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

SUN,

TILE

any system of election it was doubtful whether
there would be found in the country districts per-
sons who were willing to undertake the expense of
residing at Cape Town, and whether consequently the
country districts would not be 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. Ooe 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. But they thought fit to
consid• r themselves not as ordinary represent ativ. s, sit-
ting by virtue of a precept issued by the Governor, not
as the representatives of the el'ctora, 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 representative body, but as a consti-
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 new constitution. With regard to
the number of electors, their qealification, the con-
stitution of the two Houses, the seat of Government
being fixed at Cape Towu, the payment of a daily allow-
ance of expenses to each member, the exclusion from
the representative body of all officers connected with the
Government, there was perfect unanimity of opinion.
But these four gentlemen were defeated by the official
members and the unofficial members from the eastern
districts upon some very important questions, namely,
whether the qualification for a member fur the Legisla-
tive Council should be the same as for a member of the
House of Assembly; whether the two Masses should be
elected for the same period; and whether the Upper
House should be elected 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 embarrassment, end 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 for 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 S.ate 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
cons itution was perfect, but it furnished a basis for le-
gislation, 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 bad been anticipated. In the first plate,
the overwhelming influence of Cape Town upon
the constitution of the Legislative Council was manifest.
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 coital, on the ground
that the eastern portions, which were British, would be
()verb erne by the influence of the Dutch in the west, thus
introducing another of those differences which ho (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 the c sloured classes, who constituted
three-fifths of the population, would b csmpellet to en-
ter into contracts for a lengthened period, and, by means
of vagrant laws, with severe punishments and 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 a
lative Council should be nominated by the Crown, and
should not be elective. The Secretary to Government
concurred in that opinion, and so did the Treaairer-
General. The Attorney-General said, that although it
was desirable to establish a nominated Council, yet that,
after 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 dare
ger and any hazard ought to be preferred to the disgrace
of violating the pledges held out by the Government.
The Noble Earl (Ears 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 resignation of the four members who retired from
the Legislative Council, I cannot convey to you the
final judgment of her Majeaty'a Government its the.ab-
Bence of the fuller information which I am led to ex-
pect; but. I must not conceal from you that lam 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
i‘n
the
pdrotocepeadsisngthwe
rpso to o
considerlent s, oor
nordinanceremfoari
ncionmgphileteilung-
ter'
the constitution—though it seems to have been con-
sidered insurmountable by your Executive Council
well as by yourself—l am entirely at a loss as
to con-
jecture."
rho Governor's answer to the rebuke that he might
have proceeded with the remaining Members, who
formed a quorum, was that the Legislatiie Council was
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 bad so formidably increased
of late. The Governor added—
" If it be your wish that I should proceed to business
with the present Council, considerieg it competent to
legislate, I shall do so. If", on the contrary, you should
instruct me to complete the Council by new nominations,
I will take that step so as to give as little dissatisfaction
us possible. But I cannot but think that, with .the in-
formation now before your Lordship, it will be practi-
cable and preferable to provise ter the introduction of
representative instituions by some instrument to be
issued in England, whenever that measure can bs intro-
duced with a prospect of benefit to the colony."
He (the Earl of 11. rby) thought that the Governor
might have obviated the difficulty that hai arisen by
refusal to accept the tendered resignation of the lour
rnewbsrs of the Legislative Council.—(e Hear, hear,"
from Earl GREY.) The Noble E .rl cheered him, but
that was a suggestion which he did not find in any per-
tion of the dispatches of the Noble Earl. The Noble
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 wa h his diminished Council, and
proceed to frame a new legislative constitution, and in
the meantime to perform all the functions of a legisla-
ture, and he transmitted fresh instructions to continue
the Legislative Council with six official members only.
The former instructions set forth that " the Legislative
Council should consist 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, although they might all be official
members. The Noble Earl added:—" When the season
returns for taking into consideration the constitutional ordinances, it is provided by these instructions that
the ouneit Should be reconstituted on its former
basis." To show the
wpertinacity with which the Noble
Earl adhered to hisit was proposed
that the Chief Justice shouldn views,
bet
the
President of the
Legislative Council. This was provided in the letters
Patent, and it was not competent to deal with that with-
out a fresh enactment. But the whole of the Legislative
Council signed a petition, praying that the Crown would
rescind that appointment, it being, in their opinion, in-
consistent with the ftteetions of the Chief Justice to
preside over that assembly. They, therefore, prayed
that the letters patent might be rescinded. " No," said
the Noble Earl; "it would be very awkward to make
an alteration in the letters patent..
He agreed
with
.the Noble Earl in this opinion, but then they
ought not to have been issue] in the first instance.
The Noble Earl said, in the first place, that tea meant
six, and that with six members the Legislative Council
might proceed to discharge its functions; but he held an
opinion, signed by three names entitled to respect, Sir
F. Kelly, Mr. Walpole, and Mr. Kenyon, 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 tollowed 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
colcny. To au 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, which, in
the first instance, should be granted with the authority
of Parliament. Such a provision the Legislature had
introduced into tee Act of last session- relative to
Aus•ralia, and it was most important that this subject
should not be long hung up to kindle fresh animosi-
ties. lie might have hesitated to grant so large a
mallitite of representable • gorernmout as that sow pro.

LOND

posed to be granted to the colony. But he would say
that, as such a proposal had been made on such high
authority, and as it had obtained the sanction of the
colony, and the implied sanction of the Crown, any
danger or risk was to be encountered rather than not
fulfil those expectations. He '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 inform:L.4)n
they could desire—the labours devolving upon such a
Committee need not necessarily be of long duration.
And if it should happen that the consideration of this
subject should add a week or a fortnight to a setoion, the
close of which was so much de•ired by him as well
as their Lordships, he believed that a small portion
of the time of Parliament would be well bestowed by
conferring it up in t is distant colony—torn by intestine
convulsions and di,tracted by external war—weakened as
it was by the disinclination of the colonists to stand by
the Crown, towards which they were rendered disaffeced
by these disputes. If their Lordships could strengthen
the authority which had been hitherto cordially recog-
nized by the colony—if they could strengthen the hands
of the Government by adopting or amending the
scheme 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
home of many of them, and the adopted home of all, if by a
slight delay they could secure the results which would iel-
low from such an invaluable interposition of their autho-
rity as would restore peace to the colony and that friendly
communication between the authority of the Govern-
ment at home and the inhabitants of the colony— hen
tie asked for no party triumph.—(" Hear, hear," from
Earl Grey.) He did not say he was not desirous that
his motion should be adopted by their Lordships, but he
urged their Lordships to adopt it, not because he desired
to gain a triumptl 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 of 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 objsct 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 rose, but was interrupted by—
Earl 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 inten-
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, be 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. Now, 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 boar 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 Ex- cutive Council, but
until February last he was not aware that it had been
seen by any other human being. It was forwarded
alone 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, be 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 opinion 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 co, ciliate public opinion, or to acquire public
confidence—it bad practically failed; and therefore,
having gone so far, there was no other halting-place be-
tween that and representative institutions. And when
Sir H. Smith, the successor of Sir H. P. ttinger, found
that those opinions were entertained by all the principal
members of his Gov, rnment, and 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-

Cher representative institutions might not be estab•
liahed at the Cape, he had come to the opinion that
such a change might be usefully made, and had so
reported. IL then came to be a question how the repre•
sentative system could be established with least danger,
and with the greatest p-ssible chance of success.
This was a very difficult and a very serious task—so dif-
ficult, indeed, that but for the still greater urgency that
drove them to the change, he confessed he should almost
have shrunk from 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 Board 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 had to be submitted to, and ap-
proved by the Cabinet. Therefore, when the Noble Earl
said 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 kuew 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-
atiou 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 (Ea.' 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
messures 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 (ELrl Grey) must add, that he

still adhered. to the report of the Committee of Council.
The original institwion was, that the council was not
an ind pendeut b )dy at all. It was so at the present
day in Jamaica, the most ancient of our colonies. It was
the mere privy couwAl of the governor, and at this day
had not the power of originating a bill of any kind
whatever. He believed that was the universal practice
in all our colonies, up to the passing of tho Canada Act,
in 1791, in which the legislative assembly was, for the
first time, put upon a very different footing. It was then
m.tde a body of members appointed for We; and not con-
sisting chiefly of persons holding office, and, therefore,
practically independentof the Government and the people.
There was a perpetual quarrel between the Legislative
Council and the Assembly 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-
tion with the Government. At the Cape even, where
there was no Assembly, considering all circumstances, he
was persuaded
that if an attempt had been made to
create one, consisting of members named 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 lost the servic.s of the most useful and the
most 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 he, 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 patent 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,
a half-civilized population,
rweapsr ei
ns e nti
itselfng , taon s oemx
peeerximteennti, and not unattended with
some 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 had been accepted, it was too late to go into that
question. When instructions arrived from borne, the
Governor being engaged in putting down the Kafir re-
bellion, found it impossible to act upon them for the mo-
mbleenitn. t
hTehmeeGovernor
that thenhe reported
et h
aa
bt
liet
two a
carry
a rdes-ry i roanthe government with a Council of six members only.
yactcothedatteoff,
saend instructions
t.ltwasth were sent out to
these
That
tcuoweltoainos acceded
es that was in dispute. They had been ap-
prarotevleyd
woof
rbdy,d, the
s,l,dawhoeffichaerds Otfothe o
me retiwe
xnt,ehnut t,u nfor tu
nately, in the hurry of business the dispatch was
misappre-
hendedinaccu-
rately
the grounds upon which that opinion was given.
He took blame to himpsueilofntoufthsaitr eEx.tieinetli)b,,usat
rn.owfaaripthoeler:
thate i
he was wrong, he might observe
what Withl
o
that the opinions of lawyers were
sad
d littleg r
was
wl respecte
weight e ght °known,tnhunless they had seen the case. The law
officers of the Crown had had the case laid before them;
whereas, in the case laid before Sir Feel-0y Kelly, the
facts were not correctly stated. It was said that a con-
stitution having been once granted, no power could sus-
pend that o9nstitution but the sCrowmtuad the ,Imperial

, -
wED-NESDAY

Parliament. This case was expressly provided for in
the new constitution. That important clause was alto-
gether omitted in the case placed before Sir Fitzroy
Kelly.—(Bear, 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
but unexampled famion 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. It would, however, have
been better for him to have moved an address to the
Crown to remove the seeds of office from his hands. It
would be rather an ex• raordinary course to be called upon
at so late a period of the session to' intro.;uce 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 unnecee-
sary, for he did not believe they would have concluded
their labours until the period hail arrived for again corn
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-
dered that the instructions bent 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 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 iu that way, be 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 have 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 alter a course
of policy which bad 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 Cape
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 actnally attempted to inflict.
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 ,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 whioa 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 bad undertaken to do. He called
upon the Noble Earl to perform work which he ought
to have done, and which he would have performed bad
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 machinety of the state thus
afforded him. But, in resigning his powers, the Noble
Esrl had at 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
left the details to the Council of the colony ? Instead
of doing so, he had tied up their bends, 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 bad 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. He
_

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 AN W 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 that
right by granting a constitution. There could be nolegis-
lation except by Parliament. His late Majesty became
absolute sovereign of the Cape of Good Elope 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 further, her Ma-
jesty reserved to herself andosuceessors their undoubted
right to allow or disallow any law that might not appear
necessary kir 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
had done so; revoking what was done before, and sanc-
tioning a Legislative Council in a different mode. These
Orders in Council had been contieucilly 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 eiraideut council who had been consulted
had given their opinion, after 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. He should not state
any opinion of his own on this subject, but merely the
grounds upon which these learned persont who
had been consulted had proceeded. It bad
been laid down by that eminent jurist and
lawyer, Lord Mansfield, that if once the Crown
granted any element of fr, edom, it could not be revoked.
That was the point in this case. Had not the Crown
granted an element of freedom? The tree elements of the
council bad 13, ,en taken away. The numbers originally
fixed fer constituting that Council were twelve, but now
they were reduced, and it was permitted that the ElltiO-
rity of the Council might be official men. Could any mail
say that the present question WdS 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 official men. This was re-
trogression in the scale of legislation. It was unjust to
the c.dony, and was such a system of government that
no wise or pradeet administration ought to pursue. He
should like to know why the constitution of the Cape was
not now completed. The ()while 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 be ad-
mired the ability displayed by his Noble and Learned
Friend, he yet felt cons rained 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'
very, lucid statement, he 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 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 Lordship
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, 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 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
form 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 be 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 ountended, 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 performatce
of a corporate act was, thai there should be present a
majority of twenty; and so in the present instance, the
council Laving beau left after the resignation in precisely
the same state as it was before, every corporate act
depended merely upon a majority for its validity. He
wished to understand whether it was meant to contend
that .very letters patent was a grant to a colony not
revoked. If that were so, What had become of those