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

THE SUN,

any system of el:- etion it was doubtful whether
there would be found in the ceuntry districts per-
eons who were wilting to undertake the expense of
residing at Cape Town, an'! whether consequently the
Country districts would not bo compelled to select per-
sons for their representatives who resided at Cape Town.
The Governor, in pursuance of his pledge, selected the
four gentlemen who stood highest upon the returns, but
instead of selecting the gentleman who stood fifth upon
the list, he added to these four a gentleman to represent
the eastern districts. From that time the four gentle-
men who thus represented the influence of Cape Town
acted as • an organized opposition to the Governor, and
divided together upon all subjects which arose in the
new Council. He agreed with the Noble Earl in the
mistaken opinion which these gentlemen had formed of
the functions of the Council. One of their duties was
the framing of the ordinance which was to be submitted
to the Crown relative to the constitution of a representa-
tive Legislature for the colony. Bat they thought fit to
consid• r themselves not al ordinary represents' s, sit-
ting by virtue of a precept sawed by the Governor, not
as the representatives of the el, ctore, such electors not
being in tact constituted by the law, and having no
pretence for giving a vote. They regarded themselves,
in short, not as a repretentative body, but as a 'coristi
tuent body, who were brought together to frame a con-
stitution, and nothing more. The Council assembled
on the 6th of September, and they made some pro-
gress in framing the ne constitution. With regard to
the number of electors, their q ielifie.ation, the con-
stitution of the two [louses, the seat of Government
being fixed at Cape Town, the payment of a daily allow-
ance of expenses to each member, the exclusion from
the representative body of ail officers connected with the
Government, there was perfect unanimity of opinion
But these four gentlemen were defeated by the official
members and the unuffic•al members from the eastern
districts upon some very important question, namely,
whether the qualificaden for a member f r the Legisla-
tive Council should be the same as for a member of the
House of Assembly; whether the two Heuses should be
elected for the same period; and whether the Upper
House should be elect, d by the entire colony, acting
as one constituency. Upon these points he thought
these gentlemen wrong; for if the Legislative Council
were returned by the same body, subject to the same
influences, and animated by the same popular passions
as the members of the Lower House, they would be
a mere repetition of the House of Assembly. Being
defeated, however, on these questions, these four
gentlemen declared their intention not to legis-
late on any subject except the establishment of a new
Legislature, and to leave all the business of the colony
in a state of confusion. This decision left the Governor
in a state of some embarraotment, and he took a course
which, although condemned by the Noble Earl (Grey),
he (the Earl of Derby) thought him warranted in
taking. He had no Legislative Council legally consti-
tuted, and for this reason, that by the letters patent
constituting it the Legislative Council was to consist of
not less than 10 or more than 12 Members, six of whom
were to be nominated members. By the resignation of
four out of the six unofficial members the Legislative
Council was left with only eight members, and was
therefore not a legally constituted body, and had neither
instructions nor powers to act. But the Governor deter-
mined to refer to the other eight members the report of
the Committee of Privy Council fur Plantations and
Trade, and the duty of framing a representative consti-
tution for the colony. These remaining members of the
Council proceeded to execute their duties, and they
transmitted to the Secretary of Sate the draught of a
constitution which might have been passed by the
Crown, and which would have put an end to the confu-
sion in the colony. He did not say that the draught
constitution was perfect, but it furnished a basis for le-
gielation, with the details filled in by the persons most
conversant with the affairs of the colony. But atter the
proceedings of the Committee of the Council the
Governor felt that the difficulties in the way
of representative government were more formid-
able than had been anticipated. In the first place,
the overwhelming influence of Cape Town upon
the constitution of the Legislative Council was manifsst.
In the next place, the granting of representative insti-
tutions had evoked a desire for a separation between the
eastern and western portion of the colony, on the ground
that the eastern portions, which were British, would be
overb 'rile by the influence of the Dutch in the west, thus
introducing another of those differences which he (the
Earl of Derby) had pointed out in 1842. The Governor
.aid he could not refrain from expressing the opinion,
that there was some probability that under a Legislature
purely elective this a }loured classes, who constituted
three-fifths of the population, would b compelle f to en-
ter into contracts for a lengthened period, and, by means
of vagrant laws, with severe punishments aid penalties,
would be reduced to a state of virtual slavery. Under
these circumstances the Governor reiterated his opinion,
that for the protection of the coloured classes the Leg
have Ceuttcil should be nominated by the Crown, and
should not be elective. The Secretary to Government
concurred in that opinion, and so did the Tree urer-
General. The Attorney-General said, that although it
was desirable to establish a nominated Council, yet that,
atter the expectations that had been held out, it would
be hardly safe to withdraw thr proposal of an elective
upper house, and that the principle of election must be
agreed to. He (the Earl of Derby) held, that any den,
ger and any hazard ouglet to be preferred to the disgrace
of violating the pledges held out by the Government.
The Noble Earl (Earl Grey) disapproved of the course
taken by the Governor. He said—
" With regard to the course taken by yourself in con-
sequence of the difficulty in which you were placed by
the resignati n of the four members who retired from
the Legislative Council, I cannot convey to you the
final judgment of her Majesty's Government in the ab-
sence of the fuller information which I am led to ex-
pect; but I must nut conceal from you that I am alto-
gether unable to understand, from that which has
already reached me, your reasons for having considered
it necessary to interrupt the sittings of the Legislative
Council on account of the resignation of four of its
Members. What was the obstacle to your making new
appointments, or proceeding with the remaining Mem-
bers to consider and to pass the ordinance for completing
the constitution—ihough it seems to hive been con-
sidered insurmountable by your Executive Council
as
well as by yourself-4 am entirely at a loss to con-

jecture."
fhe Governor's answer to the rebuke that he migh
have proceeded with the remaining Members, w
who
formed formed a quorum, was that the L,gslative Council
not a legal body if it did not consist of at least ten
Members, ;six of whom should be persons nominated
by the Governor, and that the Noble Earl had mistaken
the numbers necessary to form a quorum when there
was a complete Council of ten for the Members suf-
ficient to constitute a legislative body. With regard to
the suggestion that he might have filled up the
vacancies by new nominations, he said that he could not
have done so without reviving those differences and
those jealousies between the Dutch and English inhabi-
tants of the colony which had so formidably increased
of late. The Governor added—
"If it be your wish that I should proceed to business
with the present Council, considerisg it competent to
legislate, I shall do so. I?, on the contrary, you should
instruct me to complete the Council by new nominations,
I will tike that step so as to give as little dissatisfaction
as possible. But I cantsot but think that, with the in-
formation now before your Lordship, it will he practi-
cable and preferable to provide, for the introduction of
representative institutions by some instrument to be
issued in E ?gland, whenever that measure can be intro-
duced with a prospect of benefit to the colony."
He (the Earl of Derby) thought that the Governor
might have obviated the difficulty that had arisen by
refusing to accept the tendered resignation of the lour
inetnbers of the Legislative Council.—(" Hear, hear,"
from Earl GREY.) The Noble Earl cheered him, but
that was a suggestion which he die not find in any p ir-
tion of the dispatches of the Noble Earl. The N .ble
Earl on receiving this answer sent out a dispatch. in
which he said that it did not alter his views, but that as
the resignations were accepted, he insisted that the Go-
vernor should go on whh his diminished Council, and
proceed to frame a new legislative ceestitudon, and in
the meantime to perform all. the functions of a legisla-
ture, and he transmitted fresh instructions to continue
'he Logisistive Council with six official members only.
The former instructions set forth that the Legkla iv%
consistCeuncil should of not less than ten persons.'
But the fresh instructions declared the meaning of these
former instructions to be, that the governor might carry
on the government with a Legislative Council not ex-
ceeding six in number, althosgh they might all be official
members. Tne Noble Earl added:—" When the Se3SOil
returns for taking into consideration the constitutional
ordinances, it i, provided by these instructions that
the Council should be reconstituted on its firmer
111,6., To chow the
with
pertinacity which the Noble
Earl adhered to his s
w
that the Chief Justice shouldan views,he th itF r wasnd t proposed e
, thetet
Legislative Council. This was provided in the letters
patent, and it was not competent to deal with that with-
out a fresh enactment. Buptrathyeinwghtrhdaet ot fh he
Crown L e gi swl at iv
de
e
it being, in their opinion, Cr
eoeue
hcdi
thatisig eadp
pao
iphettrei tei ohnt:
in-
consistent with the functions of the Chief Justice to
They, therefore, prayed
tshpaat ssteantemmibglhyt. be rescinded. " No," said
that
tidthee olevtetrer
the Noble Earl; "it would be very awkward to make
an alteration in the letters patent." Ile agreed
with the Noble Earl in this opinion, but then they
ought not to have been issued in the first instance.
The Noble Earl said, in the first place, that tea meant
aix, and that with biz members the Legislative Council
might proceed to discharge its functions; but he held an
opinion, signed by three names entitled t, respect, Sir
F. Kelly, Mr. Walpole, and Mr. ICenyon, declaring that
such a reduction in the number
was illegal, and beyond
the powers that the Crown possessed,
and that the
Crown having granted a constitution to the Cape, it
could not be restricted or restrained so as to exclude from
the Legislative Council all those who were not nominees
under the Crown. He was not competent to discuss the
legal question, but he should be followed by a legal
authority in that House whose opinion was entitled to still
more respect than that of the gentlemen he had named.
The Governor pointed out, with reason, a course which
he thought would be satisfactory to the colony, namely,
the final and early adjudication of this question by the
authority and intervention of Parliament. He regretted
to say that after what had occurred he believed there was
little chance of such a constitution being acceptable to the
colony. To an Act of the Imperial Legislature all sec-
tions of the community would defer, and that alone would
solve the problem that had threatened the whole framework
of the colony with dissolution, more especially if a power
were reserved by the Legislature, so to be constituted by
a majority, to alter and amend the institutions, wfech, in
the first instance, should be granted with the authority
of Parliament. Such a peovision the Legislature had
introduced into the Act of last session relative to
Australia, and it was most important that this subject
should not be long hung up to kindle fresh animosi-
ties. He might have hesitated to grant so large a
memure Of representative government so thst now pro-

p teed to he granted to the colony. But he would say
mat, es such a proposal had been made on such high
cutherity, and as it had obt tined the sanction of the
colony, end the implied sanction of the Crown, nny
danger or risk was to be encountered rather than not
fulfil those expectations. Ile called upon their Lord-
ships to interpose by their authority between the
scheme of the dissenting members on the one hand
and that of the official members of the Legislative
Council on the other. With the opinions of the Go-
vernor and of each individual member of the Legisla-
tive Council—with all the authority and information
they could desire—the labours devolving upon such a
Committee need not necessarily be of long duration.
Anti if it should happen that the consideration of this
subject should add a week or a fortnight to a session, the
close of which was so much desired by him as well
as their Lordships, he believed that a smell portion
of the time of Parliament would be well bestowed by
conferring it upon teis distant colony—torn by intestine
convulsions and distracted by external war—weakened as
it was by the disinclination of the colonists to stand by
the Crown, inwards which they were rendered disaffeced
by these disputes. If their Lordships could strengthen
the authority which had been hitherto cordially recog-
nize(' by the colony—if they exile strengthen the hands
of the Government by adopting or amending the
aehetne of the Government for conferring the represen-
tative institutions on which the colonists had set their
hearts—if they could invite the colonists to engage cor-
dially in the defence of a territory which was the native
hems of many of them, and the adopted home of all, if by a
blight delay they could secure the results which would tot-
low from such an invaluable interposition et their autho-
rity as would restore pewee to the colony and that friendly
communication between the authority of the Govern-
ment at home and the inhabitants of the colony— hen
he asked for no party triumph.—(" llear, hear," from
Earl Grey.) ale did not say ho was not desirous that
his motion should be adopted by their Lordships, but ho
urged their Lordships to adopt it, not because he desired
to gain a triumph or to inflict a censure upon the Noble
Earl, but because he was anxious to see the friendly as-
sistance and co-operation of Parliament tendered to the
Government for the purpose of strengthening their
hands, and that in the only manner that would be sa-
tisfactory to the colony and to the well-working et those
institutions which they all desired to see maintained in
the colonies. He had now to move for the appointment
of a Select Committee, and to state that the objtaet he
had in view, was that with the least possible loss of
time a Bill should be passed during the present Parlia-
ment which should settle at once and for a lengthened
period this most difficult and complicated subject.
Lord LYNDHURST sose, but was interrupted by—
Farl GREY. who rose at the same time, and claimed
to address the House immediately, as a matter of usage
after the speech of the Noble Earl.
A short altercation ensued, the Duke of Richmond
rising to urge Lord Lyndhurst not to abandon his ictea-
tion, and the Marquis of Clanricarde, as was understood,
to move the adjournment of the debate. At length
Earl GREY proceeded. He confessed he was sur-
prised, after the long and able speech of the Noble
Earl, that after having occupied their Lordships' atten-
tion for nearly an hour and a half, he should at length,
in a very few sentences, dispose of that which seemed to
him the most difficult part of the subject. The reasons
in favour of the motion with which he had concluded.
The Noble Lord's review of the subject would oblige
him, too, to allude to past transactions. There were
one or two points to which it would be now necessary
for him to refer. First, with regard to his dis-
patch of 1832, he said it was not meant as a refu-
sal of representative institutions to the Cape of
Good Hope. Nose, so far from that, it was not only
a refusal, but it was as strong an opinion as a Secretary
of State could express, that however desirable it might
ultimately be to establish representative institutions at
the Cape of Good Hope, the time for making that
change had not yet arrived. Then the Noble Earl said
that his (Earl Grey's) dispatch to Sir Henry Pottinger
was meant to imply that a conclusion had been come to
on the subject by the Cabinet, and only counselling him
as to how and when the alteration was to take place. He
could only say that such was by no means the intention
of his dispatch, even if the wording of it could bear that
interpretation, which he could not find that it did. The
Noble Lord, too, had spoken of this dispatch as if ad-
dressed to the colony, which in that case would be a
prelude to the absolute introduction of' free institutions.
Now, the fact was, that Sir Henry Pottinger, most
properly, laid it before his Ere cutive Council, but
until February last he was not aware that it had been
seen by any of heft human being. It was forwarded
aline for the consideration of parties there, and did
not at all pretend to lay down as a matter defini-
tively settled, whether representative institutions ought
to be introduced or not. If the Noble Lord would
refer to the opinion of Mr. Montague, he would find it
stated that though it was expedient to give representa-
tive institutions to the Cape of Good Hope, yet it was a
critical and anxious experiment, and that optaioa was
founded alone upon the state of things which prevailed
in the colony. He said there was no transition step be•
tween the centralisation of power and represents ive go-
vernment. A transition state of government had indeed
been established there about fifteen years ago, but it had
failed to coeciliate public opinion, or to acquire public
confidence—it had practically failed; and therefore,
having gone so for, there was no other halting- place be-
tween that and representative institutions. And when
Sir H. Smith. the successor of Sir H. Pottinger, found
that those opinions were entertained by all the principal
members of his a e.ronsent, aiid that there was evi-
dently a great public feeling in favour of a change, he
did make known to the colonists by the medium of a
public answer to a request, that having been re-
quested by the Secretary of State to ascertain whe-
ther representative institutions might not be estab-
lished et the
:Cape, he had come to the opinion that
such a change might he usefully made, and had so
reported. Jr. then came to be a question how the repro •
sentative system could be established with least danger,
and with the greatest p asible chance of success.
This was a very difficult and a very serious task—so dif-
ficult, indeed, that but fur the still greater urgency that
drove them to the change, he confessed be should almost
have shrunk horn carrying it into effect. It appeared
to him, under the circumstances, that the best course
was that the whole subject should be referred to the
Committee of the Privy Council. That Committee pre-
sented him with the united assistance of the President
of the Beard of Trade, the present Lord Chief Justice,
Sir Edward Ryan, the Noble Lord near him, the Vice-
President of the Board of Trade, and Sir James Stevens.
But though prepared with great care, the report of this
body was nothing, until it was confirmed by her Majesty
in Council, and first it bad to be submitted to. and ap-
'aroved by the Cabinet. Therefore, when the Noble Earl
geld that no one was responsible for that measure, he
(Earl Grey) said that the Cabinet and the Privy Council
were as responsible for it as any other. And here he would
make a few observations on that subject. He knew that
this mode of proceeding had given great satisfaction in the
colonies, and it was adopted in the Aus-
tralian Colonies Bill. The consequence of
having a Bill thus matured was, that though
this Bill was for many weeks under the consider-
ation of Parliament, and though its every clause was cri-
ticised in a hostile spirit, the result was, that by large
majorities the Bill was passed by Parliament, with no
one essential modification. The Noble Earl objected,
however, to the recommendation of the elective council.
He (Earl Grey) would not argue that point now; but
still, having been formally made and announced to the
colony, it ought not now to be withdrawn, and those
mettures ought to be carried into effect. He was glad
to find that the Noble Earl yielded his assent to that
view of the point; but he (Earl Grey) must add, that be
still adhered to the report of the Committee of Council.
The original institution was, that the council was not
an and pendent body at ail. It was so at the present
day in Jamaica, the most ancient of our colonies. It was
the mere privy council of the governor, and at this day
had not the power of origins ing a bill of any kind
wnatever. He believed that was the universal practice
in ell our colonies, up to the passing of the Canada Act,
in 1791, in which the legislative assembly was, for the
first time, put upon a very different footing. It was then
m ide a body of membersappointed for life, and not con-
sisting chiefly of persons bolding office, and, therefore,
practically independentot the Government and the people.
There was a perpetual calarrel between the Legislative
Council end the Asst mniy in consequence. He still
thought that having a body elected by a wide franchise,
it was well to have another body having larger powers
than the Council, to share the responsibility of legisla-
time with the Government. At the Cape even, where
there was no Assembly, considering ell circumstances, he
was persuaded that if an attempt had beets made to
create one, consisting of member* tamed by the Crown
for life, the result would have been that they would have
had a body possessing little public confidence, and they
would have lust the services of the most useful and the
must experienced men. He must now come to the state
of things that prevailed when the letters patent of 1850
reached the colony. The Noble Lord had referred to
the circumstances, and he was sure be, too, should be
permitted to do so. He thought that the Governor
acted for the best, but the result showed that it was un-
fortunate. The letters paten; provided that the exist-
ing Council should act until writs were issued under
the new authority for a Representative Parliament.
Their wish was, and their acts tended, to place all
power into the hands of the Representative Assembly,
without check or control. The meeting of this body,
representing, to some extent, a half-civilized population,
was in itself an experiment, and not unattended with
tome degree of danger. The unchecked and uncon-
trolled expenditure of the colonial revenue by such a
body would neither have been constitutional nor safe.
It would have produced a certain quarrel with the Ex-
ecutive Government. When ordinances, tending to
check this result, were prepared. four members of the
Council tendered their resignations. The Governor
should have declined to accept their resignations; but as
they hall been accepted, it was too late to go into that
question. When instructions arrived from home, the
eiovernor being engaged in
putting down the Kafir re-
bellion, foxed it impossible to act upon them for the mot
melt!. The Governor then reported that it was desira-
blethe gova:e)snrnyametceoendtt.hewdatitioh aCo
lf,
in the meantime that he should be able to carry on
etlent.dtll
instructions
l a
so f t
the
e six
ware
e mr ee
legalitym
et r
ne
tor sf
out
hnt
el yst
to
itrnhhsetarteu°wcitions that was in dispute. They had been ap-
proved of by the law officers of the Crown, but, unfortu-
nately, in the hurry of business the dispatch was inaccu-
rately worded, and he bad to some extent misappre-
hended the erounds upon which that opinion was given.
He took blame to himself to that extent, but no farther.
andW mr.
ith respect to the opinion of Sir F. Kelly, Mr. Walpole,
leangdon, that he was wrong, he might observe
what was well known, that the opinions of lawyers were
oi' little weight unless they had seen the ease. The la-,v
officers of the Crown had had the case laid before them;
whereas, in the case laid before Sir Fitzroy Kelly, the
facts were not correctly stated. It was said that a con-
stitution having been once granted, no power could sus-
pend that constitution but the Crown and the Imperial