spot, which compelled him first, satisfactory adjudication of this and afterwards the Government at question could only be given by home, to succumb. To such an the authority and intervention of extent had the resistance been car- Parliament. He regretted to say, ried, that by dint of violence the that after what had occurred Legislative Council was dissolved. after the colony had been called

Lord Derby rapidly recited the upon to say what amount of respect subsequent history of the colony: should be paid to the Crown, whose the retirement of the four unofficial powers were practically exercised members of the Council at the by the Secretary of State-after Cape, with whose view, however, the colony had seen the authority that they could only act as a of the Crown so set at nought, constituent body, he disagreed; the unless the consent of Parliament new instructions from Lord Grey, were given to the constitution sent that the Governor should go on if over on the authority of the Secrehe had as many as six members of tary of State, with whom a large Council, - a course which Lord portion of the colony were engaged Derby believed to be illegal; and in an angry and hostile war,--he the discovery of new difficulties in believed there was little chance of the way of completing the new such a constitution being acceptconstitution. Governor Smith said able to the colony. To an Act of that the vacancies could not be the Imperial Legislature all secfilled

up without exciting a ferment tions of the community would defer; in the colony: he offered, if Lord and that alone would solve the Grey wished it, to proceed with problem that had threatened the the residuary Council, or to com- whole framework of the colony with plete the Council by new appoint- dissolution, more especially if a ments; but he thought that the power were reserved for the Legisintroduction of representative in- lature, so to be constituted by a stitutions would be more practi- majority, to alter and amend the cable if it were provided for by institutions which in the first in"some instrument to be issued in stance should be granted with the England.” Lord Derby cited again authority of Parliament. For himLord Grey's proposal to carry on self, he might have hesitated to the government with only six mem- grant so large a measure of reprebers, and to appoint the Chief sentative government as that now Justice speaker of the second cham- proposed; but as such a proposal ber; the latter as a mark of his had been made on such high authopertinacity, the former as a pro- rity, and as it had obtained the posal decidedly illegal. Briefly sanction of the colony and the imreferring to the opinion signed by plied sanction of the Crown, any Sir Fitzroy Kelly, Mr. Walpole, danger or risk was to be encounand Mr. Kenyon, Lord Derby left tered rather than not fulfil those it to be expounded by a legal expectations. The labours devolvauthority in that House, whose ing upon such a Committee need opinion was entitled to still higher not be of long duration; and even respect — Lord Lyndhurst. For if it should add a week or a forthimself he concurred in the Gover- night to the session, he believed nor's opinion, that the final and that a small portion of the time of Parliament would be well bestowed means now at the disposal of the by conferring it upon this distant Governor, the Caffre war would colony-torn by intestine convul- soon be at an end, and then the sions and distracted by external only obstacle to the completion of war--weakened as it was by the the constitution would be removed. disinclination of the colonists to Lord Grey further justified the stand by the Crown, towards which course now taken by that adopted they were rendered disaffected by with respect to Jamaica in 1661. these disputes. The object he had He deprecated the delay incidental in view was, that with the least to proceeding by a Select Compossible loss of time a Bill should mittee, and ascribed much of the be passed during the present ses- bad feeling at the Cape to Lord sion, which should settle at once, Stanley's measure respecting the and for a lengthened period, this emancipation of slaves in 1833, most difficult and complicated sub- which provoked an insurrection in ject.

1842-3. The sending of convicts Earl Grey rose to answer Lord to the Cape in 1849 might, he acDerby's speech. He defended his knowledged, have been a mistake, own conduct in referring the fram- but Government had been placed ing of the colonial institutions to in extreme difficulty by the imposthe Board of Trade. In the case of sibility of sending convicts any the Australian Bill, he said, that longer to Van Diemen's Land. course had given great satisfaction Earl Grey concluded his speech to the colonies, and had resulted by descanting in bitter terms on in the passing of the Bill through the violent and unjustifiable conParliament by large majorities duct of the anti-convict party at without any essential alterations. the Cape, to whom the success of With regard to the opinion of Lord Derby's motion would opecounsel on the question of legality rate as a direct encouragement. Lord Grey contended that it did The Earl of Malmesbury supnot apply. No legal opinion is of ported the motion and severely much weight until you see the reprobated the policy of the Secrecase on which the opinion was tary for the Colonies. Lord Cranfounded, and in the present in- worth expressed his opinion in fastance, being founded on a case in vour of that noble Lord's conwhich the facts were wholly mis- struction of the law. stated, the opinion was valueless. Lord Lyndhurst entered at some The noble Lord pointed out at length, and with great perspicuity, some length the mis-statements into the legal bearings of the queswhich, according to his view of the tion. The Cape of Good Hope was facts, the opinion involved. He a conquered colony: the Crown agreed with Lord Derby that the therefore had powers to make laws Crown ought to adhere to its pro- for it. After a certain time, and mises, and to fulfil them with as in consequence of the increase of little delay as possible; and he the European population, it was declared that it was the intention considered prudent to give the of Government that the institu- colony a Legislature; and a legistions should be brought into opera- lative power was given to it, by the tion forth with. He was sanguine name of the Legislative Council. enough to believe that, with the If they looked to the constitution of that body, they would find it and in the Grenada case there were consisted of two parts. It was con precisely the same words ; there stituted of not more than twelve was the same power given: and nor less than ten members; six of what said Lord Mansfield ? He whom were to be official persons said that, “if there be a popular dependent on the Crown, the re- right given to an Assembly, or to mainder to consist of persons re- any part of the Legislature, notpresenting the interests of the in- withstanding those general words, habitants of the colony, and who that could not be rescinded nor rewere placed in the Council to form called by the Crown." The Crown a check on that part of it nomi- might remodel the other parts of nated by the Crown, thus being a the Legislature, might recall the primary element in the body. It Governor or displace the members was evident that these persons of the Executive Council, but had had been so considered by the no power over that branch of the officers of the Government at the constitution which represented in Cape; for when they came to dis- any way the popular element. That cuss the propriety of extending or was an authority of the gravest contracting the free element, they kind; the same general words regarded it as an element to check were used - the case would be the nominees and officers of the found reported among the State Crown. Thus the legislative body Trials; the commission

correconsisted of two parts, one arbi- sponded with this. Could these getrary, the other intended to be a neral words be interpreted as Lord check on that arbitrary part, and Cranworth contended ? What! representing the inhabitants. In that the Crown should grant a free the case of Grenada there had

constitution to-day, rescind it toalso been a conquest of the colony morrow, re-grant it again the next -the Crown gave a promise to day, and so from time to time, acconfer a legislative authority on cording to the caprice and whim of the colony, and issued a commis- successive Governments ? But, sion which, in April, 1763, author- supposing there were any real jusized the assembling of a Council tice in this point, what was the case in the colony whenever its circum- afterwards ? Letters-patent were stances admitted of its meeting. issued declaring that the LegislaThe Council was not called till the tive Council, so constituted, should end of the following year, and in continue to legislate for the colony the mean time the Crown passed a until the writs for the election of law to legislate for the colony; but members under the intended new it was held this law was invalid, constitution should be issued. because the Crown had not re- Supposing the Crown could have served to itself any power of legis- exercised that power, here was an lation, as it was said to have re- absolute grant that this Legislaserved in the present case. A tive Council should be continued most deliberate and comprehensive in the form it then took, until a judgment was delivered in that future period; here was an absocase. But Lord Grey referred to lute grant of legislative power for general words contained in the in- that time; there was no qualificastructions of 1847. They were tion, no reservation, no restriction, to be found in all such instructions, but an absolute and entire grant for that time. Now, when the tion of law, Lord Lyndhurst conCrown granted a franchise or liber- cluded with an eloquent peroration ties of any description, whether to calling upon Lord Grey to break the inhabitants of a district or of through these uncertainties and a colony, the grant was irrevoca- perplexities, to complete the work ble; it could only be put an end at once, and seize the opportunity to by surrender, by Act of Parlia- of framing a constitution adapted ment, or by forfeiture established to the colony; so that the colonists by proceedings in a court of jus- might at least see it before the end tice; and there was neither of of the Caffre war. Why not send these here. That grant, then, of out the constitution to be proMay, 1850, by which the then claimed as soon as the circumLegislative Council was to continue stances admitted ? It was to this for the period pointed out in the constitution, these institutions, the letters-patent and not yet expired, people were aspiring. This simple whatever construction might be course would restore peace and put upon other clauses of the Com- tranquillity. mission, deprived the Crown of the The Lord Chancellor controright of interfering till the arrival verted the legal positions taken up of the period referred to.

by Lord Lyndhurst. He argued But it had been argued that that the Grenada case did not there was a reservation of certain apply, because the letters patent of powers to the Crown. When there 1847 were not the grant of a conwas a reservation of this descrip- stitution, but only the promise to tion, the power could not be ex- grant a constitution, and authortended beyond the nature of the izing certain measures for that purreservation. What was the reser- pose to be taken by the officers of vation here? Why it gave a con

the Crown. He called upon the current power of legislating. It House not to weaken the hands of did not import that the Crown Government. The carrying of the might rescind the acts of the Le motion would be but a party gislative Conncil; the words did triumph, and would increase the not go to that extent, nor would feelings of animosity now existing they admit of it. The manner in in the colony. which the power was to be exer- The Duke of Argyll said, he cised was pointed out in the reser- did not believe that the motion vation-by the Privy Council or had been brought forward in a by Parliament.

But there was party spirit, yet he could not give nothing of the kind here; nothing his vote in favour of it, because, but instructions under the sign- although the noble mover had not manual. Instead of a Council proposed it with the view of a vote having a popular element in it, of censure, some of his supthe popular element was taken porters had advocated it in that away; instead of consisting of ten sense, and such was the light in persons at least, the Council might which it would be regarded by consist only of six, and those six many minds, and more especially be all official men. A free Legis- in the colony itself.

In such a lature was turned into an arbitrary vote of censure on the Govern

ment he, the Duke of Argyll, was Departing from the mere ques- not inclined to concur, because he



thought that, with the exception was placed rendered the proposed of the convict case, in which some mode of proceeding justifiable, if mistakes had been committed, the not desirable. The Government conduct of Earl Grey towards was placed in this position, that, the colonists had been marked by being obliged to submit to constant a liberal spirit. With regard to defeats upon questions of importthe proposed constitution, although ance, it had not sufficient control he could not approve the plan of either to prevent or to enforce making the Upper House a partly legislation. It was far better that elective body, he should not feel legislation of this kind should justified on that ground alone in emanate from individuals in aupassing a censure on the Govern- thority, and under the sanction of

a Committee, than as a Bill introLord Wharneliffe said, he could duced in that House by the noble not concur in a vote of censure, Lord who stood in the position of but he expressed himself dissatis- leader of an opposition party, or fied with Earl Grey's assurances. by any independent members of

The Duke of Newcastle was that House. disappointed at the statement of The Earl of Derby replied.Lord Grey. If he could have He characterised the Lord Changiven an assurance that, by orders cellor's answer to Lord Lyndhurst in Council, we could now send out as a play upon words, unworthy of to the colonies not merely draft the occasion. He intended to rake ordinances, but a constitution, the up no party quarrels, nor to pass matter might well be left in the any censure upon the Government, hands of the Executive. But by or upon Lord Grey : but he bethe plan now proposed a new apple lieved legislation to be indispensof discord would be thrown down able, and he thought that a very in the colony. In the next ses- few days would enable a Select sion it would be found that the Committee to lay before Parliaconstitution was no farther ad- ment a Bill which would obtain vanced, and the feelings of the general approval. people would be more exasperated On a division the numbers than ever. He (the Duke of Newcastle) desired to pronounce no Contents

68 vote of censure on the Government.

Non-contents. He desired nothing but legislation upon this subject with a view to the

Majority against Lord settling of differences in the co

Derby's motion

6 lony. The Governor himself had stated, in the strongest manner, A motion involving the character that this question must be settled and proceedings of a distinguished in England. He said it would subject of the British Crown was be impossible to revive the Legis- proposed by Mr. Hume in the lative Council, and that any attempt House of Commons, on the 10th of to do so would only be to expose July. For some time previously imthe Government to aggravated de- putations, emanating chiefly from feats. He (the Duke of New- a section of politicians known as the castle) thought that the peculiar “Manchester” or “ Peace" party, position in which the Government had been freely thrown out against


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