§ LORD LYVEDEN
, in rising to call the attention of the House to the Correspondence respecting and arising from the Non-enactment of the Appropriation Act in Victoria consequent upon the Recall of the Governor of the Colony, said, that he could hardly hope, after the excitement of a crisis in this country, to attract their Lordships' minds to one in a distant colony which was however of the utmost importance. But, in the first place, he desired to say that in the remarks which he was about to make, he was far from desiring to make this a party question, and still more was he desirous of avoiding anything like a personal attack on the noble Duke at the head of the Department (the Duke of Buckingham), to whose courtesy he was ready to bear his personal testimony. The position in which the colony of Victoria now stood was this — Previously to the year 1850 the colony was known as the settlement of Port Philip. In 1850, however, it was constituted a colony; the Constitution given to it by an Act of the Imperial Parliament comprised a Legislative Council, part of which was nominative and part elective. But by a subsequent Act it received the usual colonial Constitution, consisting of a Legislative Assembly and a Legislative Council, the former being elected by a large constituency, and the latter being elected for a longer term of years by electors possessing a higher franchise. Between these two Assemblies had arisen the same dispute that had prevailed in the mother country respecting their privileges, and the House of Assembly had tried the system of what were here called "tacks" by way of compelling the Council to carry measures which would not be by themselves accepted. In the midst of these contests occurred the appointment of Sir Charles Darling. Now, of Sir Charles Darling he (Lord Lyveden) desired to speak with the utmost respect. He had filled the office of Governor of different colonies under the Crown for upwards of eighteen years, with the approbation of those Secretaries of State under whom he had served. But circumstances of great difficulty arose in the government of Victoria, in consequence of this conflict between the Legislative Council and the Legislative Assembly. The Legislative Assembly was what might be 1964 termed a Protectionist body, and they, in passing the Appropriation Bill of 1864, tacked on to it a Protectionist tariff, under the not very euphonious title of a Tariff and Appropriation Bill, which, however, the Upper House refused to sanction. This led to considerable discussion, in which Sir Charles Darling sided with the Legislative Assembly, and the result was his recall by the Home Government, and notwithstanding his long and valuable services, he was left without any compensation or retiring allowance, or the chance of re-appointment. A Committee of the Legislative Assembly having investigated the case, and desiring to compensate Sir Charles for his services, recommended a grant of £20,000 to Lady Darling, to avoid the objection they knew existed to a Vote for himself. This Vote of the Legislative Assembly, however, failed to receive the sanction of the Upper House. He (Lord Lyveden) considered that the matter was of the utmost importance; for it really involved the question whether this country should maintain any control over the colonies. It was an invariable rule that no colonial Governor was permitted to receive, either personally, or through his family, any sum of money from the colony under his government. Sir William Molesworth, when Secretary of State for the Colonies, sent a circular to the Governors of the colonies in the following terms:—I have had lately some reason to suppose that a rule, for some time established in Her Majesty's colonial service, is not universally known. It is that which absolutely prohibits the receipt of pecuniary or valuable presents by Governors from the inhabitants of the colonies under their administration, or any class of them, during the continuance of their office. It is quite unnecessary for me to detail the reasons for this prohibition, which are evident of themselves; it may be enough to say that they rest on no considerations affecting the honour of gentlemen selected by the Crown to fill situations of this high importance, but on the necessity of preserving them, in the eyes of the public, free from all suspicion. 2. These reasons apply to the receipt of presents of the same description by a Governor on leaving his office with scarcely less force than during its continuance. And although Her Majesty's Government cannot exercise any direct control over the actions of gentlemen on the point of leaving the public service, they feel it their duty to record this opinion, and to express their hope that it may be acted on as a general rule.By the 39th Colonial Regulation, the Governor was prohibited from receiving presents pecuniary or valuable from the inhabitants of the colony, or any class of 1965 them, during the continuance of his office, and from giving such presents, and this rule is to be equally observed on leaving his office. On the Vote of the Assembly coming to the knowledge of Sir Charles Darling, he sent the following message to the Legislative Assembly on the subject:—The Governor feels it to be his duty, while yet administering the government, to intimate that his family would not feel at liberty to accept the bounty of the Parliament and people of Victoria, until the Government shall have first ascertained whether Her Majesty may be pleased to signify any commands therein.Upon this message the Assembly changed their Vote into an Address to Her Majesty praying her to allow the proposal. This was forwarded to the Secretary of State for the Colonies. The answer of the Earl of Carnarvon was as follows:—I am unable to advise Her Majesty to accede to the request it conveys. The rule that a Governor should not receive pecuniary or valuable presents from the inhabitants of the colony over which he presides, either during the continuance of his office or on having it, is expressly laid down in the Colonial Regulations, and for obvious reasons it has always been rigidly enforced. It is plain that such a rule would be merely nugatory if it were held that what the Governor was precluded from receiving might be properly given to his wife. It is, under these circumstances, impossible that Her Majesty should be advised to sanction the literal or substantial violation of this rule by any of her servants; or, on the other hand, that the acceptance of the proposed gift should be regarded otherwise than as a final relinquishment by Sir Charles Darling of that service, and of all the emoluments and expectations attaching to it.…. If you desire to retain your connection with the colonial service of this country, you are not free to accept the Vote.His Lordship further added—He must regard a gift to a Governor's family as equivalent to a gift to the Governor himself. … And emoluments by way of pensions to Governors can only be claimed upon the under standing that those who claim them abstain from the acceptance of emoluments which are prohibited by the rules of the service.If the Governor of a colony were allowed to receive through his family—as in the present instance of the grant of a sume £20,000 to Lady Darling — the Crown would, in fact, lose all control over the colonies; and it would be better to let them elect their own Governors and pay them. The noble Duke (the Duke of Buckingham) succeeded the noble Earl (the Earl of Carnarvon) as Secretary of State; and the new Governor (Sir Henry Manners Sutton), in his first despatch stated that—By the 57th clause of the Constitution Act, the Legislative Assembly was precluded from ori- 1966 ginating or passing any Vote of money for any purpose not recommended in a Message by the Governor; and a refusal therefore to comply with the advice that the proposed grant to Lady Darling should be included in the Estimates, which are uniformly transmitted by message, would have been in effect a refusal on his part to afford them a constitutional opportunity for discussing it, while his acquiescence in the recommendation of his advisers could not be regarded as implying any personal opinion with respect to the policy of that or any other item included in the Estimates.That was a most extraordinary statement. He (Lord Lyveden) submitted that Sir Henry Manners Sutton was altogether mistaken in the view he took of the matter. The object of the 57th clause of the Constitution Act was to prevent the Governor from doing exactly what Sir Henry Manners Sutton had done—proposing any Vote of money against the opinion of the Legislative Council and the Secretary of State. The Legislative Assembly never could have voted the money unless the Governor had enabled them to do so by sending down his Message. Sir Henry Manners much support or advice from the noble Sutton in all this did not receive very Duke; certainly his first despatch was a very laconic one. The noble Duke said—I have the honour to transmit to you, for your information, the accompanying copy of a letter from Sir Charles Darling, from which you will perceive that he has elected to relinquish the colonial service.The noble Duke merely informed him of the bare fact, and gave him no instructions on the subject; the letter naturally enough led to the inference that the grant might be accepted: and after such a despatch they could hardly wonder at what Sir Henry Manners Sutton had done. Had the noble Duke expressed any opinion on the Vote to Sir Charles Darling the Governor would have acted on it. The grant had been re-refused in every shape by the Legislative Council, and the difficulty was proposed to be remedied by the dissolution of the Assembly. The noble Duke forbore to express any opinion on this subject too, and even approved Sir Henry Manners Sutton's conduct in submitting the Vote to the Assembly; indeed, he afterwards says—It is not so clear and unmistakable a violation of the existing rule as to call for the extreme measure of forbidding the Governor to be party, under the advice of his responsible ministers, to those formal Acts which are necessary to bring the grant under the consideration of the local Parliament.But upon every theory of colonial government it was absolutely incumbent on the noble Duke to direct the Governor to abstain 1967 altogether from taking the part he had done in this matter. The initiative was given to the Crown for no other reason than to check such grants, which were completely forbidden by the Secretary of Stale and the Colonial Office Regulations. How stood the question now? The Assembly had been dissolved, and it appeared by the latest accounts the new Assembly were very much of the same temper as the last. He had also seen it stated that the Ministry had resigned. He wished to know what course the noble Duke now intended to pursue. He did not desire to express any opinion in favour of one Assembly or the other; but, with respect to Sir Charles Darling, he could not help thinking that that gentleman was entitled to some consideration from the Crown. A more important consideration, however, related to the action which the Secretary for the Colonies proposed to take at the present moment. It was desirable that the noble Duke should explain why, on one occasion, he told the Governor that he must not propose the Vote except on the clear understanding that it might be brought before the Legislative Council in a manner to enable them to exercise their discretion without throwing the colony into confusion, and on another occasion stated that the proposal of the Vote would not be so clear a violation of the rule of the Colonial Office as to cause him to interfere to forbid its proposal. He wished to know how the noble Duke reconciled those two statements. This was an important question in reference to colonial government; and he could not help thinking that any discussion which might arise on this subject in their Lordships' House would be extremely advantageous, as tending to show what was the opinion of their Lordships as to the position of the colony. In his mind it was one of extreme peril, and so it appeared to the Governor, who stated that a conflict such as that which is now in progress strains the Constitution of the colony, and I cannot assert that the Constitution can endure this strain much longer. In these circumstances he hoped he was justified in calling the attention of their Lordships to the subject and asking some explanation of the views of Her Majesty's Government.
THE DUKE OF BUCKINGHAM
said, he agreed with the noble Lord (Lord Lyveden) in thinking the question now raised by no means unimportant, especially as it originated from difficulties which had 1968 arisen in one of our most important colonies. It was a question, indeed, which affected the whole of our colonial Empire, and could not be over-rated. It had a two-fold aspect—one in reference to the course to be pursued in dealing with colonies where free institutions were established, and the other in reference to the honour and integrity of the colonial service. In respect of the latter view—a proposal had been made to grant a large sum of money to an officer whom a former Secretary of State thought fit to remove from the government of the colony with which he was charged—an officer who had served long, whose services had been commended by previous Colonial Secretaries, and who relinquished the colonial service of the Crown with the prospect of receiving a grant from the colony he had governed. That was a circumstance which he thought had never before occurred—certainly not of late years. As to the proposal to confer this grant on Sir Charles Darling, he (the Duke of Buckingham) thought there could not be two opinions as to the impropriety of the principle of such a grant. Entertaining that opinion, he had conducted a correspondence of some extent with the Government of Victoria. He did not think that it was necessary that he should go into the question of the recall of Governor Sir Charles Darling, nor as to the position which he now held. The matter clearly resolved into a question as to the conduct which he (the Duke of Buckingham) had pursued since he had been in Office, and whether he ought not to have taken means to prevent the grant being discussed in the Legislative Assembly. The noble Lord had called attention to the origin of the proposal, to the recall of Sir Charles Darling, and to the proposal of the Legislative Assembly to present a grant of £20,000 to Lady Darling, and had referred to the despatches on the subject. Before, however, referring to those despatches, he would dwell for a moment on the position in which the question stood before it came under his cognizance. The noble Lord seemed to think that, when the matter was first brought before him by the letters of Sir Charles Darling, which he transmitted in a brief accompanying despatch to the colonies, he ought to have sent out instructions that the Vote was on no account to be submitted to the consideration of the Legislative Assembly. Now, he certainly should not have been indisposed, had he felt he had the power to act in consonance 1969 with his own feelings on the subject, to take that course; but he had to take into account not merely the power which the Government had, but the position in which the whole affair at the time stood. That position was that, in May, 1866, certain Resolutions had been passed by a Committee of the Legislative Assembly proposing to make the present in question to Lady Darling. The Answer of Sir Charles Darling to the Address communicating the Resolutions were answered by Sir Charles in proper terms. Subsequently to the Answer of Sir Charles Darling to the Address, and partly in consequence of it, an Address was transmitted to this country on the 26th of May, from Victoria, requesting that Her Majesty might be graciously pleased to give her sanction to the grant. That despatch reached England on the 20th of July; and an answer to it was sent out to the colony, but no peremptory instructions were given in that answer, and no intimation was conveyed in it that the Address contained a proposal the principle of which the Government must condemn. It was not, indeed, until five months afterwards that his predecessor had deemed it necessary to express his opinion to the colony on the subject of the Address, and that opinion, sent out in December, contained the information that its prayer could not be complied with. A correspondence with Sir Charles Darling, which extended over many months, was afterwards communicated to the colony, accompanied by a letter from the Under Secretary of State, warning the Governor distinctly that any grant whatsoever to any member of his family must be looked upon as a grant to himself, and that he could not remain in the colonial service if he were to accept any such grant. He had, therefore, before him the facts that two or three warnings had been given to Sir Charles Darling, plainly intimating to him that such a grant could not be allowed to be accepted by him without the forfeiture of his position in the colonial service, as well as all prospect of future employment or pension under the Crown; and, on the other hand, that the colonists had been told that the prayer of their Address, asking to be permitted to make the grant, must be refused. Under those circumstances, he could not see, when the subject came under his notice how any further remonstrances were likely to be productive of the slightest effect, or what power he had to enforce such remonstrances 1970 if made. The noble Lord (Lord Lyveden) with regard to the latter point admitted that the question of the power of such enforcement turned on the interpretation of the clause in the Constitution Act, in accordance with which all money grants in the colony must originate with the Governor in the same way as in the House of Commons grants of money must originate, in accordance with the Standing Orders, with the responsible Ministers of the Crown. Now, it might be said that under the operation of that clause the Governor could have withheld his assent altogether from the Vote recommended by his responsible advisers; and he (the Duke of Buckingham) was not prepared to contend that such a power might not exist. It was not a power, however, which had been used in the way in which it was suggested it might have been used in the present instance. The origin of the clause in the Constitution Act had, in fact, been ascribed to the expediency of protecting the colonists from claims for unprofitable or reckless grants for local purposes, or not of importance to the colony at large; and, although there might be, theoretically speaking, such a power as that to which he had just alluded, he did not believe that it was a power which could be practically enforced unless its exercise happened to be in accordance with the general feeling of the colonists themselves. He, at all events, did not think that it could be exercised in opposition to the will of their Legislature. It did not under those circumstances appear to him desirable that he should, in relation to the particular grant in question, enter into a dispute with the colony, of which the end could not be easily foreseen, and which must assume the form of an attempt on the part of the Imperial Government to endeavour to coerce the full representative Government which had been given to the colony. That was the conclusion at which he had arrived; although he felt at the same time that the grant was one which was objectionable in principle, and which if carried into effect would tend to do serious harm to the colonial service. He was aware that the great mass of the people of the colony were in favour, for various reasons, of the grant to Lady Darling, and he thought the noble Lord who preceded him at the Colonial Office (the Earl of Carnarvon) had adopted a wise course in not doing that which he himself had abstained from doing—taking the extreme 1971 step of advising the Governor not to submit such a Vote, when proposed, to the consideration of the Legislative Council. The noble Lord (Lord Lyveden) had, he might add, called attention to two extracts from the despatches which he (the Duke of Buckingham) had written, which he seemed to think were completely contradictory. He stated that in the despatch of the 1st of January the Governor was warned that he ought not, in a certain event, to recommend the Vote except on the understanding that it was brought before the Council. The noble Lord appeared to think that was quite at variance with the paragraph in the despatch of October, in which it was stated that as Sir Charles Darling was no longer in the service of the Crown it would not be right for him, as Secretary of State, or for the Governor, to express any opinion on the proposed grant to Lady Darling. As to the despatch of January 1, if that Vote had been attempted to be passed in either of the different forms in which it had been submitted, and if Sir Henry Manners Sutton's Ministers had failed in passing it either in a separate form or by including it in the Appropriation Act, and if after a dissolution they also failed, it did not appear to him expedient that Sir Henry Manners Sutton's Ministers should present that grant again in the same form, if they should think it right to submit it again. Therefore he gave the Governor the instructions referred to on the 1st of January; but those instructions in no way prevented him from continuing to submit the grant, and they did not seem to him in any way at variance with what he wrote in October, stating that, as Sir Charles Darling was no longer in the service of the Crown, it would be right neither for the Secretary of State nor for the Governor to express any opinion on the proposed grant to Lady Darling. That passage had been a good deal criticized by the noble Lord, who asked why it was not right either for the Secretary of State or the Governor to express an opinion on that grant under those particular circumstances. Sir Charles Darling had ceased to be in the service of the Crown. He must either in that matter have been looked upon as a private individual or as a person coming within the scope of the regulation as to Governors either holding or leaving their posts. If Sir Charles Darling was merely a private individual in the colony, it certainly would not have been a case, according to consti- 1972 tutional practice, for the Crown to have interfered by the expression of any opinion on the question of a grant proposed to be made in accordance with public opinion by a colony with free representative institutions. If, on the other hand, Sir Charles Darling was a member of the colonial service, and to be regarded as a person falling within the operation of the regulation for Governors holding office or about to leave it, then it was not expedient for him (the Duke of Marlborough) as Secretary of State to express any opinion on the question of the grant, because the very case that had occurred, or even a stronger one, had been distinctly provided for in the instructions given to Sir Henry Manners Sutton on assuming office in the colony. By the Constitution Act it was prescribed that no money votes should be considered except those introduced by the responsible Ministers of the Crown with the sanction of the Governor. No Bill containing any money grant could therefore reach the Council unless it had been so initiated, and that was the power which the noble Lord thought ought to have been used in that particular case. But it would have been very difficult to have used it in such a case, and he (the Duke of Bucking, ham) thought he was right in saying in his despatch that they ought to express no opinion on the question, because the instructions under which Sir Henry Manners Sutton was acting in the colony contained almost a positive direction to him not to interfere at such a stage in such a grant. He said "almost contained," because, though they did not contain that positive direction, they, in fact, provided for the very case that had occurred, which he looked upon as that of a grant to a Governor. In Sir Henry Manners Sutton's instructions there was a direction that, should any Bill containing a grant of money or land for a Governor be brought up for assent, it should be reserved for the approval of the Home Government. It seemed to him that he could not supersede that instruction. The instruction that the Governor was to reserve such a measure for assent distinctly implied that he must have sanctioned its initiation, otherwise no such Bill could be brought up for that assent. When he found those instructions in the hands of an able Governor, as Sir Henry Manners Sutton had been deemed, that he had been sent out expressly to deal with the difficulties connected with Sir Charles Darling's conduct in Victoria, and 1973 that those instructions were given not by himself nor by the present Government, but by a right hon. Gentleman who formally held the seals of the Colonial Department (Sir William Molesworth), it did not appear to him that he ought to express any opinion adverse to those instructions, or attempt at a distance involving a three or four months' correspondence, to direct the Governor further on a matter the position of which was daily and weekly changing. The reasons, therefore, why he had sent no farther instructions, in the first instance, than merely to communicate the letter of Sir Charles Darling were that it appeared to him that letter was merely the confirmation of what had already been? communicated, that his predecessor had dealt with the Address on that subject. On the general question of the relations between this country and the colonies it also seemed to him most inexpedient that they should hastily enter on questions on which a strong feeling existed in the colony, on questions which did not vitally affect the interests of this country, and on questions such as those in which our own regulations failed to prohibit the person from accepting such a grant. He thought that by giving free representative institutions to those colonies we had practically placed ourselves in the position rather of guiders than of rulers, that our rule must be guided strictly by the terms of the Act under which their constitutions were established, and by the general instructions given to Governors in regard to their management; and that to attempt hastily to vary those instructions, to exceed in any degree the limits under which they usually conceded representative institutions, was a course full of danger and certain eventually to result in raising feelings in the colonies inimical to that continued union and affection in regard to this country which it was the interest of this country and also he believed both the interest and the desire of the colonists to cherish. It appeared to him that that question at the stage at which it passed under his supervision could not have been stopped but by a course of action that would inevitably have raised a conflict between this country and that colony; and the question was not one, in his judgment, that would have been a sufficient justification for our entering into such a dispute. No doubt, the principle of the grant was an objectionable one; and he thought it was much to be regretted that when those Constitution 1974 Acts were passed, such presents and grants had not been absolutely forbidden; and, also, that it was a misfortune that such instructions were not given originally, when those representative institutions were established, to the Governors who were to administer them, as would have prevented the proposal of such grants. But he (the Duke of Buckingham) had had to deal, not with that which he thought was desirable, but with the facts as they stood. It seemed to him that it would not have been wise to have taken such a course as would have turned what was now a question between two branches of the Colonial Legislature into a conflict between this country and the colony. The Government had been censured for not having expressed a more decided opinion; but the state of feeling in the Colony was such that there was no prospect of success without causing something more than irritation; and he believed that, when the matter was concluded, instead of being censured for not taking more decided steps, the Government deserved to be thanked for averting a dispute between this country and the colony. It was impossible for him to say what answer he should give to the despatches until he had received them, although he admitted the general purport of those despatches had been telegraphed. It was not possible for him to give instructions to the colony upon a matter of this importance until full intelligence had been received; and even then it would not be expedient to fetter the Governor with instructions which must be framed three months in advance of the circumstances they were intended to meet. It seemed to him that the best reliance this country could have for the safe government of the colonies and the maintenance of the authority of the Crown was to select, as had been done by Sir. Cardwell, able and good men as Governors, and to give them before leaving this county the fullest possible instructions; but to avoid, as much as possible, fettering them with instructions which must be based on suppositions, and could not be based upon facts.
THE DUKE OF ARGYLL
said, that the statement of the noble Duke (the Duke of Buckingham) in reiteration of the opinion expressed by him some nights ago—that, on the merits of the case, this Vote of the Legislative Assembly of Victoria was highly inexpedient, and involved a principle dangerous to the connection between the 1975 mother country and the colony—had very much narrowed the ground of difference between the noble Duke and those who dissented from the course he had taken. It had, however, narrowed it to a point of the highest importance as regarded the administration of the Crown over colonies enjoying constitutional government. The noble Duke had explained his course with great moderation and perfect candour; and his position was that in dealing with a colony possessing a full constitutional system it was impossible for the Crown to resist the colony, if such a Vote were proposed to a Governor who had acted in accordance with the wishes of the Assembly. That was a very dangerous principle to lay down. No one would go further than himself in accepting the doctrine of, colonial freedom. It had now come to this—that there was hardly any question affecting the internal government of the colony, even, although the measures adopted should be injurious to the interests of the mother country, upon which, if those measures were bonâ fide directed to the regulation of their own affairs, it would be expedient for the Imperial Government to resist the final decision of the colonial Assembly. Instead of receiving from our colonies any special commercial advantages, which used to be considered almost the sole value of the colonies, we now allowed the colonists to adopt fiscal systems which were directly injurious to our own commerce. The truth was that our connection with the colonies was now almost reduced, in the case, at least, of colonies having the possession of a Parliamentary system, to the nomination of their Governors; and he would venture to maintain that this remaining tie was retained in their interests, and not in those of the mother country. It saved them from the evils of Presidential Elections, and placed over them a Governor who was above all party contentions, and who represented the dignity and the impartiality of the Imperial Crown. Now, the object of the rule laid down by the Colonial Office that colonial Governors should never receive from the colonies any Vote of money or grant of land, or any other bribe which might influence their conduct, was to maintain the impartiality of the Governor and the purity of the relations between the Imperial Crown and the colony, and to secure that the Governor should never be tempted by pecuniary or selfish considerations to become a mere partizan in the contentions of the 1976 colonial Assemblies. That was a rule having reference solely to Imperial considerations, and it was a rule which we ought not to allow the colonies to break through whenever a chance majority of the Assembly might be inclined to do so, in order to reward a Governor who might be supposed to be a partizan of their own. He did not wish to say a single harsh word in regard to the conduct of Sir Charles Darling. It was enough to say that his recall by Mr. Secretary Cardwell was assented to not only by his own party, but by all parties in both Houses of Parliament; and if there were any hardship in his case—if it were necessary for the ends of justice that the question should be re-considered—and that compensation should be given to him for that which was an error of judgment committed under difficult and peculiar circumstances—that investigation ought to have been made at home, and that compensation given to him also at home. It was clearly contrary to Imperial policy that any compensation should be voted by a colony to a Governor, and the question was whether an exception should have been made in the particular case of Sir Charles Darling. No one had described in stronger language than the noble Duke the danger of the quarrel between the two Houses of the Legislature as regarded the maintenance of the existing Constitution of the colony. It was commonly supposed by many who had not read the papers that this was a mere continuation of the old quarrel between the two Houses respecting subjects of internal taxation, one party being favourable to protective duties, and another in favour of Free Trade. But the quarrel that had now arisen between the two Houses of Legislature was on a wholly separate question from that which had been the subject of difference two years ago. It was a new quarrel got up, originated, and caused entirely by the mistaken action of the Colonial Office at home. It had arisen in fact out of the initiative taken by the noble Duke.
THE DUKE OF ARGYLL
would maintain that the course taken by the noble Duke did amount to giving the initiative of the Crown to a Vote come to by the House of Assembly. The circumstances were these—when the news of the recall of Sir Charles Darling was received in the colony, the Legislative Assembly agreed to an Address proposing a Vote of £20,000 1977 to Sir Charles Darling, or rather to Lady Darling, not by way of Bill, but from the Estimates. The noble Duke had laid some stress on the despatch of the noble Earl (the Earl of Carnarvon); but he put a very strained interpretation on the noble Earl's language, because the despatch distinctly intimated that the Colonial Office would give no assent to the introduction of such a Vote into either House of Legislature. It pointed out that such a Vote would be at variance with Imperial principles and the Regulations of the Colonial Office, and that its acceptance would imply that Sir Charles Darling had entirely relinquished the colonial service.
THE DUKE OF ARGYLL
said, the despatch, which was the first sent out by the Colonial Office after learning the proposal of a grant to Lady Darling, was dated the 8th of December, 1866. After reciting the rule of the Office precluding the receipt of grants by colonial Governors — either during office or after resigning—it pointed out that that rule would be rendered nugatory if such grants could be awarded to a Governor's wife. It added—It is, under these circumstances, impossible that Her Majesty should be advised to sanction the literal or substantial violation of this rule by any of her servants; or, on the other hand, that the acceptance of the proposed grant should be regarded as otherwise than as a final relinquishment by Sir Charles Darling of that service, and of all the emoluments or expectations attaching to it.Now, it did not appear to him that these words necessarily implied any sanction to the Vote even in the event of Sir Charles Darling retiring from the colonial service. That case was indeed mentioned contingently, but not as a contingency which was contemplated as likely to arise. Indeed, he believed that, within a few days after the noble Earl had written the despatch, he was applied to by Sir Charles Darling for another appointment. The despatch referred to his retirement rather as a contingency not to be expected.
THE DUKE OF BUCKINGHAM
asked the noble Duke to refer to a letter written by Sir Charles Darling in the previous October.
THE DUKE OF ARGYLL
admitted that in the course of the correspondence, Sir Charles Darling might have alluded to the contingency of his retirement from the colonial service; but all he (the Duke of 1978 Argyll) contended for was that the noble Duke, having this despatch of his predecessor before him, was in no respect bound by any opinion therein expressed, but was perfectly free to decide what course should be taken in the event of that contingency being realized. Now, while in this country it was only an invariable rule of Parliamentary practice that no grant could be initiated, except by the Ministers of the Crown, in the colonies this rule was laid down by statute. Sir Charles Darling intimated his intention finally to retire from office, avowedly for the purpose of receiving this Vote, and it was under these circumstances that the question came before the noble Duke. It seemed to him that the despatch of the noble Duke of the 10th of May did amount to giving the initiative of the Crown to this grant, because it simply intimated, with reference to the despatch of his predecessor, that Sir Charles Darling had elected to retire from the service altogether; and if it was not intended to express any opinion on the subject the only object could be to throw the whole responsibility on the colonial Government. His (the Duke of Argyll's) interpretation that that despatch was an intimation of the consent of the Crown, was confirmed by the fact that on its receipt the Governor at once concluded that the noble Duke meant him to allow the discussion of the Vote in the Legislative Assembly, which could only be done by the consent, and at the initiative of the Crown. There were two questions for consideration—one whether such a grant should be proposed at all, and the other in what form it should be proposed. Now, this new quarrel between the two Houses had arisen, not merely from the grant itself, but also from the form in which it was proposed. The Vote was, in fact, a party Vote, intended to compensate Sir Charles Darling for what was regarded both in the Colony and at home as partisanship, and to fix a stigma on those Members of the Legislative Council who had opposed him; yet, under these circumstances, the £20,000 was inserted in the Estimates and included in the Appropriation Bill, being the most offensive course towards the Council which could have been adopted. The next despatch of the noble Duke was dated the 1st of January last, by which time he had apparently discovered the mistake he had made in allowing the re-opening of the question, or had at least become alive to 1979 the objectionable form in which the Vote had been proposed. Accordingly, in that despatch he expressed regret at the vote having been included in the Appropriation Bill; it being a grant exceptional in its character, and notoriously obnoxious to a large portion of the Legislative Council, and he condemned any attempt to coerce the Council into sanctioning it. If, he added, the Vote were considered at all, it should be in the form of a separate Bill, for under those circumstances the Council would not feel the same sense of unconstitutional treatment. Now, if the noble Duke felt so strongly the unconstitutional form of a "tack," why had he not at least told the Governor to insist, in the event of the Vote being introduced, on its being proposed in the form of a Bill, so as to place no unconstitutional duress on the Legislative Council? These were matters entirely under the control of the Colonial Office, and he regretted that the noble Duke, by taking the initiative and giving the consent of the Crown first to the introduction of the Vote at all, and next without any condition as to its form, had revived the quarrel between the two Houses which, in April, 1866, had been brought to a happy issue. He protested, too, against the noble Duke's argument that in the case of colonies enjoying constitutional government, we were unable to defend even our own honour with regard to the purity of the Governors sent to represent the Imperial Government. Such language was most dangerous for any Minister of the Crown to hold, and he hoped what had occurred in this case, would be a lesson to Colonial Secretaries not to allow, under any circumstances, the infraction of a rule which was clearly of Imperial importance and value, laid down solely with the view of preserving the honour of the Crown and the purity of its representatives in the colonies.
THE EARL OF CARNARVON
said, that the earliest steps of these transactions had been sufficiently explained by the previous speakers to render any detailed reference to them unnecessary. The quarrel arose, as had been described, in 1864. In 1865 a majority of the Legislative Assembly passed a Protectionist Tariff, and, anticipating the opposition of the Council, the members of which were mostly Free-traders, they first levied the new scale of duties by simple Resolutions—a course utterly unwarrantable—and then tacked the Tariff to the Appropriation Bill. That 1980 Appropriation Bill was rejected by the Council. Meanwhile, the Assembly continued to levy the new scale of duties by Resolutions. Actions were brought by the public creditors; and the Government adopted a system which he regarded as indefensible, and calculated to be very prejudicial to the interests of a colony—the system of confessing the debt and allowing judgment to go by default. The case came before the Supreme Court, where it was, without hesitation, decided that such a course was illegal. The dispute between the two Houses meanwhile continued; and an Address, signed, if not by the whole of the Council, by a very large number of influential men in the colony, was forwarded to the Crown. Sir Charles Darling, in transmitting that Address, coupled with it a statement to the effect that he should not feel himself at liberty to receive into his councils any of those whose signatures were appended to that Address. Mr. Cardwell, the then Secretary of State for the Colonies, justly took exception to that statement, and Sir Charles Darling was recalled on that ground, and on that ground alone. That was the position of affairs when he (the Earl of Carnarvon) received the seals of the Colonial Office. Meanwhile, the difficulty between the two Houses had undergone a sort of temporary compromise, and the attack on the Appropriation Bill had been abandoned. But then arose the question of the money grant to Lady Darling, made in lieu of to Sir Charles Darling, and it was with that case that he was called upon to deal. Now he had been blamed for having been too guarded in the answer which he had returned on receiving the first announcement of that grant. He might in the first place observe that, being fully alive to the gravity of the occasion, and knowing well, though he had been in Office only a fortnight at the time, how strong and bitter was the feeling in the colony, he was loth even in semblance to prejudge a question in which so many persons were interested. Sir Charles Darling having arrived in England, a correspondence ensued, and he thought at the time that correspondence ought to be brought partially at least to a close before he could regard himself as being in a position to act on the part of the Crown. He might, perhaps, observe that, independently of remonstrances and similar communications, he received no less than eight distinct personal applications on the part of Sir 1981 Charles Darling; and if, in the course of a correspondence which grow into a most voluminous bulk, he had overlooked or neglected to deal with any point, the enormous mass of papers with which he had to deal really furnished him with some excuse. On the 28th of August Sir Charles Darling prayed for a tribunal to inquire into the circumstances of his recall. In answer he (the Earl of Carnarvon) declined to appoint any such extraordinary tribunal. On the 11th of September Sir Charles Darling prayed to be appointed to a position of equal rank and dignity to that of Victoria. On the 28th of September he requested half salary from the day of his leaving the colony to the arrival of Sir Henry Manners Sutton. In his reply he (the Earl of Carnarvon) regretted that he could not comply for technical reasons. On the 20th of October Sir Charles Darling requested the £20,000, which might be divided among his children. His (the Earl of Carnarvon's) reply was that he could not qualify his original view. On the 24th of October Sir Charles Darling requested full pension, an application which he declined to entertain at the time for technical reasons. On the 4th of November Sir Charles Darling requested a review of his recall in reference to a judgment of the Privy Council, to which he (the Earl of Carnarvon) answered that he must adhere to the conclusion which he had already expressed. On the 3rd of December Sir Charles Darling applied for the government of New South Wales; and in reply he (the Earl of Carnarvon) stated that it was not then vacant. On the 18th of January Sir Charles Darling wrote to ask whether Her Majesty's Government would oppose a petition to Parliament. Upon that point he (the Earl of Carnarvon) declined to give any pledge. The real questions that came before him were—whether the grant should be allowed; and, secondly, if so, the form in which the grant should be proposed. Now, with regard to the first question, he informed Sir Charles Darling and the Government of Victoria that it was impossible for Her Majesty's Government to be a party to that Vote. He would not enter into a discussion of the Colonial Regulation, which he regarded as one that was very just and right, for that subject had been fully dwelt upon in the course of the debate; but, in order to place his case clearly before the House, he would trouble them with one extract, and only one, because 1982 he thought that, by so doing, he could clearly show the view which he then entertained. On the 12th of October, by his directions, Hr. Adderley sent the following despatch to Sir Charles Darling:—Lord Carnarvon sincerely regrets the severe pecuniary loss which your premature recall has entailed upon you; and it would have been personally gratifying to him to have been the channel of communication in conveying the Crown's sanction to your acceptance of the proposed grant. But, after a careful study of the Regulations in question, and of the reasons on which they are founded, Lord Carnarvon is forced to come to the conclusion that the rule was framed with the distinct intention of including such cases as the present, and that he could not now relax it without sanctioning an indefinite relaxation in other cases. Its principle is, that no Governor shall be allowed to expose himself to the temptation which may arise from expecting beneficial donations from the colonists, or any section of them, or to the suspicions which arise from his acceptance of such donations. Whether they are made directly to himself, or in trust for him, or to some member of his family, so that he may have the enjoyment of them, is obviously immaterial. The proposed grant, as, indeed, you appear to admit, is palpably a gift to yourself through Lady Darling. It may not transgress the rule in its letter, but would be a manifest evasion of its principle. It is for the interest of the public service that this principle should be firmly adhered to; and, under these circumstances, Lord Carnarvon is bound to withhold his consent, and distinctly to inform you that, if you desire to retain your connection with the colonial service of this country, you are not free to accept the Vote. Lord Carnarvon sincerely wishes that he could come to any other decision; but he is clear that this is his duty, though a very painful one.In everything he had written he (the Earl of Carnarvon) sincerely compassionated the condition in which Sir Charles Darling was placed, and desired to avoid the use of any harsh expression towards him; but he submitted that there was nothing equivocal in the language which he employed. He stated distinctly that, if Sir Charles Darling accepted this grant, he would forfeit all claims to retain his connection with the colonial service of this country. Now, he contended that when his noble Friend the Secretary of State for the Colonies wrote that Sir Charles Darling had "elected finally to relinquish the colonial service," the words employed unintentionally involved a misrepresentation of his intentions. When a superior officer informed his subordinate that he could not take a certain course without certain effects resulting, it could not be said that he thereby gave him an option as to which course he could pursue, any more than the law made it optional for a man to commit a crime or not because it attached a pe- 1983 nalty to the commission of the crime. If the noble Duke (the Duke of Buckingham) entertained any doubt as to his intentions, it would have been easy enough for him to have applied to him, and to have asked him what his views were in writing that despatch. He was at a loss to understand how Sir Henry Manners Sutton brought himself to lay the Vote before the Assembly, because there was certainly nothing in the despatches of the noble Duke to warrant it, unless papers had passed which were not before the House. The noble Duke the Secretary for the Colonies said that he was justified in the course he had taken by the fact that he (the Earl of Carnarvon) had not told the Governor that he was not at liberty to recommend this Vote. The truth was he had never contemplated such a proceeding on the part of the Governor. Had he thought for a moment that such a course would have been adopted by Sir Henry Manners Sutton, he should not have been content with a mere correspondence upon the subject; he should have felt it to be his duty to put upon paper in the most distinct terms he could have commanded the course he thought it would be right for the Governor of the colony to pursue under the circumstances. He agreed with the noble Lord that, at so great a distance as we are from Australia, it was impossible for the Colonial Office to regulate every minute detail in the conduct of the Governor of the colony; but, at the same time, they should give him such general directions as would serve to guide him in the course he should pursue. The noble Duke the Secretary for the Colonies made use of words, the import of which, he thought, he could scarcely have fully appreciated. The noble Duke said that whatever theoretical right the Colonial Office might have to interpose in such a case, such a right had practically ceased to exist. He begged to express his entire dissent from that view. The right of the Crown to interfere in such a case not only existed in theory but in practice; and if the Advisers of the Crown were assured that any constitutional principle were being violated, it would be their duty to interpose the veto of the Crown, and they ought not to shrink from the performance of that duty for fear of raising any difficulty between the colony and this country. It could scarcely, however, have been the intention of the noble Duke that the words he used should bear the interpretation 1984 they had put upon them. The meaning of the noble Duke probably was to intimate that, in a critical case such as that which had occurred in Victoria, it might be necessary for the Secretary of State to use those powers which belonged to him to induce the contending parties to come to some compromise, and thus to settle a question full of danger and difficulty. There was a point, beyond which the Secretary for the Colonies could not go; and there was a point beyond which he ought not to go. Supposing, for instance, that a public subscription had been voluntarily raised at Victoria, on behalf of the Governor, as a private individual when stripped of his office, it would undoubtedly have been impossible for the Crown to have interfered, and Sir Charles Darling, if so disposed, might have been perfectly free to have accepted it—except so far as his conscience was concerned. Of course, there was also a limit beyond which the Minister of the Crown might consider whether it was his duty to go upon a point of this sort. The question also arose, in what form the Secretary of State, when he did interfere, was to deal with the question, and in such a case the form would probably be the very essence of the matter. He could understand a Secretary of State—seeing the difficulty that existed in a colony like Victoria, seeing the suspension of all legislation and public works, and seeing the state of anarchy and confusion which existed there—saying that, under these circumstances, he need not pledge the Crown to an obstinate antagonism to the wishes of the colony, and that both parties having got themselves into a false position, it was his duty as far as possible, without violating the rights of the Crown, to find some mode by which he could extract them from the position in which they were placed. The course adopted, however, was not calculated to have that effect, and was not altogether consistent with the position in which the Crown ought to be placed in the colonies. The noble Duke the Colonial Secretary stated in one of his despatches that it was necessary, as a formal step, that the Governor should lay the Vote before the two Houses of the Colonial Legislature. He demurred to that entirely. There was another way in which the matter might have been dealt with far more satisfactorily. The Governor should not have laid the matter before the Assembly exclusively. An Address, in favour of the proposal, might 1985 have been proposed in both Houses by the colonial Minister, and sent up to the Governor, praying him to make a formal recommendation. Had that course been adopted, and had the Lower House been induced to abandon the pernicious system of "tacking," both Houses might have joined in a general Address to the Governor, and the matter would have stood in a very different position. He demurred altogether to the proposition of the noble Lord, that the course that was adopted was the one best calculated to bring the matter under the consideration of the Crown. He was aware that there were some noble Lords who had spoken that evening, who thought that under no circumstances should there have been a relaxation of the rule. He admitted that there was a good deal to be said in favour of that view of the case; but at the same time, in justice to the noble Duke the Colonial Secretary, he must say that, in this country, we could scarcely form an estimate how severe the struggle in Victoria had been with respect to this matter. Sir Henry Manners Button, in one of his recent despatches, used these remarkable words—I do not conceal from your Grace the fact, not the less certain because it is lamentable, that a conflict such as that which is now in progress strains the Constitution of the colony, and I cannot assert that the Constitution will endure this strain if it should be prolonged.It was very rarely indeed, in the recent history of colonial administration, that any colonial Governor had penned such a despatch as that; and the House was bound to suppose that it had not been written without a full sense of the importance which would be attached to its words. The position was, therefore, a very grave one. It was evident that confusion was growing into anarchy, and that the state of affairs might result in breaking up the Constitution and unfixing the foundations of civil government. What events occurred subsequent to this transaction? On the 7th July the Governor made his recommendation to the House of Assembly to pass the measure, which was agreed to and tacked on to the Appropriation Bill and sent up to the Council. The Council naturally objected to the proceeding, and then ensued the confusion which was so much to be deplored. On the 2nd of October the Governor, taking what appeared to be a still more objectionable course, recommended to both Houses the adoption of the measure. Under these 1986 circumstances, as might have been exacted, the grant was rejected by the Council. In the meantime it was necessary to carry on the business of the year, it was necessary to find Ways and Means; and accordingly what he must call the old dodge was had recourse to—the Attorney General instructed the public servants to bring their actions against the State for my money due to them. These actions were brought, judgment was confessed, and the Governor was invited to sign the necessary warrants. But a collateral issue was raised on some other point; it was taken up to the Supreme Court, which pronounced a judgment which invalidated the whole proceeding. That judgment declared first of all that these payments were absolutely illegal, and that the Governor when he signed the warrants committed an illegal act. This was a very unseemly and discreditable state of things. To sum up the whole case, he—while admitting that there had been difficulties in the way of his noble Friend the noble Duke and of Sir Henry Manners Button—felt bound to say that he regretted the course taken by the Governor proprio motu; he regretted the form he had adopted; he regretted that the system of confessing judgments, which had been so strongly denounced by Mr. Cardwell in a very similar case, had ever been allowed in the colony; he regretted that his noble Friend the noble Duke had written despatches of rather ambiguous character; he regretted and strongly condemned the system of "tacking." No course could be taken more utterly inconsistent with the freedom of discussion. He could not understand how the noble Duke could speak so mildly of this as he had done in one of his despatches. He thought there was a fresh cause of regret in the unsatisfactory mode in which the legislative constituencies of the colonies were created, no securities being laid down which would prevent such a deadlock as had occurred. If that system was to be maintained, the just power and authority of the Council ought to be upheld; for if it was not upheld it would be far safer for the colony to have but one single Chamber of the Legislature. Nothing could be more dangerous than having a nominal responsibility vested in a second Chamber, which practically was never exercised. In view of all this correspondence he must bear witness to the extremely difficult position in which colonial Governors often found themselves. 1987 Questions must from time to time arise which required not merely general knowledge of constitutional law, but of technical and professional details, which few could command. Their advisers were taken out of their own Governments and pledged to one political party in the colony. It was his fixed determination, had he remained in Office, to strive as earnestly as possible for the appointment of some one permanent and impartial legal adviser, who might be in a position to advise a colonial Governor as emergencies arose. He could not say that he regretted this discussion; he was satisfied that, conducted as it had been with so much temper, it would be useful to the colonies. No one could doubt the great wealth and prosperity of those colonies. He trusted they would fortify themselves by wise and useful legislation; that they would avoid presenting a spectacle so little seemly as that which, in the present instance, had been recently exhibited; that they would avoid the clash and antagonism of two Houses, and become models of that constitutional regard for liberty and law which distinguished this country.
THE LORD CHANCELLOR
said, he had been unwilling to stand in the way of the noble Earl (the Earl of Carnarvon) when he rose to address the House on this question, in which he naturally took so deep an interest; but he was anxious to enter at the earliest possible opportunity his protest against the constitutional doctrine which had been laid down, by the noble Duke (the Duke of Argyll), who, he was sorry to see, had now left the House. He regretted also that his noble Friend who had just sat down had lent his countenance to that doctrine; for he ventured to say it was a doctrine which required most careful consideration at their Lordships' hands, because upon the propriety or impropriety of it depended the whole question of the free action of those constitutional institutions which had been granted to our colonies. Referring first to the question of policy with regard to a grant of money such as was proposed to Lady Darling, on that question they were fortunately all agreed. There was no one of their Lordships, he believed, who did not think that the rule of the colonial service on this subject was founded on considerations of the highest expediency, and that it ought to be maintained and enforced, so far as there was power to maintain and enforce it. But he asked them 1988 to bear in mind that the rule was, after all, only a rule of the service. It was not the law of the land. It was a rule very properly laid down in the circular despatch of Sir William Molesworth which had been referred to; but which the Government of Her Majesty could only enforce by treating any departure from or infringement of it as a forfeiture of all claim to future colonial employment. Many years ago, at the end of last century, when the subject of receiving presents from the Natives of India had attracted, for a well-known reason, great attention in this country, a law was passed dealing with the case of India; but it had never been extended to the colonies. The India Act of 1793 was extremely stringent and emphatic. It provided that the receiving by any Governor or any officer in India any present either to himself or any other person, under any colour or pretext, should be punished as a high crime and misdemeanour, subject to severe penalties, while the present itself should be forfeited to the Crown. There was no such law applicable to our colonies. There was a wholesome rule which applied to the subject; but there was nothing obligatory. The proposition made in the colony was to make a benefaction to the family of Sir Charles Darling, which might be highly impolitic, but would not be illegal or contrary to any Imperial statute. The majority of the Legislative Assembly and the Ministry of the colony being anxious to make a grant of that kind, what is the position of things at home? And here he took issue directly with the doctrine of the noble Duke (the Duke of Argyll), supported as it was by the noble Earl (the Earl of Carnarvon). The noble Duke said there were no means by which the Crown could preserve the purity of the reputation of its colonial Governors, or restrain, in cases which affected Imperial interests, the action of the colonial Legislatures by its veto. There were constitutional means by which that could be done. But the issue was, where was the point, where was the stage, at which the Government of the mother country could step in and interpose, and before which that interference would be in contravention of the free action of the colonial Government? Sir Henry Manners Sutton had a Ministry possessing the confidence of a preponderating majority of the Legislative Assembly. He knew—and he had made the experiment—that any attempt 1989 to form a Ministry in opposition to the Legislative Assembly must necessarily fail. He was therefore reduced practically to the option of placing confidence in his Ministry, or having no Ministry at all. That Ministry came to him and said, "Here are the Estimates of the year, and one of the things we mean to propose is a grant of £20,000 to Lady Darling, which we conceive the Queen thinks to be impolitic, and which the Government thinks is impolitic; but the Assembly insists on bringing it forward." If they laid down the rule that the Secretary of State of the mother country was to hold the leading strings of the Ministry of the Colony, to settle the system, and to tell them what they might propose and what they might not propose, then he (the Lord Chancellor) said; that the pretence of free colonial institutions was a delusion and a mockery. Unless they could supply the means—and he knew no such power in the Constitution—of providing the Governor of the colony with a new Ministry, who would command the confidence of the Legislative Assembly, and would be able to carry on the government of the colony, he must at that stage—and, mark, he said, only at that stage—take the advice tendered to him by his Ministry and allow the Legislative Assembly and the Council the opportunity of discussing measures which the Ministry proposed to bring forward. And when the 57th section of the Colonial Constitution Act was referred to, he begged to say the section had been entirely misapprehended. That section was only a repetition of a Standing Order of the English House of Commons—that no Vote of public money should be proposed except by the responsible Advisers of the Crown. And what was the object of the section in the colony? It was not to settle the relations of the Governor and his Ministry. It was to prevent Members of the Legislative Assembly, not being Members of the Government proposing the expenditure of the public money, and for that alone. Therefore when the noble Duke said, and his noble Friend (the Earl of Carnarvon) repeated, that it was the duty of the Home Government, at this stage, to have directed the Governor of the colony to place his veto on the introduction of any proposition to the Legislative Assembly of the Vote to Lady Darling, he (the Lord Chancellor) said that, unless with a view to dispense wish his Ministry, that was counsel which 1990 no Government could agree to. No Government would remain in Office unless they had the confidence of the Governor of the colony, and the power of introducing measures to the Legislature which they deemed to be for the good of the commonwealth. This was the sole question in the case — the point of time at which the Governor of the colony should interpose to prevent free discussion. When a measure had passed the two Houses and was presented for the assent of the Governor, then the working of the institutions of the colony was in harmony with the working of the institutions of this country. No doubt the proposed grant was in opposition to the rule of the Colonial Office, but it was not within the spirit of the Constitution that such a measure should not be allowed to be discussed. What were the instructions given to a Governor of a colony? He held in his hand the instructions of Mr. Cardwell, sent out with Sir Henry Manners Sutton, that there was a certain class of measures with regard to which he was, unless he thought fit at once to refuse the Royal Assent, to withhold that Assent, and refer the measures to the Government at home. And one of the class of measures was this—any Bill whereby any grant of money or gratuity may be made to a colonial servant. His noble Friend said it was the duty of the Home Government not to allow any such measure to be considered. He (the Lord Chancellor) said that that was not the spirit of the Constitution of the colony. The spirit of the Constitution was that there should be free discussion. Let the Ministry who have the confidence of the Assembly propose a measure, and let it be discussed, and if one Chamber or the two Chambers rejected it there was an end of the measure; but if both Chambers passed it, then, and then only, it was for the Home Government to form their judgment and to say whether the Assent of the Crown ought to be refused. He desired to refer to history in order to correct a misapprehension into which some noble Lords had fallen as to what took place when the noble Earl (the Earl of Carnarvon) was Secretary of State. He thought there was nothing in what the noble Earl did open in any degree to misunderstanding or censure. He was really responsible only for this—for the answer given by him to the Address forwarded for presentation to Her Majesty. But what was the character of 1991 that Address? What was proposed was, that Her Majesty should be asked by the Address emanating from the Legislative Assembly, entreating Her Majesty to give permission to Sir Charles Darling to accept on the part of his family the proposed present—it was not to ask Her Majesty to give assent to any legislative measure to be proposed—it was to relax the rule of the colonial service and to allow Sir Charles Darling, although retaining office, to accept a gratuity that was proposed, and it is to that extent the answer given by the noble Earl was the answer that ought to be given, because the answer was that the rule that a Governor should not receive presents was laid down in the Colonial Regulations. It was under these circumstances impossible that Her Majesty should be asked to violate those Regulations, and that the acceptance of the present would be regarded as a relinquishment of his Governorship by Sir Charles Darling. It was refused, and properly refused. And what then took place? Sir Charles Darling, after some correspondence, proposed to leave the service, and to forfeit any expectations of any future employment under the Crown. With regard to the grant, the question was, as he had before stated, what was the proper time for the interposition of the Home Government. He (the Lord Chancellor) ventured to think that, it being proposed by the Ministry of the colony to introduce a Bill or an Estimate on the subject, it would have been entirely premature, before it was known what the Colonial Legislature would do with it, for the Secretary of State to enter into a speculation, and say, if such a Bill were passed, he was to take such and such a view of the case. And what was done? The Ministry — the Colonial Ministry—thought Sir Henry Manners Sutton told them they were entitled to place on the Estimates a Vote of this kind. The Governor imposed no impediment in the way of the Vote being considered. He expressed, however, no approval of the measure; on the contrary, by a memorandum he put on record his doubts of its policy. The Estimate was proposed and carried by the Legislative Assembly. And here again he must take leave to differ from the view of the subject which had been expressed by his noble Friend who had just sat down. His noble Friend contended that it was a great mistake to have a "tack" to a Bill which was sent up to the Upper House. But he seemed to forget that there was no 1992 "tack" at all in the case. A "tack" meant the addition by the Lower Chamber to a Money Bill of something which had nothing to do with such a measure. What, however, was done in the instance under discussion was, the Estimates being agreed to, to make a grant to Lady Darling, and to include the whole in the Appropriation Bill. In fact, that which was done in the colony was nothing more than was constantly done at home. The whole of the Supplies were included in the Appropriation Bill of the year, and were thus sent up to the Upper House. But that having occurred once, a similar circumstance would in all probability never occur again; for his noble Friend at the head of the Colonial Office had very strongly urged on the Governor of the colony the expediency of so arranging with his Ministry that should the proposal to make the grant be renewed, it should, as it were, be isolated from the rest of the Estimates, and be made the subject of a separate measure, so that it might go up to the Upper Chamber in that shape, and that its rejection by them might not interfere with the general Supplies of the year. That, he thought, was very wholesome advice; but then it was advice which might possibly be pressed too far. If, for instance, the Ministry, just as a Ministry in this country might do, should claim the right of including all their Votes in Supply in the Appropriation Bill, it was hard to say how far he, at that stage, could offer to such a proceeding an effective opposition. The whole question, he felt, was one of as great importance as could occupy their Lordships' attention, in the interest of the colonies; but he should look upon the present discussion with much greater alarm and anxiety than he did, did he think the House was prepared to lend its countenance to the doctrine that the Government of this country was to control and meddle with the action of the Ministers of a colony, by stating what measures should and should not be presented by them to the consideration of the colonial Parliament.
§ THE MARQUESS OF SALISBURY
I should not, my Lords, at this hour of the evening, venture to detain you, but that the doctrines you have just heard laid down by my noble and learned Friend on the Woolsack seem to me to be dangerous in their character and likely to do injury wherever they are heard or read of. I do not, therefore, like to let the speech of my noble and learned Friend pass without 1993 entering my protest against the doctrine enunciated, although that protest comes from so young a Member of the House as myself. My noble and learned Friend on the Woolsack gave us a history of the crisis in the colony of Victoria, which, though strictly accurate, was, I think, somewhat too technical in its colour. I take the real state of the case to be shortly this. A Governor has been removed by the Secretary of State from his office because he had shown too great a partiality to one party, and an inclination to support one branch of the colonial Legislature against the other. No sooner was the Governor removed than the branch of the Legislature which he favoured proposed to award him a grant of money for having departed from the Imperial policy. If this is to be permitted, it is simply saying that this country must look calmly on while one of the branches of the colonial Legislatures encourages the Governor to disregard the spirit of the orders he had received from home, and that defiance of the Imperial rule by one portion of the colonial Legislature is not to receive any notice, censure, or resistance from the Home Government. Now, this is a policy which, divested of its technical aspect, your Lordships will not, I am sure, approve, and which cannot if followed out be otherwise than productive of danger to the Empire at large. I, for one, cannot concur in the estimate of a colonial Governor's position which my noble and learned Friend appears to have formed, he seems to regard a Governor of a colony as a mere mute personage; as a gentleman who is to have no will of his own, who is to represent nothing, and who is to do, with a certain amount of obsequiousness and servility, whatever the Ministers who happen to be seated in his council-chamber may bid him. Before, my Lords, you endorse such a doctrine as that, I would ask you to consider for a moment the consequences to which it is likely to lead. Do not, I pray you, be hurried away by the argument of my noble and learned Friend that, if you allow a Secretary of State to interfere as suggested before a Money Bill is introduced, you are thereby stifling discussion. The course which the Houses of Parliament in Victoria ought to have pursued if they wished to raise a question of this kind is perfectly clear. It is a course which is adopted every day in this country. They might simply have addressed the Crown expressing their views on the subject of the proposed appropriation of 1994 this money, and then the opinions of the Governor and of the Secretary of State, under whom the Governor acts, would in due form have been taken and expressed on the matter. I, however, understand my noble and learned Friend on the Woolsack to lay down in the broadest and most distinct manner the doctrine that the Secretary of State was never to be permitted to interfere beforehand with any proposal which might be made by a Ministry in a colony where free constitutional government existed.
THE LORD CHANCELLOR
I did not say so. I said that a Secretary of State who so interferes would run the risk of placing the Governor in such a position that he would be no longer able to retain the Ministry who advised him, and that the Ministry would refuse to act under his dictation.
§ THE MARQUESS OF SALISBURY
I am sorry I misunderstood what fell from my noble and learned Friend; but I thought he censured very deeply any Secretary of State who should interfere in the way I have described. But, be that as it may, occasions may easily arise in which a Secretary of State may have before him only the alternative of interfering or allowing the honour of England to be tarnished. Let me suppose, for instance, that a colonial Ministry propose a Budget of repudiation. Will anybody contend that under such circumstances it would not be the duty of the Governor to put an absolute veto on the introduction of that Budget? I will not dilate on the results which might flow from that policy. In the case of our free colonies it might, perhaps, weaken the tie which subsists between them and the mother country; but, in the presence of such an argument, are we not entitled to ask what is the exact value of that tie? Might we not appreciate its value too highly: Would it not be better a thousand times better—that the tie should be broken than that anything dishonouring to the Crown of England should be suffered? There is a large class with regard to which it might be the distinct duty of a Governor to impose a veto on the proposals of his contitutional advisers, and the duty of the Secretary of State to enforce the adoption of that course. But you may go further. The policy which a constitutional Ministry in a colony may recommend may, though not absolutely dishonourable to the Crown, be dangerous to Imperial interests all over, 1995 the globe. They may recommend something which would be very embarrassing as regards the relations of the Crown to its colonies in every part of the world. This was partially so in the present case. If it be in the power of a colonial Assembly to buy off a Governor who represents the Crown, the power of the Crown is weakened throughout the entire extent of its dominions. It appears to me, therefore, a very dangerous doctrine to lay down that a Governor must not interfere with the action of his responsible advisers, and that the Secretary of State may not call a Governor to account for his conduct if he omits to do so at the proper time. I do not desire to enter more at present into the question which has been raised in this discussion. This is not an hour to do so; but I feel it is but a small portion of a very large subject which will more and more intrude itself upon your Lordship's attention. You will have more and more to consider how far the relation of England with those free constitutional colonies is a reality or a delusion. My noble and learned Friend says that free constitutional government would be a mockery and a delusion if the Secretary of State might interfere in the manner for which I contend and prevent discussion. But, my Lords, the connection between the Crown of England and its colonies will, in my opinion, be indeed a mockery and a delusion if his doctrine is allowed to prevail. Be the result what it may we must take care that whatever power we retain over them shall be a real power and that it shall be freely and honestly exercised for the good and the honour of the Empire. The moment circumstances arise in which it may appear to us that we can no longer exercise that power for those great ends the best and most honourable course for us to adopt is to resign it altogether.
said, that the noble Marquess who had just sat down (the Marquess of Salisbury) had so ably combated the doctrines laid down by the noble and learned Lord on the Woolsack that it was needless for him to trouble their Lordships with some observations which he otherwise should have wished to address to them. At the same time the subject was of such grave importance that he might be permitted to add a few remarks to those just made by the noble Marquess, and in which he entirely concurred. He thought it absolutely necessary to the honour and interests of this country, if the 1996 connection between us and the colonies was to be continued, that we should maintain some degree of authority over them; and that authority could be exercised only through the Governor. On the other hand, the Governor could not be an effective instrument for exercising that authority unless his independence was preserved by a strict adherence to a rule laid down, not only within the last few years, but almost ever since we had had colonies. He believed that, as early as the time of Charles II., instructions to the same effect as were now given on that point were issued to our colonial Governors. Such Governors had certainly from an early period been prohibited from accepting any reward from the colonies. It had been argued that that prohibition applied to Governors only while in the service of the Crown; and that in regard to India, Parliament had passed an Act expressly forbidding our public servants to accept gifts from Native Princes, which Act did not operate elsewhere. It was perfectly true that the Act referred to did not apply to persons who had been in the colonial service of the Crown, and that the severer rule was confined to those who had served in India. But this by no means implied that Parliament had ever meant to sanction the making of grants to those who had been colonial Governors. It arose from the fact that legislation was necessary to restrain the practice in the one case and not in the other. If a Native Prince, not under the control of the British authorities, made a gift to a person who had held a public office in India, perhaps to reward him for some neglect of duty, there were no means to prevent so dangerous an abuse till it was made penal to accept such gifts. But in a colony no such case could arise, because the law invested the Crown with authority to prevent such a grant being made, by refusing its assent to any Act for making it. In another part of his speech the noble and learned Lord's argument, if admitted, would go to the length of making a colonial Governor a mere machine without the power of exercising any control whatever over his advisers or the Legislature. The noble and learned Lord said that the Governor could not have refused to allow a grant to be proposed, because if he had he would have been left without a Ministry. But if to avoid that inconvenience was to be regarded as a sufficient reason for permitting the grant to be proposed, it would equally be a reason for not afterwards withholding 1997 his assent from the Bill in which the grant was included. Indeed, it would be far more difficult for the Governor to interfere with the grant at the later than at the earlier stage of the proceedings; because when the Appropriation Act came up to him, that grant to the former Governor would be only a single item in it, and therefore the Governor would only have the option of either rejecting the whole of the Supplies of the year or of allowing the Vote to the ex-Governor to pass. And if he attempted to do that he would meet with precisely the same difficulty from his Ministers as if he had at first declined to authorize their recommending the grant. If he refused his assent to the Appropriation Bill his Ministry would resign; and therefore the coercion put upon the Governor would come at a different time, but even more certainly than by the other course. If the Governor in the present case had had plain and distinct instructions from the first from the Secretary of State, informing him that Her Majesty could not be advised to sanction such a proposal so contrary to the established rule there would have been no risk of that kind. His Ministers would have felt that if they resigned they would only throw their power into the hands of their political adversaries, and therefore an Instruction from home to the effect just indicated would have been an effectual protection against all the mischief that had arisen. It had been clearly shown that a great mistake had been committed in this case, and that owing to the want of proper firmness the colony of Victoria had been brought into a most unfortunate situation. Before sitting down he wished to say he thought it the duty of Her Majesty's Government to consider the position of extreme hardship in which the public servants of the colony were placed through the continued non-receipt of their salaries. One case in particular had been accidentally brought under his notice, in which a public servant who had faithfully served in the colony for ten years, under the promise of promotion and ultimately of a pension, was at present, owing to the failure of Supplies, left actually without the means of subsistence. That was only one instance out of many, for the entire body of public servants in the colony had long been deprived of their incomes, the public works had been stopped, and the whole affairs of the colony thrown into a state of deplorable confusion. It seemed to him it would be a useful func- 1998 tion which the Home Government migh exercise for the benefit of the colonists, when party spirit ran so high and produced such evils as now prevailed in Victoria, to step in as a moderating power and suggest some mode of accommodation that both parties could fairly accept. In this case there was a mode of accommodation which he thought might be proposed and accepted. He did not hesitate to express his opinion that under no circumstances ought Her Majesty's Government to admit the proposed grant to be given to Sir Charles Darling. He did not think it ought to be allowed that the recall of a Governor under such circumstances should be converted into a reward. At the same time he felt that the consequences of his recall fell with the greatest severity on Sir Charles Darling, who, after all, had committed an error of judgment only. Instead of giving that large grant to Lady Darling, he would suggest that the colonial Legislature might consent to settle on Sir Charles Darling the pension which under the Act giving pensions to colonial Governors he might have been entitled to if he had served a few years longer—the value of such a pension would be far less than the proposed grant, and would still leave the Governor under what would be a substantial punishment for the fault he had committed, while it would diminish its extreme severity. In that manner he might be greatly relieved from the severe consequences which had fallen upon him. There was another point that he wished to notice. People seemed to think that because in this country the refusal of the Supplies by the House of Commons necessarily compelled, sooner or later, the Government to give way, the same thing was the case in the colonies. Nothing could be more entirely erroneous. In their relations with the Imperial Government the colonial Legislatures stood in a different position from the House of Commons. He could speak from experience on that point. He knew that the refusal of the Supplies in a colony had not had the effect which was apprehended. The case of the colony of British Guiana illustrated and confirmed his assertion in that respect. In the case of Demerara where the colonial Legislature threatened to withhold a part of the accustomed grants in the hope of coercing the Home Government to a change in its commercial policy, instructions were sent out that the services for which grants were not voted should cease. Instructions were given to the Governor that if the grants 1999 necessary for maintaining the criminals in the prisons should be refused, they should be let out; that if the usual colonial allowances for the troops were not provided for, they were to be sent to Barbadoes, and that it must be for the colony to consider whether they would incur these consequences. The result was that the threat to refuse the Supplies proved to be an utter failure. If the noble Duke (the Colonial Secretary) had instructed the Governor in the present case not to include this grant in the Estimates, and if thereupon, the Ministers had resigned and no others had been found, it would have been the colony that would have suffered. He had no doubt, however, that other Ministers would have been found. No one would say that if the colony refused to adopt the course pointed out by the Home Government any attempt to compel them by force should be resorted to; but the colony enjoyed, by virtue of the connection with the mother country, protection and support that were of the utmost value, but which were only to be given under certain conditions; and the colonists ought to understand that if those conditions were not fulfilled that support and protection would cease. The noble and learned Lord on the Woolsack argued that such a policy would destroy the ties between this country and colonies enjoying free institutions; but there was not the smallest ground for that assertion. The cases would not be numerous, and of course the power of the Crown should be exercised with discretion. In cases, however, where the honour of the Crown and of the Empire at large was concerned it was the duty of the Ministers of the Crown in this country to make it distinctly understood that they would firmly exercise the powers intrusted to the Crown by the Constitution, and then it would be for the colonies to decide. The moment he saw the alterations which the Victoria Legislature had not only been permitted but encouraged to make in the Constitutions established in that colony by the Act of 1850, he felt convinced that, sooner or later, there must come a collision between the two branches of the Legislature; for, while the one branch was made to consist of a limited number of members elected for life, the other was elected by the widest possible suffrage, and in the event of a difference of opinion arising between them, as was to be expected, no means were provided by the Constitution for extricating the colony from that difficulty. He could not but urge 2000 upon the colony to consider whether even now it would not be advisable to repeal or amend the Acts by which the Constitution, as settled by Parliament in 1850, had been so injudiciously altered. By the Act of 1850, by which the colony of Victoria was separated from New South Wales, a Constitution was given to it precisely the same with that which had for several years been in successful operation in New South Wales. Under this Constitution, the Legislature consisted of a single Chamber, two-thirds of the members being elected, and the others nominated for the duration of the Parliament by the Governor. To return to this system need not involve any abandonment of what is called responsible Government, on the contrary, it would, he thought, enable responsible Government to work much more satisfactorily and easily than it had done under the present system. Such was the equal division of parties in some of the colonies that there were changes of Ministry every two or three months, and sometimes oftener, and no one fixed or settled line of policy could be pursued. If the old form of Constitution were reverted to, and if a single Chamber were established, containing two-thirds of elected members and one-third nominated by the Crown, but really by the Minister of the day, the nominated Members would add weight to the scale and render Government more permanent. In his opinion these colonies had not the proper materials for constituting two different Chambers.
THE LORD CHANCELLOR
said, he desired to correct a misunderstanding as to what he had stated. He was very far from saying that circumstances might not arise of such transcendent importance as would justify the Home Government in issuing positive Instructions to the Governor of a colony as to the course which his Ministry should take. What he had said was that if the Ministry of a colony, supported by the full approbation of the Legislative Assembly and of the Home Government, recommended the introduction of a particular measure, and if the Home Government undertook to require the Governor to refuse his assent to the introduction of that measure, they would undertake the responsibility of bringing about that which was the natural consequence—a change of Ministry; and would thereby cause a deadlock in the colony in another form. With regard to the suggestion of the noble Earl (Earl Grey) that a pension should be voted 2001 by the colony to Sir Charles Darling, in stead of the sum of £20,000 being given to Lady Darling, it would, no doubt, be locked upon with great favour in the colony, but it would accomplish the object they desired by an annual payment instead of a capital sum.
§ LORD KINGSTON
quite agreed that some compensation should be provided for Sir Charles Darling; for no doubt he supposed that on resigning his office he would be entitled to compensation.
§ House adjourned at a quarter before Nine o'clock, to Monday next, Eleven o'clock.