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

Parliamsnt. This case -was` expressly provided for in
the new constitution., Tliat Important clause was alto-
gether omitted in The -tra-so-plamtl -before Sir Fitzroy
Kelly.—(Hear, hear.) The case put before these lawyers
was not only inaccurate but directly the reverse of the
truth.—(Hear, hear.) Their opinion, therefore, was of
no weight, and must at once fall to the ground.—(hear,
hear.) He wished the constitution to be brought into
operation at the earliest possible date. It was nothing
hut unexampled 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. I: would, however, have
been better for him to have moved an address to the

Crown to remove the seals of ofnee 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

prorogation of Parliament would be altogether unneces-
sary, for he did not believe they would have concluded
their labours until the period had arrived for again com
mencing them. Legislation, he admitted, might be ne-
cessary, but he thought the Appointment of a Select
Committee more than useless. If the Noble Lord consi-

tiered that the instructions sent out to tho 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 believed, was not one calculated to promote the
peace or safety of the Cape colony. 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-
pointment of the Select Committee. It could klve no
other effect than to weaken the authority of the Gover-
nor and to strengthen and back up the factious party
who opposed him. It was indeed nothing short of au

tatteuipi to force the Govemment 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,

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on the one hand, and the party- organizA during the
anti-convict agitation on the other. The discontent of
the Dutch beers wal to be traced to slave emancipation

in 1333. They revolted from—ltitiSh-;tithority, 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 c curse 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 Cape 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,
inflict.
which
the anti-convict p arty actually attempted to
The only consequence of the carrying of this motion
would be to cast a censure upon the Government. If
that censure were justly due, her said at once, propose
it
directly, that the Government mi lst resign its functions;
but let them not t ke 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 MALNIESBURY 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 iustitutiou 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 assistsnco which the machinery of the state thus
aff sided him. But, in resigning his powers, the Noble
Earl had et the same time resigned his judgment.
Would it not have been better had the Noble Earl
not sent out a positive form of constitution, but had
loft 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. Fairbairu and
others had only been provisionally accepted by Sir Harry
Smith, and when the news of them came to England 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 for these discussions, but he must say he knew
of no tribunal more appropriate. He censured the ti-
midity with which he surrendered his power and aban-
doned his opinion respecting the constitution; and,
above all, he censured that general policy of the Noble
Earl which had so often been censured before. Ho
thought that the occurrences at the Cape afforded an-
other-instance of the unfortunate tendency of his Lord-
ship's policy, and that no time should be lost in repair-
ing it.—(Hear, hear.)
Lord CR ANW ORTH 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 ho divested himself of that
right by granting a constitution. There could be no legia-
lation except by Parliament. His late Majesty became
absolute sovereign of the Cape of Good Hope by con-
quest. How had the Crown divested itself of the rights
belonging to it? By letters patent of 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 moment of
the issue of these instructions the Government and Coun-
cil had' the power of legislation. But farther, her Ma-
jesty reserved to herself and successors their undoubted
right to allow or disallow any law that 'eight 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
bad done so; revoking what was done before, and sanc-
tioning a Legislative Council in a different mode. These
Orders in Council had been continually made, and it 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 easident council who bad been consulted
had given their opinion, atter mature and deliberate con-
sideration, that they were illegal. The Noble Earl had
stated that the case 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. lie 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 doe n by that eminent jurist and
lawyer, Lord Mansfield, that if once the Crown
granted any clement of frt edon, it could not be revoked.
`That was the point in this case. Had not the Crown
granted an element of freedom? The free 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 doubt and
difficulty? He had now stated the case in its legal bear-
ing, and he left it to the consideration of their Lord-
ships; 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 offieisl men. This was re-
trogression in the scale of legislation. It was unjust to
the colony, and was such a system of government that
no wise or prudent administration ought to pursue. He
should like to know why the constitution of the Cape was
not now completed. The outline had been sketched by
the Noble Lord, and the details were filled in. What
was the reason of the procrastination displayed?
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 Lordships, and he could not avoid observing 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 upon this question. The " Proclamation,"
not "Commission" there mentioned, merely j gave a
complete constitution to the island of Grenada, leaving
nothing to do but to call 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 contrary. 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, ho 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 certain 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 Legislative Council in
the settlement, subject always to the approbation of the
Crown. Now he would challenge any lawyer to con-
tend that it was ever intended by the Crown
to resign its power of moderating this assembly, by
virtue of the words "present Legislative Council."
These words, he contended, meant simply the council,
as it then was, without reference 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 was necessary to the performance
of a corporate act was, that there should be present a
majority of twenty; and so in the present instance, the
council having been left after the resignation in precisely
the same state as it was before, every corporate act
depended merely upon a majority for its validity. Ho
wished to understand whether it was meant to contend
Wes every letters patent was a grant to a colony not
revoked. If that were so, what bad become of those

applying to other coloni-s, which had been dealt with in
a similar way by disposing of them under this reser-
vation? He would now briefly consider the ()juin that
had been referred to on these paints. Having re-
ferred to the letters patent, he would now refer to
the opinion that it was not competent to the Sovereign
to limit a constitution Once granted. But they must
not take one portion of these instructions without the
other portion. They must take the reservation with
them. What was the great constitutional doctrine?
Was it not that the power of the Crown could not be
taken away except by express words, and not by intend-
ment? Was not the power of the Crown expressly
reserved? By the letters patent of 1850 a further grant
of a const.itntion was made, but, said the Noble Earl, as
a large portion of the population are absent at the war,
and it would not be just to allow a portion of the popu-
lation to exercise their powers, reserve the constitution
till their return. and in the mean time do nothing more
than is necessary to carry on the Government. That
was called an abrogation of the constitution. The only
grant was the grant or promise of a future constitution,
but no one knew what it was until it was called into
operation, and till then it was perfectly legitimate for the
existing Council to act. There was, therefore, no doubt
but that the colony had now a Legislature with perfect
authority. Well, what was a Committee to do? Had
they any Bill to form, any evidence to acquire? Could
any one deny the prerogative of the Crown to legis-
late for the colony, under the authority of the Im-
perial Parliament? Could anything be more injurious
than to weaken the authority of the Crown at the pre-
sent moment in the colony? lie, therefore, trusted their
Lordships would vote agiinst the motion.

The Duke of ARGYLE said that a vote of that
House must tend to maintain or derogate from the au-
thority of tho Imperial Parliament.—(Rear, hear.) He
had read these papers with the deepest attention, and
he felt he could nut vote for the motion of the Noble
Earl. Not only did he oLject to a vote of censure on
the Noble Earl (Earl Grey), but he would say his con-
duct towards the colonists at the Cape had been marked
by a liberal, if not too liberal a policy. He thought the
Governor (Sir Harry Smith) had acted in a moot liberal
and concinatory spirit towards the colonists.—(Rear,
hear.) He was in favour of legislating Lr the better
government of the Cape colony; but he thought that, at
this late period of the session, it would be almost useless
to introduce a measure with that object. Looking at
all the circumstances of the case, he could not give his
vote fur the motion brought forward by the Earl of
Derby.
Lord WHARNCLIFFE opposed the motion.
Earl GREY explained. Re had stated that the Go-
vernment would, at their own time, and in their own
way, proceed to bring into operation that reformed con-
stitution which had been promised. As soon as the
draught ordinances could be prepared, they should be sent
cut to the Cape, and Sr Harry Smith was fully aware
of the course which it was intended to take.

The Duke of NEWCASTLE said that nothing had
occurred in the course of this debate to shake the
opinion he had formed with reference to it from the
first, that legislation e as the best, if not the only means,
of dealing with the subject. He confessed he was dis-
satisfied with the explanations the Noble Earl the Colo-
nial Secretary had give. n to the [louse. Oa the other
band, he conceived that his Noble Friend near him
should afford some explanation of the ec,ipe and objects
of the Committee which he asked for, should the House
be disposed to grant ir. Lie had no desire to be drawn
into a par:), vote, and still less to pass a vote of censure
against the Government. If his Noble Friend's object,
therefore, coincided with the course taken by the Noble
Lord near him, it woull be impossible for him to vote
with him. Considering, however, how many and how
eminent lawyers had di:fated in their views of the legal
part of the qußstion,_ be thought, to say the least of it,
that the propriety of what the Government had done
was very questionable, and that the subject should
be set at rest by legislation. If he understood the mo-
tion of his Noble Friend near him to have that object
in view, it should have his assent, and he could assure
the Noble Earl opposite, that he should do so without
any intention whatever f entering into a condemnation
of his policy. He believed his Noble Friend's motion
to be limited, as it ought to be, both in its object and in
its intention, and, without that belief, it snould cer-
tainly not have his support.—(Hear, hear.)
The Earl of DERBY replied. He wished to have the
papers referred to a Committee, with a direct view to
immediate practical legislation. Ho could not believe
that a Committee would require any lengthened period
fur consideration. And in this motion he did not intend
to involve any censure upon her Majesty's Government,
but he thought immediate legislation indispensable.
Their Lordships then divided, when there appeared—
Contents ... ... 68
Non contents

-G

- - M6jority for the Governmeut
Proxies were not called for.
Their Lordships then adjourned at Ono o'clock.

PARLIAMENTARY DIVISIONS.

,From the Votes and Proceedings of the House of Commons )

TUZSDAY, JULY 15.
MILLING TRADE (IRELAND).

Motion made, and Question put, " That this House will,
on a future day ,resolve itself into a Committee, to take into
consideration the present state of the milling interest in
Ireland." The House divided:—
MINORITY—AYES, 93.
Anstey, T. C. Gaskell, J. M. Mundy, William
Archdall, Captain Gilpin, Colonel Nugent, Sir Percy
Baldock, E. H. Gooch, E. S. O'Brien, J.
Bankes, George Goold, Wnydliam O'Brien, Sir Lucius
Baring, Thomas Granby, Marquis of O'Flaherty, Anthony
Barron, Sir 11. Grogan, E. Packe, C. W.
Barrow, W. H. liiallewell, E. G. Plumptre, J. P.
Batesou, T. Hamilton, Geo. A. Portal, Melville
Biandford, Marquis Hamilton, J. IL Prime, Richard
Boldero, Henry Hayes, Sir E. Benton, J. C.
Booth, Sir R. G. Llcneage, Edward Reynolds, John
Boyd, John Henley, J. W. Rushout, Captain
Bramston, T.W. Berries, J. C. Scully, Francis
Brisco, M. Hodgson, W. N. Seaham, Viscount
Brooke, Lord Howard, Sir R. Sibthorp, Colonel
Brooke, Sir Arthur Hudson, G. Smyth, John George
Buller, Sir Y. Jones, Captain Spooner, Rickard
Burrell, 'Sir C. Langton, W. IL Stafford, Augustus
Burroughes, 11. N. Lennox, Lor,l A. Stuart, John
Butler, P. S. Lennox, Lord IL G. Run, 11. G.
Cabbell, B. B. Leslie, C. P.: Taylor, Colonel
Chichester, Lord J. Lindsay, Hon. Col. Thompson, Alderman
Christopher, It. Lowther, Colonel Tyler, Sir G.
Conolly, Thomas Mackenzie,,W. F. Verner, Sir W.
Dick, Quintin Megan, W. 11. Vesey, Thomas
Disraeli, B. Meagher, ThomaS Vyvyan, Sir R. R.
Dundas, George Mandeville, Vis. Vyse, It. 11.
Dunne, Colonel Manners, Lord G. Willoughby, Sir 11.
Edwards, Henry March, Earl of Wynn, H. W.
Forbes, Win. Maxwell, lion. J. P. TELLERS.
Ft eshtleld, J. W. Miles, Philip W. S. Naas, Lord
Gallwey, Sir W. P. Mailings, J. It. Newdegate, C. N.

MAJORITY—NOES, 128.
Adair, Hugh E. Elliot, John E. Paget, Lord A.
Aglionby, Henry Evans, John Paget, Lord Clarence
Alcock, Thomas Ewart, William Palmerston, Via.
Anderson, Arthur Fergus, John Parker, John
Anson, Colonel Ferguson, Sir It. Pechell, Sir G.
Armstrong, It. B. Fitzwilliam, G. W. Perfect, Robert
Baines, M. T. Forster, M. Pinney, William
Baring, Sir F. T. Freestun, Colonel Ponsonby, C. F.
Bell, Jacob Geach, Charles Power, Dr.
Bellew, 8.. M. Gibson, T. M. Price, Sir It.
Berkeley, H. F. Goulburn, Henry Ricardo, Osman
Birch, Sir T. Graham, Sir James Rice, E. It.
Blackstone, W. Grentell, C. Pascoe Rich, Henry
Blair, Stephen Greniell, Charles W. Roche, E. B.
Bouverie, E. P. G ey, It. W. Rumbold, C. E.
Boyle, Colonel Grosvenor, Earl Russell, Lord John
Brocklehurst, J. Hall, Sir B. Salwey, Colonel
Brotherton, Joseph Hallyburton, Lord Saudars, J.
Brown, W. • Hanmer, Sir John Scholefleld, W.
Banbury, Edward nestle, Alexander Seymour, Lord
Cardwell, Edward Hatchell, John Smith, J. A.
Carter, J. B. Hawes, Benj. Somerville, sir W.
Cavendish, C. C. Hoadlam, Thomas Spearman, 11. J.
Cavendish, W. G Henry, Alexander Stansfleld, W. R. C.
Chaplin, W. J. Ilerbert, Sydney Sutton, J. 11.
Charteris, Francis Heywood, James Tancred, 11. W.
Childers, J. W. Hobhouse, T. B. Thompson, Colonel
Clay, James Hollond. Robert Thornely, T.
Cobden, Richard Howard, Lord E. Trevor, Thomas
Cockburn, Sir A. Hume, Joseph Tufuell, H.
Cowan, Charles Kershaw, James Vane, Lord 11.
Cowper, W. F. Labouchere, Henry Walrusley, Sir J.
Craig, Sir W.G. Lawley, B. R. Watkins, Colonel
Crawford, W. S. Lewis, G. C. Willcox, B. 3l'Gliie
Crowder, It. B. M'Gregor, John Williams, John
Davie, Sir Henry Martin, John Wilson, James
Dawes, Edward Matheson, Colonel Wilson, Matthew
Denison, J. E. Melgund, Viscount Wood, Sir Charles
Duncan, Viscount Milner, W. M. Wood, Sir W. P.
Duncan, George Mitchell, T. A. Wrightson, W. B.
Dundas, Admiral Morris, David
Dundas, Sir David Mostyn, E. TELLTIII.
Ellice, Edward Murphy, F. S. Hayter, W. G.
Ellis, John Osborne, Ralph Hill, Lord M.

CONCERT.—Mr. W. Binfield gave a second con
cert at the new Beethoven Room, Queen Anne-street, on
Friday night, his first having taken place on the 13th inst.
at Willis's Rooms. The performers were himself, his three
sons, William (pianoforte), Henry (harp), and Augustus
(pianoforte and concertina), and two daughters, Margaret
(concertina), and Louisa (harp). Mr. Binfield himself is a
vocalist, and plays the violoncello and the pianoforte.
There was a very genteel audience, though not a very nu-
merous one, and all present appeared highly pleased with
the display of talent which the tyros exhibited. The elder
son, William, has great execution; his fingering is facile,
and he has a true feeling for the art. This was evidently dis-
played in the larghetto of Chopin's " Grand Concerto,"
and a study of Moschelles. Augustus is a lad
of even higher promise; his soul seems to be in his playing;
and if life is spared to him he will be a first-rate performer.
Henry, as a harpist, promises to emulate his brothers on the
piano ; his execution is remarkably brilliant for a lad of his
age, not being, we should suppose, far advanced in his teens.
Miss Binfield plays beautifully on that difficult instrument
the concertina; and Louisa, who does not appear to be more
than six or seven years old, is already able to play the harp
better than many we have heard of three or four times her
age. These young people seem to be all naturally musi-
cians, and when they perform together the ensemble is most
attractive. This was shown in Chopin's " Grand Concerto,"
and in Mendelssohn's " Wedding March," arranged by Mr.
Binfield for two harps, two concertinas, and two pianos.
This charming piece of " fairy-like music" was so admirably
performed that it elicited an unanimous encore. A duet on
the pianoforte and harp by Miss Louisa and Master Augus-
tus, and one on the harp and concertina by Master Henry
and Miss Margaret, were delightfully played. The execution
of the latter in some fine old Irish airs drew forth frequent
applause. Talented as this family is, there is nothing pre-
suming about them; the young ladies are particularly pre-
possessing, and they all promise to be great acquisitions to
the English school. Mr. W. Binfield displays considerable
talents as a composer and arranger of music; he is also a
good pianist, but we cannot praise his vocal execution. Two
songs, written by himself, one entitled " Bird Life," the
other " We'll grow Old Together," are pleasing compositions,
the last especially, both melody and accompaniment dis-
play good taste and a thorough knowledge of the science.
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REPRESENTATION OF SCARBOROUGH,--Fridßy
is Axed for the nomination or candidates.