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

LONDON, WEDNESDAY

Parliament. This case was expressly provided for in
the new constitution. That important clause was alto-
gether omitted in the case placed before Sir Fhzroy
Kelly.—(Hear, hear.) The ease put before these lawyers
as as not only inaccurate but directly the reverse of the
truth.—(Hear, hear.) Their opinion, therefore, was of
no weight, and must at once fail to the ground.—(Hear,
hear.) He wished the constitution to be brought into
operation at the earliest possible date. It was nothing
but uuexampled faction that had prevented it from being
now in full operation. The Government at home and in
the colony had now united to remove the only obstacle
to this constitution. But the Noble Lord wished them
to legislate on the subject. L would, however, have
been better for him to have moved an address to the
Crown to remove the seals of office from his hands. It
would be rather an extraordinary course to be called upon
at so late a period of the session to introduce a Bill
with respect to the constitution of the Cape of Good
Hope. If such a Bill were now introduced, it would lead
to almost interminable discussion. The ceremony of
prorogadon of Parliament would be altogether unnecee
wiry, for he did not believe they would have concluded
their labours until the period had arrived.for again c
rnencing them. Legislition, he ad edited, might be ne-
cessary, but he thought the eppeinfneent of a Select
Committee more than useless. It the N.ible Lord consi-
dered that the instruc ions seat out to. the Cape were
improper, his clear course was to move an address to the
Throne, calling on her Majesty to rescind the orders
therein contained. The course proposed by the Noble
Lord, he bedeveo, was not one calculated to promote the
peace or safety ot the Cape celotty. It was his duty to
look beyond this country, and if they considered the sub-
ject in that way, he did not think they could do anything
more dangerous to the peace of the colony than the ap •
pointmeut of the Select Committee. It could heve no
other effect than to weaken the authority cf the Gover-
nor and to strengthen and back up the factious party
who opposed him. It was indeed nothing short of an
attempt to force the Government to altar a course
of' policy which had not been adopted without full and
careful consideration. The factious party to whom he
had alluded trusted to the exertions of the two parties
for the realization of their wishes—the Dutch farmers,
on the one hand, and the party organized during the
anti-convict agitation on the other. The discontent of
the Dutch boers was to be traced to slave emancipation
in 1333. They revolted from British authority, and it
was by force of arms that the Noble Earl opposite had
succeeded in re-establishing the power of the Crown.
Their object was a republican object. They desired to
set up a republican form of government, and they did
not disguise it. This was one of the parties who
sustained the men now seeking to have the course of con-
duct adopted by her Majesty's Government reversed.
The other party was the anti-convict party. It was
never intended, he might remark, to make the Caps a
station for any convicts beyond those that were sent out
in the Neptune, necessity arising from a great increase
in the number of persons sentenced to transportation
rendering it advisable to send a portion of the con-
victs to that colony. The Noble Lord then, at some
length proceeded to show the violent character of the
measures adopted by the anti-convict party, and the
spirit of persecution adopted by them towards Mr.
Stamford, who, contrary to the wishes of the inhabi-
tants, when the Neptune was in Simon's Bay, supplied
food to the convicts, and thus prevented them
from suffering the pangs of starvation, which
the anti-convict party actually attempted to infl!ct.
The only consequence of the carrying of this motion
would be to cast a censure upon the Government. If
that censure were justly due, he said at once, propose it
directly, that the Government might resign its functions;
but let them not t .Ito a course which would fetter its po-
licy, and deprive that policy of its best chance of suc-
cess. He called upon their Lordships, therefore, to re-
ject the motion which had been submitted to them by
the Noble Earl opposite.
The Earl of MA.LMESBURY said he had no wish
either to humiliate the Noble Earl, or to lessen the
power of the Government, but to ask the Noble Earl to
fulfil that which he had undertaken to do. He called
upon the Noble Earl to perform work which he ought
to have done, and which he would have performed had
he not abdicated powers which it was his duty to have
exercised. The power of the Board of Trade in these
matters, was an ancient institution of the country, but
in the time of Charles 11. it was suspended
by the Privy Council. The Noble Lord had
voluntarily resigned powers on the pretext of valu-
able assistance which the machinery ot the state thus
afforded him. But, in resigning his powers, the Noble
Earl had at the same time resigned his judgment.
Would it not have been better bad the Noble Earl
not sent out a positive form of constitution, but had
left the details to the Council of the colony ? Instead
of doing so, he had tied up their hands, and rendered it
quite impossible that the experience of that body could
have been usefully employed in this important and in-
tricate business. The resignation of Mr. Fairbairn and
others had only been provisionally aticepted by Sir Harry
Smith, and when the news of them came to Eegland it
was much to be regretted that her Majesty's Govern-
ment did not send back word that it refused to recognise
them. The Noble Earl said that a Committee was not
the place fur these discussions, but be must say he knew
of no tribunal more appropriate. He censured the ti-
midity with which he surrendered his power and aban-
doeed his opinion respecting the constitution; and,
above all, he censured that general policy of the Noble
Earl which had so often been censured before. He
thought that the occurrences at the Cape afforded an-
other instance ot the unfortunate tendency of his Lord-
ship's policy, and that uo tone should be lost in repin-
ing it.—(clear, heer.)
Lord CItAN wall said that the legality of the
course pursued by the Government was undoubted.
The conqueror of any country became absolute sovereign,
and so he remained until he divested himself of tbut
right by granting a constitution. There could be no legis-
lation except by Parliament. His late Majesty beeetne
absolute sovereign of the Cape of Good hope by con-
(pest. How lied the Crown divested itself of the rights
belonging to it? By letters patent ot 1847 two councils
were constructed for the Government of the colony. There
could not be the least doubt but that the Crown had the
power to vary these instructions. From the *element of
the issue of these instructions the Government and Coun-
cil had the power of legislation. But further, her Ma-
jesty reserved to herself and successors their undoubted
right to allow or disallow any law that might not appear
necessary for the peace and good order of the colony.
Her Majesty, with the advice and consent of Parliament,
might revoke the whole original instructions, and she
i had done so; revoking white, was done before, and sanc-
tioning a Legislative Council in a different mode, These
Orders in Council had been continually made, and if they
were illegal in this they were in multitudes of other in-

stances.
Lord LYNDHURST would not follow his Noble and
Learned Friend upon the general question, but would
confine himself to the legality of these Orders in Council.
Those able and esaident council who load been consulted
had given their opinion, after mature and deliberate con-
sideration, that they were illegal. The Noble Earl had
stated that the nese was incorrectly stated to these
learned gentlemen, but he was authorised to say that
they had had a view of these letters patent, and that
they did not affect the question. He should not state
any opinion of his own on this subject, but merely the
grounds upon which these learned persons who
had been consulted had proceeded. It had
been laid do Ain by that eminent jurist and
lawyer, Lord Mansfield, that if once the Crown
granted any element of freedom, it could not be revoked.
That was the point in this case. Had not the Crown
granted an element of In edom? The tree elements of the
council had been taken away. The numbers originally
fixed for constituting that Council were twelve, but now
they were reduced, and it was permitted that the mejo-
rity of the Council might be official men. Could any man
say that the present question was not one of douut and
difficulty? He had cow stated the case in its legal bear-
ing, end he lett it to the consideration of their Lord-
ship.; but, before he concluded, he desired to say a word
on the policy of the question. From the course pursued.
it was plain that the Government desired the Council
should consist principally of official men. This was re-
trogre,sion in the scale of legislation. It was unjust to
the c boy, and was such a system of governmeut that
no wise nr prudent administration otieht to pursue. lie
should like to know why the couslitu'ion of the Cape was
not now completed. The outline had been sketched by
the Noble Lord, and the details were filed in. What
was the reason of the procrestination di,playeci?
The LORD CHANCELLOR said, that while he ad-
mired the ability displayed by his Noble and Learned
Friend, he yet felt constrained to differ from the legal
view of the question which he had just propounded to
their Lordthips, and he could riot avoid obsessing upon
the fact, that throughout the Noble and Learned Lord's,
very lucid statement, ho had most carefully avoided
expressing any opinion of his own on the merits of the
question discussed. The judgment of Lord Mansfield,
which his Noble and Learned Friend had referred to.
did not bear upou this question, The " Proclamation,"
not "Commission" there mentioned, merely gave a
complete constitution to the island of Grenstea, leaving
nothing to do but to cell an Assembly as soon as the
state of the colony would permit it. Their Lordships
would, however, observe that there was no reservation
either by the King or otherwise, to legislate before the
arrival of the writ, but rather the centrary. The pre.
sent state of facts stood thus—ln 1847 the Crown issued
its letters patent to its officers at the Cape to call a
Council, and in that it merely conveyed to its officers in
the colony a right to exercise its prerogative to legislate
for the colony. That authority, he maintained, was at
all times revocable by the Crown, and might be re-
called, for instance, if the Council were not called in
conformity with the instructions from time to time fur-
nished. The colony being subject to these letters
patent, he would consider whether at any time the
Crown had since revoked the power which they con-
ferred. In 1850 it issued new letters patent, reciting
the preceeding ones as far as was necessary, and incor-
porating certein of its provisions for that purpose. These
letters patent amounted_ to a declaration by the Crown,
a royal promise on its part, to grant a constitutional
term of government, the precise nature of which was
thereafter to be settled by the Li,gislative Council in
the settlement, subject always; to the appcohation of the
Crown. Now he would challenge any lawyer to con-
tend that it was eve: intended by the Crown
to resign its power of mocerating this assembly, by
virtue of the words " pre6Att Legi, iatiso Co
These words, he contended, meant simply the council,
as it then was, without r,ference to whatever form it
might subsequently assume. Suppose it had been a
charter creating a body of twenty to consult on ,a cor-
porate act. All that eves necessary to the performance
of a corporate act was, tea!, there should be present a
majority of twenty;
and
.so in the present instance, the
council having beet, left after the resignation in precisely
the earns 6tatii 119 it was before, every corporate act
umajormajority for its validity. He
depended merely upon a
wished to understand whether it was meant to contend
that every letters patent was a grant to a colony not
revoked. If that were so, what had become of those