UK, House of Lords, “Legislative Council (Canada) Bill”, vol 134, cols 822-868 (29 June 1854)

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Date: 1854-06-29
By: UK (House of Lords)
Citation: UK, HL, “Legislative Council (Canada) Bill“, vol 134 (1854), cols 822-868.
Other formats: Click here to view the original document (Hansard UK — External Site).


Order of the day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.

The Earl of Derby—My Lords, it now becomes my duty, in pursuance of the notice which I have given, to state to your Lordships the grounds upon which I shall venture, very respectfully, but earnestly, to urge on your Lordships the suspension, at all events for one Session, of a measure, the importance of which, not only to this particular Colony, but to the North American Colonies generally, and to the general colonial interests of this great country, I believe can hardly be exaggerated.

I have first of all to apologise to your Lordships for having taken a somewhat unusual course of proceeding in having omitted to record any objection to the second reading of this Bill—for having permitted it to pass a second reading without offering any objection—and then objected, as I did the other night, and as I am now about to do main, to go into Committee upon it for the purpose of considering its details. My apology must be, my Lords, that on the occasion upon which this Bill was read a second time I had omitted to look into the Votes, and I was not aware that it would come under the consideration of the House.

I make no complaint of its not having been properly upon the Votes, but it was a day on which, as noble Lords are aware, it is not usual to bring forward any important measure, as many of your Lordships are supposed, on that particular day, to be absent elsewhere. I must say, also, that with respect to a measure of this importance, it would have been more convenient, and more accordant with the usual practice, if the noble Duke, in introducing the measure to the House, had stated the intentions of the Government—had explained, for your Lordships’ information, the objects which the Government had in view, and had pointed out the importance of the changes which the Bill was intended to effect. Because, in point of fact, when the second reading of the Bill came on—your Lordships’ attention not having been particularly called to it by any notice on the part of the Government —there was, I believe, a very small attendance. I believe the noble Duke will not contradict me when I say that, in laying this Bill upon the table of the House, he did not accompany it with any observations whatever. And although that is a

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course which may not be objectionable where the subject to be dealt with is not of any very great importance, yet, when you are introducing a measure which does not refer to any matter of minor legislation, but which fundamentally destroys the constitution of one of our most important Colonies, and does away with one of the most important safeguards for the monarchical element in that constitution—a safeguard which has been upheld by successive Governments since the year 179l, and was solemnly confirmed, after full reflection and deliberation, by both Houses of Parliament, in settling the constitution of Canada in the year 1840—I say that when Her Majesty’s Government had come to the determination of proposing such a measure as this—a measure which affects that constitution in one of its most important parts—it would have been better, and more becoming the subject, if the noble Duke, in proposing the first reading of the Bill, had stated to your Lordships what were the views entertained by Her Majesty’s Government.

But, my Lords, that is not all; for upon the second reading of the Bill, a noble Friend of mine behind me (Lord Wharncliffe)—who is here at very great personal inconvenience to take part in this discussion—called the attention of the noble Duke to there having been some despatches or explanations, from the Governor of the Colony himself, bearing directly on the question about to he discussed; and which papers the noble Duke had never laid upon the table of your Lordships’ House—had never submitted to Parliament in any shape whatever—although they were most material to the discussion of the question:—and even after notice had been given of the absence of those papers, the noble Duke persisted in taking the second reading of the Bill. These are the circumstances under which I feel myself justified in taking the course, even after the second reading, of opposing the further progress of this Bill. But I remember that, upon a former occasion, when his attention was called to the absence of these papers, the noble Duke replied that they had been laid, during the last Session, before the House of Commons. Now, my Lords, I have the papers here, which have been laid upon your Lordships’ table since the second reading of this Bill. They contain a despatch from the Earl of Elgin, received on the 11th of July, 1853, and forwarding an address from the Legislative Council, remonstrating against the

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proposed change in the constitution of the Colony; and another despatch, dated upon the same day, but not received until the 18th of July, forwarding a counter-address from the House of Assembly, praying that this change might take place. They contain also the resolutions in detail of the House of Assembly, upon which the scheme for remodelling the Legislative Council was founded, and a letter from the Earl of Elgin, in which he states his objections to the measure, at the same time that he accompanies it with a recommendation that it should pass.

And they contained further papers of later date, and among them a draft of the Bill itself, founded upon the resolutions to which I have already referred. Now, my Lords, the two letters of Lord Elgin, the address of the House of Assembly, the address of the Legislative Council, and the resolutions of the House of Assembly, setting forth their plan in detail, were all in the possession of Her Majesty’s Government on the 18th July, 1853. The noble Duke says, they were laid before the House of Commons in the course of last year. Strictly speaking, that is true, true as to a portion of them, but as to a portion of them only. The address of the House of Assembly and the address of the Legislative Council—one being in favour of the change and the other against it—were laid before the House of Commons in the course of last year. But the opinions of Lord Elgin were not laid upon the table of idle House of Commons—the resolutions of the House of Assembly were not laid upon the table of the House of Commons; and, of course, the subsequent papers could not be laid upon the table of the House of Commons, because they were not in existence.

My Lords, if these papers had been laid upon the table of that House, together with the letter of Lord Elgin, and if this had been done with the authority of the Crown as the spontaneous act of the Government, there might be some pretence for saying, that notice had been given to Parliament from which the probable intentions of Her Majesty’s Ministers might have been anticipated. But, my Lords, this was not so—it was not the spontaneous act of the Government. But these papers were laid—as many of them as were laid—upon the table of the House of Commons, on the Motion of an independent Member of that House (Mr. Bright, the Member for Manchester). Mr. Bright moved for copies of the two addresses—the address from the

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Legislative Council and the address from the House of Assembly—and these addresses were produced; but will any one say that, having been moved for and produced, under such circumstances as these, they could be taken in the slightest degree as affording any indication of the intentions and views of Her Majesty’s Government? But, my Lords, when were they produced? I find that this paper, containing nothing but these two addresses, was ordered by the House of Commons to be printed on the 20th of August, 1853, just two days before the prorogation. I ask the noble Duke, therefore, how he is prepared to justify the course of proceeding adopted by the Government in retaining these papers in its own possession—in withholding them from Parliament—from the 18th of July, 1853, to the 16th of June, 1854—in producing them, at last, only after the second reading of the Bill which is founded upon them —and in producing them, even then, not of their own accord, but at the request and on the notice of a noble Lord on this side of the House? But, my Lords, I say, more than this—that I think that Parliament has a right to complain that it should have been kept in darkness as to the intentions of the Government—if the Government had formed any—and in doubt as to the opinions of Lord Elgin, down to the beginning of June, 1854, and that then, and not till then, when Parliament is overwhelmed with business which it will scarcely be possible for it to get through, it should be called upon, upon a notice of a few days only, to discuss a measure of such vital consequence—a measure whose influence must of necessity be so great upon the constitution and the future legislation of one of our most important Colonies.

Now, I must say that I do not think that withholding papers from Parliament for the space of ten months— until nearly the end of the Session—and then suddenly calling upon Parliament to legislate upon a matter of this deep importance—I do not think, I say, that this is dealing with Parliament as Parliament has a right to expect. But, my Lords, referring to these papers further, I find that the noble Duke—contrary to all his ordinary habits of punctuality in business—did not reply to these two despatches of Lord Elgin until the 26th of May, 1854. Why were they not answered sooner? Because the Government, up to the 26th of May, had not made up their minds what

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answer they should give—because, as the noble Duke said the other day, he wished to consult Lord Elgin, and to have the benefit of his advice when he came from Canada to this country. On that 26th of May, a short and summary answer was given to the two addresses—one of which was a petition in favour of the change, and the other a petition against it—in which it was announced that a Bill would be introduced into Parliament for the purpose of carrying into effect the wishes of the House of Assembly. But if Her Majesty’s Government took ten months to consider what they ought to do in a matter of this importance, is it too much that the House of Lords and the House of Commons should ask something more than a notice of a few days or even weeks before they are called upon at the close of a Session, and in the midst of that pressure of business which the close of a Session invariably brings with it, to decide a question of such magnitude as that which the present Bill involves?

Now, my Lords, what is the question? The noble Duke was not particularly well pleased the other day when I said that this was a Bill which would convert the constitution of Canada into a republic. My Lords, I repeat that statement now; and I say that not only will it convert the constitution of Canada practically, whatever it may be nominally, into a republic, but it will convert it into a republic which will be infinitely more democratic in its character, and guarded by infinitely fewer safeguards and infinitely fewer securities, than are to be found in the constitution of the United States, which, from the wisdom of its authors, and the prudence of those who live under it, has protected itself against hasty legislation, and against the preponderating influence of a single legislative body, by precautions which are not to be found in this Bill, and some of which, actually existing at present, this Bill professes to do away with.

It is true that the object of the Bill is not to legislate directly for the Colony, but to enable the Colony to legislate for itself upon a particular question, which has been solemnly reserved to itself by the Parliament and Government of this country as a matter of Imperial importance. Now, my Lords, more than once we have been called upon to sanction Acts of the Colonial Legislature, which, except that they were Acts of the Colonial Legislature—except that they were measures which the Colonial Legislature

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was anxious to have carried into effect—we should certainly have rejected. We were called upon to legalise a measure with respect to the rebellion losses—a measure which gave compensation not only to the loyalists who had suffered on the part of the Crown in Canada, but also to those persons who had suffered loss from Her Majesty’s forces in consequence of the part which they had taken in promoting the rebellion; and I do not believe there was a single man in this House, on either side of it, who did not feel that, in assenting to that measure, we were taking a course humiliating to ourselves, and degrading to the country. We were then called upon to pass an Act with respect to the clergy reserves—to give power to the Colonial Legislature to deal with those reserves, because it was said it was a matter which was proper for internal arrangement, although it had been specially reserved as a matter of Imperial interest for the consideration of the Imperial Legislature.

We were asked to give that power to the Legislature of Canada, and to hope that it would not exercise that power in the way which many of us apprehended, and it was that hope—that fallacious hope—which induced a right rev. Prelate, whom I now see in his place, to sacrifice the interests of the Colonial clergy and the rights of the Colonial Church by giving his assent to the Bill. My Lords, that measure has realised the worst anticipations of those who opposed it; for the very first step which has been taken under it is the secularisation of those clergy reserves.

Now, I say that, if on every point in which Imperial control is reserved over local legislation we are to be pressed perpetually with the arguments advanced on these occasions —that, however wrong, however objectionable, however contrary to the principle of British government, or inconsistent with the Colonial system, yet if it be the will of the Colonial Legislatures, Parliament should waive the exercise of its supreme authority and sanction the violation of those principles—then, I say, that rather than this should always occur, we had better not affect to have any authority at all. It is infinitely better not to retain an authority which in each individual case we are compelled to abandon, and compelled to abandon it for the purpose of sanctioning measures which we directly and absolutely disapprove. It would be far better to say at once to the Colonies, “Parliament will exercise no control over your legislation, the

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British Ministry will not seek to check your legislation—you shall be altogether independent, subject only to the authority as far as the authority of living under a common Sovereign, speaking to a great extent a common language, and, I hope I may say, participating in common feelings and sympathies.”

But, my Lords, on the last occasion, on the question of the clergy reserves, we had, at least, the poor consolation of hoping that things might not he quite so bad as we anticipated they would be—that, although we gave the Legislature of Canada the power of acting in a manner unjust to individuals and injurious to the nation at large, possibly, in the exercise of good sense and moderation, they would take liberal, and not extreme views. But in the present case we are not left in doubt; because that paper, which was withheld from Parliament, which was never laid before us until after the second reading of this measure, contains the Bill verbatim which the Legislative Assembly desire to pass as soon as they shall obtain from you the authority asked under the sanction of this Bill.

Remember, my Lords, that when, after a series of unfortunate events in Canada, after much irritation and much exasperation, a measure was brought into Parliament, and carried through both Houses with more general concurrence than has attended any measure that I ever recollect as to the propriety of passing it, but with greater doubt than I ever recollect with regard to any other measure as to the danger of passing it, and to the probable consequences to which it would lead—when that measure was passed for the purpose of uniting the two Provinces of Canada, and at the same time solemnly fixing what should be the future constitution of those united provinces, there was no point in the whole course of that discussion which received—I will not say on that occasion—but which received more deliberate attention, than whether the Legislative Council, or Upper House, should be an elective or nominative body. I need not tell your Lordships that, previous to that period, by the constitution of both Provinces, there was a Legislative Assembly elected by a free and extended constituency—a House, undoubtedly, not representing and not filling the place which your Lordships fill in the constitution of this country, for the best of all reasons—because there were no material circumstances, no great hereditary properties, no hereditary titles, no great accumulation of

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wealth, and comparatively few men of leisure to devote themselves altogether to public affairs. But, my Lords, it was always felt to be most important, as a check upon the undue precipitancy which might attend the legislation of a single Chamber, that there should be another Chamber, and that not of an elective character, but nominated by the Crown, and giving to the Crown the influence which nomination naturally preserves to it. At the same time that that Chamber was not so perfectly independent, perhaps, as your Lordships’ House, because there was no hereditary succession, it was independent to this extent—that al member once nominated held the office for life, and was no longer under the control of the Government of the Crown.

This question of an elective Council was one of the earliest demands of the democratic parties in Upper and Lower Canada, previous to the Canadian rebellion, and the question was raised upon more than one occasion in the House of Commons, even previously to the discussion of the Canadian Union Bill in 1837. I beg your Lordships’ attention to the terms in which a Minister of the Crown then, and a Minister of the Crown now, recorded his opinion in the House of Commons in moving certain Resolutions on the question of an elective as against a nominative Council— The first demand of the Assembly is that the Legislative Council, having hitherto been nominated by the Crown, shall in future be an elective Assembly.

With respect to the proposition of making the Legislative Council elective, the effect, in the present state of the Colony, would be to make a second Assembly exactly resembling that which already exists. There can be no doubt, from the Report of the Commissioners—and every one who has spoken on the subject seems to have come to the same conclusion—that the second Assembly would be but an echo of the first, and would try to enforce all their demands.” [3 Hansard, xxxvi. 1293–4.] And, in consequence of that opinion, which was held and expressed in the House of Commons by Lord John Russell in moving certain Resolutions, he declared he found on those grounds that it was absolutely impossible the Government could comply with the first and principal demand of the Legislative Assembly of Upper and Lower Canada. The question was put to the vote, and a vote was taken aye or no shall there be two elective Chambers, and the division on that occasion in the House of Commons testified that the opinion in favour of an elective Chamber was 56, and against an elective Chamber, 318. It is

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but right that I should say that I admit that with whatever vehemence and ability the noble Lord contended against the elective principle in the second Chamber, he contended with even greater vehemence and vigour and decision of language against what was called a system of responsible government. It would be really worth while to turn back to those discussions which took place in 1837, to see the argument then used by the present Lord President of the Council, showing the absolute incompatibility of what was understood by responsible government, and the relations with the mother-country. The noble Lord not alone held those views.

The present Chancellor of the Exchequer said— If I am asked what is the definition of a responsible government, I answer it means nothing more than an independent Legislature. That was the opinion of the Chancellor of the Exchequer and the President of the Council on the question of responsible government; though it is quite true in the interval between 1837 and 1840 the President of the Council issued a despatch which practically yielded the case of a responsible government, and had the effect of creating extraordinary difficulties in the administration of the government of Canada. In 1840 it was my fate to succeed to the office of Secretary of State for the Colonial Department, immediately after the recognition of responsible government, and though no abler Governor ever presided over the affairs of Canada than the illustrious man who was then Governor General, Sir Charles Metcalfe could never reconcile the two propositions—namely, the existence of a Government responsible to the local Legislature, and the authority of the Crown exercised through a Governor responsible to the Crown and the Parliament of this country.

If any man could have reconciled those two conflicting propositions, Sir Charles Metcalfe was the man; but through the whole course of his administration it was a perpetual struggle between them. But as I stated, this question of an elective Council was one deliberately affirmed when the Act of 1840 for the union of the two Provinces passed the Legislature, and apprehensions were then entertained by various parties as to the possibility of working that Legislative Council, even in the form in which it passed Parliament. The noble and gallant Duke whose loss this country will never cease to lament (the Duke of Wellington)

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expressed very strongly his conviction that the passing of the Bill for the union of the Provinces, even in that shape, would lead to the loss of those colonies at no distant period. The present Chancellor of the Exchequer, in the other House, even though he assented to the Bill, assented with fear and trembling, and pronounced an opinion that it was the first step towards the dissolution of the tie between the colonies and the mother-country —an event which he did not seem to anticipate with as much regret as I should regard it. The noble Earl on the bench above (the Earl of Ellenborough), though he did not join in opposition, expressed in the strongest terms his concurrence with the noble Duke in the apprehensions he entertained in consequence of the measure. But how would the apprehensions of noble Lords and right hon. Gentlemen, how would the apprehensions of Parliament, as to the possible working of the measure have been increased, if they had been told that the united Legislature was to consist not of a Governor appointed by the Crown —not of a Legislative Council nominated for life by the Crown, and acting with the Council—an Assembly freely elected by the people—but that it would consist of a responsible Governor, the Governor being guided by the advice of a responsible elective Council, necessarily having the confidence of the House of Assembly, and that House not checked or controlled by any power whatever, except a body elected by the same constituency, subject to precisely the same influence, but practically more dependent titan the House of Assembly itself?

I must again refer to the language used in 1840, not invidiously, but because it strengthens the argument, and for the purpose of showing on what understanding it was the Houses of Parliament favoured the measure for the union of the two Canadas in 1840. The noble Lord the President of the Council said— A great party is attached to that proposal (the proposal for the constitution of the Legislative Council), and I agree with them in thinking that it will give permanence and independence to that body, which is most desirable. There is a strong party in favour of this proposal, and no party in favour of any other, except those who are in favour of an elective Council, to which the Government always has had a most decided objection, and to which, on a proposition which I made three years ago, this House expressed likewise its repugnance; and the other House of Parliament came to similar resolution.” [3 Hansard, lii. 1329.] What was the language of Lord Melbourne

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moving in this House the second reading of the Bill? If I recollect right, he said, that after all the discussions which had taken place, and all the controversy which had arisen, it would be matter of surprise that the Government should come to the conclusion to make no alteration in the constitution of the Legislative Council. But, he added— I am of opinion that the government of a free community by one Assembly is a matter almost impossible—at any rate it must be subject to great inconveniences, if not to great dangers; and if you are to have popular government at all I think you must have two Houses of Assembly, constituted in different ways, and upon different principles—one of them not being subject to that popular control which I admit to be useful to the other, and to be the spring of all good government.” [3 Hansard, lv. 232.] Those are the words of Lord Melbourne in recommending to your Lordships that constitution, an essential part of which you are called on now to violate and overthrow. In the course of that speech, Lord Melbourne quoted an authority, which, I think, your Lordships will not dispute—at all events, it is an authority not prejudiced against popular interests, or in favour of extending the power and influence of the Crown—I mean the authority of the late Lord Durham, who had been acting as Her Majesty’s Commissioner in Canada, and had seen the practical working of the Legislative Council.

And what did Lord Durham say of the practical working of the Legislative Council up to that time? I am far from concurring in the censure which the Assembly and its advocates have attempted to cast on the acts of the Legislative Council. I have no hesitation in saying that many of the Bills which it is more especially blamed for rejecting, are Bills which it could not have passed without a dereliction of its duty to the constitution, the connection with Great Britain, and the whole English population of the Colony. If there is any censure to be passed on its general conduct, it is for having confined itself to the merely negative and defensive duties of a legislative body, for having too frequently contented itself with merely deflating objectionable methods of obtaining desirable ends, without completing its duty, by proposing measures which would have achieved the good in view without the mixture of evil.

The national animosities which pervaded the legislation of the Assembly, its thorough want of legislative skill or respect for constitutional principles, rendered almost all its Bills obnoxious to objection by the legislative Council; and the serious evil which these enactments would have occasioned convince me that the Colony has reason to congratulate itself on the existence of an institution which possessed and used the power of stopping a course of legislation which, if successful,

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would have sacrificed every British interest, and overthrown every guarantee for national order and national liberty.” [3 Hansard lv., 232.] Here was most impartial testimony borne not only to the utility, but to the absolute necessity and the vital and essential importance, of having such a body as the Legislative Council, not acted upon by the same popular influence which operated upon the Assembly, but interposing a barrier, or I may say a breakwater, to the force of democratic influence, as it existed in the Legislative Assembly, and the unaided power of the Crown exercised through the Governor. I do not see, my Lords, upon an examination of these papers, any special ground laid for the introduction or discussion of this important question.

I see no statement of valuable measures lost by the resistance of the Legislative Council in its present form. I see no evidence of collisions between the two Houses. I do not mean to say if I did see collisions between them, I should at once conclude that the Legislative Assembly must be right and that the Legislative Council must be wrong. But before we are called upon to alter the constitution of a great Colony from a monarchical to a democratic constitution, we ought at all events to have some valid grounds laid before us that the constitution, in its present working, works for evil, and not for good —that it arrests measures which are calculated for the benefit of the Colony, or it stands in the way of good legislation.

With regard to this, however, we have not the slightest evidence before the House; there is not the slightest allegation, not the slightest insinuation, that such has been the case. We have heard nothing but of the extraordinary progress of Canada in material welfare, and I believe, and rejoice in it; but is that evidence of bad legislation? Why, my Lords, the whole internal affairs of Canada are left without exception to the free control of these two Houses of Parliament; and if the result of their legislation, under the slight control which the Crown exercises through a Secretary of State and a Governor, has been an amount of material prosperity, of material growth, unparalleled in the history of any other colony, and leaving far behind the boasted progress of the United States, where, I ask, is the necessity for the proposed change?

Now, my Lords, I turn to the Bill which the Legislative Assembly are desirous that

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the House shall pass, and I am about to show, not only that it is a Bill of a thoroughly democratic character, but, as I have said before, that it deprives Canada of the safeguards with which the founders of the United States surrounded their republican institutions. I need not tell your Lordships that in the United States there is no Assembly exercising perpetual control over the Executive, no party Government requiring the constant support of the House of Assembly and Congress. It is true the President is elected; but once elected, and for a period of four years, he exercises real and substantial authority. The Ministers are of his selection. The defeat of a measure does not involve the defeat of the Cabinet.

A single Minister may resign; but there is not that mutual bond of responsibility one for another which is of the essence of what is called “responsible Government,” namely, a Government acting by party, going together, framing their measures in concert—as I hope every Government form their measures in concert—and where if one Member falls to the ground, the others, almost as a matter of course, fall with him. That is the principle, and has been the general practice, of the British Constitution; but that is not the practice of the United States. The Senate and the House of Representatives are not only elected at different periods by different bodies, but they represent totally different interests and different communities. The one represents the popular will, the numerical will, of the whole United States; the other, elected by a different constituency, chosen in a different manner, represents the interests of each of the States, giving each State equal value in the representation, whatever the extent of it. There is then a broad line of distinction, not only between the constituencies, but the principles upon which the House of Assembly and Senate are elected in America. Again, the Senate, once elected, is not liable to dissolution, from any extraneous quarter. The Senate exercises a very popular influence on all foreign negotiations. Its consent is requisite to treaties, and, by a wise provision of the original constitution of the United States, no fundamental alteration can be made in the constitution itself—which is a written document, plain and open to every one to read —no alteration can be made in the provisions of that constitution except by consent of two-thirds of each of the legislative

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bodies—bodies acting under different impulses. Again, if such an alteration should be attempted, there is in the United States a very extraordinary power, a power which is exercised by the Supreme Court of the United States, which, despite of the Legislature—despite of the House of Assembly—despite of the Senate—has the power of pronouncing such Bill at variance with the constitution, and, being an unconstitutional measure, the legislation of both Houses is null and void. These are some of the guards—and they are not all—with which the United States have fenced in their republican Government.

Let me contrast these precautions against hasty and improvident legislation with the Bill proposed by Her Majesty’s Government for the monarchical institutions of Canada. The Members of the Legislative Council are to be elective; they are to be chosen by the identical constituency which chooses the House of Assembly. There is no variation, no difference whatever, except that two localities may be put together for the election of a Member of the Council, while each returns separately to the House of Assembly. The area may vary, but the constituency is precisely the same. The man remains subject to the same influence. Such a body cannot be considered any independent check whatever on the legislation of the House of Assembly. The Members of the Council are elected, it is true, for six years, and those of the House of Assembly are elected for four years; but are they, as the Senate of the United States, during that period free and independent, and able to exercise legislation as they may think best for the good of the Colony? No such thing.

There is a provision in the Bill that if for two years the Legislative Council shall reject or so amend a measure passed by the House of Assembly as that the House of Assembly rejects it, the Legislative Council, on the advice of the executive Minister of the Crown having the confidence of the House of Assembly, is itself dissolved, and sent back for re-election to the same constituency as that by which the Members of the House of Assembly are elected. My Lords, I ash can any body of men, with this threat hanging over their heads, act with any thing like independence or the exercise of their own judgment? Supposing they have so much self-respect as to determine during the period they may sit in the Legislature, not to yield to hat which

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they believe to be a dangerous demand, what can they do? For two years they may reject the measure, but in the third the House of Assembly is predominant—the House of Assembly advises the Executive Council, the Council advises the Governor, the Governor dissolves the Legislative Council, and the House of Assembly carries everything its own way. I will not compare that mode of exercising judgment and the mode of exercising it by your Lordships’ House; I am quite aware of the difference of the two bodies—but is there any Peer so degraded, so little conscious of his duty as a legislator, as to consent to undertake those duties, supposing it possible that, after two successive years, your Lordships, having rejected or amended a measure of the douse of Commons, should be compelled to go for re-election to the very body which returned the House of Commons, whose Bills you had ventured humbly to take the liberty of amending? What, I say, would be the situation of England under such a system? The result of that system must be to introduce nothing more nor less than a republic—the absolute independence of the House of Assembly, elected by large constituencies, and having no effective control which by possibility can be exercised over it. But it may be said there are safeguards with regard to the Legislative Council. They must be of the ago of thirty. I am afraid men of thirty are fully as dangerous legislators as between the ages of twenty and thirty. I do not conceive more ago itself is any security for great vigour of legislation or great prudence; and I am afraid we have seen some signal instances to the contrary.

But then they are to be possessed of property to the extent of 1,000l. That, you say, is something—they are to be men of; some substance and property. If, however, they shall have sat in the House of Assembly for a single hour, that qualification of being possessed of property to the amount of 1,000l. is dispensed with, and a man is enabled to sit in the Legislative Council of Canada, though he be not possessed of a shilling. But as the law stands at present the Members of the House of Assembly must have a property qualification. That is some check, which Her Majesty’s Government do away with in this Bill. They abrogate that property qualification, and, laying great stress on the security afforded by the property qualification of the Legislative Council, they

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first provide that, in Members who have sat in the House of Assembly it shall not be requisite, and then abrogate the property qualification of Members of the House of Assembly which now exists. Now, my Lords, I think that I have mentioned the principal provisions by which it is proposed that the new Council should be constituted which is to carry on the affairs of the Colony of Canada. There are two Houses elected by the same constituency, the Members of one elected for six years, and of the other for four years, neither requiring any property qualification (for that will virtually be the result of this measure), and one liable to be dissolved within two years if it does not consent to the measures of the other. I ask your Lordships, is it possible legislation can go further in the way of destroying every check, every control whatever which the Government can hold over colonies possessed of free institutions? I say, again, if you mean to abandon all control over the Colony of Canada, say so at once. Bring in a Bill to declare that the Crown will not interfere except through the Minister of Canada, that the house will not interfere, and in no case will Parliament interfere, with the Legislature of Canada. That is intelligible; but it is not intelligible that you should vest in us a discretionary authority which makes us liable for sanctioning their acts, and then bringing in a Bill, without reason assigned or cause alleged, which absolutely revolutionises the whole constitution of the Colony.

Now, my Lords, I turn to the despatch of Lord Elgin, upon which it might be supposed that Her Majesty’s Government really found some justification for this measure. That despatch was received in July last, and we are now for the first time made acquainted with it. I am the last man to say a word against Lord Elgin, for I had the honour of first introducing him into public life, by appointing him Governor of Jamaica. I have a great admiration for his ability and prudence; but I cannot help saying and feeling that, great as has been the success of Lord Elgin in the administration of the affairs of Canada, the leading principle on which Lord Elgin has acted has been concessions one after another to popular demands—concessions which would enable him to lead an easy life. How does Lord Elgin write to the noble Duke opposite (the Duke of Newcastle). But I must read first the concluding paragraph of the address of

  • (col. 838)

the Legislative Council of Canada to Her Majesty, which Lord Elgin incloses—We crave permission, may it please your Majesty, to express our fears that should any scheme of the nature adverted to be unhappily adopted, safeguards long held indispensable against hasty and inconsiderate legislation would become inoperative; jealousies would be fostered between bodies, each equally assuming to represent the people, and the chances of collision between them increased; the balance of power in the State would become precarious and subject to frequent disturbance; and further elementary changes would soon be demanded of a democratic character, to an extent, perhaps, which this house is unwilling to contemplate. I concur in every word of that wise, prudent, and temperate expression of the opinion of the Legislative Council.

A corresponding address from the Legislative Assembly is accompanied with a despatch from Lord Elgin, dated in July last, in which he says—A proposition which goes to effect a fundamental change in the composition of one of the branches of the Provincial Legislature affords most unquestionably matter for very serious consideration; and it is, moreover, no doubt true, that independently of the important question of principle involved in the measure which is submitted by the Assembly for Her Majesty’s approval, difficulties of execution and detail of a very formidable character present themselves, when the attempt is made to combine two elective Chambers with a system of government conducted on the rules of British constitutional practice; difficulties, it may be observed, for which no solution is afforded by precedents drawn from the United States, inasmuch as Parliamentary government and Ministerial responsibility, in the British sense of the term, are unknown to the constitution of that country.

Nevertheless, I feel it my duty, in transmitting this Address, to state that I know of no expedient which is so likely to impart to the Legislative Council the influence which it is most desirable that it should possess as the substitution of the principle of election for that of nomination by the Crown in the appointment of its Members. The objections are stated most emphatically and most forcibly by Lord Elgin; but then he turns round and says, nevertheless, on the whole, he sees nothing so expedient as the adoption of the elective principle. He proceeds— According to the plan which is sketched in the inclosed address, the Members of either House of the Legislature will be returned by the same constituency. Exception may doubtless be taken to this arrangement; but, in the absence of any unobjectionable scheme for the election of Members of the Legislative Council at two degrees, I am disposed to think that on the whole it is better that they should be elected by the constituency which elects the Members of the Legislative Assembly,

  • (col. 839)

than that a pretence should be afforded for raising a prejudice against the former body, and weakening its moral influence by the allegation that it represents only a privileged class. I must say the reasons assigned in the despatch of Lord Elgin are the very reasons which would induce me to reject this Bill, and retain the wholesome check of the Legislative Council, which it is not pretended in later days has been abused or perverted to improper purposes. Lord Elgin affords us no reason for this measure except this: that his Ministers are chosen from the more liberal portion of the community, who have a majority in the House of Assembly; and so no plan is so simple for doing away with any objection on the part of the Legislative Council as converting the Legislative Council into a more echo of the House of Assembly.

No doubt that is a very easy mode of simplifying the difficulties of a Governor General, and saving the work of an overworked Secretary of State for the Colonial Department. But the question is, not how to smooth the difficulties of a Governor General, or how to make the work easy for a Secretary of State, but how to enable the Colony of Canada to have its government carried on in a spirit consistent with monarchical institutions, and preserving something like the direct control of Parliament. The noble Duke will tell me there still remains a veto of the Crown on any measures that are passed. But, I would ask him, does he rely on that for any effective safeguard or any real control? If, when legislation is so objectionable, that you must be bound by the wish of the Legislative Assembly of the Colony, and come to Parliament and ask them to make themselves parties to a measure they disapprove rather than thwart the wishes of the Legislative Assembly of Canada, what probability is there, in any conceivable case, that a Minister who comes with such a request will advise the veto to be exercised in cases where the measure has passed, not the Legislative Assembly only, but the Legislative Assembly and the Legislative Council together, and has received the sanction of the Governor of the province? The authority of the Crown in this country does not depend upon the veto which Her Majesty theoretically possesses to impose upon Acts of Parliament after they have passed, but upon the right and proper influence which she exercises over her Ministers, and through them over both branches of the Legislature, which gives her the

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opportunity of exercising her judgment upon measures before they have been submitted to Parliament, not after they have received its assent; and it rests also upon that fixed character of our Constitution, which renders it the interest, not to say the paramount duty, of every Minister so to shape his course as, if possible, to keep the two Houses of Parliament in harmony, and not to throw himself absolutely and entirely into the hands of one branch of the Legislature, regardless of the wishes and feelings of the other. So it is in Canada; and therefore it is the duty of the Governor General not to sanction measures framed by the Legislative Assembly alone, indifferent to the wishes, opinions, and feelings of the other body, which depends for its appointment in the first instance upon the Crown, but which is afterwards perfectly and absolutely free and independent.

That principle must and will prevail if England is determined that, so long as Canada remains a colony of this country, its constitution shall continue upon its present basis. If the Governor General knows that you are determined not to suffer a violation of that constitution, and that the two branches of the Colonial Parliament shall remain each within its proper functions, not encroaching upon those of the co-ordinate authority with which it is associated—if the Governor General knows that such is the determination of the British Parliament and the British Minister—it will become a necessity for him and for his Government so to frame their measures as to obtain the assent of both branches of the Legislature, and not of one only. But if, on the contrary, the Governor General is to be told that the Legislative Council is not to be supported by the British Parliament, that it is to be made subordinate to and the more echo of the Legislative Assembly—liable to be dissolved, after a period of two years, if it ventures to differ from that Assembly—of course the whole of the Governor General’s measures will be framed so as to meet the views of that body which exercises the only real power in the Colony, as the Council will be easily got rid of by an appeal to the same constituents as elected the Assembly.

The differences between the two bodies will be thus extinguished, but the independence of the Legislative Council will be extinguished also. But it is said that it is difficult to obtain persons properly qualified willing to take seats in the Legislative Council. I think the fact is very likely to be so; but why is it so? You

  • (col. 841)

may depend upon it that you will never get the best class of men to accept seats in the Legislative Council, if the Crown or the Governor General does not give due weight and influence to the deliberations and authority of that Council, but persists in treating it as a body to be overruled whenever it sets itself in opposition to the Legislative Assembly. I do not wonder that you cannot get men to accept seats in the Council upon such a tenure, even from among the most devoted servants of the Crown; for who would make a sacrifice of personal convenience, perhaps of private friendships, for the purpose of maintaining the authority of the Crown, and upholding the monarchical principle in Canada, while they are placed in a position dependent upon the opinions of the Assembly?

If you want intelligent and respectable men to devote their time and attention to public affairs in the Colony, by becoming Members of the Legislative Council, you must give them an assurance that, so long as they are right, so long as they have a just principle to stand upon, they shall have the cordial support, not only of the Governor General of the Colony, but of the Government and Parliament at home. Depend upon it that if you give to the Legislative Council that weight and consideration, and that influence upon the legislation of the Colony which the constitution says belong to it, there will be no lack of men willing to take seats in that branch of the Legislature; but if you make the Members of that body the more tools and instruments of the Legislative Assembly for passing radical and democratic measures, you will never persuade the highest class of colonists to accept the office upon such conditions.

In speaking of the safeguards with which the United States have surrounded their republican institutions, I mentioned as one the necessity for more than a bare majority to carry into effect any fundamental alteration in the constitution itself. That wise precaution, together with a property qualification, was introduced into the Constitutional Act of Canada, so that no measure altering the constitution of the House of Assembly could be carried into execution, unless upon the second and third reading of the Bill there was a majority amounting to two-thirds of each of the legislative bodies in favour of the proposed change. I think that was a judicious and wise security to take against hasty and ill-considered alterations; but the present Bill,

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while it throws away all other securities, formally abolishes and abrogates that security also, and provides that a bare majority of the Legislature may make such alterations in the constitution of the Colony as it thinks fit. So that any change may be made at the more will and pleasure of the Legislative Assembly, through its obedient instruments the Governor and his Executive Council. There was one other provision of the Bill to which I intended to advert; but I think I have already laid before your Lordships sufficient grounds for pausing, at all events before, at this period of the Session, you accept yourselves, and call upon the other House of Parliament to accept, a measure so fundamentally, and, as I think, so injuriously, affecting the condition and constitution of one of our most important colonies. But, supposing you pass this Bill, how is it to be carried into effect? I imagine that even Her Majesty’s Government would not propose that the mere Act of the Legislative Assembly alone should carry a measure which fundamentally alters the constitution of the Colony. I presume you must obtain the assent of the Legislative Council to this measure before you put it into execution. But the Council has already recorded in very plain terms its determination not to sanction or to carry out a measure which entirely changes the constitution of its own body. The Council consists of not less than twenty-four members.

Are you prepared to deal with the recalcitrant councillors, and to make such an addition of new members who will be willing to enter into your scheme as will enable you to carry your proposal into effect? If you pass this Bill and send it over to Canada, without taking measures to ensure its acceptance by the Legislative Council, observe what you do —you perpetuate a conflict between the two branches of the Legislature upon a question affecting the constitution of that part which alone is interested in upholding the rights of the Crown. It is true, you may get rid of the difficulty by putting into the Council a sufficient number of new Members to overrule the present majority. If this Bill were passed, you might then proceed in a very simple manner; for it is only requisite for the House of Assembly to send any Bill of any kind to the Legislative Council; then for the Bill to be amended there, and for the House of Assembly to reject it with its amendments; and then at the expiration, of two years to dissolve the Council, with the consent of

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the Executive Council; and then you will get a more subservient Council. Or, thirdly, you might proceed to appoint a body for the purpose of committing political suicide, by declaring itself dissolved after it had decided that its successor should be elected by the colonists, not nominated by the Crown. Any of those modes you may adopt to carry your proposal into effect; but, in the meantime, what becomes of the existing rights of the Legislative Council? The Members of that Council hold their appointments from the Crown under the authority of Parliament, and those appointments are for life or during good behaviour. Indeed, they hold their seats in the Council by a tenure as valid as any one of your Lordships holds his seat in this House; and yet you are asked to pass a Bill which will deprive them at once, or in two or three years, of those rights which, under the sanction of the Crown and of the constitution guaranteed by Parliament, they have a right to enjoy during their natural lives.

I do not ask you to reject this Bill; but I do entreat you not to take upon yourselves, by passing this Bill, the serious responsibility of effecting such a change in the constitution of the Colony, and of calling upon the other House of Parliament at the end of June, overwhelmed as that House is with business, to assent at once to a measure the ultimate and remote consequences of which it is impossible to foresee, although I believe those consequences will be even more formidable than my worst apprehensions lead me to anticipate. Do not imagine that this is a Bill affecting Canada alone. When you have sanctioned this measure for Canada, the whole of your North American provinces will come forward with a similar demand.

The spirit of democratic encroachment is the same throughout the world. Give it the means of obtaining power, and it will not hesitate to stretch out its hand to grasp more and more: and if you show in the case of an individual colony that the remonstrances of the Legislative Council have availed nothing, that the opinions of the Legislative Assembly have availed everything, and that to the clamours of that body you are prepared to sacrifice the existing constitution of the Colony, you may depend upon it that many years, probably many months, will not elapse before from all your North American Colonies you will receive the same petition to be placed upon the same footing of an elective Council—a

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Council acted upon and permeated by popular influences, the monarchical influence being altogether extinguished. Such a demand, I apprehend, must be a necessary consequence of passing this Bill. Now I know that there are those who treat lightly the separation of the Colonies from the mother-country; but, for my own part, I am one of those who would deeply regret that separation, although in the course of time I anticipate it, as the natural result of the growth and progress of democratic principles. I anticipate that the time will come when the great North American Federation, if I may so call it—the great aggregate of the North American Colonies — will take upon itself the entire and independent control of their own affairs, and will be, if not nominally separate, at all events practically and virtually separate, and independent alike of Parliament, of the Government, and of the Crown.

I trust, however, that even in such a state of things that great federation will remain in perfect harmony with this country, bound by tics of loyalty to the same Sovereign, although that sovereignty may be but nominal; but that community of feeling, that community of interest, cannot exist if you pass a measure by which you deprive the most important of all your North American Colonies of everything which assimilates it in the slightest degree to the constitution and monarchical institutions of this country, and place its inhabitants in a position similar to that of their immediate neighbours, with whom they are every day in habits of closer connection and more constant intercourse.

I have dreamed — perhaps it was only a dream—that the time would come when, exercising a perfect control over their own internal affairs, Parliament abandoning its right to interfere in their legislation, these great and important colonies, combined together, should form a monarchical Government, presided over either by a permanent viceroy, or, as an independent Sovereign, by one nearly and closely allied to the present Royal family of this country. I have believed that in such a manner it would be possible to uphold the monarchical principle, to establish upon that great continent a monarchy free as that of this country, even freer still with regard to the popular influence exercised, but yet a monarchy worthy of the name, and not a more empty shadow. I can hardly believe that under such a system the friendly connection and close intimacy

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between the Colonies and the mother-country would in any way be affected; but, on the contrary, I feel convinced that the change to which I have referred would be productive of nothing, for years and ages to come, but mutual harmony and friendship, increased and cemented as that friendship would be by mutual appreciation of the great and substantial benefits conferred by a free and regulated monarchy. But pass this Bill, and that dream is gone for ever. Nothing like a free and regulated monarchy could exist for a single moment under such a constitution as that which is now proposed for Canada.

From the moment that you pass this constitution, the progress must be rapidly towards republicanism—if anything could be more really republican than this Bill. The next step is an elective Governor; and after you have passed this Bill, I do not know that an elective Governor would not be perfectly and absolutely unexceptionable. I should undoubtedly object now to an elective Governor; but after you have passed this Bill, it matters not whether you have a Governor sent out from this country, and bound to act upon the advice of his responsible councillors, or whether, as in the United States, you had a Governor elected by the free suffrages of the people over whom he has to rule.

But, my Lords, I do not ask you to reject this Bill altogether, and at no time to listen to the petition which has been laid before us, and therefore I will not pursue that question any further. But I say that if Canada, if the North American Colonies, increasing in wealth, in population, and in importance, desire to separate from this country, in God’s name let us part on terms of peace and friendship. Let us not wrangle with them as to the conditions upon which we are to separate; but let them well understand that the passing of this measure, considering the relationship in which Canada stands to this country, and the nearness, on the other hand, of their republican neighbours, must inevitably and indisputably lead to the adoption of republican institutions, and must as inevitably and indisputably lead to an early separation from this country. I will leave these considerations with your Lordships, with the other House of Parliament, with the Colony, and with the people of this country. Do not let the demand of the Minister, on the scanty information which he has given to you, the interests of party, or any other motive

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whatever, induce you, at the close of the Session, overwhelmed as you are with other business, to pass hastily a measure which cannot fail to produce the results which I have stated to your Lordships, and from which there is no appeal. I do not ask you to pronounce a positive and absolute denial to the wishes of the Colony if they are anything more than the wishes of the Legislative Assembly; but I entreat you to postpone the adoption of this measure—to delay your final judgment upon this weighty and important question — until both the Colony and yourselves have had full opportunity calmly and deliberately to weigh all the consequences involved in it, and not to pass, in the course of the present Session, a Bill which, if it is carried through Parliament, you will have the mortification to feel has inflicted great injury upon one of the most important colonies of the Crown.

Amendment moved, to leave out “now,” and insert “this day three months.”

The Duke of Newcastle—My Lords, before I proceed to make a few observations with reference to the opinions expressed by the noble Earl, both upon the general principles which have induced Her Majesty’s Government to introduce this Bill, and upon the provisions of the Bill itself, I think it is incumbent upon me to say a few words with regard to the remarks made by the noble Earl at the commencement of his speech, when he thought it necessary to explain why, instead of opposing the Bill upon the second reading, he took the course, unusual as he admitted it to be, of opposing our going into Committee upon it.

I do not complain of the course taken by the noble Earl; but I think it right that I should explain to your Lordships what the noble Earl seemed to think a mistake or neglect on my part. The noble Earl said, in the first place, that he thought, in introducing a Bill of this importance to the House, I should have acted more in accordance with propriety, and with what was clue to your Lordships, if, instead of simply laying the Bill upon the table without a word of explanation, I had made a statement of its provisions. But I apprehend that none of your Lordships are ignorant of the fact, that the almost invariable practice in this House is, to do as I did upon that occasion —to present a Bill sub silentio, and to state its provisions, and to enter into a discussion upon it, upon moving its second reading. Since I have had the honour of

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a seat in this House, I recollect only one instance, and that a Bill of very trifling importance, in which this practice was departed from, and upon that occasion the noble Earl who departed from it was called to order. The noble Earl cannot point out any Bill of importance in which that practice has been departed from; and although I am ready to admit that, if many Bills were introduced into this House, instead of into the other House of Parliament, it might be convenient to alter the present practice, yet I presume that so long as that practice is allowed to exist, I cannot fairly be censured for acting in accordance with it on this occasion.

The noble Earl then complained that certain papers had not been presented to the House until I moved the second reading of the Bill. I readily admit that that was an error on my part. I regret it; but certainly I, laboured under the impression—arising, probably, from my having seen the most important of these papers in print—that they had been laid on the table of both Houses, instead of on the table of the other House only. With respect to the draft of a Bill which we received from Canada, I did not think it was necessary to lay that document upon the table, because the Government having resolved—not to adopt that measure or any other measure affecting the permanent constitution of Canada—but simply to yield up to what we believed the proper body, the Canadian Legislature, the exercise of power which now belongs to the Imperial Parliament, and as we had resolved to introduce simply a permissive Bill, I was apprehensive that the production of the draft Bill which was sent to us from Canada would induce your Lordships to believe that it had the approbation and support of the Government.

I will not enter into any discussion upon a point on which the noble Earl dwelt with some emphasis—that the papers which were laid on the table of the House of Commons were presented, not by the authority of the Government, but upon the Motion of an independent Member. I apprehend, that in whatever way the information came before Parliament—whether by the command of Her Majesty, or on the Motion of a private Member—the important thing was, to know what the documents contained, and the opinions expressed in them. The noble Earl then proceeded to comment upon the interval which occurred between the receipt of Lord Elgin’s despatch, inclosing the addresses

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from both branches of the Canadian Legislature, and my reply. Now, I give the noble Earl the benefit of any advantage which he thinks he may obtain from that observation. The facts were simply these:—The Session of the Canadian Parliament was over before the receipt of Lord Elgin’s despatch, and that Parliament was not bound to meet again until the 13th of the present month of June; so that it did not matter whether I replied within one day of the receipt of the Addresses, or six months afterwards, so far as regarded the communication of the information which I wished to convey to the bodies which had presented them.

As I stated on a former occasion, although I was in possession of the opinions of the Governor General, as expressed in the despatch from which the noble Earl has quoted, yet, knowing that Lord Elgin was coming over to this country, I thought it was desirable that I should have the benefit of personal communication with him, in order to ascertain more fully his views upon the subject than it was possible to do if I had requested further explanations by letter. The noble Earl having disposed of these points, proceeded to ask what was the question before the House, and then entered into an elaborate discussion, both of the general principles upon which the Bill is framed, and the provisions of the Bill itself; but the noble Earl concluded by saying that he did not ask your Lordships to reject the measure, but only to postpone it to another Session, in order to enable the Colony whose interests are affected by it maturely to consider the question involved, and to enter upon a fresh agitation, and decide whether or not they intend to adhere to their former opinions.

Now, if I understand the noble Earl aright, that is the ground upon which he proposes to postpone the Bill for the present Session; and, although he stated broadly and strongly various objections to the principle of the measure, which undoubtedly would have justified an open rejection of the Bill upon its merits, instead of a more postponement, yet, having concluded his speech by saying that he meant not rejection, but postponement, I think I have a right to claim the votes of those Peers who are prepared to support such a view; because I am prepared to show that the people of Canada have already maturely considered this question, and have expressed their opinions upon it, and that, unless we act upon our own judgment, or from a

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spirit of strong opposition to the principle of the Bill, it would be desirable on all accounts that we should concede to the Parliament of Canada that power which at present belongs to the Imperial Parliament. The noble Earl said that this was another step in the course of legislation which the Parliament of this country has been pursuing for some time past. I am not prepared to deny that statement. The noble Earl quoted two examples—first, the Rebellion Losses Bill; and, secondly, the Clergy Reserves Bill.

With respect to the first, he said that, under the Rebellion Losses Bill compensation was given, not only to those who had suffered on the part of the Crown, but likewise to those who had opposed the legitimate rights of the Crown. Now, I think I may fairly cite the Rebellion Losses Bill as an argument in favour of the present measure; because even if there was a vicious principle in that Bill, the confidence shown upon that occasion in the people and Legislature of Canada was not misplaced; and I defy the noble Earl, whatever he may say with reference to the principle of the Bill, to maintain that the measure was not carried out with every deference and respect for the laws and sovereignty of this country.

I am not prepared to vindicate the principle of that measure. I do not recollect whether I voted for it in the House of Commons, or not; but I know that I disapproved of it, and if I did not vote against it, it must have been in consequence of my temporary absence from the House. It cannot be doubted, however, that those in whom we placed confidence upon that occasion showed that they were worthy of it. The noble Earl then proceeded to comment in the same sense upon a Bill which your Lordships passed last year, with respect to the clergy reserves. Here the noble Earl certainly made a most extraordinary statement, for he said that hopes were held out in this House, that, if we gave the power in question to the Colony, it would not be exercised inimically to the interests of the clergy.

That, undoubtedly, was true; but he then proceeded to say, that the very first step taken after the passing of this measure, was an attempt to secularise these reserves. I do not know from whence the noble Earl has derived his information, but I can assure him that, having held the seals of the Colonial Office from that time until ten days or a fortnight ago, I not only have not heard of any attempt on the part of the Canadian Legislature or Government

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to secularise these reserves; but I am enabled, from conversations I held with Lord Elgin and Mr. Hincks, when they were in this country, to give the most positive contradiction to the statement that any such attempt has been made. I still entertain the hope which I expressed last Session, that the clergy reserves must in future be classified; but they have not been classified yet, and I can assure the noble Earl and the House that the subject has not even been mooted in the Parliament of Canada, and I have every reason to believe that there is at present no intention of making any such attempt.

The noble Earl, towards the close of his speech, referred to an anticipation which he entertained—he called it a dream—that at some future time, when that event occurred, which, in answer to a noble Friend of mine, I ventured to deprecate a few days ago—namely, the separation of the Colonies from the mother-country—a new monarchy might be formed in the North American provinces, the Sovereign of which might be a near relative of our gracious Queen. I will not discuss the noble Earl’s dream; but I will say that when he asserted that if we pass this Bill that dream is gone for ever, he was labouring under a considerable misapprehension. I deny that his dream is affected by this Bill in any way whatever—unless, indeed, the effect of the measure should be to increase the securities of the new monarchy, and to strengthen its associations and connection with this country. In one of the quotations which the noble Earl read, he gave us some instances of the necessity of having two legislative bodies in the Colony.

He did not express any opinion upon that subject himself, and I apprehend that, however much the noble Earl and the Government may differ upon any other topic, we are entirely agreed upon that. We are at one in thinking that two Houses are necessary and essential to the practical and harmonious working of the English Constitution, whether as established in this country or engrafted in any of our Colonies. So far, then, we are agreed; but what is the principle of this Bill; or, in the first instance, let me ask, why do we require an Upper Chamber? It is undoubtedly in order to secure, in the legislative and social condition of the country, that conservative element which is supposed to exist in your Lordships’ House, and the object is, by means of a second Chamber, to check that hasty legislation

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which is no uncommon characteristic of a popular assembly. But I apprehend that a second Chamber can be of little use for that important purpose, unless it possesses and maintains the respect of the community of which it forms an important element. I stated upon a former occasion that, so far from the Legislative Council of Canada being respected as a body—as individuals I believe they are among the most highly respected gentlemen in the Colony—they do not in any degree possess the esteem or respect of the community. To such an extent is that carried, that it is exceedingly difficult, when vacancies occur in the Council, to obtain the consent of any gentleman to enter it.

The noble Earl, in replying to this, said, that doubtless, if the Governor General showed no disposition to support the voice of the Council, it was possible it might fall into disrepute. I hope the noble Earl did not intend that as a reproof to the Governor General of Canada, because I can assure him that Lord Elgin knows his constitutional position too well to have thwarted, in any way, either of the branches of the Canadian Parliament, and that in this country he has respected the rights and privileges of the Legislative Council to the fullest extent to which he has respected those of the Legislative Assembly.

But what I say is, that unless the Legislative Council, no matter how formed, possesses the respect of the community, it loses that character of conservation which is its proper attribute; and instead of being conservative, it becomes only obstructive. I apprehend there is nobody on either side of the House who will believe that these are convertible terms; I trust that every one of your Lordships will appreciate the distinction which I am anxious to draw between a body which, having ceased to possess the confidence and respect of the country, is calculated only to obstruct legislation, and that body which, possessing the confidence and respect of the community, in enabled to evince its conservatism by preventing hasty legislation, and refusing its assent to measures of a violent and dangerous character. The noble Earl has left your Lordships to understand that be looks upon a nominated Upper Chamber as being to as full an extent as possible an imitation of your Lordships’ House. Now, I believe it is perfectly futile to attempt in the Colonies any imitation of your Lordships’ House. To a certain extent the form might be imitated;

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but it would be in form only, for the substance would be entirely wanting. In my opinion, an elective Chamber, if composed of persons possessing requisite qualifications, would possess a higher character than a merely nominated Chamber. I am aware that with respect to your Lordships’ House an opinion prevails to some extent out of doors that the agricultural is the only interest here represented. No doubt, a considerable number of the Members of this House are possessed of a large amount of landed property; but if we look at the constitution of this House, it will be found that not only agriculture, but commerce, manufactures, and every other interest in a subordinate degree, is represented here; and no question can come before your Lordships which does not meet here a fair representative on every occasion when such interest requires to be represented.

This body, however, although originally nominated by the Crown, possesses qualifications which no Upper Chamber of any colony has ever yet obtained, or can hope to obtain, without a ridiculous aping of your Lordships’ House—I mean its hereditary character—the Assembly possesses a hold on the respect and affections of the people by means of its traditionary and hereditary character. This is what no nominated Assembly can ever hope to possess. There are many who object to hereditary legislators; but I think few will be found to deny that hereditary legislators appear to advantage in comparison with nominated legislators; and of this I am convinced, that if we were to sit here merely as a nominated body, we should be looked upon by the great bulk of the people as the mere tools of the Government of the day, and should be deprived of that respect which alone enables us to exercise properly our functions and our duties.

The names of Stanley and Howard are still borne by Members of your Lordships’ House, and the services rendered by their ancestors come in aid of those who now bear those honoured names in the execution of the duties which devolve upon them, and give an additional charm to the brilliant eloquence and ability which they evince in debate, and enhancing the spotless private character which they are known to possess out of your Lordships’ House. It is impossible, I say, for such qualities to exist in any nominated Upper Chamber. Such an Assembly becomes, as we have seen in the Colonies, more distasteful to the community year by year,

  • (col. 853)

until finally its members are regarded as the more tools of the Government in our Colonies. The only alternative, therefore, for the good government of the Colonies is that of an elective Upper Chamber; but if you are to have these Chambers, it will be necessary to fence them round with provisions which shall serve as correctives to the hasty and inconsiderate legislation of the more popular Assembly. Among those conservative elements which it is proposed to introduce into the Upper Chamber in Canada is that of a property qualification. It cannot be denied that the possession of property is an element of this kind; and yet the noble Earl appears to have commented with severity upon the circumstance that we propose to establish a higher property qualification for the Upper Chamber than for the Legislative Assembly. Another element which it is proposed to introduce is that of age, as the Bill provides that no person under thirty years of age shall be eligible to a seat in the Upper Chamber.

The noble Earl will not deny that this condition of age is valuable as a conservative safeguard; he will not deny that a man at the age of thirty is more likely to have his opinions formed, and not to be so easily led away by popular theories as he would be at the age of twenty-one. He will not deny that he has himself become in his later years more conservative than he was when a younger man; and if that process has taken place in the noble Earl, he will surely agree that it is but fair to suppose that others who, like him, attend to public affairs, may make brilliant Members of the Legislative Assembly at twenty-one, and at thirty may become ornaments of the Legislative Council, and maintain with ability those conservative opinions which possessed less influence over them at the earlier period of their lives.

A third safeguard which is proposed is that of the longer occupation of a seat in the Upper Chamber. By the proposed arrangement a portion of that body only will be elected at one time; and the time at which their election will take place will be different from that at which the Members of the Legislative Assembly will be elected. This will have the effect of preventing the whole body of the two Chambers being elected under the influence of some one strong popular feeling that may prevail at the time of the election. I confess that I attach very great importance to this part of the proposal. A fourth guarantee is

  • (col. 854)

one which, though not of such great importance, is still undoubtedly of great value, and that is, that the number of Members of the Legislative Council should be considerably smaller than that of the Legislative Assembly. The noble Earl has quoted the opinion expressed by the Legislative Council last year on the subject. I will also call your Lordships’ attention to the address of the same Council. The address states— We would respectfully represent to your Majesty, that to refer the selection of Members of the Legislative Council to the popular vote, is to destroy the harmony of system upon which, in accordance with the theory of the British Constitution, the Government of this country has hitherto been considered to rest; and by thus discarding the principle of appointment by the Crown, which has hitherto been deemed essential to the maintenance of a due balance in the State, to bring the Royal authority into direct contact with two Houses, both deriving power Mom and responsible to the people.

We crave permission, may it please your Majesty, to express our fears that should any scheme of the nature adverted to be unhappily adopted, safeguards, long held indispensable against hasty and inconsiderate legislation, would become inoperative; jealousies would be fostered between bodies, each equally assuming to represent the people, and the chances of collision between them increased; the balance of power in the State would become precarious and subject to frequent disturbance; and further elementary changes would soon be demanded of a democratic character, to an extent, perhaps, which this house is unwilling to contemplate.

I quote this sentence to show how very little the Legislative Council must really have weighed the matter, when they could oppose two such antagonistic objections to the plan for the constitution of an elective Legislative Council. How could a collision between the two bodies ensue if there could be no check given by the one or the other. I may also refer to some other opinions expressed on this subject which are entirely at variance with those laid down by the noble Earl. The noble Earl endeavours to show that these two bodies are really already so entirely accordant in opinion that they will co-operate together in all measures, however violent.

What, however, is the opinion of those who, living in the Colony itself, are not unlikely to be able to form as accurate an opinion of the consequences of such a measure upon the community as the noble Earl or any of your Lordships? When these Resolutions were proposed in the Legislative Assembly of Canada, a certain gentleman of very strong democratic opinions—a Mr. Brown —was so apprehensive of the strong conservative or monarchical character of this

  • (col. 855)

measure that he proposed not less than three different Amendments to get rid of that principle. In the first place he considered— That the rapid changes which experience has shown continually to take place in public sentiment, the difference in the electoral divisions for which the Members of the two Chambers respectively would sit, and the different terms for which they would be elected, leave no reason to doubt that the political views of the majority of the Lower House would frequently be in direct opposition to those of the majority of the Upper House; that when such variance of opinion occurred in the political views of the majorities of the two Chambers, an address of want of confidence from one House might be met by a vote of confidence from the other House, and the Executive would be left practically uncontrolled; that when such variance in the opinion of the two branches occurred, the responsibility of the Ministry of the day, for the right conduct of all public affairs, legislative and executive—so absolutely essential under the British constitutional system—would cease, for the time being, as no party administration could, while such variance existed, command a majority in both bodies, and the measures deemed necessary by Government could only become law by the consent of its political opponents.

That two elective Chambers are utterly incompatible with British responsible government on the British system, and that the great power intrusted under that system to the Ministry of the day, could not be safely continued under the relaxed restraint which two elective Houses would entail. That no urgent necessity calls for a change of the constitution of the Legislative Council—that no practical evil exists which such a change would remove—and that there is no practical end now sought to be attained and found unattainable, which such a change would render attainable. That in consideration of the foregoing, and in view of the rapid social and material progress of the country, which cannot to affect the working of any political system, it is not expedient to make any change at present in the organisation of the Legislative Council, but it is advisable that means should be taken forthwith to render that body more efficient under its existing constitution.

Mr. Brown was not successful in carrying this Amendment, the numbers being seventeen for, and fifty against it. I quote this decision to show how little desirous the Parliament of Canada was for adopting any measure of a democratic character. Still, so apprehensive was this democratic gentleman of the consequences of this measure, if passed, that he moved another Amendment, in which he expressed himself willing to get rid of the Upper House altogether, rather than adopt the change proposed. He accordingly proposed— That two elective Legislative Chambers are utterly incompatible with British responsible government; that the great power committed under that system to the Ministry of the day could not be safely continued with two elective Houses, and

  • (col. 856)

would render necessary the imposition of checks on the power of the Executive known to other constitutional systems, but totally inconsistent with British party government; and that, in view of the declaration of the majority of this House that some change in the existing constitutional system of this province ought to be made, it is expedient that the Legislative Council should be abolished. This was defeated by fifty-eight against nine. Mr. Brown, however, was not yet disconcerted, and he proposed even a third Amendment— That the extensive powers intrusted to the Executive under the system of government which has obtained in this province since 1841, cannot be safely continued when ‘the well-understood wishes of the people’ shall be expressed by two separate Houses, elected by popular vote of different constituencies and for different terms; and that it is expedient to provide for restraining the powers of the Executive simultaneously with the creation of two elective Houses.

So apprehensive was this gentleman that the power of the Executive would be increased, and the influence of the democratic power be diminished. I mention these Amendments in consequence of the quarter from which they came—for I must be permitted to say, with all respect for the talent, the ability, and the knowledge of the noble Earl, that, upon this occasion, I think I have a right to appeal with confidence from the Earl of Derby to Mr. Brown. The noble Earl asks, if we pass this permissive measure, how do we expect it will be carried into effect? My answer is, in that only way in which I wish to see it carried into effect—by the Government of Canada, when the people wish to obtain it. If the opinions of the people of Canada are against the measure, the Legislative Council of Canada will act upon their own independent opinions and resist it, precisely as your Lordships, in giving an opinion upon any measure, would do, until you were satisfied that it was the general wish of the country that such a measure should be passed, and then your Lordships would gracefully yield to that expressed opinion.

So would the Legislative Council of Canada gracefully yield, when they knew that it was the wish of the people of that Colony that this measure should pass, and not before. I ventured to say, on moving the second reading of this Bill, that a measure of this description had been long required; and although the noble Earl has quoted an opinion to which I attach great weight, expressed in former years, as to the very serious nature of the question involving an alteration in the constitution

  • (col. 857)

of Canada, I nevertheless shall be able to show to your Lordships that this I is not a new want expressed on behalf of the people of Canada, nor is it a new opinion expressed on their behalf by statesmen in this country who have considered the subject. But, before I proceed with this part of the case, allow me to premise that this is not a new principle, but it is following out a principle which has already been adopted, and which, I maintain, having been adopted in other cases, it would be most unfair to refuse to Canada. The noble Earl says, that if we pass this Bill, we cannot stop here. I really admit it. I admit that we ought to legislate for a principle, and not for any particular colony.

The noble Earl says, if we give this measure to Canada, we cannot refuse it to the North American provinces. Why, it is a fact that some of the North American provinces have already expressed opinions in favour of having granted to them a similar measure; and not only that, but opinions have been expressed by the governors of those provinces in favour of conceding this privilege. Sir E. Head, a most eminent man, the Governor of New Brunswick, in a despatch in the year 1850, expressed an opinion that it would be desirable to grant a similar boon to that colony. This Bill is to enable the Canadian Parliament, if it thinks fit, to change its own constitution. A Bill was passed in the year 1850, giving— wrongly I think—to the Australian Colonies a single Chamber, but that was coupled with this condition—that each of those colonies should have the power to amend their own constitution and have a second Chamber.

Some of those colonies have already availed themselves of that power, and it is a power which, being given by Act of Parliament, you cannot take away from them. Within the last fortnight the colony of Victoria has sent home a Bill, in which they have framed a constitution for themselves, one element of which is an elective Upper Chamber. But we have gone further than that. We have actually ourselves erected a second elective Chamber. An elective second Chamber has been given to the Cape of Good Hope. The noble Earl the other night split upon that rock, and he to-night has carefully avoided making any allusion to the Cape of Good Hope. I know that when the noble Earl was in office he did not object to the constitution with a second elective Chamber; being given to the Cape of Good Hope;

  • (col. 858)

and when on a previous occasion I alluded to this, the noble Earl said, that he allowed that constitution to pass on the ground that he was too late to object to it, inasmuch as that there was an Act of Parliament on the subject; but the noble Earl is wrong in that statement. There was no Act of Parliament in the case of the Cape of Good Hope. The constitution was not conferred by Act of Parliament. No Act was requisite. It was requisite in the important colony of Canada, but for the Cape of Good Hope an Order in Council was sufficient. The granting of the constitution was, however, by circumstances delayed till the noble Earl succeeded to power. What was then done?

This was the whole question. Sir John Pakington wrote two despatches. In the first he stated that the constitution would be granted immediately; and in a despatch dated September, 1852, in which he assigned the reason why the constitution should not be given—I am not about to dispute the policy of withholding the constitution, although my opinions are well known upon that subject, for my very first I act in succeeding to the Colonial Office was to issue that constitution to the Cape of Good Hope—but, in that despatch, Sir John Pakington showed that the whole question was open, and that the reasons for not granting the constitution at that time was the war which was then prevailing in the colony.

The Earl of Derby—Hear, hear!

The Duke of Newcastle—The noble Earl cheers; but I was going to show that, while that was stated in various shapes elsewhere, the noble Earl has never mentioned it in this House. I am not raking up these things with any hostile feeling, though, in referring to them, I am only following the example of the noble Earl, who quoted what had been said by Lord John Russell and Mr. Gladstone some sixteen or seventeen years ago. I have referred to what was said by Sir John Pakington only two years ago, and who proposed to do for the Cape of Good Hope that which we have not proposed to do for Canada; for he would give a second elective Chamber to the Cape of Good Hope, while we only propose to enable Canada to constitute a second Chamber for itself, if it should think proper to do so. The noble Earl quoted the opinion of Lord Durham upon this question; and I own I was astonished when I heard him refer to Lord Durham as an authority for a nominated Chamber. I know not what

  • (col. 859)

opinion the noble Earl particularly referred to; he stated that he could not give me the date; I apprehend, therefore, that it must be some sentence taken from the Report of Lord Durham on Canada, printed in 1836. Now, I hold in my hand that very elaborate Report, and I will read to your Lordships some portion of it which refers precisely and specifically to this very point. Lord Durham in his Report said— The constitution of a second legislative body for the united Legislature involves questions of very great difficulty. The present constitution of the Legislative Councils of these provinces has always appeared to me inconsistent with sound principles, and little calculated to answer the purpose of placing the effective check which I consider necessary on the popular branch of the Legislature.

The analogy which some persons have attempted to draw between the House of Lords and the Legislative Councils seems to me erroneous. The constitution of the House of Lords is consonant with a frame of English society, and as the creation of a precisely similar body in such a state of society as that of these colonies is impossible, it has always appeared to me most unwise to attempt to supply its place by one which has no point of resemblance to it, except that of being a non-elective check on the elective branch of the Legislature. The attempt to invest a few persons distinguished from their fellow-colonists neither by birth nor by hereditary property, and often only transiently connected with the country, with such a power seems only calculated to ensure jealousy and bad feelings in the first instance, and collision at last.

I believe that when the necessity of relying in Lower Canada on the English character of the Legislative Council as a check on the national prejudices of a French Assembly shall be removed by the union, few persons in the colonies will be found disposed in favour of its present constitution. My Lords, I pause here for one moment to call to your Lordships’ attention how accurate has been the prophecy of Lord Durham. The union has been attended with the results he anticipated, the antagonism between the French and the English has almost entirely disappeared, and those who thought an Upper Chamber appointed by the Crown was the only check and the only means to preserve the English connection with Canada, now find that by the union of the two colonies that is no longer requisite; that those changes of opinion which Lord Durham foresaw have taken place, and that the opinion of the people of Canada is now in favour of the very change which was formerly so strongly opposed. The Report proceeds— Indeed, the very fact of union will complicate the difficulties which have hitherto existed,

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because a satisfactory choice of Councillors would have to be made with reference to the varied interests of a much more numerous and extended community. Is there not good sense in this? While the difficulty is met by an elective Chamber, it must be seen that, on the other hand, it would be impossible for the Government to select a Chamber of nominees for Canada, without violating and offending those principles which Lord Durham has here so ably laid down. Lord Durham then proceeded to say— It will be necessary, therefore, for the completion of any stable scheme of government, that Parliament should revise the constitution of the Legislative Council, and, by adopting every practicable means, to give that constitution such a character as would enable it by its tranquil and safe, but effective working to act as a useful check on the popular branch of the Legislature, and prevent a repetition of those collisions which already caused such dangerous irritation.

I think your Lordships will now be of opinion that my quotation of Lord Durham’s opinions is worth more than the solitary sentence quoted by the noble Earl; and that, at any rate, I have a right to say that this is no new view—is no new opinion —but that it was espoused and announced so long ago as the year 1839 by one of Her Majesty’s Ministers, who was expressly sent over to Canada for the purpose of reporting on the then existing state of things in that Colony. The noble Earl has objected to the power given to the Governor General of dissolving the Legislative Council. Precisely the same power is given to the Governor of the Cape of Good Hope.

But the Government of Canada possesses exactly the same power at the present moment. If, under the existing system, he finds the two Chambers not co-operating, he has the power of dissolution, which is certainly a better mode than resorting to that not very elegant but expressive act called “swamping” the Upper Chamber. Although, unhappily, we have sometimes heard of threats of swamping the Upper House of Parliament, it is a threat which has never yet been carried into effect. For my part, I greatly prefer that the power of the Governor General should be exercised by open dissolution rather than, by the use of a secret and arbitrary power, of turning the majority of the Upper Chamber by pouring into it a certain number of nominees of the Crown. The noble Earl said that the veto would be no security. I readily admit that it would

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not be an efficient security. It is not so now even in this country. The Colonies must be left to influences similar to those which operate at home, and I have no fear that the same effect would result. But it seems to me that the noble Earl throughout the whole of his speech was haunted by the apprehension of some great evil resulting from the bugbear of democracy. It was the same feeling which influenced him on his assuming the reins of power, when the noble Earl told us that he considered it to be his specific mission to check the torrent of democracy with which the world was threatened, and we all remember that it was said by some of his supporters that when the noble Earl should leave office then would come the deluge.

Since then a change of Government has taken place— the noble Earl has been out of office for a year and a half. I appeal to noble Lords on the opposite side of the House, who do not agree with me in political opinions, whether they can seriously maintain that this change in the Government has brought on those rapid strides of democracy which the noble Earl, no doubt honestly, had anticipated. I believe, as regards this country, so with respect to Canada, these apprehensions may be dismissed. Of late years there has been greatly relaxed that hold over the Canadian Legislature, which Parliament had before professed to exercise most prejudicially to the interests of the Colony. I will refer to one instance.

In the Union Act a provision was inserted granting a civil list to Her Majesty. The colony of Canada regarded that provision as indicating a distrust of their anxiety to -maintain the monarchical institutions of the country, and on that ground objected to the provision. This country, not knowing the feelings of Canada so well as the colonists themselves, thought the objection a feigned complaint, and suspected that what Canada really wanted was the means of obtaining the power of getting rid of the civil list altogether. Nevertheless, in 1847, the right of settling the civil list was given up by this country, precisely as it is now proposed that Parliament should grant to Canada the power of legislating for the Upper Chamber. The Canadian Legislature immediately voted a civil list, and from that hour to the present I have not heard any grievances complained of on that subject, such as were almost continually arising so long as the Parliament of England interfered. A similar result, I anticipate,

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will attend the proposed legislation on the present subject. To 1847 succeeded 1848, when all Europe was convulsed, and every democratic element of society was let loose; and what was the condition of Canada? So far from participating in the feelings that had brought about that convulsion, the French element in Canada, and the Irish element also in Canada—such was the reward of our new principle of legislation—remained quiet. I say that it was greatly due to the confidence shown in the people of Canada by the liberal legislation which the Imperial Parliament had begun to adopt, that the events in 1848, which created a devastating storm in Europe, failed to raise even a ripple on the surface of society in Canada.

We now have the advantage of beholding the satisfactory effects of our recent legislation. The sentiments of the Canadians, which at one time were alienated from this country, are now entirely favourable to it; and, instead of the rancorous feelings of hatred which formerly prevailed between conflicting parties in that Colony, there is substituted that wholesome party spirit which exists in this country, and without which representative institutions could never be effectively worked. Further than that, the attention of the Legislature of Canada is now devoted to the passing of useful laws of every kind; and the noble Earl has referred to one consequence, as I believe, of our recent policy—the material prosperity of Canada within the last few years, the increase of which has been so great as to eclipse that of the United States.

I agree with him in that; but the noble Earl may maintain that this prosperity was caused in spite of the legislation we had of late years adopted; but I contend that it is the result of that legislation, and therefore I call on the House to persevere in the same course. I am really ashamed to have trespassed upon your Lordships’ attention so long. I have endeavoured on the present occasion not to deal with those explanations which I gave your Lordships on a previous stage of the Bill. I have rather sought to meet, however feebly, the objections raised by the noble Earl both to the general principle of an elective Upper Chamber, and specifically to the granting it to the colony of Canada; and I now entreat your Lordships not to agree to the Amendment of the noble Earl, whether it be intended as a final rejection of this measure, or whether

  • (col. 863)

it be intended to give a locus penitentiœ to the Colony. For the latter purpose it is not required; and as regards the former, I am confident that it will be looked upon in Canada as a retrograde step on the part of your Lordships in legislating for that Colony. I am satisfied, if your Lordships pass this measure, that it will not be abused in the way which the noble Earl appears to apprehend; but, on the contrary, that it will form an additional link—if an additional link be wanting—in that chain of connection which, I believe, indissolubly binds that important and magnificent Colony to the parent State of England.

Lord St. Leonards said, that this was one of the greatest questions that could come before the House in relation to colonial Government, for the noble Duke had explicitly admitted that if this principle was carried on behalf of Canada, a similar one must be applied to every other British colony. He (Lord St. Leonards) wished their Lordships to bear in mind that their vote on this occasion would decide the question whether every colony of Great Britain was or was not to be governed simply by an elective Assembly, uncontrolled by the Crown—for that was in reality the effect of the proposition—a form of Government by which no country had ever yet been governed with any good effect; or, in other words, whether the existing ties were to be severed between the mother-country and the colonies at large. It was alleged by those that supported this Bill that it was merely a permissive measure, and that of itself it would not have the effect which was apprehended by those who opposed it.

But Her Majesty’s Government knew that the act apprehended on this side of the House would be done by the Canadian Legislature, under the provisions of this Bill, just as much as if the Bill contemplated the doing it at once. Why had the Government, then, not had the manliness to do the thing at once? The noble Duke said he did not ask the House to pass the Bill which had been sent from Canada, but to pass a Bill which he had himself brought in. What was that Bill? Why a Bill to enable the Assembly of Canada to do the very which he himself declined to call upon their Lordships’ House to undertake the responsibility of accomplishing. The noble Duke had in the course of his speech taunted his noble Friend (the Earl of Derby) with having begun life as a Liberal

  • (col. 864)

and ending in becoming a Conservative. But the noble Duke might have remembered that he himself had also undergone political conversion, but with this disadvantage, that, beginning life as a Conservative, he had degenerated into a Liberal. The noble Duke had also taken great credit on the score that the measures for the emancipation of the colonies had proceeded step by step; but he would remind the noble Duke that hitherto the Government of this country had resisted the principle of an elective Upper Chamber. The present Government, however, were giving all the assistance in their power to the simple principle of election to the government of the country, without any interference on the part of the Crown whatever.

They had only recently granted a constitution to New Zealand, and in that they had taken great care to have, as far as they could, two distinct effective Chambers — one being a Legislative Council, and the other an elective Assembly. That was by an Act passed in 1852; and they must, the moment this Bill passed, repeal that Act of Parliament, and give to New Zealand a new constitution, similar to that which would be the result of passing the measure now under consideration in respect to Canada. He was much surprised to hear the noble Duke quote the opinions of the late Earl of Durham in support of the principle of this Bill.

He (Lord St. Leonards) contended that the feeling of the Earl of Durham was as clear as it could be expressed in language, that there ought to be a check on the elective Chamber. He (Lord St. Leonards) would ask, where was the check to be found in this case? Was it not the opinion of the world at large that a more elective Assembly, without any check, was a democracy in every sense of the word, and in which it was almost impossible for any government to be carried on?

Supposing the Council and the Assembly to agree together, and supposing their views were opposed to those of the Crown, then the Crown might dissolve the Assembly, but could not dissolve the Council, which would remain independent of it and do all the mischief it could. The Crown, however, would be compelled to dissolve the Council whenever that body ran adverse to the Assembly. If the two bodies agreed, the Council would be able to defy the Crown; if they disagreed, the Council would be absolutely powerless, and the whole power

  • (col. 865)

would be centred in the Assembly. Let their Lordships mark what would be the effect of such legislation—the result would be that there would be a more semblance of a colony in Canada. There was another point worthy of attention. When the Clergy Reserves Bill passed they had a Legislative Council; but they were now, by this Bill, taking away the only check that existed against aggression,—they were removing every obstacle, and leaving the clergy reserves to the entire control of the people at large, without any limitation whatever.

The noble Duke, not satisfied with the proposition which had been sent to him from Canada, proposed to repeal those parts of the 3rd and 4th Victoria relating to the rights of the Crown in matters ecclesiastical, and of his motion removed all the checks that were possessed under the Act of Parliament by the Crown against any violent act of spoliation. Under all these circumstances, and for these reasons, he should see it his duty to vote with his noble Friend against the present measure.

The Earl of Harrowby said, he entertained the strongest opinion that, if they wished to have a conservative measure, whether as regarded the connection between the Colony and the mother-country, or its own internal good government, it was absolutely essential that the Council should not be merely nominated by the Crown, but elected by the people. He regarded it, however, as a defect in the measure that, in coming to a conclusion on the most important of all questions that could be discussed in the Colony—namely, the form of its constitution—the decision was left entirely in the hands of the popular body itself, as now constituted.

This was a question that affected not simply the monarchical feeling and monarchical character of the Government, but it was more than that; and further than that, it concerned the good government of Canada in all time to come, whether as monarchical or as democratic—whether as connected with this country, or unfortunately separated from it—that they should give them a wise and good system of government. He, therefore, thought that the Imperial Parliament ought to take this question into their own hands; and then, having deliberated upon what appeared to them to be best for the Colony —taking into account, at the same time the wishes of the colonists—to pass such a measure as would, to the best of their judgment, secure the future good government

  • (col. 866)

of the Colony. Having done so, let them leave to the body so constituted the absolute control of the future of the country. Surely, before they entrusted to them the important and irrevocable step of framing their own constitution, they ought to give them the best means of coming to a conclusion on the matter. But the Government’s own act implied the conviction that the Legislative Council was not fitted to deal with this matter. There would be no inconvenience in that course. It was the course which was adopted with regard to the other colony, the Cape of Good Hope, which had already been referred to in the debate. These were the grounds on which he could not approve of the present Bill: at the same time, he wished to explain that he had no objection to an elective Council.

He believed that a merely nominal body would never be in a position to exercise the important functions which were required of a second Chamber. They were said, indeed, to be nominated by the Crown, but, in point of fact, they were nominated by one Minister after another to serve the purposes of successive parties. They did not seriously represent either property, station, or character. They had no one element of strength except the parchment in right of which they took their seats; they had no hold upon the affections of the country. But an elective Council, rightly constituted, would undoubtedly give a conservative element to the Colony, and secure its future good government, whether it remained in connection with the mother-country, or declared its independence. But, for that reason, he thought the constitution of an elective Council ought not to be left to the Colony itself. It was upon these grounds that he must reluctantly vote for the postponement of the measure.

The Earl of Derby, in reply, said, the noble Duke had referred to the measure which was introduced when he (the Earl of Derby) was in office for the government of the Cape, and observed that he then seemed to have no objection, such as he now urged, to an elective Council; but the noble Duke appeared not to recollect the proceedings that took place on that occasion. He must remind him that the noble Earl who was at the head of the Colonial Department took the unusual step of referring the Cape ordinances to the consideration of the Judicial Committee of the Privy Council, who recommended the substitution of an elective for a nominee Council; and that a draught Order in

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Council was sent out to the Cape, founded on the decision of the Judicial Committee of the Privy Council, which decision had been adopted and sanctioned by the Government. At the time he the (Earl of Derby) succeeded to office, he found that the draught Order, to which he had just referred, had been laid before Parliament, and in the discussions which took place in that House, he stated that, though it was in the power of the Crown to withhold its consent to the colonial constitution, yet, that after having offered free institutions to the Colony, it was not in the power of the Crown to withdraw the concessions so made.

Whatever might have been his private opinion as to the principle of an elective council, he would have thought it a breach of faith to withdraw a concession that had been made by the Crown on the advice of the preceding Government, and which was based on the decision of the Judicial Committee of the Privy Council. Then, as to the course which the Government subsequently took, he consulted with his right hon. Friend then at the head of the Colonial Office; and he concurred with him in the opinion that it was desirable, till a state of peace arrived, that no further steps should be taken to carry into effect the intentions of the Government.

That state of peace did not occur during the time he was in office, and the matter was suspended during the whole period of the war. With regard to the Bill now before the House, he wished just to say that several of the clauses were not in accordance with the title of the Bill. He had stated his opinion as to the propriety of not proceeding with this measure. If the Government should, however, proceed with it, he (the Earl of Derby) should take no part in the responsibility of passing the measure, as he should consider that he had done his duty in moving the postponement of the Bill, and should not give the Government any further trouble as to its details.

On Question, that “now” stand part of the Motion, their Lordships divided:—Content 63; Not Content 39: Majority 24.

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List of the CONTENTS.
Lord Chancellor EARLS.
DUKES. Aberdeen
Argyll Airlie
Newcastle Albemarle
Wellington Bessborough
Breadalbane Ellesmore
Clanricarde Fingall
Lansdowne Granville
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Haddington Byron
Harewood Camoys
Ilchester Cremorne
Portsmouth. Congleton
Somers Dufferin
Spencer Enfield
Suffolk Foley
VISCOUNTS. Godolphin
Canning Hatherton
Falkland Kinnaird
Sydney Leigh
Torrington Monteagle
Cork Overstone
Down Panmure
Llandaff Petre
Oxford Rivers
Ripon Say and Sole
Salisbury Stafford
St. Asaph Stanley of Alderley
St. David’s Suffolk
BARONS. Teynham
Auckland Wrottesley
Beaumont Wodehouse


List of the NOT CONTENTS.
MARQUESSES. Mornington
Bath Nelson
Drogheda Pomfret
Exeter Powis
Salisbury Roden
Beauchamp Hawarden
Bradford BARONS.
Cadogan Bateman
Clancarty Berners
Caledon Clarina
Dartmouth Colville of Culross
Derby Crofton
Desart Downes
Eglinton Dunsandle
Glengall Dynevor
Hardwicke Feversham
Harrowby Plunkett
Lonsdale Redesdale
Longford Rayleigh
Mayo St. Leonards

Resolved in the Affirmative: House in Committee accordingly: Bill reported without amendment; an Amendment made; and Bill to be read 3a To-morrow.

House adjourned till To-morrow.

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