THE EARL OF CARNARVON
presented a petition from the citizens of Hobart Town and Electors of the Parliament of Tasmania, praying for the Disallowance of the Act amending the Constitution of the Legislative Council in that Colony. The petitioners stated that there were two objections to the amended Act sent home—that it extended the period during which 1452 in certain cases Members of the Legislalative Council enjoyed a seat in that Assembly, and indirectly it limited the franchise by excluding from a seat in the Legislative Council persons who, under the Constitutional Act of the Colony, had a right to it. The Constitutional Act of the Colony passed in 1854 contained a clause giving a seat to every one not disqualified by other special provisions, and who was twenty-one years of age. This amending Act excluded the Judges of the Supreme Court from the Council. Now, the petition stated that, two years after the Constitutional Act passed, the Judge of the Supreme Court was elected, by a greater number of votes than had been given for a candidate before or since, to a seat in the Legislative Council. Upon his return to the Legislative Council, he was elected Speaker of that Chamber, and by the admission of all parties he appeared for two years to have discharged the duty of Speaker with dignity and credit. The effect of the present Act was, however, to disqualify him and exclude him from a seat in the Legislative Council. The Act was passed by a bare majority in a very thin House, and the petitioners prayed that their Lordships would interpose, and by recommending its disallowance afford an opportunity for a further reconsideration of the question. These appeared to be the general facts of the case; but he was bound to say that the disallowance by the Crown of Acts passed by Colonial Legislature was a step to be very carefully weighed. Readily admitting that it was necessary and right in certain cases where Imperial interests were compromised, where great principles of natural justice, in which the dignity and faith of the Crown were involved, were at issue, that the Secretary of State should have recourse to this extreme measure, he came on the whole to the conclusion, that though the proceeding was anomalous, it was one scarcely so foreign to the practical working of a representative Government, that under the circumstances it was a case in which the House ought to proceed so far as to Address the Crown to withhold its assent from an Act which had passed through both Houses of the Colonial Legislature. He believed that the exercise of self-government by that and other colonies had been and would be productive of practical good; and it was better, if such occasional excesses occurred in the exercise of their privileges, that the colonists should learn by experience the 1453 difficulties and inconveniences to which such excesses would be sure to lead.
§ THE DUKE OF NEWCASTLE
said, he should not think it necessary to go much into the question, especially as his noble Friend had himself expressed the same opinion as he (the Duke of Newcastle) thought it his duty to do in regard to the prayer of the petitioners. The Act to which the petitioners referred was intended to amend the constitution of Tasmania in two respects. The Act of the year 1857 which conferred representative Government on that Colony, provided that it should have two Houses of Legislature of which the lower one, known as the House of Assembly, was to consist of thirty Members, and the upper House, or Legislative Council, was to be composed of fifteen, of whom a certain number—five— should go out annually by rotation. It was found, however, that Members sometimes resigned their seats, and this had the effect of causing those below them to go out before their time in the usual course of rotation had arrived. In this way it might possibly happen that through a direct party manœuvre— of course he was putting an extreme case—the whole Council would cease to exist. In the Act then under their Lordships' consideration a provision was inserted which would prevent the possibility of such a contingency by enacting that the Members should not possess the power of resigning, but should retain their seats for the period for which they were elected. But the main objection of the petitioners was directed against another provision of the measure, by which judges were disqualified from holding seats in the Legislative Council. The petitioners had elected as their representative an eminent judge, and they naturally wished to retain his services in that character. The question thus raised was one which had been discussed in this country; and none who had heard it could fail to remember the celebrated speech in which the late Lord Macaulay had advocated the policy of leaving the English Master of the Rolls eligible to a seat in the House of Commons. But whatever opinion might be held upon that point in this country, he believed that every one who was at all acquainted with the condition of Tasmania must feel that the provision in the Act in question was a very wholesome one. The population of that colony was very limited; the legislative body itself consisted of only a few 1454 members, and the Judges had actually, upon some occasions, to decide upon the powers and privileges of the assembly of which they had hitherto been allowed to be members. It was further stated by the petitioners that the Act had been passed through the Tasmanian Legislature with undue haste. Now he admitted that measures appeared to be sometimes adopted by our Colonial Legislatures with too much rapidity, but he thought at the same time that it would be a very strong proceeding on the part of the Crown to refuse its sanction to Acts which had received the approval of free assemblies merely because the Standing Orders had been suspended upon the occasion of their passing. On the whole, he saw no reason why the Crown should withhold its assent to the Act. He had not thought proper to advise Her Majesty to give it Her sanction while a notice upon the subject stood upon their Lordships' books; but, as the question had been introduced, he begged leave to inform his noble Friend and the House that it was now his intention, without any further delay, to recommend Her Majesty to assent to the Act.
§ THE EARL OF DERBY
had also a petition to present from Tasmania, though relating to a point somewhat different from that embraced in the petition presented by his noble Friend, and not from so numerous a body. The persons from whom his petition emanated were the Clergy of Tasmania, on behalf of themselves and all other Colonial Chaplains of the Church of England whose interests are endangered, and they prayed their Lordships to advise Her Majesty to withhold Her assent to the Colonial Act to provide for the Abolition upon certain terms of State Aid to Religion in the colony. He had no hesitation in expressing his belief that the case he had to state on behalf of the petitioners was one which would justify the Colonial Secretary in advising Her Majesty to withhold her assent to the measure which had been passed by the Tasmaninn Legislation. From the first formation of the colony there was set apart a large amount of reserves in land for the maintenance of the clergy of the Established Church. These were subsequently to a great extent reserved by the Crown, and in 1837 a measure was introduced enacting that wherever a church was erected on certain conditions a clergyman should be appointed under the authority of the Crown, at the yearly stipend of £200 for life, or during good beha- 1455 viour. The Colonial Government from time to time made additions and allowances that raised the income of each clergyman to £310 per annum. He might state that the revenue of the colony had nearly doubled what it was in 1837. When the Constitutional Act was passed it was made a sine quâ non that £15,000 a year should be set aside and made one of the items of a civil list guaranteed to the Crown, and should be appropriated to the support of ministers of religion and to the maintenance of public worship. He was not certain whether that £15,000 a year was in addition to or in lieu of the previous provision which had been made for the colonial chaplains. [The Duke of NEWCASTLE: It was not in addition.] The noble Duke said it was not in addition. The case therefore which they had to lay before their Lordships was all the stronger from that circumstance. In 1859 a Bill was introduced into the Legislature of Tasmania for the purpose of abrogating the whole of that reserve of £15,000 a year—of which £9,000 had been given to the clergy of the Established Church, and 6,000 to those of other religious denominations—and substituting for the annual payment of £15,000 debentures to the amount of £100,000. The immediate effect of that arrangement, which was to take effect from January 1861, was to reduce the sum receivable by the Established Church from £9,000' to £3,000. An extraordinary part of the arrangement was that the Bishop was to be paid in full, the result of which was to diminish still further the £3,000 to be divided among the general body of the clergy. The substitution in question had placed the clergy in a position which they had no reason to anticipate. Their incomes had been reduced from about £310 a year to less than one-third of that amount. Although a clergyman might have been in possession for thirty years of a guaranteed income of £310 a year, and although a provision for the clergy was made a sine quâ, non of the constitution, the maximum allowance which he would henceforth receive would be only £80 a year. He (the Earl of Derby) re-gretted to hear the noble Duke state that he did not consider that in itself the circumstance of a Bill having been passed with great haste in a thin House was a sufficient reason for the Secretary of State to recommend the Crown to disallow it. In a case where a Bill in itself was unobjectionable the fact of its having been passed in a thin House would not have been a suf- 1456 ficient reason for the withholding from it the sanction of the Crown; but if the measure was one which seriously invaded, as he thought this did, the principles of justice, and set aside one of the main provisions of the Constitutional Act, then, he thought, the circumstance of its having been carried in a thin House, and with great rapidity, and without notice to the persons whose interests it would immediately affect, did form a sufficient ground to justify the Secretary of State advising Her Majesty not to give Her assent to an Act passed, he might almost say, with indecent haste. He would state the circumstances under which the Bill had been passed. The Bill, after having been debated in the House of Assembly, was brought up to the Legislative Council on the 20th of September, when it was read a first time, and the second reading fixed for the following day. On the 21st of September the Standing Orders were all suspended; the Bill was read a second time, committed, and received the Governor's assent, so far as he was able to give it, and Parliament was prorogued on the 22nd. It was not passed with the full knowledge of the Members of the Legislative Council. The Legislative Council consisted of fifteen members; but at that time six out of the fifteen seats were actually vacant, and one member was absent in England. Of seven members who were present, exclusive of the President—there being a division—four voted in favour of the Bill and three against it; so that a measure setting aside one of the main provisions of the Constitution was carried in one day by a majority of one in a House consisting of only seven members. He thought, allowing the Colonial Legislature the fullest latitude to deal with their own affairs, he had made out a case—having regard to the importance of the object of the measure, the haste with which it was passed, and the infinitesimally small majority by which it was carried—to justify him in calling on the Government not to sanction the Act in question; at all events, to afford the Colonial Legislature an opportunity of reconsidering the position of so valuable a body of men charged with important public duties in the performance of which some of them had spent thirty years of their lives. If it was to be determined that in future no aid should be given by the State for the service of religion in the colony—a conclusion which he (the Earl of Derby) should deeply deplore—he held that it was the bounden duty of the Secretary 1457 of State to see that the persons who had gone out in the capacity of ministers of the Gospel, and many of whom had exercised their important public functions for, as he had said, thirty years, should be treated with something like justice and equity. He had a strong sense of the merits of the case of the petitioners, and did trust that he should receive from the noble Duke a more favourable answer than that given to his noble Friend (the Earl of Carnarvon).
§ THE DUKE OF NEWCASTLE
agreed with the noble Earl that the Secretary for the Colonies was bound under all circumstances to see that in the Acts of the Colonial Legislature private and individual rights were protected. The noble Earl had no need to press that point upon him or upon the House, because he trusted before he sat down to satisfy their Lordships that he had not neglected that portion of his duty. But the matter was not so simple as the noble Earl appeared to regard it—chiefly because the noble Earl laboured under some slight mistake as to the real facts of the case. If, indeed, the Colonial Act to which the noble Earl referred had made it a sine quâ non that the £15,000 a year should in all time coming be devoted to religious purposes in the colony, then, indeed, the case would be simple, and he (the Duke of Newcastle) would be free from all responsibility in the matter, as well as from the great anxiety he had felt in arriving at the conclusion to which he had come.
§ THE EARL OF DERBY
I did not say that the Act made it a sine quâ non, but that the Secretary of State, in authorizing the Colonial Legislature to deal with this matter, made it a sine qua non that they should reserve in the Act a fund for religious worship.
§ THE DUKE OF NEWCASTLE
said, that practically the result was the same either way, but his noble Friend had not repeated quite accurately the words used by the Secretary of State. In reality, Lord John Russell's despatch in 1839 would rather tell against the petitioners than in their favour. His Lordship said that the exemplary persons who were now devoting themselves to the cause of religious instruction in these remote colonies mustLook for future support to the community among whom they are preparing to spread those inestimable advantages rather than to any pledge from the mother-country. It is, therefore, of 1458 great importance that all clergymen and schoolmasters at New South Wales and Van Diemen's Land, and especially all who may hereafter resort thither, should most distinctly understand that the continuance of their stipends cannot he absolutely guaranteed to them by Her Majesty's Government, who can be responsible only for the exercise of the legitimate authority and influence of the Crown with the local Legislatures for preventing any departure from the principles already sanctioned by those Legislatures on this subject.The despatch, therefore, it would be seen, bore a different construction from that put upon it by the petitioners. But he would not lay any great stress upon this despatch, because subsequent instructions had been sent out by Colonial Secretaries, and it did not tell materially one way or the other. But the Act did not prevent the local Legislature from dealing with this £15,000 a year. It was expressly so stated in a despatch of his noble Friend (Earl Grey). The enclosure contained in that despatch, being a copy of one addressed by him to the Governor of the neighbouring colony of New South Wales, was to this effect:—All other salaries except those of the Governors and Judges are placed by Parliament under the ordinary control of the Legislature. With regard to the mode of exercising this control you will, however, observe that reductions of fixed establishments, or of any expenditure provided for by permanent laws, can only be effected by Acts of the Legislature, which, of course, require the assent of the Crown, signified by yourself, and confirmed by Her Majesty; but I wish you distinctly to understand that there is no desire on the part of Her Majesty's Government to prevent prospective reductions of charges which, in the opinion of the colonists, will safely admit of being diminished. The interests of existing office-holders must he protected, because they accepted those offices with expectations which cannot be justly disappointed. But, subject to these interests, there is no objection to the Legislature fixing whatever scale of emoluments they may think fit for public servants to be hereafter appointed.Now, what was the state of feeling in the colony with regard to the Church of England and the whole question of State endowments? The petitioners stated that the majority of the colonists had no desire to change the present system, and that the existing Legislature did not represent the opinions of the body of the people; but he had the authority, not only of the Governor, but the Bishop of the colony, for the exact reverse of this statement. From the facts which had been submitted to him, it would appear that in Tasmania the hostility to all State endowments was both strong and progressive. In 1858 a Bill precisely similar to that now complained of was intro- 1459 duced into the Colonial Legislature, but was successfully opposed. Next year it was again introduced, and was supported, and many who had opposed it in the first instance, having in the meantime consulted their constituents, changed their votes, and the Bill was thus carried by the support of those who had formerly opposed it. Under these circumstances it was felt by those most interested in the present state of things that some compromise was necessary. Two plans were proposed—the first, which was that adopted, being the substitution of a capital sum of £100,000 for the £15,000 a year heretofore given; the other plan being that all State endowments, whether in the shape of a capital sum, or an annual grant, should cense; with a due regard, however, to vested interests. It was felt that more benefit would result to the permanent interests of religion by the grant of a capital sum, than by a grant ceasing with the lives of the present holders; and this, therefore, was the compromise adopted. He could assure the noble Earl that there was not that unanimity even among the members of the Church of England to reject this measure that he supposed. He had received a letter from the Bishop, which undoubtedly, in its general purport, was opposed to the measure; but added, that if the time had really come for compromise, he did not object to that now suggested; believing that such a compromise would be best for the Church and for the interests of religion. Again, he (the Duke of Newcastle) had a petition in favour of the measure from a Church Synod, consisting of clergy and laymen, which had been recently formed in these colonies—that petition being signed by an archdeacon with several lay and clerical members, who did not indeed believe that £100,000 was a full and satisfactory equivalent for £15,000 a year, but who, knowing the state of feeling in the colony, and the powers conferred on the local Legislature, were anxious that the offer now made should be closed with, as the only means by which the Church was likely to save something out of the fire. And he must say that the clergy who had signed the petition presented by the noble Earl were supported by some very strange allies—by the Anti-State Church party both in the colony and in this country—the former of whom had petitioned against this measure, and the latter had lately applied to have an interview with him on this subject. Under all the circumstances, therefore, he should have 1460 been prepared to recommend to Her Majesty to signify her assent to this measure, if it were not for the entire neglect evinced by it for vested interests. If the clergy affected by the measure had viewed the matter in the light in which the archdeacon and others, to whom he had already referred, viewed it, and had given their consent to the measure, that would be a totally different thing; but they had petitioned against it; and it did not appear that the provision made was an adequate compensation for their stipends. In the case of civil servants such treatment would not be fair and just; but the case of the clergy was not entirely analogous to that of civil servants. The latter, on quitting office, might follow some other profession; but these clergymen, who had been long separated from all friends in England, when suddenly turned adrift on a most inadequate compensation, would be unable to find any other profession in the colony. Under these circumstances, it was his intention to recommend to Her Majesty to disallow this Act. He did not hesitate to say that he took this course not without reluctance; but, nevertheless, he considered the advice he proposed to give to the Crown was based on principles of justice; and it would in the end be found to be wise and expedient. At the same time, he did not close his eyes to the fact that, in that peculiar colony, where the moral feeling was not so high as Englishmen would wish to see it, great indignation might be felt at the course he intended to pursue, and the consequence might be that the cause, not of the Church of England alone, but of the other denominations that were interested in this endowment, might possibly suffer. Yet, agreeing with the noble Earl that it is the duty of the Secretary of State to support vested interests, he had come to the determination he had just stated to their Lordships. He trusted that the colony would view the decision in the spirit in which it was given, and that it would not take the course of which he had expressed apprehension, but that another Bill would be passed with an additional clause, cither giving ample compensation to the petitioners, or continuing their salaries.
§ EARL GREY
said, he saw no other course that the Colonial Secretary could have adopted. It was his duty, when Colonial Secretary, to bring in a Bill, under which the Colonial Secretary of Van Die-men's Land was to act; and in preparing that Bill the greatest care was taken that, 1461 while full powers were given to the Colonial Legislature to manage their own affairs, the Crown, on the other hand, should be armed with ample power to protect those who had accepted employment under a different regime, and the strongest instructions were given to Governors in no case to allow injustice to be committed on those who had sacrificed all their prospects in life for the purpose of accepting either civil or clerical employment in that distant colony. He thought the colonists had committed a grave error in thus sacrificing these religious endowments; hut it was an error they were free to commit. But when the rights of individuals were interfered with, the Crown had no alternative but to disallow the Act.
§ After a few words from the LORD CHANCELLOR to the same effect, the subject dropped.
§ Petition to lie on the Table.