The Express.
London, England, 1851-07-16 00:00:00

THE EXPRESS, WEDNESDAY EYENING, JULY le, 1851,

IMPERIAL PARLIAMENT.
HOUSE OF lA/ItUS.—TCEeDAT, ;SLY IS.
The Lease CnafectLion took his mat at No s'eleek.
PETITIONS PRESENTED.
Tea Canvas. Pat.aggs—Bthe Earl of ST. GER•
MANS. teem Liakoard ; and pin of FALMOUTH,
Heim end Coalmine, he removal of the
Ctiystel Palate.
Cossrerggtofs roe rut Cain of Goon llore.—By
Lord WODEHOUSE, seers= from the Cape, of
Gond live, praying for a
UNLAWFUL OATHS (IRELAN_II.) BILL.—TURN-
PIK E ROADS (nIRLAND) BILL.
Three hills were tovecrelanri a Int time.
REPRESENTATIVE PRESS OF SCOTLAND BILL.
This bill was read • third floe Tim
GUNPOWDER STORES (LI L) EXEMP-
TION BILL.
This hill, on the motion of Earl OwvILLl, wee read a
second time.
THE CAPE OF GOOD 'LOPE.
The Earl of DERBY had received with great regret an
Intimation that it was the intention of the government to
oppose the motion which ho felt it his duty to MAIMIII OD
their lonlehips. He was actuated by so feeling of beffilllg
to the present government in =I forward this
but solely by • desire to offer as a medium
which parliament might sontkt 1111 1160011111115 Q
*tasted at the Cape, and restore meet mil bisiensplithst
colony. The strongest grouse kr elliptic the emcee
which he proposed would be hand in a statement's' the
past and present conditional the Cape eolony,_tehish ho
should proceed to lay bare their heakips. The Csps
of Good Hope, which use into ear pews dos by
conquest, was at first nlld SID grasser &wer
then by the governor, by an executive
couneil,"- which body afweweeis beam a "legislative
Connell," into which was idled the INS apingolazular
institutions. In the yew 111111, miss be INS Se-
enetary, a petition was peessied to haw popeei the
mother country to confer reprmenlitie institutional the
colony, to which request he hid thought it to be his
duty to decline to accede, set liessee ho underva-
lued the benefit of colonial vc institutions
in general, hot because he the form of those in-
stitutions suggested by the pentiosen undesirable, and
also bee nine he foresaw many obstacles to their suc-
cessful introduction. The great difilculy standing in the
way of representative institutions was the great extent
and extreme distance of a large portion of the colony
from the seat of goverarnenL Added to this, the means of
communication within the colony were exceedingly imper-
fect; the population was very, much scattered, and the
manner of communicating with the seat of government at
times almost isnposedhle. That with regard to the distant
portions of the colony, the occupation of the inhabitants,
and their distance from the seat of government, would
render it almost impessible to find persons able and willing
to bear the expense of periodical journeys to the capital ;
whilst persons living on the frontier might he required at
home to protect their property, when it was necessary that
they should go to Cape Town to attend to their legislative
duties. 'there was also another consideration arising
out of the difference of race and origin of which
the population of the colony was composed ; not
to mention the large number of native inhabitant.,
of Iluttentots, Einstees, and a number of lately emancipated
ewes, there were two European populations, one British,
being a small minority in number, but in activity, intelli.
grneemnil wealth superior to every other population, residing
principally in Cape Town and the extreme districts of the
eastern portion of the colony. The remainder of the popu-
lation formed numerically a considerable majority; their
titbits and I. hang, were in many respects different from
those of toe English portion of the population. They had
felt acutely Oh! alteration made by the abolition of slavery,
and they were exceedingly desirous to restore a state of
things which should place the newly emancipated population •
under the control of their former masters. This was the
state of 'home. in 1812, when he concluded a despatch which
he would read to show the spirit in which he received and
answered the iwtition. (The noble earl then read the
passage referred to, which was to the effect that the pro-
roast had better be further considered and discussed to
enable the responsible advisers of the crown to advise her
Majesty on the subject.] That despatch was sent out
in 1842, and from that period no answer was made
to the difficulties which ho hail started until it
was distinctly called for by the noble earl oppo-
site, on his assumption of office in 1816. The noble
lord on that omaaion, midmorning Sir 11. l'ottinger, stated
that no an.swer hail been given to that despatch, and also
stated that the government entertained the strongest predi-
lection in favour of a representative form of government,
and went on to say that on a question of this nature some
difficulties must he encountered. (The noble earl proceeded
to read the despatch, which in substance stated that he
(Earl Grey) would not he unwilling to act on the policy
which he hail advocated, of giving a representative institu-
tion, even though lie could not distinctly perceive how some
conflicting interests could be adjusted.] He was not pre-
suming to s.ty that the eourse taken by the noble earl on
that occasion was wise or prudent. After that declaration
of the Secretary of State officially communicated to the
colonies—
Earl G It EY—Not officially.
The Earl of DEBBY knew no more authoritative
way in which the intentions end views of the go-
vernment could bo communicated to the gover-
nor. (Hear, hear.) And what was the governor to
do ? Why forthwith to call on the members of the govern-'
meat and persons in office there, to send in their formal
answer to the difficulties which he (the Earl of Derby) hail
stated, in order to enable the colonial secretary here to in-
tnaluee a ..tern of representative government which he
rle y e ased himself to be so fund of. This despatch
was sent not its 1516, and in the commencement
of ISIS, not Sir 11. Puttinger, as he had thought just before,
but sir Ilenry Smith, imswered that despatch by forward-
ing the stews which bad been entertained by hi, colonial
advisers upon the subjects which had been submitted to
them by the noble earl. That despatch was laid before
Mr. Porter, the Attorney-Cieneral, and a must intelligent
eater oil the erewti--(- hear, hoar,- from Earl Grey)—to
take his opinion as to the manner in which representa-
tive institutions might best be introduced into the
Ceps twituny. It was also submitted to Mr. Montague, the
Colonial Secretary, to the collector of the customs, the Chief
Justice, the two puiene judges, and others • and he' thought
• better course could not have been adoited for obtaining
the opinions of those moat intimately connected with the
affairs id the Cape. Mr. Porter mid: After weighing the
manns for a repreeentativeameahly and against it, I consider
the former preponderate." Mr. Montague said: "I shall best
eery.• his eseedlioicv by abstaining from the discussion of all
abstract ',mewles us to representative governments,
Antithetic. ntlenian said " It appears from the documents sub.
saitt44l to in, that the period has arrived when a representa-
tive poir-niment is to he wanted to the Cape." Another
said . I consoler it a bold experiment, but I hardly see
how it ran be avoided." Therefore thaw ebb servants of
the crown were not so much to give an opinion as to
whether the colony was lit fur representative institutions,
but what was the save. and most practicable way of intro-
ducing th it form of eavernotent ; and, ae to that, the two
able gentlemen to whom he had referred entertained coo.
salerable inisitivings. Mr. Porter was a man of extremely
liberal opinion.. mid an advocate of free institutions ; Lind
he dosed his nieniorandum by saying that the introduction
of represeutative institution. was an experiment which none
bat a very sully or very sanguine men could entertain
without anxiety. Mr. Muutague (and he was glad to find
the noble lord entertained so high an opinion of these gen-
tlemen) closed his memorandum by saying, 1 cannot re-
frain from ezpreming my doubt as to the likelihood of eli-
citing good government fur souse time from representative
institutions. I cannot conceal from myself the feet that few
communities, from their isolated condition and the habits
of employment of its members, are has likely to act on the
'memos, rat and the legislature by an etiliglitened public
opinion." 'f ho w. two gentlemen, therefore, had capes-seed
their doubts of the success of the experiment they were MA-
Inanded to undertake ; and they applied their minds with
all the ability they pomessed to Moiling the mode in which
the experiment might he conducted with, he would not say
the greatest success but with the least amount of simmer.
(Hear, hear.) It win necessary, then, to consider
in whet manner it could be introduced, and the
member. of the council who were coasulted were una-
nimously of opinion that there should be one legislature
only for the whole colony, and that its sittings should be
held at Cape Town. With one exception they were also
unanimous that it should consist of a house of assembly
and legislative council; the exception was one of the jus-
tices, who suggested that the principle acted on in New
South Wales thould he adopted, and an elective laxly be
infused into the legislative council. The rest were unani-
moss in agreeing that the council should be nominated by
the crown. The great majority recommended that the
mareof °See should be for life; but the Chief Justice
wee of opinion that the elective principle should be infused
into the legislative council, and another person was of
opinion that ths appointments should not be fur life, but
fora limited period. Upon receiving this despatch, the
noble earl expreomal himself on au important point to the
following effect .—" I am of opinion that the view of your-
self and the majority of your advisers is to form a constitu-
tion, to consist of a legislative council, or house of assembly,
the council to be appointed by the crown ; but it will re•
quire modifications. Ile censured the line of conduct Earl
Ores. had adopted, in seeking to shift the responsibility from
the Fiecretary of State to the privy council. The noble lord then
went on to say he would not trouble their lordships by goiag
through many of the recommendations and opinions of the
committee of council ; but in one respect they introduad
at once, on their sole responsibility, a recommendation eta
character wholly novel, and which had been contras
plated by those *able men at the Cape. They recommended.
not that the legislative council should be nominated by
the crown, but that it should be exclusively of an elective
character, and for which they p.oposed a novel scheme
by which the votes if the colonists might he takes.
To this report of the Privy Council the noble earl not only
submitted and waived his own individual opinion, but be
transmitted, not the report alone, but the report accost.-
pankalby the legal document, which document had the
o force flaw under the authority of the document Mgt
document authorised the establishment of • lloale of As-
sembly and a Legislative Council, which were to be both of
them elective, the President of the Council hieing the cab
departure from the rule ; and it directed that the clued",
Council should be called together, for the purpose of tilling
up the decade of the plan, but subject to the restrictions
named in the document, which wee in point of fact an eel
of legislation. When this document arrived in the
colony it took not only the °Seers of the awes
hat the whole colony by surprise. It was the kac
induction of a totally new system, and directly In
oppiaition to the opinions of those who had the most es
teneavo and long-eontinued local information.
there were additional diScaltim at the time that Sl=
=lSt teethed the Cape. The deseseat was ftewerleho he

the painful necessity of saying, that, in consequence ... __
anti-convict agitation. he had had no legislative council for
the space of a year or more. Such was his condition when
the proposed constitution was sent out for consideration,
and such was his condition now. He had, therefore, been
actually driven into despotism. His lordship went on to say
that increased alienation had been produced between the
Cape and the east frontier, between the Dutch and the
Engli-h. He remarked upon the fact that, although there'
were 4,560 ratepayers entitled to vote in the election of
councillors, 1,298 only had exercised their right. Cha-
racterising as mistaken the views taken by the '
Bar resigning councillors' he observed that they
ought to have remembered that they sat only
virtue of a precept from their governor.
lid
the resignation of four out of six of the
• members, the council was reduced to eight
and consequently was not a legal body. But the governor
seeing what progress had been made thought it right to
submit to the remaining .members the report of the privy
council, and to ask for their sanction to a form of ordi-
nance. The council proceeded to take it into consideration,
and they had transmitted a draft of an ordinance which
might at this time have gist the authority of the crown and
become law, and thereby have put an end to all the confu-
sion which prevailed. He did not mean to say that it
might be considered perfect, but at all events there
was a basis for legislation with details filled in
by persons best acquainted with the affairs of the colony.
1., niter these circumstances, the governor reiterated his
strong and decided opinion that in the first instance it was
impassible that a legislative council could he appointed if
not of an elective kind. The secretary of the governor
concurred in that view, and the Attorney-General ; and he
confessed for Isis own part ho was inclined reluctantly to
coincide with him in thinking that, although it might have
been desirable to establish, in the first instance,a nominative
council; yet, after the expectations which hail been held
out, it would hardly be safe to have a nominative council,
and that the principle of election must be introduced. Ile
mid again there was no risk and no hazard equal to the
disgrace, as he considered it, of not fulfilling expecta-
tions which had been held out. The noble earl had
strongly disapproved of the course which was pursued by
the governor, and stated that he was at a loss to conceive
what was the obstacle to his making new appointments, or
proceeding with the remaining members, and completing
the constitution. The governor's answer we% that there
was no longer any legislative council in existence ; that, by
the terms of the patent, there were to he not less
than ten nor more than twelve, of whom not more than
six should be official ; and that the Secretary of State had
Men into the extraordinary error of confounding the amount
sufficient for a quorum with the number sufficient for a
legal !Nasty ; he went on to say that he could nut have found
the means of filling up the council unless he filled it up
from one portion of the community alone, and this, he said,
would excite apprehension that it would revive the ill fea-
rs which formerly prevailed between the English and the
Dutch. Ile (the Earl of Derby) thought the governor
might have obviated the difficulty in which he
was placed by refusing to accept the resignation of
the members of the council. (" Hear, hear," from Earl
Grey.) But the noble earl found fault with the governor
for not going on with the diminished number. The
noble earl, un receiving this answer• wrote a despatch. (The
noble earl read it.) In it Earl Grey insisted upon the
governor going on with the diminished number, to frame
therewith the new legislature, and in the meantime perform
all the functions of his government, and for that purpose,
r there might be some doubt as to the legality of his pro-
ceedings, he transmitted fresh instructions, authorising him
to go on with six members only. And then, to show the
self-contradiction, the noble earl stated: "But when the
season returns fur taking into consideration the ordinances,
it is desirable that the council be reconstructed on its former
heals." Now, what was the meaning of the instruction ?
Was it that there should be six ; and, if so, what was the
meaning of constituting it on the former basis ? " This is
nee scary," he said, "in a legal point or vin w, by the letters
patent"- Here was another point which showed the
pertirewity. of Earl Grey. Everyone of the members of the
couucill signed a petition, praying the crown to revoke the
instructions as to the presidency of the council, hut" no "
said the noble earl, " 1 see no reason for altering the
instructions." One point more. The noble lord had issued
iustructious, declaring that the meaning of his former
letteas patent was, that ten should mean six, but unfortu-
nately he (the Earl of Derby) held in his hand en
opinion, signed by no mean authorities—Mr. Spencer
Walpole, Mr. Tyntlal, and Sir Fitzroy Kelly that
his position, laid down by the noble earl, was illegal.
But, although there existed no doubt whatever as to the
' legality of that body, could they believe that, as it was at
present constituted, and at the present time, and under pre-
sent circumstance., it was a body to whom it was desirable
to confide such delicate and important functions as the
framing of a constitution for the colony ? The governor
himself had pointed out, and as he (the Earl of Derby)
thought, with perfect reason and propriety, a course which
would be, and which only could be, satisfactory, viz., the
final and early adjustment of this important question by the
authority and intervention of the parliament. (Hear,
hear.) It was true that it had been suggested that an ordi-
nance under the sanction of the crown might meet the
Case, hut after whet bail occurred in the Cape Colony
they could not rely on the utmost amount of respect being
paid to such an ordinance. The ordinance put in force by a
secretary of state with whom a large portion of the people
haul been engaged for years its angry contention might meet
with a reception which it was desirable to avoid—the con-
stitution seat out under such circumstances might prove as
unsatisfactory as was the present state of affairs. lie be-
lieved that the supreme authority of parliament with the
sanction of the crown—he believed that that authority,
and that alone--could solve the problem at present threat-
ening the desolation of society at the Cape. (Hear, hear.)
To that authority all parties would be inclined, cheerfully
to submit, in the first instance, and more particularly so
if there were power reserved for the legislative
body to be constituted to alter and amend the
constitution sent out to them by its own free will,
with the sanction of the crown. But what was of
all thing. moat important, was that this agitating
and exciting question should not be long hung up—that it
should nut be allowed to lie over, and thus be the means of
kindling fresh animosities, sad raising fresh discords. Ile
had hesitated to recommend the introduction to the colony
of such a large measure of representative government as
was contained in these papers; but inasmuch as the ques-
tion had been raised on such high authority, and had ob-
tained the sanction of a large portion of the colonists, he
for one would not oppose the extension to the colony of the
institutions proposed, however anxious he might feel as to
their probable working. He would, however, say, "Fur
God's sake settle this question here by the dispassionate
' authority of this and the other house, under the sanction
of the crown; settle it by en authority to which respect
will be paid." He called on their lordships to interfere,
seeing that they had ample materials before them. They
had the scheme of the members of the Cape Assembly in
their hands; they had also the scheme of the remanent
members of the legislative council, the opinions of the
governor, the sentiments of the colonists themselves on the
ealgeet, end, in short, all the information which they could
W peribility desire. The duties which he desires! to im-
pels upon the committee which he wished appointed would
se doubt be important, but not necessarily of long duration.
But, even if it were to prolong the session for a week or a
fortnight, if they could obtain the desired result, he
thought that the consumption of a small portion of their I
lordships' time, and of the time of the other house, would
be well repaid, seeing that they might confer lasting benefit
on that distracted colony—a colony which they all knew
was agitated by internal commotion arid afflicted with ex-
ternal war. If they restore to the colony the blessings of
peace, and strengthened the hands of the 'colonial govern-
ment, by consenting to protract their labours for a short
time, he was sure that not ono of their lordships would
deny that the delay would be amply compensated by the
results. In asking foe these changes, he (the Earl of
Derby) did not ask for a chartist riot. ("Hear, hear," from
Earl Grey.) The noble earl might cheer, but he was per-
' fectly sincere when ho said that he did not desire to see
I any continued commotion at the colony. He held sash
I agitations to be exceedingly injurious both to the
' colony and us the home country, and it was the
interest of both, that the question should be speedily sad
satisfactorily adjusted. Ile desired to see the friendly as-
sistance and co-operation of parliament taideral by bra
Majesty's government. It was his wish that their hands
should be strengthened in carrying out the object in view,
end as he desired that they should proceed in what he
deemed the only manner by which the desiderated rush,
could be attained, and satisfaction afforded to the Cep
'okay', he begged to move " that the papers laid Was
this Douse during the present simian end the last
modes of parliament, relative to the franoit
tative institutions to the Cape e
Se
referred to a select ocamwdree," and he had
met distinctly that the oldest which he bad in
liner was, with the West possible der Of drat, to have a bill
islosiand kr solos as sass. sod Ise a log Is
elne. lids awl dills& sod sesspiss twain. (I=.)

theeektou the IPA May, 11114; and when it arrived, de lad Grey sad Lord Lyndhurst both rose to adding tie
whew was la a Maw miaow. It mialst he hao hocioad he • few sontents *either would give way.
thet ibe kaki*, esermil hod foe ROY appspledesathee bows whether, alter suck
al eetimolisa at the . wed4aat te ke lewd in reply. • INN
dist , 2 to -toe Weed amid otirtaisdr Woo the
time bad ordeal senestitiag .__. 9( the Meta-)
=se Mtge ought - of ItICIMOPM.-Tott, Lord Lyadhamet,
of Ihe Ow, sad Wire
the woad slmeeld waist el • . Mkspe Os et.CLA)OIIC4Dig Medd sweat tie
wasiehol atolls= oft he mown. ; whoa Oh adjeammonladed his aside Mead (Lai
enieed et the Cape, *me wee a stremp Mete of *ham. Osey) was ant baud. He would, however, WC the
In the interval of 1841 sad 1849 loilommeted that lament- hum whether ft would not be better to allow his nails
able state of things which arose eel of the ma-omelet mi. fdmidlamaseeL . .
Odious. mu amid seadema mem tirsaggly the. he did Thole.. of DERBY laid the convenience Cl the beam
the visaged eassmoss emeeted tats permet Me latralustisa lad the of the debts earl wauY, he theist*, be, ceasona
col the eseseimm Dort Y hit Mat as that mourion by hie arble Mead (Lad inret) immedlidely Mow-
• Feet arm was naneer, that eapsets- leeliZe ofDarky). He had set mewl into the
time had bon held we, bed not bees astually Moll of the mestioa, and it was apes this point that
gives, that ionises 'Wald set admitted unless their !dead (Lad Lyadharst) intended to speak. Ile
poems wen desired as a hem in the colony, and under wee male ewe, lowsreer, that if the noble earl froisted on
metals eireemotmees their pesonce sight lave bees a boss. *riga pmehmak kis noble friend would give way.
That ono met with a grievoos punishamt. The spirit Cl
Lied-LYEDIMAT corroborated the statement of the
resistance woe evoked, and though in gusto:awe, dot resist- atDaeby as to hie intentioh to meek on the kepi=
awe was carried to an intemperate actress. It was carried of the lionatim illialletiately after his noble friend (tie
to each an extent that the authority of the crown of Derby), and be *slight that this course would be mod
was successfully defied and resisted ; the authority of suited to the movestence of the house.
the crown was lowered in the colony. At the corn- Earl GREY said It was because he did not feel quite
eaeneement of the year 1849, the agitation was carried competent to reply on a legal question that he thought
to such an extent as to debar any person from he should be first heard in reply to the noble
taking the office of legislative councillor offered to them seri (the Earl of Derby), and that when his noble
on the part of the crown ; and those who had consented and learned friend (Lord Lyndhurst) should have spoken
to take the office, were not only menaced, but they arta- on the legal question, some noble awl learned friend of his
ally encountered violence in their persons and their pro- should repl on that part of the case. Ile was surprised
perty, the consequence of which was, that the legislative that Lord Derby, after having occupied the attention of
council we. virtually defunct. This anti-convict agitation the house for so long a time, should have disposed of the
speedily led, as it was sure to do, to a political agitation, reasons in favour of the motion in a few sentences. Enter-
and therefore when the despatch came out, calling upon taming, as he did, a very strong opinion against the exp.-
the governor to refer the new constitution to his lmisla- dieney of acceding to the motion, that opinion was nither
tive conned as Inca constituted the governor was under strengthened than otherwise by the noble lord's speech,
of the which seemed solely airned at obtaining a- ' - In

.party
eerie portions of the elaborate statement which the house
had just heard he entirely agreed, but from others he
was compelled to dissent; for instance, from that
part in which Lord Derby said that in his despatch in an-
swer to the first petition from the Cape for representative
institutions he had not meant to refuse such institutions to
that colony. Be that as it might, the present government
had found that the old system of governing by the legisla-
tive council was working badly, and that a strong desire
for a representative system existed in the minds of the inha-
bitants. Both Sir H. Pottinger and Sir H. Smith, who had
been desired to report on the matter, had come to the con-
clusion that the change was desirable, and might be made
with safety. When this state of things had been
reported to him—(Earl Grey)—when ho found that
the former system would no longer work, the
question had been practically decided, but then
it had to be considered how the new constitution
might be established with the least danger. and
on the *hole with the greatest probability of success.
This had been • serious question, because of the extreme
difficulty by which, from the peculiar circumstances of the
colony, the working of the representative government must
be met there. The difficulty had been so great that he con-
fessed he would almost have shrunk from carrying any
system of representative government into effect until there
should be the recurrence of still greater urgency. As to the
manner of carrying out the question, he might state
that he had considered the best course to be followed was
to have the whole subject referred to a committee of Privy
Council. From the earliest history of our colonies the
Board of Trade had been charged with such matters before
they came under the consideration of government But in
the present state of this country, with the all but into-
lerable pressure which was upon all departments of the pub-
lic service, it was practically impossible to bring the whole
cabinet to consider the details of measures requir-
ing minute examination. Ile had therefore thought
that if the question were considered by a small com-
mittee of the Privy Council, it would be attended with great
advantage. In the matter he had had the assistance of the
noble lord, the vice-president of the Board of Trade, the
Lord Chief Justice, Sir Edward Ryan, and Sir Jar. Steven.
He had also had an opportunity of, in some degree, availing
himself of the assistance of the president of the Board of
Trade. The report had been prepared with great care and
deliberation. That report, however, had no foree until
submitted to the cabinet and confirmed by her Majesty.
The referring of the report to the Board of Trade had
afforded an additional guarantee for full and deliberate in-
quiry and consideration before any decisive steps were
taken. lie might here remark, that from the testimony I
which had been from various quarters borne to the satis-
faction afforded by this mode of procedure in the
case of the Australian Colonies Bill, they had been
confirmed in the propriety of the step they hod
taken. The benefit of having a measure thoroughly
sifted before being brought before parliament was
evidenced by the fact that the Australian Colo-
nies Bill, although it had undergone a very
severe and searching criticism in parliament, hail passed
through both houses by large majorities without being al-
tered in any of its essential features. He would
not say that the constitution of the legislative
councils and houses of assembly in the colonies was
in the highest degree satisfactory. In Jamaica the
legislative council could not originate a bill of any
kind. In Canada the legislative council was named for
life ; and, as was the case in many other colonies, had con-
sisted of government nominee.. Would any one say that
the system which had prevailed there hail answered well ?
On the contrary, there had been one perpetual quarrel be-
tween the legislative council and the House of As-
sembly ; and the council had almost been an instrument
to obstruct the measures of the Assembly. Ile still
however believed that when they had an assembly, elected
by a very extended franchise, it was necessary to have a
body possessing somewhat more of authority than legislative
Icouneila had hitherto possessed, to share the responsibility
of legislative government, and as regards the Cape, he MIS
persuaded that from the discredit into which the
council had fallen, if it had been attempted to
form a legislative council, consisting of a limited
number of members named for life, the result would have
been that they would have had now a body possessing pub-
is confidence, and matters bearing a more settled and
peaseful aspect. He must now come to the history of the
proceedings which had taken place when the letters patent
of 1851 bad reached the colony. Letters patent bad in
Ms ewe, been issued, and the public generally were aware
Ilse these who accepted office for the purpose of issu-
log those letters patent had done so with a full
knowledge of their duty. He had no doubt that'
the ostensible reason for the resignation of these persons was
anything but the real one. His lordship then proceeded to
show that it would be impossible to leave the colony in the
'hands of those who would probably be returned to a par- I
liament under existing circumstances, and with such views
popular as had been put forth on the part of the seceding
members. They would agree to no financial arrangements
for the maintenance of the institutions of the colony except I
the voting of annual estimates, to be granted or with.
held according to the caprice of the moment. To
this it was impossible to assent, though he had
not hail any hesitation in assuring the colonists that,
alter proper provision had been made for the administration
of the colony, there was scarcely any reduction to which he
should not advise her Majesty to assent. He agreed with
Lord Derby that the governor ought not to have accepted
the four resignations, and then he could have proceeded,
unquestioned, with the aid of the six acting members. The
resignations had been designed to promote an impression at
the Cape that the governor was powerless in the hands of
agitators. He had thought it right to show that the deli-
berate determination of the government should not be over-
ruled, and had ordered the governor to complete his cows-
ell, which he could increase to ten (the legal number)
by the addition of two. The governor hail re-
rrtdthat, under the circumstances, he thought
ould be well to order him to act with six mem-
bers of council, and this proposal had been acceded to
in a despatch dated the lath of May. The noble lord did not
seem to place much reliance on the ground of the illegality
of the proceeding, for he had said he was not learned in the
law, and would leave that put of the subject to the
handling of those who were better qualified. But he (Earl
Orey) could not confine himself to merely referring to the
opines& quoted by the noble lord of three eminent lawyers,
by which the government instructions were declared
to he not legal, for he had received the opinion
at die law officers of the crown to the effect that the in-
structions of the government were perfectly legal. But ho
hod received that opinion at the last moment when the
sail with the despatch was about to start, and the conse-
quence was that he had somewhat misapprehended the
ground of that opinion, and so far as that ground was con-
cerned the despatch was certainly imperfect. But beyond
that he held that no fault could be found with it. With
respect to the law of the case he should follow the example
of the noble lord in making very slight allusion indeed to
a part of the subject which he was conscious was beyond
his strength. He would only say that he had first of all
been advised by the law officers of the crown that the
Isetructions of the goverument were perfectly consistent
with the law ; and that since that time he had consulted
thou in whose judgment ho had the best reasons to confide
as& who were members of their lordships' house, and the
result was that the opinion of the law officers of the crown as
to the instructions being in conformity with the law had been
completely confirmed. He believed it was a very old maxim
among all persons conversant with matters of this kind that
but little weight was to be attached to an opinion signed by
a lawyer, however eminent, unless the case itself could be I
seen—(hear)—and he must say that the opinion quoted by
the noble lord had been founded on a ease in which the
facts had been utterly misstated. The noble lord here
read extracts from the case which had been submitted to
Sir Fitzroy Kelly and the two other learned counsel, to the
effect that a constitution once granted by the crown to a co-
luny was irrevocable, except by an act of the imperial par-
' liament or an act of the local legislature, and that in this
case the power of granting letters patent had been conferred
upon
wai
nthe
said by ritil iuronot upon
Kelly and the others, but it
was not the fact, for in the commission of Sir H. Smith in
1847, there were material words, which the noble earl here
werereo
t
i esta-
blish
order
el andal ne-
vertheless, no,w,
ift were
edth.ra
uege good the
io tlTheeffectsyat.c government
odhi
regulationstiflh baoyi powert
r 0
ft h e
sags e oo
rwl
er artia
instructionsu a
In colony—subject, eitoj
re et to
Secretaries that
nder
th
of State ; and providing nevertheless Gist reservation be
dealdubetedt° trilllisot voefrereignverahings heirs,
alarrNemead of 'esotfabtli:huingg.
=o,swituih
czienthi: slauctsliatwadoasfmniignathtopendefvfbePernmarTnellsomet,wort
hoof
ace and
judgment of
woe fasoded opla.thelpedomation. Sub-
esenusussummiebet losi bees sees bli:he governor to
Nod= posimmilia. la Ibis ernes crown, instead
et Miami liaras its power, reserved not only the legne
WM war perllanvat, but also the full and entire
pow d =kW law. as fully as before. Further

than t went on to direct that the r
said aresell shed* be coustituted in suds a manner as was
dirmaed thd Miltsetteas which were given with it, and
VIM I. eardermilp Stith all such authority at -slight
after be mussed eider the sign. manual, or bye/oda*the
Privy Ceased af the sovereign. He with
the alibis teed wises be said he considered It &balmily
iseemeiry that the crown should appear to easy into Millet
iY madsority, sad that a constitution ha been given, it
simall et every brand be earned out. it was entirely
wig to the oppodlisa of the four seceding members of
the mama that the aeastitetkei had been prevented from
boss et this mamma M armadas. Is a very short time
the seer sary clew IWO* be and that constitution
betorearta isle pmedee. The noble Med urged that the
flaw emit be Midi pet if her Majesty's government
weal name some who had teal weight and autho-
rim, and a fixed de teradmation to give satisfaction to the
ftiers. He was upon the whole much inclined to concur
with the noble lied, he be thought it was a case
1 in which it was dem fet the pterament to take it upon
themselves, and ISM the revirmsest were prepared to do ;
but they woeM de se is the feemear which, under all the
circumstances, they these* MO the Most fitting and pro-
per. The papers contained the meet complete information
upon all point', and with those mem before them, he had
no doubt there would be but little difficulty to the govern-
ment in framing in this country the draft of ordinances
which in their view would be effective ; and it was the in-
tention of the government, without loss of time, to draw up
the draft of ordinances to be sent out to the colony, and then
he had little doubt that the governor, being thus relieved from
responsibility, would be able to obtain an assembly compe-
tent according to law to pass those ordinances, and that
they would be so passed. lie felt confident that with the
means the government proposed the Kaffir war could not
continue much longer, and then the only obstacle to the
completion of the constitution would be removed. The
noble lord had urged very earnestly that there should be
legislation on the subject, and had argued that nothing but
the authority of parliament could settle the question.
The noble lord did not deny the legal com-
petency of her Majesty to bring this constitution
into operation by the means proposed, and admitted that
orders passed under the letters patent would be legal and
binding; but as the same time the noble lord argued that,
in order to secure the confidence of the colonists, an act of
parliament should be passed. If the noble lord thought so,
it would be far better for him to move an address to her 1
Majesty praying that the matter should pass into other
hands, or that ho should say at once that the
government gave up the prerogative of the crown
from hands unfit far its protection. If the noble
lord entertained that opinion of him (Earl Grey) let
him say so. But the proposed mode of establishing the
constitution had been found after careful inquiry and con-
sultation with the most eminent legal authorities to be per-
fectly consistent with legal precedents and the practice of the
constitution. He would refer their lordships to a statement
of the steps which had been taken in conferring constitu-
tions upon colonies. It was in 1564 that the first consti-
tution was given to Jamaica. It empowered the governor
to call a council, continued the noble earl, and by its ad-
vice to establish a general assembly. This is precisely in
accordance with what we have done at the Cape. Jamaica,
in those early days of its occupation by us, was but thinly
inhabited, and the case of Jamaica constituted by no means
so difficult and complicated a case as that with which we
had to deal at the Cape. There were here conflicting in-
terests and feelings to consider, necessitating an elaborate
arrangement, and suggesting a wide discretiOn to the local
authorities, but the leading principles of both cases were
the same. But the noble lord said that they ought to have
a select committee on the subject. Now, even assuming
that legislation was the right course to pursue, and that
parliament ought to deal with the matter, he must say that
a committee was a very irregular mode of arriving at it.
But before he went to that point he begged to ask, why seek
to do it by act of parliament at all ? Surely, if the crown
was competent to do what was necessary, it might do it
without the interference of parliament. Was the noble
lord aware of any case in which an assembly had been
created by parliament previous to 1791 ? Previous to that
year the crown had invariably proceeded by a commission
• under the great seal, directed to the governor of
the colony that was to receive representative in-
stitutions ; but in 1791 that practice was departed
from, for a special reason. Canada was a conquered
colony, and it was notorious that nearly the entire popula-
tion of Canada were Roman catholics, and it was the desire,
the wise and just desire, of the government to give the
Roman catholics powers which, as the law of England
then stood, the crown could not give. With respect to Aus-
tralia the same thing was done, and for this reason, that
although the crown could by a commission grant re-
presentative institutions, yet in the early days of the
Australian colony, when the population consisted chiefly
of convicts, such institutions were manifestly inappli-
cable, and the sanction of parliament was therefore
invoked ; and, the former government having been esta-
blished by parliament, no less authority than parliament
could make the subsequent alterations. (Hear.) With respect
to the question of a committee, he begged to say that here
they were in the middle ofJuly,and considering that the Aus-
tralian bill, upon which, atter all, there was much less divi-
sion of opinion than upon the present question, occupied
the major part of last aloion, and considering also the nu-
, merous important bills which could not be overtaken this
session, he could not help thinking that it would be rather
an extraordinary course to take at this time, when °Vier
measures of importance were necessarily postponed, that
they should he called upon to introduce a bill which would
be sure to lead to discussions not much shorter than those
of the Australian hill lest year. (Hear, hear.) But he saw
no reason for a committee. What were the committee to
do? The facts of the case were before them. If their''
lordships thought that he (Lord Grey) had done wrong, the
best course would be to address the crown to rearind
the instructions, and to direct the government to introduce
, a bill. (Hear. hear.) When the noble lord gave notice of
the motien three weeks ago, he laid the principal stress
. upon the legal difficulty. lie implied, es clearly
possible, in giving that notice, that the subject which he
chiefly wished the committee to consider was whether the
instructions issued in :gay last were instructions in con-
formity with law, and whether, in fact, it would nut be
necessary to pass a bill of indemnity in favour of bar
111a-
jesty's government.
The Earl of DERBY—To cover the acts of the governor
at the Cape of Good Hope in having expended money not
voted.

•
Illeatand sionw years to come. In consequence of the
therreire ism the )hutch fanners, in 1812 and 1843,
ineiss4 to Metal; and the noble lord, then in the Colonial-
' ellia;eassidering it inexpedient to permit them to establish
stn settlement. despatched forces to reduce
the &Met gle independent
which the Dutch fanners had medicated
' under the power of her Mejestv. There was a revere con-
' iiiatamd loss of life on both sides •, but eventually by fares
dams the noble lord established the power of the crown
la the ntheraest of Natal. Subsequently, in 1848, the
same easels led to • porson of the name of Fretorius, whose
avowed object was the establishment of a federal republic
in South Africa, setting up the standard of revolt, the con-
sequence of which was a contest and a severe en-
gagement, in which he was defeated by Sir H.
Smith. The whole object of the party I have
alluded to is republican. They do not at all
disguise their object. They state that the welfare of the
ceteny is only to be secured by a republican form of govern-
ment, which shall be altogether free from the control of the
government of this conittly. Now these persons are inti-
mately connected and allied by relationship and friendship
with a large population within the colony; and recently
circumstances have occurred which have enabled designing
men, though much was done before to conciliate that large
population, to deceive them us to the true objects and
intentions of the British government, and in this
way to enlist them in opposition to us. This
republican party is one upon which these de-
signing persona mainly rely for support. The other party
is a party organised in Cape Town during the anti-convict
agitation. The noble lord was very severe in his comments
upon the mistake made, as he assumed, by her Majesty's
government, and principally by myself (for I admit that the
responsibilitylnust chiefly rest with mc) in sending con-
victs out to the Cape colony in 1819. 1 need not repeat all
I have had to gay on other occasions on this subject. There
may have been an error committed. But all I can say is,
that we were at the time in circumstances of extreme clitfi-
culty—difficu.ty left to the present government in
• great measure by the noble lord himself, who had
brought Van Diemen's Land into such a state that convicts
could no longer be safely sent there. My firm belief is that
if the convicts sent to the Cape had been received they
would have been found an advantage and not an injury to
the colony. The offences which they had committed, and
for which they had been sentenced, were offences com-
mitted fur the preservation of life during the famine in
Ireland. From motives of humanity, we found it necessary
to remove them from Bermuda, and as we could nut bring
them home, and could not transfer them to Van Dieinen's
Land, we had no alternative lint to send them to the
Cape. I have explained before, and I repeat that it never
was the intention of the government to send more than this
one convict ship to the Cape. Whatever our error, I sin
glad to find the noble lord does not attempt to palliate the
means which were taken by the people at Cape Town to
carry out their resistance to the reception of those convicts.
Those means resorted to by the leaders of the Anti-Convict
Association were most mischievous and most unjustifiable.
Within the last few days a remarkable pamphlet has been
published by a gentleman' and a settler at the Cupe, of the
Scotch church, connected with a missionary institution at
the Cape, and now in this country on business relating to
that mission. This gentleman was himself a party to the
original measures adopted for preventing the landing of the
convicts; but he now indignantly disclaims any partici-
pation in the subsequent unjustifiable proceedings of the
Anti-Convict Association, which he represented as not
hesitating to use their influence with the press to exclude
from publication all news, speeches, resolutions not in
accordance with their own views. Your lordships are aware
that thisassociation attempted to deprive her Majesty's troops
and the officials connected with the civil service of the neces-
saries of life ; and that although the governor made a dis-
tinct promise that the convicts should not be landed, ex-
plaining at the same time that lie had by law, no power of
removing them, until he had communicated with the
government at Wale, they continued the measures they
hail threatened, and refused to afford, or to permit others
to afford those supplies which were necessary to the pre-
servation of the health and life of the unhappy nun on
board the convict-ship in the harbour, who were
already exhausted by an unusually lengthened voyage in
tropical seas. I will state, as an exemplification of the sys-
tem of intimidation panued, what was dune in an indi-
vidual VIM. There was a settler at the Cape of the name
of Stamford, at the time of these occurrences, who, fur his
services, has since been knighted by her Majesty. He was
formerly tan officer in the army ; and having lett time army
and settled at the Cape, lie turned fanner, and by energy
and industry he succeeded in acquiring a large
lauded estate and property of very considerable value.
In the first instance he was adverse as the most eager to
the lauding of the convicts ; but when the after proceedings
were being taken he went to the governor and stated that
so lung us the power to render *id was at his disposal, he
would not suffer that gallant army, of which he had once
been an officer, to be deprived of the common necessaries
and comforts of life. Ile acted as he spoke ; and having
corn and cattle, and provisions in great quantity and num-
ber, he was enabled, not without difficulty and resistance to
assist the governor in obtaining for time convicts and troops the
provisions required. What was the consequence ? lie be-
came a marked man ; and although it is now well known that
the chance of convicts,being sent to the Cape is over, from
that hour to this he has been persecuted with unmitigated
hostility. His servants have been iutimillated ; no amass
will buy or sell with him, and his crops have gone to waste
because no labourer will dare to accept his hire. This is
not all. The unmanly vengeance has been extended to his
wife and children. An apothecary refused to make up for
Lady Stamford the prescription which she hail been
ordered, being for medicine which she could
only obtain from that apothecary. Again, a child
being taken ill, the father went from his farm,
Willett was some distance from Cape Town, into the
town, to bring Lady Stamford home to see the sick infant.
Will it be believed that not u livery stable keeper its Cape
Town would let his horses to the mother on such an occa-
sion to bring her to the farm ? Eventually a carriage and
horses were procured from the governor's secretary ; but
on the road'Lady Stamford stopped at an bum to bait the
horses, mud because the innkeeper did not refuse her,
saying that he had children himself, and could not refuse her,
his house was at once left by the company staying in it
at the time, and since that day this innkeeper has gradually
been reduced to ruin. Such were the means resorted to
to consolidate a power which I firmly believe was intended
for purposes scarcely less objectionable than those very
means. I have formerly shown that the real objection
could not have been to the landing of the convicts, because
the system of coercion introduced when the Neptune convict
ship was in the harbour has been continued ever since, with
the sole object of adding to the influence of a party to whom
the adoption of the motion of the noble lord would offer the
most direct and most distinct encouragement. The real leader

Earl GREY—I am glad that the noble lord has given us '
some explanation of a suggestion which was incomprehensi-
ble to me; and I confess that now that we have had the cx
planation I understand the suggestion just as imperfctly.
Because the noble lord has admitted that the council had
the power to legislate until the issue of the writs for the
new assembly; and, of course, what the imperial parlia-
ment could do to cover the appropriation of the money,
it was within the functions of the local legislature
to do also. (Hear, hear.) The local legislature
in fact, could do it far more effectually and conveniently,
because on the spot it would know what had been done,
while we here would never accurately know what the gover-
nor had done to require and justify an indemnity. (Loud
cheers.) The noble lord contemplated, in the first instance,
a committee to inquire into the law ; and I must say that
nothing could be a greater violation of all precedent than a
committee for such a purpose. Why, we cannot delegate to
a committee any powers to inquire into the law. (Hear,
hear.) Your lordships even have no right to pronounce on
a question of law until that question is regularly brought
before you in the proper course as ajudieial tribunal. What,
then, are the grounds for this motion ? Your lordships may
disapprove of the course taken by her Majesty's government,
but, at the same time, you cannot justly approve of such a
proposition as this until good and valid reasocis have been
shown that the adoption of the proposition will contribute
to the public advantage. To appoint a committee would
be to throw doubt and uncertainty on all the acts of the
government at the Cape, and to support and strengthen the
objects of those gentlemen who have come to England as
the organs of a particular party, in opposition to the local
government. (Hear, hear.) This party seeks to compel
her Majesty's government to alter a certain line of policy,
deliberately adopted, and carefully considered ; and they
have taken counsel's opinion, under the defective circum-
stances I have stated, iu order to show that the government
have acted without due legal sanction ; and if, by granting
a committee, your lordships palpably encouraged their agita-
tion, I oak what other effect would be produced lathe colony
than to weaken the authority of the gallant officer to whom
has been entrusted the difficult and responsible task of ad-
ministering the affairs of the Cape? (Hear, hear.) Those
who have not carefully watched recent proceedings at the
Cape can have but an imperfect idea of the exact character
of the unscrupulous party to whom I have referred, and of
the consequent mischief which would be done by accepting
the suggestions of the noble lord. It is therefore abso-
lutely necessary for me to make known to your
lordships the true character and the true conduct
of this party. In making this statement, it will
be my painful duty to speak severely; but it is a duty
which I have deliberately resolved to discharge; and I will
endeavour to express myself as dispassionately as it is pos-
sible consistent with a clear and conscientious narration of
facts. This party trusts for support mainly to two classes of
persons : to the support, in the first instance, of some of the
Dutch farmers; and next, to the support of the party organised
at the Cape during the time of what was called the Anti-Con-
vict Association, With regard to the Dutch farmers, I ant
bound to say that I attach great value to that class of per-
suns. I think they hare many great and valuable qualities
combined with some very considerable faults and vices;
and unfortunately they. are, to a very great extent, too
easily led away by designing men whose motives and pur-
poses are essentially different from their own. This
dam has been for several years in a state of
great discontent ; and I am compelled to admit
that that discontent had its origin in justice, and that
it mainly originated in that measure passed by the noble
' lord himself in relation to the emancipation of slaves.
(Hear.) I am now expressing no new opinion. I am
aware thot those for whom I have the greatest respect and
' admiration arc jointly responsible with the noble lord for
the act in question. I know that the hopes and intentions
of the noble lord were most excellent and most praise-
worthy. But I am convinced, and I expressed the convic-
tion at the time in my place in the other house, that that
set of 1833 was an unwise measure, as effecting a merito-
rious object by the most injudicious means, and that it was
° calculated to inflict an unnecessary injury upon the masters
ef the slaves upon whom we proposed to confer the inesti-
mable boon of freedom. At all events whether that opiuion is
correct or incorrect, it is indisputable, and the noble lord
will not contradict me, that the discontent of the Dutch
Boers dates from the slave emancipation in 1833. That
measure induced among that class a desire to remove be-
yond the reach of the British anthority, into the interior of
Africa ; and that measure, admirable as was its object, has,
I contend, been the fruitful source of all the difficulties
with which, from that time to this, we have had to deal in
South Africa, and with which, I fear, we shall still have to

of that Anti-Convict Association is the editor and owner of
a newspaper which was the great abettor of the whole of
this system of tyranny, which extended even to the persecu-
tion of a woman placed in circumstances of the deepest dis-
tress to which a woman could be exposed; and
that gentleman is the very Mr. Fairbairn who is
now in this country as the organ of the party
which, as 1 have explained, would profit so largely
by the success of the proposition of the noble turd.
Now, my lords, before you come to the vote, I du entreat
you seriously to consider the responsibility you incur. You
cannot, if you will consider the question for a moment; if
you think legislation necessary, you cannot think that re-
-1 terrine these papers to a select committee can advance that
legislation. It can have no effect of the kind. The only
cousequence that cart possibly result from it is to throw im-
plied censure on her Majesty's government for the mea-
sures which we have adopted. If we have deserved that
censure, 1 do not refuse to submit to it. If that censure is
justly due, 1 say propose it regularly. You may
require that her Majesty's government may sub-
mit to their committee the powers which her Ma-
jesty's government have shown themselves incompetent to
wimd, but do not take this course, by which you exasperate
existinganimositiea, and at the same time leave the exist-
ing policy, and deprive that policy of its real chances of
success. I cannot think that your lordships will give a vote
to lead to such consequences as these, and therefore 1 look
forward with the utmost confidence to your lordships' rejec-
two of this motion. (Cheers from the ministerial benches.)
The Earl of MALMESBURY said that he should not
follow the noble lord into the discontent in Van Diemen's
Land, for he could not forget that the real point for their
lordships' decision was, whether it were expedient that the
constitution should proceed from the hands of parliament
or from the hands of the executive government. He had
no wish to impede the progress of the colonial power ; he
had no wish to take, even for a time, any of the executive
power which he derived from his tenure of office. All he
asked of him was to do now what he had voluntarily done
fur himself. The noble earl, after having voluntarily abdi-
cated all the powers belonging to his office and made others
do the work which he ought to have done himself, now ven-
tured to offer as an objection to the motion, that it interfered
with the performance of duties by the Colonial-office.
(Hear, hear.) The noble earl had referred the discontent
existing in the colonies to erroneous grounds. The
colonists had for some years been discontented because
their wishes for a constitution were disregarded, and the
storm burst when the noble earl unfortunately thought
of sending convicts among them. From that moment the
colony had been in a flame, general dissatisfaction
manifested itself against the home government, and
the colonists had thwarted every act of the noble earl, ;
It had been urged that the four members of council had re- I
signed their office, but it was to be regretted that the noble '
lord had not exercised his power on behalf of the crown,
and had not refused to accept their resignation. In the
despatch of December 10, 18110, the noble earl, however, '
after a severe rebuke to Sir H. Smith for having given up ,
his responsibility, actually accepted the resignation of those
members. He could not but be struck with the singular
fact of how fully all the prophetic fears of the noble earl .
near him (the Earl of Derby) had been realised since 1842.
As matters stood, it would be better for the Cape to receive
the constitution from the Imperial Parliament than from a
' hostile body unfit to legislate, when they would receive it,
not as a boon, but as a pledge of hostility. Two of the mist
influential inhabitants of the Cape had come over here with
constitutions framed according to their views. There were,
in addition, the institutions recommended by the go-
' vernor, and those of government ; so that, in fact, there
' were not less than seven separate constitutions ready for the
! Cape. The most suitable body to consider all these different
propositions was that to which his noble friend proposed to
refer the question—a tribunal which could avail itself of the
' experience of the noble earls (Earl Grey and Earl of Derby),
and of the abilities of the men best acquainted with the
merits of the subject, namely, a committee of their lordship*.
' It would be far better that they should devise what course
was to be taken than to have a constitution extorted from
' the noble earl by thou* who neither loved nor feared him, and
a committee would be far more likely to appease the colony
than if the form was to issue a commission. Even if the
committee was to prolong the session for a week or a fort-
, night, he was satided their lordships' time would never be

I better spent than in attendance on that committee, and in
going through this important subject in all its detaihi.
(Hese, hear.)
Lord CRANWORTH adduced a law argument, to the
effect that there was no doubt whatever of the legality of
the conduct of the Colonial Secretary, and advising the
house not to unsettle the minds of the Cape and other col°.
nista upon the question of charters.
Lord LYNDHURST considered that the legal members
of that house were bound to give their opinion upon Pining
of law with as much fairness anti gond faith as if they were
on the bench of justice, and in expressing his views on that
occasion he should be actuated by such a feeling. When
he rose before, his object was to confine himself to
the question of the legality of the legislative
council. His noble friend near him (the Earl of Derby) had
called attention to the opinion that had been expensed on
this subject by lawyers of great eminence in this kingdom,
who alter long consideration had given their decided
opinion, which had been read to their lordships, that the con-
stitution of this legislative council was invalid and illegal.
The noble earl opposite had stated that the facts of the cases
were not fully and fairly represented to those learned per-
sons, and he had referred to the letters patent of 1817, •
anise of which he read to their lordships. Now he was
authorised to state by those learned persons that that state-
ment was incorrect—that they hail hid a view of the
letters patent, and that that instrument did not at all affect
the opinion which they had given. The task which he had
undertaken was simply this, not to give any opinion of his
own, but to state the reasons and grounds of the opinion
which had been expressed by the learned gentlemen to
whom he had referred. He regretted that he was not
allowed to make this statement at an earlier period of tho
evening, because from physical circumstances he could have
done it better than he could at that late period of tho
evening. The question was of great importance, because if
their lordships should be of opinion that the constitution
of the legislative council now in existence at the Cape was
invalid, a grievous load of responsibility would fall upon
all the persons engaged in it ; and therefore he called upon
them most anxiously to consider the question. His noble
and learned friend had smoothed the way fur its conside-
ration the colony was a conquered colony—the crown had
power to make laws. After a certain time, iu consequence
of the increase of the European population, it was considered
proper to give them a legislature, known by the
name of the legislative council. It consisted of
two parties the number was not to be more
than 12, nor less; than IV, and six of them were to be official
persons dependent on the government ; the remainder
were to be persons representing the interests of the inhabi-
tants—a free element in that legislative body. It was
clearly so considered by the law officers of the Cape, for
they always treated it as an element placed in the coun-
cil to check the other part of that laxly ; that body consisted,
therefore, of two parts. It bed been stated that the crown
having once made a grant of this kind, could not ab-
rogate it, and it was so. She had parted with
all her authority, and she could not rescind or
alter it. That was the principle. His noblc friend
had referred to the Grcnada case ; that was a
case alsoof conquest. The crown mode a promise of a
legislature, and issued a commission similar to the present
in April, 1763; that commission authorised Gen. Melville to
call an assembly when the circumstances of the colony
would admit of it. That assembly was not called until tho
end of the following year; and in the meantime the crown
passed a law for regulating the customs, which was held to
be invalid. And why? Because the crown had not
reserved to itself any power of legislation. (Hear, hear.) In
the present case a power of legislation had been re-erred ;
but in the course of the judgment of Lord Mansfield,
a great and enlightened jurist and statesman, many points
were decided beside that to which his noble and learned
friend hail called attention. The whole subject of the con-
nexion of the crown with the colonies was sifted and dis-
cussed most minutely, and an elaborate judgment was
pronounced by that eminent Chief Justice. Lord Mansfield
said that if an element of freedom was given in any legis-
lative measure, or any popular right or power, which
operated as a cheek on the government, in that rose the
crown had no power to revoke the grant. His noble and
learned friend bad referred to twine general words added to
the instructions, and he said the constitution of the legislative
council was to be framed according to the instructions
accumpanyiug the commission, or any future instructions
afterwards to be given. In the Grenada ease there were
the same words, and the same power WA% given, and, not-
. ithstanding that Lord Mansfield said that if there had
been a popular right given to an assembly, or to any part
of the legislature, notwithstanding these general words, it
could not be rescinded or recalled by the Crown, which had
no power over that pert of the (constitution which repre-
sented the popular element of the constitution. (Hear,
hear.) That case was reported in the State Trials, where
his noble and learned friend might see it, in vol. 20, and if
he belted at it he would fiud that his doctrine was
wrong. What! was the crown to give a free constitution
to-day ; rescind it to-nturruw, and re-grant it again accord-
ing to the caprice, the whim, of successive governments?
(Hear, hear.) It was absurd and extravagant on the face
of it ; and therefore with regard to that clause, on which
his noble and learned friend had placed so much reliance,
he begged to say it was in decided opposition, not only to
' the learned judge, but to the court. In May, 1840, it ap-
peared, letters patent were issued declaring that the legis-
lative council should continue to legislate for the colony
until the rights under the intended new constitution should
be issued. Supposing the crown could have exercised that
power, here was an absolute grant that this legislative
council should continue until a future period—an absolute
grant of legislative power for the period, without reserve-
tiun. His noble and learned friend hail nut retCrred to
those letters patent, but they established a grant of the
franchise for the period stated ; usual when the crown
granted a franchise to the inhabitants of a district or colony
it was irrevocable. It could only be got rid of by surrender,
by act of parliament or by forfeiture ; neither of which had
been the case here. Ile contended, therefore, by that grant
of WO by which the present legislative council was to con-
tinue for a period which had not expired, that whatever
construction might be put on the other clause of the com-
mission, it deprived the crown of all right of interfering
until the arrival of the period to which lie lied referred.
But then it was said there was a reservation
which did not exist in the Grenada case, of cer-
tain powers to the crown. When there was such a re-
servation the power could not lee extended beyond the nature
of the reservation. What was the reservation in this case,
and in all other cases ? It gave a concurrent power of legis-
lating with the legislature itself. It did not import that
the crown had the power to rescind the acts of a legisla-
tive body. The words would not admit of such a construc-
tion. (these, bear.) But this was not all. How did the
charter or letters patent of 1850 operate ? As fur as re-
lated to the legislature itself, it rescinded that power. A
subsequent power rescinded the former law ,ehi it it was
inconsistent. How could it be mid, under the former
law, that the crown had the right of rescinding and
altering this grant when by a sulerequent law the same
force and power said it should contioue for a period not
yet arrived at? (Hear, hear.) This was the substance,
then, of the argument. Instead of a council of tea persons
it might consist only of six, and the popular element be
taken away. The six persons might consist of official per-
eons, and become an arbitrary legislature. Ile would
now advert to another point. Supposing this was a
doubtful ease, and could it be said it was not so, when such
eminent men had expressed their opinion that it was? Sup-
peeing it went to the colony as a doubtful car ; what per-
plexity and difficulty might be occasioned thereby? It
could nut be stated iu terms too strong ; and he would
adopt the opinion of the noble earl on this subje et, because
when the question was considered whether the governor
was authorised to legislate with a reduced council, the
noble earl said there was a question of doubt, and it would
be bad policy. Now he appealed to the noble earl, could
any man say that it was nut a question of doubt
and difficulty? and surely it ought in mime way
to be settled. (Hear.) Ile hoped he had stated the case
fairly, as he was sure he had done so to the le at of his
judgment. The noble earl hail gut information from
all parties in the colony, so that he was in PAM'
sion of every information to complete this work. That
why should it not be completed? (Hear, hear.) Hs
would never get more information than he had. It had
been said that this was not a proper time, but lie (Lord
Lyndhurst) thought no difficulty would pre+vot itself
from the existing war. The noble lord concluded amidst
loud cheers.

The LORD CHANCELLOR was sorry to be obliged to
differ front his noble and learned friend with reference to
his law on this subject. His noble and learned friend
here and there had introduced a sentence which
altered the whole case; and he had said that it would
be found in the 20th volume of the State Trials that Lord
Mansfield had laid down the doctrine that if the crown
once introduced any liberal element into the consti-
tution of a colony, notwithstanding any words of reser-
vation, it could not be interfered with after. Not
knowing the course which the debate might take, he had
brought down the volume ; and the case referred to was
utterly devoid of any such reservation as was contended in
the present case. (Hear, hear.) But the absence of that
very reservation was a subject remarked on by Lord Mans-
field in the case of " Grumbole v. Hall."

Lord LYNDHURST' rose to explain, and placed in the
hands of the Earl of Derby a written extract front Lord
Mansfield's judgment, which the noble lord read to the
house, but in a manner which was inaudible in the gallery.
The LORD CHANCELLOR than proceeded to read the
judgment, which was to the effect that, as the King had
issued a proclamation that he had commissioned the go-
vernor, as soon as the state of the colony should permit, to
call an assembly to make laws as in the other islands and
in America, giving therefore a complete constitution, and
leaving nothing to be done but to assemble the house, the
crown had parted with its legislative power, though
the assembly was not called until December of
the following year. Now, in 1817, the crown
then having, as it was admitted, full power to legislate in
the Cape of Good Hope, issued certain letters patent direct-
ing the governor to form two councils. Now what was the
nature of that document 1 It was not a grant to the colony;
I it was merely a grant front the crown to its own officers,
and was capable of being revoked at any time. This
document was altogether foreign to a proclamation which
empowered the grant of a constitution to the colony. Thus
was the crown simply exercising its prerogative through
officers provided by itself. his hoe. and learned friend
said that a free element was introduced under these letters
patent. The free element was of this nature—the letters pa-
tent simply announced to the governor that he was to for a
council according to instructions front time to time. The
letters patent were not given in such a form as to bind the
hands of the crown. They were subject to instructions
to be from time to time furnished. The instructions
with regard to the council were, that one should be
called the elective council, "and be constituted in such man-
ner as arc directed by our instructions accompanying our
commission, or according to such other instructions or au-
thority as than at any time be forwarded to you under our

alga maul or by order in council. Ulmer pismire is
that the legislative council shall consist of not bee ass tea
or more than twelve." These isetrectiess, des were
revisable at any thee. And sow let gess so
whether the stem bed ported with soy et its
pewee. It appeal thee is life sew Mom palest
wise breed. mid* star retake the Ismer bassi pates;
we haterperstisi web perdue* et them es woe sessmery,
west es to deism that " there shell be withls tbe seed
missy s yertiesiest, to be Was by ear pewees and
legislative erase% end It is hereby rorsimed OM the aid
legislative semi' shall emelt et melt wens es shall
be 'bead is welt inatuser and form awl weds, cash term
and revitalise—a very odd caseloads. le peel-0 as
shell be prescribed by the ordinals* to be mesa by yes I
with the awns of the present legisigivis esessii." Audi
we do farther declare our vnll sod piserme to be that it
shell be competent for you to continue with the advice
end consent of our present legislative eicresik to maks,
see" and eMablish laws for the pease order. areteedic
werament of our colonies. It
there should be a parliament in the Carl" filesibieps,
sad that it should be constituted eseardieg to • assi to no
thereafter settled, and subject to the appeliatka of
the crown. Observations bad been moll am the

word " present" which was before the wards "le-
gislative council." The council at that time was
under a legislative council framed in the mouse of
the prerogative of the cruvrn, but the letters patent referred
to another legislative council, that is to say, to a we
council which was to form part of the future
In contrast with the future legislative council it milk tie
ordinance must be made by the present legieletim
Would any Lawyer tell him that that took away hem the
crown the inherent power it possessed to modify the easaml.
Lawyers had held up their hands in astonishment whim it had
been said that the word " present " meant the same council.
According to these last letters patent, the comma consisted
of six and the governor. In July the governor made an
order that four persons should be appointed that the coun-
cil recommended in a certain manner. They were recom-
mended in September, the letters patent being
is May, and the council consisted of six and the
governor. No alteration whatever had taken place
in that council, except this,—that the council as
it existed then, existed now. In the meantime
these four gentlemen were nominated by the governor and
resigned, leaving the council as they found it. lie said,
therefore, if any technical argument was to be used to
create a difficulty, be gave it a technical answer. Suppose
this wore a charter, and that the council was to consist of
20, and gave power to a majority to perform the corporate
acts, what would be the effect of four retiring? He
contended that such a charter would require not a ma-
jority of the twenty, but a majority of those who
met (being a majority of the twenty) could conduct
the business. Well, them, what was the state of this
council ? Why were six not competent to exercise the
powers of the charter ; and, at the same time, it must
be borne in mind, that thew letters patent were to be ex-
ercised according to instructions. In this opinion
it was stated, "We are of opinion that the in-
struction.% of the 13th of May, 18.11, are not withiu the re-
seventies of further power., and instructions and authori-•
ties contained in the letters potent of Dili, and are alto-
gether illegal and void " It is clearly established by the
law of England that a legislative constitution once granted
by the crown to a colony is irrevocable, except by the au-
thority of the imperial parliament, or by the local legisla-
ture with the consent of the crown. No doubt, but do not as-
sume that the crown had granted a couetitution to the colony.
It was a great constitutional maxim that the prerogative of the
crown could not be taken away except by express words :
it could nut be taken away by implication, and therefore
here they must show that the prerogative of the crown was
taken away, not by coustruction, not by retinesl argument,
but by exprem words. Now, what was the present situu-
tion of this question ? Ile said first that the grant to the
colony was the grant or prombw of a future constitu.
tion not yet settled, lint matured, and not capable of
being used for any purpose or effect at the present
moment. Now had the crown parted with its legislative
powers ? He said it had in express words reserved them,
and there was nothing remained in any of these documents
which would raise any reasonable doubt that the crown re-
mained in full pomeseion of its legal authority ; and he
apprehended it was perfectly clear that the council was per-
fectly competent to set with the 6 as it now remained, that
6 forming a majority of the original 10. lie could not
help thiuking that this motion had been originally made
under the 1111.11 that there had been a mistake in a point of
law ; but the noble lord had evidently some misgivings on
that subject, and therefore the argument took another
shape. Assuming. therefore, that the colony had a legis-
lative or constitutional authority, should this motion be
granted ? The noble lord said he had no party ob
ject to gain ; that he sought no party triumph.
But he should have thought that the noble lord
belonged to the debating club in which no speech
was allowed except in aggravation. The late Colo-
nial Secretary could see nothing that was right in the pre-
sent secretary from beginning to end. What was the pro-
posed committee to do ? Was it to settle the question of
w? Had they anything to lay before them, any wit-
nesses to examine, any facts that would inform them of
more than they knew ? Was it a committee to frame
a bill—was thut the intention? The crown, at the
present moment had the prerogative of legislating for this
colony, and their lordships would not interfere without
strong reasons to interfere with the prerogative. He did not
deny the authority of that house, but they looked to
that house exercising it/authority iu ucoustitutional manner.
He warned them imainst the danger of affording encou-
ragement to complaints against the government. They had
a colony prepared to he divetisfiesl, and the result of their
deliberations that night would produce its effect for good
or for evil. Although the noble earl hail disclaimed the
intention of making this a party question, the state of the
house sufficiently showed, that although no party motive
might actuate their lordships, yet still there was very great
danger indeed of the matter being turtle! into a party one.
There was nothing to submit to the committee, and if they
were ready to legislate let them do it, but not adopt a
form of motion which could only tend to the disparage.
meet of government, and to the creation of distrust and
agitation iu quart. rs where these were already sufficiently
rife. (Hear, hear.)
The Duke of ARGYLL objected to the motion, as having
no absolute meaning. Ile could nut consider a motion of
censure upon Earl Grey as deserved ; her, except in the
convict case' he thought his policy towards the Cape colo-
flints had been most liberal,indeed too liberal. He conceived
such a motion, if carried, likely to impair the authority of
the crown in the colony, and as the providing a constitution
for the Cape would add two or three months to the session,
he should oppose it.
Lord IVIIARNCLIFFE did not think that, under the
circumstances, it was desirable to renew inquiry into all the
vexed questions of the colony, but he could not, on the
other hand, consider that Earl Grey hail given the well
affected colonists such pledges for representative institutions
as he (Lord Wharneliffe) thought they were entitled to.
Earl GREY, in explanation, gave a brief risumi of his
previous speech, and contended that he hail given no pledge.
The Duke of NEWCASTLE had been disappointed with
Earl Grey's explanation. Ile believed legislation to be the
only remedy for the evils complained of as existing at the
Cape. lie repeated, however, that the Earl of Derby had
made a party speech upon the subject, but should be glad of
further explanations from the earl, upon which would de-
pend the question whether he should vote with him or not.
Urging strongly upon their lordships the justice, policy, and
necessity of legislation upon the subject, deprecating Earl
Orvy'a idea that such a course would give a party triumph
to his antagonists, who were, he thought, actually in an
attitude of submission, he earnestly advised immediate at-
tention to the question.
The Earl of DERBY rose to reply, at about 1 o'clock,
He disclaimed all party intentions, and contended that his
arguments, some of which he reiterated, had not been met
by the speakers who had opposed him, while the defences
of the Lord Chancellor and of Earl (hey were inconsistent
with each other. Ile proposed to go to a select committee
for immediate practical legislation, which he believed to be
the one thing necessary for the Cape colonists.
Their lordships then divided—

Content..
Non-contents

Majority for the government
Their lordships adjourned at 1 o'clock, to Thursday.

HOUSE OF CONIMONS.—TVESDAY, Juts 15.
Tk• 8 took the chair at twelve o'clock.