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• ffinnfed . Bat the matte * had now been carried on nearly three years , and At an expense to the respondent , the original complainant , of £ 800 { hear ) , of which he only got allowed by the taxing-officers , as against the opposite party , £ 750 , leaving £ 50 to be paid by himself , as ' costs between attorney and client ; ' as they were called ; bo that , deducting the £ 20 allowed by the court for the impertinence from the £ 60 the party had to pay who had complained of the impertinence , it appeared that he was £ 80 out of pocket , and had better have left the matter alone . { Hear , hear . ) These were the sorts of cases constantly occurring . He need not remind their lordships of the case mentioned by his noble and learned friend ( Lord Lyndhurst ) , in which that able judge , Vice-Chancellor Knight Bruce , had held op the voluminous affidavits in a case—nineteen-twentieths of which were superfluous
—to the execration of all honest , right-minded men . Nor need he remind them of the case of Day and Martin , in which , out of a fortune of £ 400 , 000 , from £ 70 , 000 to £ 80 , 000 had been spent in costs . ( Hear , hear . ) Was It possible that their lordships could longer resist the conclusion at which the people had already arrived , that the axe must be laid to the root of these crying and intolerable evils , and that if , to use the words of Lord Chatham as to reforms of another description , ' you do not agree to reform yourselves , the people will come in upon you and reform you with a vengeance ? ' " He was not a " rash reformer "; he only desired timely reform , in order that the growth of intolerable evils might be prevented , which would otherwise end in that rash reform which sweeps the good away with the bad . After a few remarks from the Lord Chancellor , the bill was read a first time .
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After a session of unusual barrenness , the House of Lords has at length found something to talk about , and the political student may again look with interest to its proceedings . The Earl of Derby brought forward , on Tuesday , the whole question with respect to the Cape of Good Hope and its political relations with this country , in moving that the papers laid before the House last session , respecting representative institutions for the Cape , should be referred to a select committee . The debate was of great length , embracing political and legal questions of vast importance ; and it was further enlivened by that species of
animation which personal contests always impart to deliberative proceedings . The Earl of Derby entered minutely into the history of our connection with Cape colony , having especial reference to the attempt to found there representative government . The political narrative furnished by the debate , amounts to this : Formerly the Cape was governed by nominees of the Crown acting under a governor , and the first approximation to popular institutions was made when the Council of Advice , in 1834 , was endowed with legislative functions . In 1842 , when
Lord Stanley held the office of Colonial Secretary , a petition was forwarded from the Cape , praying for representative institutions . In reply , Lord Stanley made a statement of the difficulties which would attend compliance with the prayer of that petition , and , while he did not refuse , he hung up the question of representative institutions until a satisfactory answer to the objections he started should be given . At the same time he intimated his readiness to reconsider the subject whenever called upon to do so .
This state of things lasted until 1846 , when Lord Grey came into office . Lord Grey then addressed Sir Henry Pottinger , observing that no answer had been returned to Lord Stanley ' s despatch of 1842 , and stating that her Majesty s Government entertained " strong prepossessions" in favour of representative institutions . This declaration the Earl of Derby regarded as " officially communicated , " when Lord Grey culled out " No ! not officially , " upon the ground , as he afterwards stated , that the declaration was sent for the ubc of the governor and his council . Sir Henry Smith succeeded to Sir Henry Pottinger , and he took immediate steps to obtain an opinion
upon the practicability of introducing representative institutions . He submitted the question to the colonial officers , and forwarded their views to Earl Grey . The opinion of these gentlemen upon the whole was that popular institutions should be conceded , and they were unanimous in deciding that there should be one Legislature , and that that Legislature should consist of two bodiesa Legislative Council and a House of Assembly , the former composed of official and non-official pereons , and nominated by tho Crown , and the lutter elective . This plan Lord Grey wrote to nay might bo adopted ; and thon ho took u course which the
I £ arl of Derby condemned , namely , he referred the recommendations of the colonial oHicmla to the Privy Council . Tho Earl of Derby considered that this course amounted to a shirking of the responsibility which attached to the office of Secretary of State—it was the very course Lord Stanley had declined to adopt in 1842 . Lord Grey defended himself from the accuBation , by asserting that he considered that the best course ; and ho further sheltered himself by pointing out , that in referring th © question to the Board of Trade , which still bore it * * i « oient title of ' The Board of Trade and Plantation * , " he had acted upon precedent , an from the
earliest times that Board wss the authority by which questions of this kind were considered . But the Committee of the Privy Council decided upon a constitution founded on a different principle from that recommended by the Legislative Council , and that principle was popular election for both Houses . In this Lord Grey had concurred , and transmitted a document which , said the Earl of Derby , " had the force of law , being sent under the authority which on the part of the Crown he exercised ; and that legal document authorized the establishment of a legislative council and a house of assembly , which legislative council and house of assembly were to be both elective . " This proceeding , Lord Derby said , took the whole colony by surprise .
In the mean time , however , the anti-convict agitation had arisen and had carried its point . The Earl of Derby dwelt at great length upon this event , stigmatizing the measures adopted by the Anti-Convict Association as violent , and condemning the conduct of the Government in sending convicts there at all as a ** grave error , " and a violation of pledges . But the anti-convict agitation had produced this result—the governor ' s Legislative Council was virtually dissolved , seeing that any one who took office was subjected to the " persecutions " of the association . Consequently , when the despatch came out calling upon the governor to refer the new Constitution to his Legislative Council , he had no council to which he could refer it . " There had been no Legislative Council in the colony for the space of a year and more " : —
" Every advance of public money , " said the Earl of Derby , " had been illegally made—every expenditure was without a shadow of public authority—every step taken by the governor was null and void , and it was only absolute necessity that compelled him to act despotically , because there was no legislature with whom he could consult . " In this emergency Governor Smith directed that four members should be elected , which was done , and he added a fifth . The council thus constituted proceeded to vote the Constitution . The four acted together , and both the Earl of Derby and Lord Grey severely condemned the spirit in which they acted .
" When the voting of the Constitution had made great progress , there was a split as to the qualification of members and the duration of the Houses , upon which questions the four were in a minority . At this juncture their assent was demanded to certain " estimates , " and they tendered their resignations , which were accepted . " What now was the governor to do ? He could not legally carry on the government , for the resignation deprived him of a quorum ; and he found ic impossible to nominate new members . The course he took was to get a draft ordinance drawn up by the remaining members of the Council , which he transmited for the sanction
of the Crown . Lord Grey blamed this course , and insisted upon the Governor s going on " with a diminished council , " proceeding to frame " a new legislature , " and performing , in the mean time , the functions of a legislature , and he authorized the governor to continue six official and two unofficial members , in spite of the letters patent , which fixed the number at not less than ten , or more than twelve . To justify this , Lord Grey sent out " declaratory instructions ' of the letters patent , which amounted to this , that ten meant six f Lord Grey in his speech defended
this course , by saying that it was right , in the teeth of the " unprovoked and factious " opposition offered by the anti-convict party , to show that " the deliberate intention of the Gqyernment was not to be overruled ; " and he further stated , that he had taken the opinion of the law officers , who agreed that the declaratory instructions" were " perfectly legal , " only he hud , in the " pressure of business , ' to a certain extent , " inaccurately and incorrectly" expressed himself . But " beyond that inaccuracy there was no fault to be found with it . " The Earl of Derby , towards the conclusion of his speech , declared his opinion that the Constitution ought to be settled by Parliament , as the authority of the Secretary of State—with whom " a lurge portion of the community have for the last three years carried on an angry and hostile contest" —was very slight . And he continued : — " My lords , I might have hesitated as to the introduction of B <> -large a measure of representative government as is contemplated in the plan disclosed by theBe papers . But I Bay that , inasmuch as the question has been raised , and has been ruised upon such high authority , and has obtained the sanction of no large a portion of the eoloniHts , and the sanction of the Crown , I say that any risk is to be encountered , and I will not bate one jot of the extent of free institutions proposed to be conferred upon the colony , however much I may look with anxious apprehension to the working of these institutions—at all events in the firflt place . But for God's sake nettle the question here by dispassionate authority , to which due respect will be pa-id ; ( Hear , hear . ) Settle it by the authority of Parliament , and for that purpose I call upon your lordsships to interpose . " Lord Guky repudiated tho intervention of Parliament , and contended that the uuthority of the Crown was all-sufficient . Upon the general question Lord Maxmimbcky made a fierce attack upon the whole of
Lord fcrrey * e coiomel policy ; declared that Parliament ought to do that which Lord Grey had refused to perform ; and asserted that Lord Derby had often been , called ¦ " «« h and precipitate , " but he thought Lord Grey most deserved the imputation . The Duke of Aagyll , also , made ahotspeech upon the other side , contending for the immaculate whiteness of Lord Grey ' s policy , calling his conduct towards the Cape— - " most liberal , nay , too liberal ; " and affixing the stigma of having acted in a " discreditable , " " ungrateful " *• factious , " and " disgraceful" manner upon the
leading men among the colonists . Lord Whabnoxuffe and the Duke of N&WCASTX . K gave a qualified sup - port to the Government , the duke declaring that he did not want to censure Ministers , but to provide for legislation . So far we have traced the political bearing and general drift of the debate . Lord Malmesbury alone made a direct party speech ; Lord Derby disclaiming all desire of party triumph , and Lord Grey being unable to perceive any grounds for the motion unless it were to achieve a party triumph .
But beside these there was the legal question , upon which , in fact ' , rested ^ the weight of Lord Derby ' s charges ; and upon this question the law lords were divided . The argument was that the late despatch of Earl Grey , authorizing Governor Smith to proceed , was illegal , because it violated the letters patent by altering the number originally named as constituting a quorum , the Crown having no right to alter or revoke in any way a constitution once granted to a conquered colony . To this charge Lord Cranworth replied that the letters patent did not concede a constitution ; that if they did , they also contained a proviso enabling the Crown to revoke the whole whenever it should be so minded : and the Lord
Chancellor read the proviso , from which he concluded that the Crown had granted away none of its rights over the colony ; and he concluded that the council was " perfectly competent to act now with the six who remained—that six forming the majority of the original ten . " But Lord Lyndhurst decided , in stating the grounds upon which Sir Fitztfoy Kelly , Mr . Walpole , and Mr . Kenyon had delivered an opinion upon the facts of the case being submitted to them , that the revocation or violation of
the letters patent was illegal . The Crown had no power of takmg back what it had onee granted . The proviso to which Lord Cranworth and the Lord Chancellor referred , did not operate to reserve to the Crown any such rights . Lord Mansfield distinctly said in delivering judgment on the Grenada case , that " if in the constitution of the legislature there was any element of freedom or independence , anything that operated as a check on the Government , the latter had no power to revoke the grant . "
" "What" ! exclaimed Lord Lyndhurst , ' could it be contended that the Crown had the power to grant a free constitution to-day , to rescind it tomorrow , to-day grant it , again reve it on the next , and go on from day to day in that way according to the caprice of the Government ?" The great authority of Lord Lyndhurst , who had consented to expound the grounds upon which the three great lawyers above mentioned rested their opinion , was thus placed in the scale against that of Lord Truro and Lord Cranworth . The debate had also its points of merely personal interest .
" When Lord Derby concluded his speech , Earl Grey and Lord Lyndhurst rose together , and a contest ensued between them , in which Earl G » ey warmly exclaimed that he thought he had a right to claim to be heard in such a case . The noble earl turned round more than once to his supporters , and said , Move , move '—meaning that they should move that he be heard . " The Earl of Minto was understood to move accordingly . " The Duke of Richmond instantly rose , and , addressing Lord Lyndhurst , said—He has moved that Earl Grey be heard ; you speak upon that . { Cries of Order , ' and murmurs . )
" The Marquis of Clanrioajidb rose to order , and urged on their lordships the justice of hearing the noble earl who had been accused . ( ' Hear , hear , ' and Ordar . } "TheEarlof DmmY : The only reason why my nobleand learned friend rose was , he thought he should consult the convenience of your lordships in addressing you immediately after I hud sat down , because it is not my noble and learned friend ' s intention to occupy your lordships long ; but there is a point of law to which I have advened only slightly , and to which he intended to confine himself , without entering upon the general question . { Hear , hear . ) If , however , the noble earl desires it , I am sure my noble and learned friend will give way . ( Hear , hear . ) " Earl Guky : I could not believe that any other decision could have been come to by the noble lord . "
The Earl of Derby had interspersed hifl speech with very bitter Parliamentary taunt * aud sarcasms at Lord Grey's expense , laying great stress upon his own foreuight ; ana in his reply Lord Grey vigorously reposted with o home thrust . He eulogized the Dutch farmers , but said : — " Unfortunately to great extent they are ignorant . Unfortunately they are too easily Jed away by designing meu , whose objects differ from their own . Ihis claMOl persons h * s be « n for MU ? e year * in » » t * t « of great discontent , aud I am bound to admit that diaoontaat wm in
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672 tR ^ t % t ** tT . Pa * i « uhy ,
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Citation
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Leader (1850-1860), July 19, 1851, page 672, in the Nineteenth-Century Serials Edition (2008; 2018) ncse2.kdl.kcl.ac.uk/periodicals/l/issues/vm2-ncseproduct1892/page/4/
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