselves in the eyes of the world. But this he knew, that of all things which would most disparage and injure us, would be a failure in an attempt to defend Canada, by which we should not only lose Canada, but also the army with which we attempted to defend it. Bearing in mind, then, the opinion of Mr. Huskisson—bearing in mind what was considered necessary by Lord Metcalfe in 1846—looking also at the gigantic progress of the United States, its extending strength, and our means on the other hand, he confessed he deprecated the continuance of a connection which might make a war a possibility. And let their Lordships reflect that a war with the United States would be one of the greatest evils that could be fall us, for it would be more like the tearing asunder the members of one human being than a collision between two separate bodies, connected as we are with them by all the details of commerce. But while he said that, he could not conceive that a war was an impossibility. Our brethren on the other side of the Atlantic were very ambitious; they were also very sensitive on a point of honour; so were we; they were equally sensitive to the perpetration of injustice; so were we; and not only could they not tolerate injustice done to themselves, but they could not bear to see it done to others. Under these circumstances he thought that at a very early period Her Majesty's Government should endeavour to communicate with the leading persons in the Legislative Councils of all the different colonies of North America, with the view of ascertaining their opinions on this subject. Everything should be done in reference to it without compulsion, and in the most friendly spirit. We should consult with the North American provinces as we should with the members of our own families, in whose interest and welfare we took the deepest concern; but he really thought at an early period there should be on both sides a frank interchange of sentiment and opinion on the subject; and he could only say that it would be to him a matter of satisfaction if the result should be to relieve us from a possible danger, which he could not contemplate without the greatest apprehension.
THE DUKE OF NEWCASTLEsaid, with
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reference to the observations which had just fallen from his noble Friend, he felt bound to express not only his deep regret, but his astonishment, looking at the noble Earl's position as a legislator and statesman, at the doctrines which he had propounded—doctrines which he could assure his noble Friend on his own knowledge, were at least as unpalatable in Canada as they could be to their Lordships who had listened to them. The noble Earl had suggested that the Government should take into their early consideration whether or not they should concert such measures as they might think desirable for severing the union subsisting between the Colonies and the mother country. His noble Friend did not make that suggestion to him whilst he was at the head of the Colonial Office; but he (the Duke of Newcastle) could assure the noble Earl that he would never belong to any Government which would make any such proposal to the people of Canada. For his own part, he should look upon such a proposal as an offence against the dignity, and he might almost say the Sovereignty, of the country, and hostile to the most important interests of the Colonies. His noble Friend said, he did not think it was a question now whether we should pause in the progress of our legislation for the North American Colonies, nor whether we should go backward, but whether we should not propose a separation. What reasons had the noble Earl assigned for the course he recommended? The noble Earl had alluded to recent Acts of the Legislature of this country, and when he did so a noble Earl opposite (the Earl of Malmesbury) cheered. He (the Duke of Newcastle) said, without fear of contradiction, that all our legislation on the subject of trade had only induced the people of Canada to prize more highly the connection with England. He contended that that legislation had rendered our connection with them more important than ever. Had not the wealth and importance of Canada, under the new system of commercial intercourse, increased to an extent with which no other colony in the world could compare? He doubted whether the progress of the Australian Colonies, great as that had been, could be compared with the progress which had taken place within the last few years, and was now going on, in that part of the British empire. Not merely in wealth, but in almost every other element by which the interests of nations were estimated, had Canada made the most

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rapid progress; and was this the moment to propose to them a separation from this country—to sever a connection which he had no hesitation in saying had long been endeared to the people of Canada, and which was now more dear to them than ever? His noble Friend had adverted to an opinion expressed on this subject by Mr. Huskisson in 1828, in which that statesman said that the time had come for effecting a separation between this country and the North American Colonies. He (the Duke of Newcastle) had the greatest possible respect for the opinions of Mr. Huskisson; but, he would ask, what were the circumstances of Canada in 1828? He was not surprised that Mr. Huskisson in 1828 should have considered such a possibility, and that he, with true prescience, should have looked forward as to what should take place in the event of a separation. A state of things was then prevailing in the Colony which six or seven years afterwards led to the rebellion which cost so much blood and treasure. But a most material change had taken place since that time, and in consequence of that change he thought that, if Mr. Huskisson were alive at this moment, that statesman would not now be attempting a new form of independent government for Canada, but would be the first to concur in the measure which he (the Duke of Newcastle) was now proposing to their Lordships. His noble Friend said we had established responsible government in Canada, and that, in consequence of that change, Canada was as good as separated from this country, and the representative of the Sovereign was placed in a humiliating position, and was, in fact, reduced to a nullity. What did his noble Friend mean? Would he compare the Sovereign of this great country with the Emperor of Russia, and say that because the British Sovereign did not exercise arbitrary power over the country, her sway was a nullity? Undoubtedly he might, if he compared the more abstract form and outward semblance of power, such as was formerly exercised by the Government in the Colony, with the power of the Colonial Government as it was now carried on under the blessings of the representative principle, describe the Government of Canada as a nullity; but unless his noble Friend was prepared to say that a constitutional Sovereign of a free country could not exercise authority over that country, because the Sovereign was not possessed of arbitrary power, he (the Duke of New-
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castle) would contend that the representative of the British Sovereign in Canada was not only a nullity, but that he now actually occupied in the affections of the people a position far stronger, and therefore far more distinguished and exalted, than any Governor of a Colony ever did before. Such he knew were the sentiments of Lord Elgin, who occupied the high position of Governor of Canada at this time, and who had contributed, by his admirable government, very materially to the state of feeling which now existed in that Colony. The noble Enid had said that Canada was of small advantage to us in time of peace, and then asked, what safe defence could we propose for it in time of war, and he had referred to what Lord Metcalfe had said some years ago as to the necessity of maintaining a large army to retain Canada in our possession. So he understood his noble Friend. Now, as far as he (the Duke of Newcastle) was concerned, whatever might have been deemed expedient in the time of the government of Lord Metcalfe, he would with the greatest fearlessness declare that no such necessity existed at the present day, and that he had the most entire confidence in the loyalty of the people of Canada. No doubt Lord Metcalfe did express the opinion which his noble Friend had ascribed to him, but he did so under very different circumstances from those which now existed. If the Canadians should make a demand for assistance against foreign enemies, we were bound to provide it; but he would tell the noble Earl that the best and safest defence of Canada would be found in the loyalty and good feeling of its people. And he declared that, fast as if this country were to be invaded at the present moment, when our armies were making war on another soil, he should have no fear for the result, because the loyalty of the people would defend our shores, so he should have no fear for the result if any nation should invade Canada. He deprecated, however, such discussions as this. The noble Earl said, in the course of his observations, that the colonists were very sensitive. They were sensitive; and it was upon that very account that he regretted extremely that a man of such eminence should have broached such a subject. He thought his noble Friend's words would sting many a heart in Canada, whose inhabitants would hear with the greatest possible regret that even one Peer should be found in that House to get up and advocate not only the possibility

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but even the policy of separation from the mother country. The proper course to pursue was, to legislate no more for the Colonies than we could possibly help; indeed, he believed that the only legislation now required for the Colonies consisted in undoing the bad legislation of former years. It was for that purpose he had introduced the Bill now under the consideration of their Lordships; and if they were resolute to continue the policy now for some years past adopted, he was convinced that, not only as regarded Canada and the other distant—he would not call them dependencies of the empire—but the integral portions of the empire; far distant, indeed, would be the day when the Legislature would be called upon to entertain any such proposition as that suggested by his noble Friend. He knew that his noble Friend's words would sink deep into the heart of many a Canadian, and sting him with deep regret. He spoke with the greatest confidence on this subject, because he had within a very short period had large opportunities of intercourse with men connected with that Colony, and he knew that, belong to what party they might, one of the last things they desired was that which his noble Friend had so strongly advocated.
THE EARL OF MALMESBURYsaid, he regretted that the present subject should have been brought forward on a day which Members of their Lordships' House were in the habit of dedicating to another object. The noble Duke had alluded to a cheer which had come from him (the Earl of Malmesbury) during the speech of his noble Friend (the Earl of Ellenborough). Now, if he cheered at all, it was merely to express his assent to what his noble Friend had said in reference to the sort of free-trade principle which had been applied to Canada. He had in his mind at the moment the effect which that principle had had upon the interests of that Colony. The difference which the introduction of free trade produced upon Canada was this, that, whereas before free trade was established this country favoured Canada in its commercial communications with that Colony, after the free-trade principle was established that favour had been withdrawn; and it occurred to his mind that the people of Canada could not look upon this country in the same light now as they did before. Their Lordships were aware that we had not met with that reciprocity from the United States by which our North American Colonies would have
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been benefitted, and which it was hoped would have resulted from the measures which were adopted by this country. When those measures were originally passed they were told that there was every reason to believe that a treaty would be very speedily settled between this country and the United States on free-trade principles, which would be advantageous to our North American Colonies. He should be glad to know how far Her Majesty's Government had advanced with that negotiation, which had now been pending for the last four or five years? That was the subject he had in his mind when he cheered his noble Friend. If the noble Duke thought that he had intended to express any regret at the passing of those great measures, which had been so fully discussed in both Houses of Parliament, and which were adopted with the approbation of so large a majority of the nation, he very much mistook the opinion he entertained on that subject.
LORD BROUGHAMsaid, he entirely approved of the measure introduced by the noble Duke, and he hoped and trusted that the same sound views would continue to prevail in the Administration of the Colonies which had influenced Her Majesty's Government in preparing this measure. There was one point on which he would venture most humbly and respectfully to tender his advice to the people of Canada. He was induced to do so by the kind confidence he had experienced from them some fifteen or sixteen years ago when he appeared in that House as their advocate against certain measures of the then Government of this country. He had then long conferences with people from Canada upon those differences, which at that time most unhappily prevailed, and he had constant and intimate communications with the leading men connected with the Legislative Councils. It was in consequence of that circumstance that he now ventured to give them his counsel upon the subject of the constitution of a second Chamber. The most important object to be attained in the constitution of a second Chamber was, that it should be as different as it was possible to make it in its constitution, in its mode of appointment, and in its duration, in order that it might be anything rather than a duplicate of the other assembly. That was the great principle which ought to govern the colonists in forming a second Chamber. It was not meant that a second assembly should be constituted morely to register the edicts of the first, but to ex-

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amine, to discuss and amend that which had been done by the first. It would not do if the second assembly was of a similar nature to that of the first, or if it derived its origin from the same constituent body. What would be the consequence if the two bodies did not most materially differ in their constitution, in their origin, and in all the circumstances connected with them? It would only amount to this—that of adding so many stages to each legislative measure which the first assembly might pass. There would be no check to, effectual control over, or security against, the acts of the first. But if the origin of the second assembly were totally different from that of the first, or, as he should greatly prefer, if the second Chamber were not elective at all, but were nominated under certain restrictions and with certain exceptions by the Executive Government out of a list to be chosen by persons exercising the elective franchise, then there would be some chance of an effectual control over the acts of the first. If he were called upon to give an instance of the necessity of a second Chamber, essentially different in its constitution from the first, where should he look but to the assembly he had then the honour of addressing? He had known Bills come up from the House of Commons which had contained such oversights and such gross errors which his respect for Parliaments which had ceased to exist twenty years since, would not allow him to characterise in adequate terms. He remembered that in the year 1834 a Bill, which had passed with little or no observation and almost as a matter of course in the House of Commons, came up to their Lordships, which their Lordships might have passed had they resembled in their constitution the first Chamber. And what would have been the consequence? Why, the whole criminal justice of the kingdom in quarter sessions would have been suspended from and after the 1st of October then next ensuing. When their Lordships sent back the Bill, cutting out that provision of it, it was a very excellent Bill in all respects; yet when it was sent back thus amended, the House of Commons was so offended at what they had taken the liberty to do, that they throw it out altogether, and the country lost the benefit of all that was valuable in the measure for twelve months. He wished to add a word on another point, but he did so with very great diffidence after the severe rebuke administered by the noble Duke opposite
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to his noble Friend near him, as he had the misfortune of falling within the description of persons against whom the noble Duke had declaimed so eloquently, as wishing to separate from, though not to throw over or abandon, the Colonies. He could not help thinking, on the whole, that it would be better that an understanding should be come to, so that the subject of separation might be discussed calmly and amicably between the mother country and its American dependencies; and at the period to which he had alluded, when he was in the closest communication with persons who had the best means of knowing the feelings of their fellow colonists on the question, he certainly had not observed any such deep-rooted antipathy to the proposition as the noble Duke supposed to exist. He knew that this opinion was shared by two men of the highest authority on colonial questions—the late Lord Ashburton, who never made any secret of the views he entertained, and the late Lord St. Vincent; and those who held the doctrine of separation did so, not because they were disposed to undervalue the importance of colonies, but rather because they highly estimated the importance of such colonies. They believed that after a certain period of time — after what was called
"passing the youth of nations," the best thing that could happen to the connection of a colony with the parent State was its euthanasia — a separation without any quarrel, without any coldness even, but with perfect amity and good-will, so that the relations prevailing between two independent States might be substituted for those which had prevailed between the mother-country and its dependency.
THE EARL OF HARROWBYcould not see what advantage would accrue to the people of Canada if that colony were to be separated from this country, and to be erected into what the noble Earl had called an independent State. They at the present moment enjoyed all the benefits of actual independence, possessing complete control over their whole internal administration; while, by their connection with this country, they had the bulwark of the British name, and necessarily of British power. He did not believe that the idea of separation was at all entertained by the Canadian people; but if it even were, no measure was more likely to remove it from their minds than such a one as the present; and any step in an opposite direction— any attempt to govern, in a free country,

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through the instrumentality of more nominees of the Government, could produce no other effect than irritation. He only hoped that in the construction of the second Chamber the Canadians would follow the recommendation of the noble and learned Lord (Lord Brougham), and consider well the importance of not making it a more shadow of the first, and of securing as much as possible representatives in it of a different class of mind and feeling. He looked upon this measure as one of the greatest importance, being of opinion that the only valuable second House of legislation in a colony was one composed of a wisely and justly elected body, and that the more creatures of the Government could never enjoy that consideration which alone could give value to a second Chamber. The noble Earl, in conclusion, inquired whether, by the wording of the first clause, the local Legislature would be able to give to the Upper House an existence, if they so desired, independent of a dissolution?
THE DUKE OF NEWCASTLEobserved, that there was nothing in the Bill which would prevent the local Legislature from constituting such a Legislative Council as it pleased. The only reason for the introduction of words empowering the local Legislature to give power to the Government to dissolve one House without the dissolving the other, was a legal opinion given to him that, without the insertion of such words, the local Legislature would not have that power, It would be perfectly competent for the colonists to constitute an Upper House of Members holding their seats for life or for any term of years.
On Question, Resolved in the Affirmative; Bill read 2a accordingly, and committed to a Committee of the whole House.

THE BISHOPRIC OF SYDNEY—QUESTION.
LORD REDESDALEthen rose to ask the noble Duke the late Secretary of State for the Colonies what was the cause of the delay which had taken place in appointing a successor to the late Bishop of Sydney, who died in England on the 20th of February, 1853. He had asked the noble Duke a similar question in July last; and he then stated that the delay arose from its being then under consideration of the Government whether the bishopric should be erected into the archbishopric of Sydney. He believed that some further delay had since occurred in consequence of the appointment having been offered to, but
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declined by, the Bishop of New Zealand. Under these circumstances the delay which had taken place might not have been altogether unnecessary but still it was matter of great regret that the see should have been left for eighteen months without episcopal superintendence, and he trusted that the noble Duke would be able to assure their Lordships that steps were now being taken to fill up the appointment. He wished also to know what would become of the revenues of the see during the period for which it had been vacant.
THE DUKE OF NEWCASTLEcould assure the House that no one regretted more than himself the delay which had taken place in filling up this see; more especially on account of the causes which had of late occasioned it. He thought the noble Lord had done good service in drawing attention to this subject, because, for reasons which he would state, he feared that the circumstances which had caused this long delay were not unlikely to occur again, and it therefore behoved the Church to consider whether means might not be taken to obviate the inconveniences that might otherwise arise. The first cause which led to the delay in the appointment of a successor to the late Bishop of Sydney was a representation which the Government received from the Archbishop of Canterbury and others of the bench of Bishops here, of the expediency of erecting the bishopric of Sydney into an archbishopric. To that representation the Government, after carefully considering the subject, decided that it was not expedient at that moment to accede. As soon as that determination was arrived at he (the Duke of Newcastle), with the concurrence of the Archbishop of Canterbury, and others of the episcopal bench, offered the appointment to a rev. gentleman, an archdeacon, resident in this country, who was well qualified for the office. That rev. gentleman, however, declined to accept the appointment. Subsequently, after some further unavoidable delays which took place with reference to the proposed appointment of other parties, he again received a proposition to recommend to Her Majesty the translation of the Bishop of New Zealand to the vacant see. That course, indeed, had been suggested to Nina very soon after the death of the late Bishop, but he objected to it on more than one ground—certainly, however, upon no ground personal to the Bishop of New Zealand, for he was of all men living the fittest to occupy the vacant see—but prin-

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cipally because he believed it objectionable to translate a bishop without his knowledge and possibly against his consent. He, therefore, in the first instance declined to appoint the Bishop of New Zealand. When, however, after receiving the refusals to which he had referred, he was again pressed by Bishops of the Church and others, in greater numbers than before, to appoint the Bishop of New Zealand; when he received intelligence that the people of Sydney itself especially desired his appointment, and that they were then in hopes that it had already gone out and was approaching their shores; and when, moreover, he heard that even the people of New Zealand thought that, as part of the metropolitan see, they would derive more advantage from their Bishop being placed at its head than they could do from his remaining is his present position; under these circumstances, he at length, though with some hesitation, thought that Bishop Selwyn should be promoted to the metropolitan see, and that a clergyman long resident in New Zealand, and well acquainted wish the colonists and with their feelings, should be appointed Bishop of New Zealand. Her Majesty at once acceded to this recommendation, and he did not lose twenty-four hours in sending out to the Colony to announce the appointment of Bishop Selwyn. Within, however, a fortnight after that announcement had left these shores, information was received here that the Bishop of New Zealand had left the Colony for England, on matters connected with his diocese. The communication of his appointment consequently never reached him, and he was not made aware of the circumstance until after his arrival in this country. He reached England in the first week of May; and within a few days afterwards he (the Duke of Newcastle) wrote to him, fully explaining all the circumstances under which it was thought desirable that he should be appointed to the metropolitan see, and urging all those considerations of a public character which were likely to lead him to forego the indulgence of all those affectionate feelings with which he was known to be actuated towards the colonists of New Zealand, and which might have the effect of inducing him to decline to leave them. Bishop Selwyn did not feel enabled to come to a conclusion upon the subject at once; and he (the Duke of Newcastle) did not receive his answer to the letter urging him to accept the appointment, which was dated
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May 10 or 11, until die 8th of the present month. He regretted to say that, acting no doubt as he believed to be for the best, but, as he (the Duke of Newcastle) and others thought, taking an erroneous view of what would be for the real interest of the Church, Bishop Selwyn then declined to accept the appointment to the metropolitan see. His noble Friend would therefore perceive, that if any error had been committed by him (the Duke of Newcastle) it must have had its origin in his endeavours to appoint to the see of Sydney the man best calculated to discharge the duties of his position in the most efficient manner. He (the Duke of Newcastle) received the reply of Bishop Selwyn only three days before he actually surrendered the seals of office as Colonial Secretary to Her Majesty, and when the arrangements by which he quitted that department were fully completed. Under these circumstances it was quite impossible that he could himself take any further measures to remedy what he believed to be a great misfortune—the vacancy of this important see, He had already said, however, that he thought it was not unlikely that similar events would again occur, and he did so for this reason—up to a very recent period it had been the invariable practice, on any vacancy occurring in a colonial bishopric, to send out a clergyman from this country, because there were not in the Colonies clergymen of a class eligible for appointment as bishops. But in the course of the last few years a very material change had taken place. The number of the clergy in the Colonies had increased to an immense extent, and there were now in many Colonies, and particularly in New Zealand, men who were as well calculated to discharge the functions of bishops as any in this country. Under these circumstances—following out the principles which, during the brief period he had presided over the Colonial Office, he had applied in civil appointments—that they should be given to persons resident in the Colony if they were fit to undertake their duties—he certainly anticipated that Colonial Secretaries would frequently think it their duty to recommend to her Majesty the appointment of clergymen resident in Colonies. There was this inconvenience attendant upon the great advantage which would otherwise result from this course—that it would be necessary to obtain the consent of those reverend gentlemen to their appointments, and that when they were resident in dis-

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tant colonies, delays of the kind such as had now taken place, might not be of un-frequent occurrence. With regard to his noble Friend's question with respect to the revenues of the see, he should not have been prepared to say what would have become of them during its vacancy if they were supplied by endowment; as, however, the greater part of the revenues of this see were voted by the Colony itself, the decision of this question would, of course, rest with the Colonial Legislature.
LORD REDESDALEremarked, that he entirely acquitted the Government of any blame on account of the delay which had occurred with reference to this appointment.
House adjourned till To-morrow.